PRACTITIONER TERMS AND CONDITIONS INCLUDING STAKEHOLDER TERMS & CONDITIONS AND COMMISSION PANELS

This Activ8Health online platform (Platform) is operated by Nutridesk Pty Ltd (ABN 66 082 390 896) or its successors and assignees (we, our or us). It is available at: www.a8h.com.au and may be available through other addresses or channels. 

These terms and conditions (Terms) apply to Practitioners who use our Platform and supplement and incorporate our Privacy Policy and Website Terms of Use available on the Platform. There are separate terms and conditions which apply to Clients and Warehouses also available on the Platform. In this document, Platform refers to our marketplace regardless of how you access it. The Platform connects patients (Clients) seeking the products, tests or medical services as set out on the Site (the Items) with select allied health professionals (Practitioners, referred to as you and User) by facilitating introductions between Practitioners and Clients. The Platform also connects Clients and Practitioners with distributors who supply the Items on the Platform (Warehouses). 
 

Acceptance

By accessing and/or using our Platform, you; each person, entity or organisation using our Platform (1) warrant to us that you have reviewed these terms and conditions, including our Privacy Policy and Website Terms of Use (available on the Platform) and you understand them; (2) warrant to us that you have the legal capacity to enter into a legally binding agreement with us and use the Platform; and (3) agree to use the Platform in accordance with these Terms. 
If you are agreeing to these Terms not as an individual but on behalf of a company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” or “User” means the Represented Entity and you are binding the Represented Entity to these Terms. If you are accepting these Terms and using our services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

Please read these Terms carefully and cease using the Platform if you do not agree to the Terms. We may, at any time and at our discretion, vary these Terms by publishing the varied terms on our Platform. We recommend you check our Platform regularly to ensure you are aware of our current Terms.
 

Platform Summary - Introductory Service Only

(a)    The Platform provides an introductory service for Practitioners and Warehouses to connect with Clients seeking the Items. The Platform does not provide medical advice nor recommend or endorse any Practitioners, Warehouses or Items.  

(b)    Practitioners sign up to the Platform by (1) creating an account on the Platform and (2) posting an accurate and complete description of their area of expertise (including but not limited to their full name, qualifications, professional indemnity insurance policy, location, date of birth, email address and mobile number) (Practitioner Listing). Clients may browse Practitioner Listings for information about a Practitioner and their area of expertise.

(c)    Selected Items are classified as Practitioner-only (Practitioner-Only Items). These Items can only be purchased by the Client when the Practitioner places the Items in the Client’s shopping cart and are either supplied by the Warehouse (if they are products or tests) or by the Practitioner (if they are medical services). 

(d)    A Client with a requirement for Practitioner-Only Items (1) creates an account on the Platform, (2) reviews Practitioner Listings and (3) makes a request for a booking by sending the Practitioner a message (Booking Request) through the Platform. For non-Practitioner-Only Items, the Client may pay for the Item without interacting with a Practitioner on the Platform.

(e)    If a Practitioner desires to work with the Client, the Practitioner may accept the Booking Request (which becomes a Booking). The Practitioner is not obligated to accept the Booking Request. By accepting a Booking Request, the Practitioner confirms that s/he is legally entitled to and capable of assisting the Client. 

(f)    Once a Practitioner has accepted a Booking Request, the Practitioner and Client can communicate privately using our private messaging service and outside of the Platform, including via My Health Hub, at the Client’s’ discretion. Each time a Platform user receives a message from the Platform messaging service, a notification may be sent to the user via their currently active communication channel.

(g)    Following acceptance of the Booking Request, the Client must pay the fee set out on the Site to receive the Practitioner-Only Item (Item Fee). The Practitioner confirms payment for the Item through their “Business Dashboard” via the Platform. 

(h)    Once the Item requested by a Client has been supplied, the Practitioner and the Client must provide notice that the Item has been supplied using the Platform functionality (Completed Booking). 

(i)    You understand and agree that the Platform is an online introductory platform only, and that our responsibilities are limited to facilitating the user functionality and availability of the Platform. We are not an employment agency or labour hire business and Practitioners are not our employees, contractors, partners or agents.

