InterHealthcare Pty Ltd ACN 626 672 642 trading as BaiMed ("IHC BaiMed") provides "BaiMed Bumps" online exercise programs for pregnant women via the website at www.baimedonline.com and all of the related applications, application program interfaces and associated products and services (collectively referred to as the "Platform").
IMPORTANT NOTICE: It is a condition of your access and use of the Platform that you consult with and obtain a clearance from your doctor, obstetrician or midwife prior to participating in any of our online exercise programs, and by using the Platform you warrant and represent that you will do so. You assume all risks of injury or other harm to you or your baby which could occur by reason of your participation in our exercise programs. If you experience any unusual symptoms, bleeding or pain, or any other complications, you must immediately seek medical advice.
We may review and update these Terms from time to time without your consent. Any amended Terms will become binding on you once we publish them on the Website.
You must be at least 18 years old to access and use the Platform, register an Account and purchase a program membership. You represent and warrant that you are 18 years or older.
2 Registration of Account
(a) You may be required to register an account to access and use certain features of the Platform ("Account"). You may only register an Account in your own name and when using the Platform you must not impersonate any other person or use any other person's Account. You may not register an Account on behalf of any other person. You may not register more than one Account or transfer your Account to another person. You may not authorise or facilitate another person's access to, or use of, the Platform using your Account.
(b) You are responsible for maintaining the confidentiality and security of your Account username, password and other log-in credentials and may not disclose those credentials to another person. You must immediately notify us if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated or otherwise compromised or in case of any actual or suspected unauthorised use of your Account. You are personally responsible for all activity that occurs in and through your Account.
(c) You must, and hereby represent and undertake that you will at all times (and as soon as practicable if circumstances change) provide and maintain up to date, accurate and complete information in your Account including but not limited to as may be required and requested from time to time by IHC BaiMed.
(d) We may, in our sole discretion, for any reason and at any time: (a) refuse to grant access to any part of the Platform or your Account to you; (b) suspend, close or delete your Account; (c) revoke your access to any part of the Platform; or (d) change the type or permissions of any Account. If we close or delete your Account, you must not register a new Account without our written permission.
3 Program membership
(a) Subject to this clause, your program membership entitlements and price will be as published on the Website at the time you purchase or renew your membership. We may correct errors in descriptions and pricing. We reserve the right to refuse or cancel any order for any reason including orders placed with an incorrect price due to our error.
(b) You must purchase (and if applicable renew) your program membership using the payment gateway facilitated by the Platform. Upon your successful payment for a program, we will send you an email including:
(i) a receipt which you may be able to use to make a claim from your private health insurer; and
(ii) an order confirmation including access details for the relevant program.
(c) If you do not receive the email referred to at subclause (b) above, please email us at [email protected] as soon as possible.
(d) We may at any time change or discontinue any aspect or feature of a program.
(e) We reserve the right to terminate any program at any time for any reason without providing you with prior notice. If we provide you with the option to purchase lifetime access to a program, your membership for that program will terminate immediately once the program ceases to be provided by us for any reason, and you will not be entitled to any refund. For other program memberships, we will provide you with a pro rata refund referable to the amount of time from termination of the program up until the date your membership was paid for by you.
(f) You may not cancel any program membership that you have paid for, but you can elect not to renew your membership from time to time.
4 Availability of Platform
(a) Due to the nature of the internet, we cannot guarantee the continuous and uninterrupted availability and accessibility of the Platform.
(b) We may restrict the availability of the Platform or certain areas or features of the Platform for any reason including without limitation if necessary in view of capacity limits, the security or integrity of our services or to carry out maintenance. We may improve, enhance and modify the Platform from time to time in our sole discretion.
(c) To the extent permissible at law, we will not be liable for any harm, loss or damage caused or suffered by you as a result of any partial or total suspension or breakdown of, or inability to access or use, the Platform.
5 Recording of voice and video
(a) You consent to and agree that all telephone and video communications with, or facilitated by, IHC BaiMed or the Platform may be recorded by IHC BaiMed and stored and that any employee, contractor, agent or consultant of IHC BaiMed or any third party authorised by IHC BaiMed may listen to and attend the live telephone or video communication (including where they are not directly involved in the conversation and without notice to you), transcribe, read any transcription and playback any such recording.
