1. This Agreement
1.1 Accepting this Agreement
(a) By using the Website, you agree to comply with and be bound by the terms and conditions of this Agreement. These terms govern your access to and use of the Website.
(b) If you do not agree to these terms, you have no right to obtain information or otherwise continue using the Website.
(c) These terms are binding on any use of the Website and apply from the time you first access the Website.
(d) It is your obligation to ensure that you have read, understood and agree to the most recent terms available on the Website.
(e) We may amend this Agreement at any time by posting with 14 days notice the new terms and conditions on the Website.
1.2 Contacting us
Please email us at email@example.com if you have any questions relating to these terms and conditions.
Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the Agreement have the following meanings:
Agreement means this document and any additional policies available on the Website.
Intellectual Property Right means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Non Excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.
Privacy Law means:
(a) the Privacy Act 1988 (Cth); and
(b) any code registered under the Privacy Act or Australian Privacy Principles.
Submitted Content means all information, audio, documents, graphics, HTML, text, software and materials which is uploaded by you to the Website.
You means a person or entity using the Website.
Us, we, our or Xyris means Xyris Pty Ltd ACN 637 864 905.
Website means each of our websites located at https://xyris.com.au/, http://easydietdiary.com/ and their subdomains, and the related software support sites.
3.1 Information Purposes Only
(a) All information available on the Website is for informational purposes only and is to be used or relied on at your own risk.
(b) Nothing on our Website should be construed as medical advice.
(c) We make no warranty or representations as to the accuracy of the information.
3.2 Third party links
The Website may contain hyperlinks and other pointers to websites operated by third parties. We do not control these third party websites and are therefore not responsible for the content of any third party website or any hyperlink contained in a third party website. We provide the hyperlinks for your convenience only and do not indicate, expressly or implicitly, any endorsement, sponsorship or approval by us of a third party website or the products or services offered by that third party. Your visit to a third party website is entirely at your own risk.
3.3 Product Sales
Product sales on our website are made pursuant to the terms and conditions associated with those products.
3.4 Website not locally available
You acknowledge and agree that the Website will only be accessible using the Internet (or other connection to our third party servers), and will not be available "locally" from your own servers.
3.5 Parts of the Website controlled by third parties
You acknowledge and agree that the Website is operated from servers owned and controlled by a third party. As such, you acknowledge that certain functions are out of our control, including data storage and backup.
3.6 We can Change the Website at Discretion
We reserve the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Website at our sole and absolute discretion.
3.7 Data storage with third party
We may subcontract the storage of any Data to a third party (or multiple third parties) without notification to or consent from you.
3.8 Unintentional inaccessibility
From time to time, without notice, access to all or part of the Website may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access to the Website as soon as practicable.
3.9 Intentional inaccessibility
We reserve the right to make some or all of the Website inaccessible from time to time as is required for upgrades, maintenance and updates.
(a) You acknowledge and agree that there may be technical or administrative errors in the information on the Website, including but not limited to errors with respect to product description, pricing and availability.
(b) We reserve the right to do any of the following, at our absolute discretion, without notice:
(i) correct any errors in the Website; or
(ii) update the Website.
3.11 Security Responsibilities
We will take reasonable steps to ensure that the Website is secure from unauthorised access consistent with generally accepted industry standard.
4. Lawful use of the Website
4.1 Lawful Use
You undertake not to upload, store or access any data on the Website if such access or storage would:
(a) breach any Intellectual Property Right;
(b) breach any Privacy Law; or
(c) breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory).
4.2 Prohibited conduct
You must not:
(a) provide false or misleading information;
(b) use the Website to post or transmit any material which interferes with other users or defames, harasses, threatens, menaces, offends or restricts any person or which inhibits any user from using the Website or the Internet;
(c) in any way tamper with, hinder or modify the Website;
(d) knowingly transmit any viruses or other disabling features to the Website or via the Website;
(e) to intentionally disable or circumvent any protection or disabling mechanism related to the Website;
(f) to install or store any software applications, code or scripts on or through the Website;
(g) to use the Website in any way which could be reasonably expected to interfere with or damage our' network, any other operator's network, or another user's enjoyment of the Website; or
(h) upload content:
(i) which is false, defamatory, misleading or otherwise deceptive in any way;
(ii) which could be construed as financial, legal, medical or other professional advice; or
(iii) that is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age, sexual orientation; or
(i) attempt any of the above acts or facilitate or assist another person to do any of the above acts.