(j)    We are not a party to any agreement entered into between a Practitioner and a Client. We have no control over the conduct of Practitioners, Clients or any other users of the Platform.  
(k)    We accept no liability for any aspect of the Client and Practitioner interaction, including but not limited to, the description of Items offered, adverse reactions to Items, misinterpretation of test results by Practitioners, errors of judgement by a Practitioner when treating the Client, the quality of the Items, any Client’s dissatisfaction with the Items, howsoever arising, and the delivery of any Items. 

Commission Panels, Lead Practitioners and Stakeholders
 

(a)    Each Practitioner must belong to a commission panel which is managed like a corporation with a chief executive officer (Lead Practitioner), directors (Stakeholders, which includes us) and the Practitioners (the Commission Panel). We provide a breakdown of the commissions owing to each party in the Commission Panel report via the Platform (Commission Panel Report). 

(b)    Each Practitioner and Stakeholder agrees to belong to a Commission Panel. 

(c)    For each Commission Panel, a Practitioner is nominated by the Director (or her/his proxy) to head a Commission Panel on the Platform and be the Lead Practitioner. The Lead Practitioner is accountable to the Director or his/her proxy. Each Stakeholder in a commission panel/s is accountable to the Lead Practitioner and may be dismissed by the Lead Practitioner after discussions with the Director or his/her proxy if that Stakeholder has not met performance targets or has breached any of the terms and conditions as set out on this platform.

(d)    Each Commission Panel is seen as a distinct business entity using the Platform. Commission Panels may have multiple locations with Practitioners working nationally or internationally under the structure of their Commission Panel and its algorithms to record sales and commissions. 

(e)    Stakeholders are nominated by Lead Practitioners or the Director (or her/his proxy), to be a part of a Commission Panel based on their ability to support the Platform’s viability and the financial growth of that Commission Panel. Stakeholders will be nominated and included in commission panels based on their ability to liaise with practitioners within commission panels, the Lead Practitioner and Director (or his/her proxy) to ensure an integrated approach to commission panel viability and progessively positive financial outcomes.
(1) A Stakeholder may be added to any Commission Panel or to all Commission Panels at the Director's  (or his proxy's)  sole discretion and,
(2) A Stakeholder may be added to one or all commission panels at any time and without notice granted they accept such appointment if the Director or the Director's proxy deems this to be of benefit to a specific commission panel or the business universally without the Lead Practitioner's approval or the approval of other Lead Practitioenrs or Stakeholders in specific or all Commission Panels. 
(3) Appointment of a Stakeholder will often be made in consultation with the lead practitioner of a commission panel by the Director or Director's Proxy but is not obligated. Such appointments can be done at the Director's or his/her proxy's sole decision. Lead practitioners may suggest the incorporation of a Stakeholder and make a case for them, but ultimate approval and inclusion will come from the Director or Director's proxy. 
(4) The Stakeholder is ultimately accountable to the Director or his/her proxy 
(5) Under no circustances will a Stakeholder of any commission panel make sole decisions regarding any aspect of commission panel  functionality or structure without the prior approval of the Lead Practiitoner. The Lead Practitioner will in turn discuss any stakeholder proposal with the Director (or his/her proxy) before adaptations can be executed. Any breach of these conditions will result in immediate exclusion from this platform and the stakeholder may face serious legal consequences.

(f)    Each member of the Commission Panel is allocated a percentage of the available commission of each sale as agreed between the Commission Panel members (excluding our Commission Fee which is payable to us as set out in the Fees and Payment section of these Terms). Commissions will be recorded in the Business Dashboards and these Dashboards will only show commissions owing for individuals as Practitioners or as Stakeholders as each Business Dashboard displays commissions according to the login used i.e. a login as a Practitioner or login as a Stakeholder. 

(g)    Lead Practitioners are responsible for the recruitment of consulting Practitioners into their Commission Panel and will orientate, support and train all Practitioners as reasonably required to satisfactorily perform their role on the Platform whilst the Commission Panel is active on the Platform. Lead Practitioners are responsible for supporting the Commission Panel to increase its Client base month on month. Where we form the view that the Lead Practitioner has not complied with this clause or has not adequately supported their Commission Panel to grow its Client base, we may appoint a new Lead Practitioner in their place immediately and at our sole discretion. 