6 Intellectual Property Rights
(a) The Intellectual Property Rights to the Platform and the materials, information, images, videos or other content available or provided via the Platform ("Platform Materials") are owned by or licensed to us. No licences or rights are granted to you with respect to those Intellectual Property Rights by implication or otherwise by IHC BaiMed or our licensors, except for the rights expressly granted to you by these Terms.
(b) Platform Materials are provided for your personal use only. Subject to subclause (c), you may not copy, reproduce, republish, prepare derivative works of, sub-licence, distribute, sell, communicate or otherwise deal in any way with any Platform Materials or your access to the Platform without our prior written consent.
(c) Videos are provided for your personal viewing when you are logged into the Platform. You must not download (other than for temporary caching purposes as part of the video streaming process), reproduce or use these videos for any other purpose. Other Platform Material may be made available for you to download at your convenience, for your personal use only.
(d) You may not use the trade marks "InterHealthcare" or "IHC" without our written permission.
7 Member Content
(a) We may at our sole discretion enable Account holders to create, upload, post, send and receive content such as text, photographs, audio, video or other materials and information on or though the Platform ("Member Content").
(b) You are solely responsible for all Member Content that you post or upload or otherwise make available on or through the Platform. You represent and warrant with respect to such Member Content that:
(i) You are either the sole and exclusive owner of all Intellectual Property Rights subsisting with respect to that Member Content, or you have all rights, licences, consents and releases that are necessary to grant to IHC BaiMed the rights in and to such Member Content as contemplated by these Terms; and
(ii) Neither the Member Content, nor your positing, uploading, publication or communication of the Member Content or IHC BaiMed's use of the Member Content will infringe, misappropriate or violate any third party's Intellectual Property Rights or other rights, or result in the breach of any applicable law.
(c) You grant to IHC BaiMed a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable licence to use your Member Content in any manner related to the operation of the Platform, to promote the Platform or for other marketing purposes. You consent to the infringement by IHC BaiMed and its sub-licensees and successors and assignees of any Moral Rights that you may have with respect to your Member Content by not attributing authorship to you or by changing or dealing with the Member Content in any manner that might constitute derogatory treatment.
(d) IHC BaiMed is not responsible for monitoring or moderating any Member Content, but may do so in its discretion and may without prior notice remove or disable access to any Member Content for any reason including without limitation because the Member Content may be illegal, may violate these Terms or our policies, or may be harmful to IHC BaiMed's property or reputation.
(e) If you become aware that any Member Content infringes any third person's Intellectual Property Rights or other rights, you must immediately notify us. We will take whatever action, in our sole discretion we deem appropriate.
(f) You may not use any third party's Member Content for any purpose without written permission from that person.
8 Prohibited activities
You are solely responsible for compliance with any and all laws, rules, regulations that may apply to your use of the Platform. In connection with your use of the Platform, you must not and must not assist or enable others to:
(a) breach or circumvent any applicable laws or regulations, agreements with third parties, third party rights, or our Terms;
(b) post content that is: (a) sexually explicit or obscene; (b) illegal or that violates another person’s or entity’s rights, including Intellectual Property Rights and privacy rights; or (c) fraudulent or false, misleading, or deceptive;
(c) violate or infringe anyone else’s rights or otherwise cause harm or loss to anyone;
(d) use the Platform or third party Member Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with IHC BaiMed;
(e) post advertising or other commercial content, company logos, links, or company names;
(g) post Member Content that may pose a personal safety risk to any person;
(h) use the Platform in connection with the distribution of unsolicited commercial messages ("spam");
(i) impersonate another person;
(j) engage in phishing or identity theft;
(k) discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any abusive or disruptive behaviour;
(l) menace, harass, offend or cause annoyance to any person;
(m) promote or facilitate violence or terrorist activities;
(n) copy, display, mirror or frame the Platform or third party Member Content, or any individual element within the Platform or the layout and design of any page or form contained on a page in the Platform, without our express written consent;
(o) dilute, tarnish or otherwise harm our brand in any way, including through unauthorised use of Member Content, registering and/or using "BaiMed", "InterHealthcare", "IHC" or derivative terms in domain names, trade names, trade marks or other source identifiers, or registering and/or using domains names, trade names, trade marks or other source identifiers that closely imitate or are confusingly similar to any of our domain names or trade marks;
(p) use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Platform for any purpose;
(q) distribute computer viruses, worms, Trojan horses or other malicious code;
(r) avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by us or any of our providers or any other third party to protect the Platform;
(s) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform; or
(t) take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Platform.
