eMedici Terms of Service
Effective from 7 October 2019
These Terms of Service are very important and constitute a legally binding agreement between you, the User, and us, eMedici2 Pty Ltd (ABN 54 636 453 480) (eMedici) of c/- Waye-Harris Lawyers 167 Flinders Street, Adelaide South Australia 5000 (Agreement), so please take a few minutes to read them. Amongst other things, this Agreement explains:
- how you can use or terminate our Services;
- how your content is used and protected, including privacy and copyright protection;
- how we can change, suspend or terminate your access to, and use of, the Platform;
- the warranties and disclaimers that apply; and
- the limitations of, and exclusions to, our obligations and liability to you.
You understand that by:
- signing up for an Account with eMedici; or
- using the Platform (including any content provided in it), the Services or your Account,
you are agreeing to be legally bound by this Agreement. If you do not accept this Agreement in its entirety, then you may not access or use the Platform. If you agree to this Agreement on behalf of any Person, you represent and warrant that you have the authority to bind that Person to this Agreement and that your agreement to these terms will be treated as the agreement of that Person. In that event, “you” and “your” will refer and apply to that Person.
Using our Services
All User identity information associated with an Account must be real and verifiable. Unless separate arrangements have been made in writing with eMedici, only the Person specified during the process of registering an Account may use that Account, and no User may have more than one Account. We may validate User information at any time by any reasonable means, including validating any part of the Personal Information contained in a User’s profile and/or any background checks completed by a Service Provider or eMedici. Failure to provide identity verification when reasonably requested is a breach of this Agreement.
By using the Platform or otherwise accessing or using the Services, you represent, acknowledge and agree that you are at least 18 years old. If you are not at least 18 years old, you may not use the Platform or the Services at any time or in any manner or submit any information to us or the Platform.
You must ensure and maintain the secrecy and security of any username and password that you enter or that we provide to you in connection with the Platform. You must not disclose the username or password to any third party. You will need to change your password regularly by following the relevant instructions. We will be entitled to treat any use of, or action taken using, such password on the Platform as being made or authorised by you. You must not allow any third party to perform any action under or through your Account, and you remain entirely responsible for any and all activities that occur on the Platform or otherwise under your login name. You agree to immediately notify us if you become aware of any unauthorised use of your Account, your login name or any other breach of security known to you. You must not misuse our Services. For example, you must not interfere with our Services or try to access them using a method other than using the Platform and following the instructions and restrictions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. You must not use the Services to advertise work or services that are illegal or would infringe the rights of a third party. You must not enter into this Agreement or use the Platform or Services if you are: (a) a citizen of, or reside in, a country in which doing so is prohibited by law, decree, regulation, treaty or any other administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to Australian sanction laws (which include Australian autonomous sanctions and Unite National Security Council sanctions); or (c) an individual or an individual employed by or associated with an entity identified on the Australian Department of Foreign Affairs and Trade Consolidated List or otherwise ineligible to receive items subject to Australian export control laws and regulations.
Rules of interpretation
- Capitalised terms in this Agreement have the meaning set out in the “Definitions” section below. In addition, the following rules of interpretation also apply to this Agreement:
- words like “us”, “we”, “our”, “eMedici”, “emedici.com” refer to eMedici2 Pty Ltd (ABN 54 636 453 480);
- words like “you” and “your” refer to the Person entering into this Agreement with us;
- “including” means “including, but not limited to”;
- the singular includes the plural, and vice versa; and
- headings are for ease of reference only and should otherwise be ignored.
The Platform, Services and content available on the Website (including all associated Intellectual Property) are the sole property of eMedici and/or each Service Provider (as applicable) unless otherwise indicated. Using our Services does not give you an interest in, ownership of or any rights (including Intellectual Property) in the Platform, the Services or any content you may access. You may not use content from our Services outside of the Platform unless you obtain written permission from us. This Agreement does not grant you any right or licence to use any branding or logos used in our Services. You must not remove, obscure, or alter any legal notices displayed in or along with our Services. You may not copy, modify, reproduce, distribute, sell, or lease any part of our Platform, the Services, the content available on the Platform or any included software or Intellectual Property, nor may you reverse engineer or attempt to extract the source code of that software, unless you have our written permission. Some of our Services allow you to submit content. In respect of any content which you submit, you warrant that, at the time of submission:
- you have developed the content;
- you own all Intellectual Property in the content;
- the content does not infringe the intellectual property rights of any third party; and
Upon submission, you immediately transfer all Intellectual property in the content to eMedici and irrevocably consent to eMedici displaying and using that content in contravention of any moral rights you may otherwise have.