(h)    Lead Practitioners will receive directions from the Director (or his/her proxy), and the Stakeholders regarding the Commission Panel’s continued use of the Platform and the commission panel/s performance. The Lead Practitioner’s responsibility is to update all participating Practitioners of such directions. A failure of a Lead Practitioner to comply with this clause may result in a new Lead Practitioner being appointed in their place, at the sole discretion of the Director (or his/her proxy).

(i)    Practitioners that do not generate sufficient sales, as determined in consultation by the Director, the Director's proxy, the Lead Practitioner and Stakeholders, may be excluded by the Lead Practitioner without notice or compensation. However, unless a flagrant and fatal breach of the platform's terms and conditions has occurred, it is the intent of this platform's approach to disputes that consultation and warning occur initially and then to reassess performance before exclusion occurs. It is expected that all Practitioners that are members of a Commission Panel are consistently active participants of the Platform and demonstrate an increase in their Client base and income on a yearly basis.  

(j)    Commissions will only be paid to an actively participating Practitioner that is generating sufficient sales as determined by the Director, the Director's proxy, the lead practitioner and Stakeholders. If a Practitioner makes no sales in any given quarter they will be asked to justify to the Director, the Lead Practitioner and Stakeholders why they should remain on the Commission Panel. Only bona fide reasons will be accepted based on personal circumstances or illness, where evidence is provided in support of the Practitioner. 

(k) A Stakeholder's commission will be set by the Director (or his/her proxy) either independently of consultation i.e. as a sole decision, or as a direct result of cosultation with other members within affected commission panel/s. A Stakeholder will only be paid commissions by actively improving a commission panel's financial viability through methods that include but are not limited to: marketing, promotions, liaison with the lead practitioner and participating practitioners, visiting commission panel locations to ascertain ways to improve business and financial viability, discussing business ideas with the lead practitioner and director or his/her proxy or discussing business options with other business groups or corporations.

(l) Stakeholder's commissions are determined by Dr Rodney Lopez or his proxy. The Stakeholder understands that thier commission will be based on any profit margin left over after the practitioner is paid their commission first. As an example, if the profit margin of item 'X' is $10 and the commission for a practitioner is set by Admin at 50%, then the practitioner will receive $5 leaving $5 to be split between all Stakeholders in that particular commission panel used for the sale. Nutridesk Pty Ltd is always a default Stakeholder in all sales but apart from Nutridesk, it will be almost invariable that there will be a Lead Practitioner and other Stakeholders within any commission panel who have a vested interest in the commission panel used for a sale. All Stakeholders need to recognise that in this example of a $5.00 profit, all Stakeholders will benefit from this to a lesser or greater extent depending on the percentages set for each Stakeholder. Lead Stakeholders will be notified of this percentage split and any variation will be discussed but Dr Rodney Lopez or his proxy will be the final arbiter in terms of setting a percentage for all Stakeholders and such a decision will be based on business factors. 

(m) All Stakeholders are subject to the terms and conditions on this platform 

(,) A commission panel may be rendered non-functional and void at any time at the sole discretion of the Director or Director's proxy without notice and without explanation.

(o) Any commissions owing at the time of dismissal of any commission panel participant may or may not be paid depending on the circumstance surrounding the dismissal or practitioner removal from a panel. The Director (or his/her proxy) will be the final arbiter for payment of any commissions. 
 

Collection Notice

(a)    We collect personal information about you in order to enable you to access and use the Platform, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.

(b)    We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by law. If you do not provide this information we may not be able to provide you with access to our Platform.  In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia. 

(c)    Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process. 

(d)    By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.

Registration and Profiles 

(a)    You can browse and view the Platform as an unregistered user of the Platform.  You must register on the Platform and create an account (Account) to access some features on the Platform, including to make a Practitioner Listing and communicate with Clients.

(b)    You may only have one (1) Account on the Platform as a Practitioner. If you are Practitioner and you own more than one business, you must apply for a separate Account for each business. We may provide you with multiple logins on request. By creating an Account as a Practitioner, the Practitioner is not precluded from creating an Account as a Warehouse and/or a Stakeholder if they wish to perform these roles on the Platform.  