9 Links and third party goods and services
(a) The Platform may provide links to websites and other online resources operated by third parties. You acknowledge and agree that we do not have any control over, and are not responsible or liable for, the content of any website or other online service operated by any third party, or the privacy practices of any third party. Links to third party websites and resources do not constitute an endorsement by IHC BaiMed of the third party's goods or services.
(b) The promotion or availability of any third party's goods or services via the Platform does not imply our endorsement of the goods or services. We provide no guarantees, and have no liability with respect to, the quality or safety of any information, advice, goods or services supplied by any third parties. Any purchase you make from a third party through the Platform is at your own risk. Your contract is direct with the third party and you must make any claims directly to them.
(c) We may receive a commission on third party goods or services promoted via the Platform.
10 Limitation of liability
(a) The Platform Materials are provided for general information purposes only. They do not take into account your specific needs and do not constitute medical advice.
(b) You agree that your use of the Platform is at your own risk and that IHC BaiMed does not warrant that the Platform will meet your specific requirements. You acknowledge and agree that not all exercises are suitable for everyone and that our exercise programs may result in injury or harm, or even death.
(c) The Platform should not be relied upon in the place of your advice from your own qualified health professional and should not be used to diagnose, or replace any professional treatment or management of, any particular condition. All decisions about any treatment and management of any condition must be made with your relevant qualified health professional.
(d) We do not guarantee that you will achieve any particular results from using the Platform.
(e) No guarantees, warranties, or representations are made by IHC BaiMed as to the accuracy, completeness or utility of any information or materials available through the Platform at any time. To the extent permitted by law, the Platform is provided "as-is" and we expressly disclaim all warranties or guarantees of any kind, whether express, implied, statutory or arising out of the course of performance, course of dealing or usage of trade including any warranties of merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non-infringement.
(f) To the extent that any mandatory guarantee or warranty under the Australian Consumer Law or any other statute, or at common law or otherwise, is read into these Terms, our liability for failure to comply with any such guarantee or warranty is limited, at our sole discretion, to one or more of:
(i) supplying any services again; or
(ii) paying the cost of having the services supplied again.
(g) We are not liable to you for any loss of profit, loss of revenue, loss of contract value, loss of opportunity, loss of data, damage to reputation, loss of goodwill, service disruption or any indirect, special, exemplary or consequential loss, or any other loss not arising as a natural consequence of a breach or other event giving rise to liability of a party, suffered or incurred by you whether in contract, tort (including negligence), statute, or otherwise, in connection with the Platform, even if we have been advised of the possibility of such loss.
(h) To the extent permitted by law, our maximum aggregate liability to you with respect to the Platform is capped at AUD$100.
(i) Nothing in these Terms exclude any of our liability under the Australian Consumer Law that cannot legally be excluded. To the extent liability under the Australian Consumer Law can be limited, our liability is so limited.
11 Release and indemnity
You agree to release and indemnify, defend, hold harmless and keep us, and our directors, officers, employees, contractors and agents from and against any claim, notice, demand, action, proceeding, litigation, investigation, judgement, damage, loss, cost, charge, liability or expense (including legal costs and expenses on an indemnity basis) however arising, whether present, unascertained, immediate, future or contingent, and whether based in contract, tort, statute or otherwise, arising out of or in connection with:
(a) any breach by you of these Terms (including any warranty);
(b) your use of the Platform, Platform Materials or any of our exercise programs;
(c) any Member Content uploaded, posted or otherwise made available by you through the Platform; and
(d) any information that you provide to us (whether through the Platform or otherwise) that is not accurate, up to date or complete.
If you breach, or we suspect you have breached, any of these Terms we may, in addition to any other rights that we may have, suspend (in whole or in part) or terminate your use of the Platform without notice and you will not be entitled to any refund.