You are liable for any content you upload, transmit or otherwise submit to or communicate via the Platform. If we receive any notice of alleged infringement of Intellectual Property by you, then you indemnify us against any Losses we suffer as a result. We may also respond as we see fit, which may include removing the relevant content from the Platform and/or suspending or terminating the provision of Services to you.
If you submit feedback or suggestions about our Services, we may use your feedback or suggestions without obligation to you.
We may charge Users service fees for obtaining Services or products available on the Platform, and for data management and data features offered through the Platform or as part of the Services. Applicable fees will be notified to Users at the time when the relevant Services or products are requested.
Billing and Payments
If any fees apply to your use of the Platform or our Services you must pay eMedici any applicable fees at the time those amounts are due and payable using agreed payment method(s).
You will be liable to pay any foreign, federal and/or state taxes as may be applicable to you or your business in connection with your access to, or use or receipt of, the Services.
If we are required to collect overdue fees from you, you must pay all costs (including legal fees), if any, incurred by us in collecting those overdue fees from you, and interest on any overdue fees at our bank’s business cheque account (or comparable account) overdraft rates.
Any voucher, coupon, discount or any other offer used to pay for or reduce any fees can only be used once. Where there isn’t an expiry identified on a voucher, coupon, discount or any other offer it is valid for only 30 days from the date of the offer or notice date.
General User Obligations
You must provide a consistent and high level of courtesy, respect and professionalism toward each other User. You must use good judgment when posting information, comments, feedback, or other content regarding us, other Users, or any other third party anywhere within the Platform. Any content that you submit via the Platform must not be Unacceptable Content, must be in English and must not contain any information enabling or requesting contact or payment outside the Platform. You must take your own precautions (including antivirus software) to ensure that your access to the Platform and Services does not expose you to viruses or other code that is harmful or may assist in causing harm.
You agree that it is a condition on your use of the Platform, the Services and of any other services provided by us through or in connection with the Website that you will not mislead or deceive others or engage in any conduct which is misleading, malicious, or discriminatory, including by any act or omission.
We do our best to keep the Platform safe, however we cannot guarantee this. You agree to help us keep the Platform safe and agree that you will not, on or through the Platform:
- engage in unlawful conduct, including in any multi-level marketing such as a pyramid scheme, or post unauthorized commercial communications (such as spam);
- upload viruses or other malicious code or content;
- solicit login information or access an Account belonging to someone else;
- upload any Unacceptable Content, or otherwise bully, intimidate, or harass any User or any other person;
- do anything that could disable, overburden or impair the proper working or appearance of the Platform, such as a denial of service attack or interference with page rendering or other Platform functionality; or
- facilitate or encourage any of the above or any other violations of this Agreement or our policies.
You must not create any “links” to any part of the Platform, or “frame” or “mirror” any content contained in, or accessible through, the Platform, on any server or internet-based device without our prior written consent. Other than as provided by the Platform or Services, you may not use any data mining, screen scraping or similar software or other data gathering, analysis or extraction tools or processes on the Website, except with our prior written consent.
Suspension and Cancellation of Accounts
Suspension or cancellation by us for cause
Without limiting any other remedies available to us, we may suspend or cancel your Account at any time by notice to you if:
- you breach this Agreement or otherwise violate our rights or those of another User;
- we are unable to verify or authenticate any information you provide to us; or
- we reasonably believe that your actions might cause a legal liability to any other User or us.
Also, if you engage in any action or activity that circumvents the Platform or this Agreement in such a way as to avoid or reduce fees that would otherwise be payable to us, then you will be liable to us for the difference and we may suspend or cancel your Account.
Cancellation by us without cause
In addition to the above rights of suspension and cancellation, we may by notice to you cancel your Account at any time, at our sole discretion.
Cancellation by you without cause
You can cancel your Account at any time by notice to us, although we’ll be sorry to see you go.
Consequences of suspension or cancellation
If we suspend or cancel your Account, or you cancel your Account, then (without limiting any other rights we may have):
- you must not continue to use or access the Platform or any Service, including under a different Account, or reregister under a new Account;
- to the extent permitted by law, no amount paid in advance by you will be refundable;
- we may obtain payment of any outstanding amount (or that becomes payable) through any payment methods available to us in connection with your suspended or cancelled Account or any other Account that you register; and
- we may refuse to provide an Account to you in the future.
All of your and our accrued rights, and the provisions of this Agreement that by their nature are intended to survive termination or expiry of this Agreement (including the sections below titled “Warranties and Disclaimers” and “Limitations of Liability”) will survive any termination or expiry of this Agreement.