(c)    You must provide information when registering for an Account including but not limited to, your name, email address, billing address, headshot, insurance policy certificate of currency, delivery address, qualifications, curriculum vitae, designation and bank account details, and you may choose a password.  

(d)    We will review a Practitioner’s request for an Account before approving the request. We may request additional information, including details of your drivers’ licence to confirm your identity, additional evidence of your qualifications and details of your technical expertise. If you do not provide us with information we reasonably request, we may refuse to create an Account for you on the Platform. If you provide us with any information which indicates you are not a fit and proper person to be provided with an Account, we may refuse to provide you with an Account, in our sole discretion.

(e)    Once you have registered an Account, your account information will be used to create a profile which you may then curate (Profile). Your Profile is personal and you must not transfer it to others, except with our written permission.

(f)    You must provide accurate, current and complete information during the registration process and you must update such information to keep it accurate, current and complete. We reserve the right to suspend or terminate any Practitioner’s Account and his/her access to the Platform if any information provided to us proves to be inaccurate, not current or incomplete.

(g)    You are responsible for keeping your Account and Profile details and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details, whether or not you authorised such activities or actions. 

(h)    You will immediately notify us of any unauthorised use of your Account. 
(i)    At our sole discretion, we may refuse to allow any person to register or create an Account.
(j)    You are not permitted to change your password for your Account without our express consent. 
(k)   You must meet your ongoing professional requirements for continuing education at the time of applying for an Account and whilst you are a user of this Platform.  

Identity Verification

(a)    If we choose to conduct identity verification or background checks on any Platform user, to the extent permitted by law, we disclaim all warranties of any kind, either express or implied, that such checks will identify prior misconduct by a user or guarantee that a user will not engage in misconduct in the future. 

(b)    We may offer Practitioners the option of verifying their identity and/or validating their Profile or Account using a third-party identity verification service (Third Party ID Service) from time to time.

(c)    Where a Practitioner has elected to verify their identity under this clause, a Practitioner acknowledges and agrees that: 
(1)    we may contact, connect to or otherwise liaise with Third Party ID Services to validate your identity and information (Identity Check); 
(2)    Third Party ID Services may provide us with your personal information or sensitive information, and you consent to us receiving and using this information to enable us to perform an Identity Check; and
(3)    you will be charged a non-refundable fee for the Identity Check (as set out on the Platform), and we will be under no obligation to perform the Identity Check until the relevant fee has been paid to us, in accordance with the requirements specified on the Platform and these Terms.  

(d)    Following a successful Identity Check, a Practitioner agrees and acknowledges that:
(1)    we may permit you to use verification signs or badges in connection with your Profile or Account to indicate that a successful Identity Check has been performed (Verification Badge); and
(2)    a Verification Badge may only be used by the individual for whom the relevant Identity Check has been successfully performed and the relevant Verification Badge has been issued, and then, only where that individual is directly providing the relevant goods or services. 

(e)    You acknowledge and agree that:
(1)    the Identity Check and the issuance of a Verification Badge may not be fully accurate, as they are dependent on the information provided by a Practitioner and/or information or checks performed by third parties.

(f)    We make no warranties, representations or guarantees of any kind, whether express or implied, or whether under these Terms, under statute or on any other basis, in relation to or connected with: 
(1)    the accuracy, legitimacy, validity, credibility or authenticity of any users on the Platform;
(2)    the performance of any Identity Check; 
(3)    the issuance of any Verification Badge; and
(4)    to the maximum extent permitted by law, we accept no responsibility and exclude all liability arising from, or connected with, the Identity Checks or the Verification Badges, or any use of or reliance on Identity Checks or Verification Badges.
 

Fees and Payments 

(a)    It is free to register an Account on the Platform. There is no charge for a Practitioner to create a Practitioner Listing, or for other users to review content on the Platform, including Practitioner Listings and Items.

(b)    Goods and Services Tax (GST) will be charged where applicable. 

(c)    Client’s pay the Item Fee through our third-party payment processor, currently PayPal, or by any other payment method set out on the Platform. 