4.3 Right to Suspend
We reserve the right to:
(a) limit or suspend your access to the Website; and
(b) remove data or content uploaded to the Website by you, if in our reasonable opinion, you are in breach of any of the obligations or undertakings in this Agreement.
4.4 Submitted Content
(a) We reserve the right to use the Submitted Content in any manner as we see fit.
(b) You acknowledge that we are not obliged to use any Submitted Content.
6. Intellectual Property
6.1 Provider intellectual property
We own or have a licence to use the Intellectual Property Rights in the Website.
6.2 Undertakings regarding intellectual property
You warrant that you will not do any of the following, or permit any person over whom you have effective control to do so:
(a) copy or reproduce, or create an adaptation or translation of, all or part of the Website in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Website in accordance with the Agreement;
(b) incorporate all or part of the Website in any other webpage, site, application or other digital or non-digital format;
(c) (subject to other rights explicitly granted under the Agreement) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Website on any medium; or
(d) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Website or any documentation associated with them.
We make no warranties or guarantees:
(a) that the Website is of acceptable quality and fitness for a particular purpose;
(b) we do not warrant or make any representation regarding your access to, or the results of your access to, the Website including its correctness, accuracy, timeliness, completeness, reliability or otherwise.
8. Limitation of Liability
8.1 Implied Conditions
We exclude all implied guarantees, conditions and warranties from this Agreement and except any Non Excludable Condition.
8.2 Limitation of Liability
Subject to any Non Excludable Condition, we exclude all other liability for any costs, including consequential loss, suffered or incurred directly or indirectly by you in connection with this Agreement, including in connection with:
(a) the Website being inaccessible for any reason;
(b) incorrect or corrupt data, lost data, or any inputs or outputs of the Website;
(c) computer virus, trojan and other malware in connection with the Website;
(d) security vulnerabilities in the Website or any breach of security that results in unauthorised access to, or corruption of data;
(e) any unauthorised activity in relation to the Website;
(f) your breach of this Agreement; or
(g) any act or omission by you, your personnel or any related body corporate under or in relation to this Agreement.
8.3 Non Excludable Condition
Where a Non Excludable Condition is deemed to apply, to the fullest extent possible under the law, we limit our liability for any breach to:
(a) in the case of goods:
(i) the re-supply of the goods or payment of the cost of the re-supply of the goods; or
(ii) the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(b) in the case of services:
(i) the resupply of the services; or
(ii) the payment of the cost of having the services resupplied.
You indemnify us, including our directors, employees, contractors, agents, subsidiaries and related bodies corporate against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this agreement or your use of the Website, including any costs arising directly or indirectly from:
(a) your breach of this Agreement;
(b) your infringement of any third party Intellectual Property Rights while using the Website;
(c) any harm to, claim or action by a third party arising directly or indirectly from your use of the Website; or
(d) your breach of any privacy laws.
We may end this Agreement immediately if in our reasonable opinion you are in breach of this Agreement.
11. General and interpretation
We may assign, encumber, declare a trust over or otherwise create an interest in our rights under this document without your consent, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.
11.2 Operation of this document
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
11.3 Inconsistency with other documents
If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency except where the other agreement is a licence granted to you to use our software (Software Licence). In which case that Software Licence agreement prevails to the extent of the inconsistency.
11.4 Governing law
The laws of Queensland, Australia govern this Agreement. The parties submit to the non exclusive jurisdiction of courts exercising jurisdiction there.
Xyris Pty Ltd ACN 637 864 905
3 July 2019
Amended June 2020
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