You agree that:
- any information or content made available by us on the Platform is intended to provide general educational benefit only; it is not developed in accordance with any particular standard and is not guaranteed as being of any educational value;
- we make no representations and give no warranties in connection with the reliability, capability or accuracy of any information or content, nor the qualifications of any person who has written, reviewed or edited the content and to the extent permitted by law expressly exclude any liability in connection therewith; and
- it is solely your responsibility to evaluate the accuracy, completeness and usefulness of all services, opinions, advice, content and/or other information provided or available through the Platform or in connection with the Services; and
- in no event will we be liable to you or anyone else for any decision made or action taken by you or anyone else in reliance upon any information or content provided in or omitted from the Platform.
We do not endorse or recommend any person who has submitted, reviewed or edited content through or on the Platform.
The Platform may contain links to internet sites maintained or controlled by third parties. You acknowledge and agree that: (a) we are not responsible for the contents of any such sites (including the accuracy, legality or decency of any information) or any link contained on such sites; (b) such link does not imply any endorsement by us; (c) we are not responsible for the legality or Intellectual Property compliance of any such site; and (d) we will not be liable for any damages or loss arising in any way out of, in connection with or incidental to any information or third party service provided by any third party.
While we take reasonable due care in ensuring the privacy and integrity of information you provide to us, the possibility always exists that this information could be unlawfully accessed or observed by third parties while in transit over the internet or while stored on our system. To the greatest extent possible pursuant to law, we expressly disclaim any liability to you should this occur.
Warranties and Disclaimers
We provide our Services using a reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services. You must not rely on the Platform, any information in it, or its continuation. To the extent permitted by law, and other than as expressly set out in this Agreement, eMedici, each Service Provider and, to the extent applicable, each Client:
- provide the Platform and all information and Services on an “as is” and “as available” basis;
- disclaim any and all implied warranties and representations, including any warranties of merchantability, fitness for a particular purpose, title, accuracy of data, and non-infringement; and
- exclude any representations or warranties about the Platform or Services, including about the content within the Platform, the specific functions of the Platform, or their reliability, availability or ability to meet your needs, the safety or security of the Platform or regarding the delivery of any messages (such as emails, in-mails, SMS, social media, posting of answers or transmission of any other User generated content) sent through the Platform to anyone.
If you are dissatisfied or harmed by us or anything related to us, then you may cancel your Account and terminate this Agreement in accordance with the section above titled “Suspension and Cancellation of Accounts” and, to the extent permitted by law, such cancellation and termination will be your sole and exclusive remedy.
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Platform or the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Platform or the Services or any content or other material used or displayed through the Platform or Services.
We do not have any obligation to verify the identity of the persons subscribing to our Services or the Platform, nor do we have any obligation to monitor the use of our Services by other Users of the community. To the extent permitted by law, we exclude any warranty or representation that the Services and Platform will function without interruption or errors in functioning. You acknowledge that the Services and Platform may be interrupted, or subject to errors, due to maintenance, updates, or system or network failures or other causes. To the extent permitted by law, we disclaim all liability for any Losses as may be caused by or in connection with any such interruption or errors in functioning. To the extent permitted by law, we expressly exclude any liability for any remarks, information or other content posted or made available on the Platform including by any User or third party, even if it may not be Unacceptable Content.
Other than as required by law, we do not have, and expressly exclude any liability for, any obligation to monitor content on the Platform for Unacceptable Content. We will remove or restrict access to any information or content posted or made available on the Platform where required by law or if ordered to do so by a court. Otherwise, we may remove or restrict access to any such information or content if we consider such information or content to be Unacceptable Content, but we have no obligation to do so.
Limitations of Liability
To the extent permitted by law, other than as expressly provided below, neither we nor any Service Provider will be responsible to you or any other Person in connection with any lost profits, revenues, or data, financial losses or indirect, special, consequential, exemplary, or punitive loss or damages relating to or in connection with your use of the Platform or the Services. To the extent permitted by law, neither we nor any Service Provider shall be cumulatively liable for: (a) any Losses in excess of five times the most recent (as at the date such liability to you accrued) fee that you paid via the Platform, if any; or (b) AUD$100, whichever amount is greater. You agree that this limitation of liability is part of the basis of the bargain between the us and without it the terms and prices charged would be different. This limitation of liability shall:
- apply regardless of whether: (i) you base your claim on contract, tort, statute or any other legal theory; (ii) we knew or should have known about the possibility of such damages; or (iii) the limited remedies provided in this section fail of their essential purpose;
- not apply to any damage that we may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement; and
- not apply if you have entered into a non-standard agreement to purchase Services with a separate Limitation of Liability provision that expressly supersedes this section in relation to those Services.