(d)    Practitioners must set up a PayPal account as Item Fees and commissions are paid through a PayPal account. 

(e)    In order to pay more than one commission at the same time, this Platform will require a PayPal Client-ID and Client-Secret Code. The Stakeholder(s) or Lead Practitioner of your Commission Panel will advise you on how to generate these codes. 

(f)    We may set out a number of payment methods on the Platform. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third-party payment processor; please review these terms and conditions before using your selected payment method. 

(g)    Practitioners must pay us the commission fee as set out on the Platform in their “practitioner dashboard” (Commission Fee) within two (2) weeks after the Items have been provided the Client in the method set out on the Site. We will conduct random audits of practitioner dashboards to monitor whether Commission Fees are being paid to us for Items sold and supplied by the Practitioner. You acknowledge that a failure to pay us our Commission Fee is a breach of these Terms which is incapable of remedy and we have no Liability to you arising from such forfeiture.

(h)    If the Practitioner makes a payment by debit or credit card, the Practitioner warrants that the information provided to us is true, accurate and complete, that the Practitioner is authorised to use the debit or credit card to make the payment, that the payment will be honoured by the card issuer, and that the Practitioner will maintain sufficient funds in the account to cover the Commission Fee. 

(i)    Practitioners must not pay, or attempt to pay, the Commission Fee through any fraudulent or unlawful means. In the absence of fraud, all Commission Fees made are final and the Practitioner shall not have the right to request a return of the Commission Fee, with an exception to any refunds offered to Clients. 

(j)    Where a sale is cancelled, Practitioners must use the “Cancel and Email” function for that particular sale to inform the Client and us of the cancellation. 

(k)    Nothing prevents us from taking any action necessary to recover any unpaid Commission Fees. If the Practitioner fails to pay, the Practitioner’s information may be passed on for collection and/or legal action. The Practitioner acknowledges and agrees that it is liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expense. If the Practitioner at any time exceeds our payment terms and as a result are passed on for collection and or legal action, we may place a default against the Practitioner with a credit reporting agency.

(l)    This Platform aims to provide accurate Commission Panel Reports. However, errors may occur as real-time testing is limited and this may affect the calculations. We will endeavour to remedy any error(s) in the Commission Panel Report within a reasonable time once we have been notified by you of such error(s), or we otherwise become aware of such error(s), including refunding you for any amounts incorrectly charged by us.
 

Licence to use our Platform

We grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms.  All other uses are prohibited without our prior written consent.

Obligations of Practitioners  

(a)    Practitioners should report to us, any activities or requests of other users which are, or which the Practitioner reasonably believes to be:
(1)    suspicious;
(2)    inconsistent; or 
(3)    illegal; or likely to have a negative effect on the reputation of the Platform and/or a user.

(b)    Each Practitioner acknowledges and agrees that while the Platform allows Clients, Practitioners and Warehouses to communicate with each other in certain respects, Practitioners are not permitted to share the contact information of other users, unless as permitted by these Terms.

(c)    Practitioners are responsible for all advice provided to Clients, whether or not they use an existing template provided on the Platform as the foundation for the final report provided to the Client. 

(d)    All interactions or Items recommended by the Practitioner to the Client are the sole responsibility of the Practitioner and all legal repercussions flowing from these will be dealt with by the Practitioner’s appropriate insurance policy. 

(e)    Practitioner’s must advise their insurance provider as per their insurance policy once a dispute has been raised against the Practitioner.

(f)    Practitioners must notify us through the Platform or using the email at the end of these Terms if they will not use the Platform for an extended period of time. We reserve the right to temporarily terminate the Practitioner’s Account until such time when they are able to use the Platform.  

(g)    Practitioners are to maintain contact with the Client for the time period reasonably required for them to assess whether the Items have achieved the desired outcome for the Client. 

(h)    Practitioners will not prescribe any Items to a Client that is pregnant, taking medication, has a history of heart or other medical conditions, without the Client first consulting with their physician. 

(i)    While using the Platform, Practitioners are to maintain mandatory continuing professional development (CPD) as required by their associations on an annual basis. Practitioners are not permitted to use the Platform if they have not met this requirement. 