If you believe you have a reason to raise a dispute with us under these Terms or in connection with the Platform for any reason, you must first provide us with written notice of the dispute including particulars of the dispute. Our authorised representative will, within seven (7) days after the dispute notice is received or as soon as reasonably practicable, discuss the dispute with you and attempt to resolve the dispute.
(e) If our authorised representative is unsuccessful in resolving the dispute with you within thirty (30) days of our receiving notice of the dispute, either of us may, by giving written notice to the other party, refer the dispute for mediation. The mediation will be held in Brisbane, Australia and will be mediated by an agreed mediator, or if no mediator is agreed, by a mediator nominated by the President of the Queensland Law Society or the President's nominee. Each of us must bear our own costs of the mediation and bear equally the mediator's costs, and each of us is entitled to legal representation at the mediation.
(f) You acknowledge and agree that you may not commence Court proceedings (except for urgent interlocutory relief) against us without first complying with this clause.
We may send notices to you pursuant to these Terms by email to the email address registered to your Account. You are solely responsible for maintaining a current email address as the email address registered for your Account and checking that email address.
(g) For the purpose of these Terms, you may send notices to IHC BaiMed by email to the following email address: [email protected].
(h) We may transfer, licence, sub-licence, assign or novate our rights or obligations arising under these Terms. You agree to take all steps necessary to enable us to do so.
(i) You may not assign, novate, transfer or delegate any of your rights or obligations under these Terms without our prior written consent.
(j) Any waiver of any of our rights under these Terms is not effective unless in writing signed by our authorised representative. Any failure or delay by us in exercising a right under these Terms does not constitute a waiver of our rights. Any waiver by us will only waive our particular rights in the particular circumstances and will not waive any of our other rights, or the same rights in other circumstances.
(k) If any clause of these Terms is illegal, void or unenforceable in any jurisdiction, that clause (including any subclauses, in whole or part in each instance and as the case may be) may be severed for the purpose of that jurisdiction only and the remainder of these Terms continues in full force and effect in that jurisdiction.
(l) The following clauses in these Terms will survive the termination of the Terms for any reason: 5(b), 6, 7, 7(e), 7(f), 10, 11, 14, 15, 16, 17 and 18;
(m) These Terms constitute the whole of the agreement between us, set out all the parties' rights and obligations relating to the subject matter therein, and replaces all earlier representations, statements, agreements and understandings except as stated otherwise in these Terms. You acknowledge and agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in accepting these Terms.
(n) Access to or use of certain areas and features of the Platform may be subject to separate policies, standards, terms or guidelines, or may require you to accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area of the Platform, the latter terms and conditions will take precedence in respect to your access to or use of that area or feature, unless specified otherwise.
(o) You acknowledge and agree that:
(i) these Terms will be governed and interpreted in accordance with the laws of Queensland, Australia;
(ii) where you may have a dispute or claim against us, you submit to the exclusive jurisdiction of the courts of Queensland, Australia and any courts entitled to hear appeals from those courts; and
(i) where we may have a dispute or claim against you, due to the variety of events which may occur and which may cause us loss, we may be required to take action in other jurisdictions and forums in order to protect our rights and you submit to whichever jurisdiction and forum we consider appropriate for such dispute or claim.
In these Terms:
Account has the meaning given in clause 2;
Australian Consumer Law means the Australian Consumer Law as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Intellectual Property Rights means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, future copyright, trade marks (whether registered or unregistered), inventions, patents, designs (whether registered or unregistered), data and databases, confidential information and know how;
Moral Rights has the meaning provided under the Copyright Act 1968 (Cth) and includes any equivalent rights applicable in any jurisdiction outside of Australia;
Platform Materials has the meaning given in clause 6(a);
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth);
We or our refers to IHC BaiMed and its Related Bodies Corporate;
Website means the website at www.baimedonline.com; and
You or your refers to any person or entity who accesses, requests access to or uses the Platform.
In these Terms:
(a) headings are for convenience only and do not affect interpretation;
(b) words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
(c) references to any party, person or entity as the case requires includes their executors, administrators, permitted assigns and successors;
(d) references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(e) obligations under these Terms affecting more than one party bind them jointly and each of them severally; and
(f) no rule of construction will apply to the disadvantage of one party on the basis that that party put forward or drafted these Terms.
Effective from 1/1/2021