We recognise that in some countries, you might have legal rights as a consumer. To the extent permitted by law, any liability of ours in connection with the Services or Platform under any statutory right (including any condition or warranty implied by law or any guarantee or other right under any statute) that by law cannot be excluded is, where permitted by law, limited at our option to the resupply of the relevant services or the payment of the cost of same.
If you are a “consumer” as defined in the Australian Consumer Law, our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the services, you are entitled to cancel your service contract with us and to a refund for the unused portion of the agreement, or to compensation for its reduced value. 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 contract and obtain a refund for the unused portion of the contract.
Where we have provided you with a translation of the English language version of this Agreement and/or any other documentation, you agree that the translation is provided for your convenience only and that the English language versions of this Agreement and any other documentation will govern your relationship with us.
Each User must provide and maintain a valid Address on the Platform. You consent to the use by us of: (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Platform. Notices will be invalid unless made in writing and given: (i) by us via email to the relevant Address that you provide and maintain on the Platform; (ii) by us by posting on the Website; or (iii) by you – via email to firstname.lastname@example.org. An email will be taken to have been served at the time of sending, unless within 24 hours of it being sent the sender receives a manual or automated response indicating that it was not delivered successfully.
Amendments to the Services or this Agreement
Dates and Timelines
All references to days shall be to calendar days, except as expressly noted otherwise.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorised representative of each party.
You may not assign this Agreement, or any of your rights or obligations under it, without our prior written consent. We may freely assign this Agreement without your consent.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
The courts in some countries will not apply the laws of South Australia, Australia to some types of disputes. If you reside in a country where the laws of South Australia, Australia are excluded from applying, then your country’s laws will apply to such disputes related to this Agreement. Otherwise, you agree that the laws of South Australia, Australia, excluding its choice of law rules, will apply to any disputes arising out of or relating to this Agreement or the Services. Similarly, if the courts in your country will not permit you to consent to the jurisdiction and venue of the courts in Adelaide, South Australia, Australia, then your local jurisdiction and venue will apply to such disputes related to this Agreement. Otherwise, all claims arising out of or relating to this Agreement or the Services will be litigated exclusively in the federal or state courts of Adelaide, South Australia, Australia, and you and we consent to the jurisdiction of those courts.
In this Agreement the following phrases have the following meanings:
Account means the right of the relevant User to use the applicable functionality of the Platform under this Agreement.
Address means, in respect of a User, each of the User’s email address and postal address (where the User can usually be contacted) registered for that User’s Account.
Intellectual Property means any and all intellectual property rights (whether statutory, common law or otherwise), including all rights in inventions, patents, patent applications, utility models, copyright (including future copyright), trademarks, logos and design marks, service marks, trade names, business names, brand names, designs, know how, trade secrets and rights in confidential information, domain names, other names and locators associated with the world wide web, internet addresses, semiconductor or circuit layout rights, and all and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same.
Losses means all claims, legal proceedings, judgments, adjudications, damages, liabilities, losses (including losses of revenue), costs, and expenses (including reasonable attorneys’ fees and all related costs and expenses on a solicitor own client basis).
Person means any individual, candidate, company, partnership, joint venture or other legal entity or entities.
Personal Information has the meaning in the Australian Privacy Act 1988 (Cth) as amended.
Platform means the Website and all associated software, apps, files, emails, SMS, pictures, data, hardware, technology, business systems and processes and other resources.
Service Providers include a range of parties to whom we outsource certain functions of our business for our back-office, IT, professional support services (such as partners, service providers, contractors, suppliers, distributors and agents, including IT and web support contractors, cloud service providers, finance agencies, marketing partners and analysis companies).
Services means any products, goods or services that we or any Service Provider provide to or for you, whether or not via the Platform.
Unacceptable Content means any content that we determine:
- is racist, hateful, violent, defamatory, harassing, abusive, threatening, malicious, inflammatory or otherwise objectionable;
- is pornographic, sexually explicit, obscene or excessively profane;
- is unlawful or encourages unlawful conduct;
- is fraudulent, false, misleading or deceptive;
- infringes, or encourages the infringement of, any Person’s rights, including Intellectual Property, confidentiality, security or privacy rights;
- amounts to commercial advertising of any other website, product or service; or
- contains any link to any website that includes any of the above types of content.
User means a Person whose name is specified during an online registration process to create an Account on the Platform in the name of that Person.