(j)    Practitioners must have appropriate professional indemnity insurance at all times when using the Platform. If you are a Practitioner, please review any relevant insurance documentation carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy. Practitioners are not permitted to use the Platform if they have not met this requirement. Practitioners will be notified through the A8H website 1 week before expiry of their insurance policy due date. It is incumbent upon the practitioner to attend to this matter urgently and to ensure the insurance policy is uploaded in PDF form and that A8H's administration is notified by email of this action and to indicate the new policy's due date so this can be set for the following year. Failure to do this will result in that practitioner being blocked from using this website until a current insurance policy is in place and when a new insurance policy due date has been reset by A8H's administration. This website, and all business associates will not be held liable for any loss of income from sales or commissions through negligence on the part of the practitioner for failing to comply with this website's insurance policy regulation. The automated reminder from this website is for the practitioner's convenience and should not be relied upon solely to meet the practitioner's currency of indemnity insurance obligation. It will be the sole responsibility of the practitioner to keep track of when their insurance policy expires.  Failure to receive a notification from this website will not be an excuse and will not indemnify the practitioner from the obligations as set in this this point for professional indemnity insurance.

(k)    The Platform provides Practitioners with access to an online platform to store reports, test results and other Client-based information (My Health Hub). Notwithstanding the Practitioner’s use of My Health Hub, the Practitioner must back-up all information contained in My Health Hub, preferably in encrypted folders and separate hard disk drives and not backed-up on the one device or computer. Practitioners must regularly update their backed-up Client information. 

(l)    Practitioners must ensure that they do not order Items for Clients in countries or territories which are excluded under their or our insurance policy. We will not be responsible for any breach of a Practitioner’s insurance policy as a result of a Practitioner’s failure to confirm the exclusions under their insurance policy. Practitioners are encouraged to seek written confirmation from the Client stating that they are not a citizen of an excluded country, their dominions or territories. 

Location: Delivery location options, including locations which are excluded from delivery, are set out on the Platform and include the United States of America (USA), Canada, their territories and dominions (Our Territorial Exclusions).  Where a Client has paid for Items to be delivered to Our Territorial Exclusions or Your Territorial Exclusions, they must be provided with a refund for all amounts they have paid for such Items. This website, its director and associates will not be liable for any loss of funds due to the failure of a practioners due diligence process to exclude purchases for exclusion zones as defined in this agreement and associated terms and conditions on this website.

Other territorial exclusions for delivery of items regarding PayPal's exclusion in accordance with the PayPal User Agreement and OFAC regulations, the following countries are excluded from receiving items: Cuba, Iran, North Korea, Libya, Balkans, Cote d’Ivoire, Congo, Iraq, Liberia, Sudan, Syria and Zimbabwe.

(m)    Lead Practitioners are responsible for ensuring that the Practitioners use the Content, including the Free Resources, for the primary purpose for which we have provided it, being to support Practitioners when treating Clients via the Platform.  

(n) Any practitioner deriving leads from this website directly or from specific referrals to them by supporting practitioners acquired as a result of direct marketing campaigns by this company's efforts and investment in advertising/marketing campaigns, must use this portal's sales processes for products, services or tests or any item offered for sale by this website. Failure to do so will result in expulsion of that practitioner from the use of this website.

(o) Broadcast mechanisms used by this portal to generate sales of listed items will be audited on a regular basis and any fraud discovered will result in exclusion from the use of this website and potential legal action brought against the offending practitioner by the administrators of this website.

Prohibited conduct

You must not do, or attempt to do, anything that is unlawful; anything prohibited by any laws which apply to our Platform or which apply to you or your use of our Platform; anything which we would consider inappropriate; or anything which might bring us or our Platform into disrepute, including (without limitation):

(a)    anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights;

(b)    using our Platform to defame, harass, threaten, menace or offend any person;

(c)    not adhere to medical practice codes and guidelines relevant to your profession; 

(d)    interfering with any user using our Platform;

(e)    share your Account details with any other individual without first seeking our written approval;  

(f)    harvest or collect information about users without their consent; 

(g)    use any of our Content, including the Free Resources, to treat Clients and patients independently from our Platform; 

(h)    share any of our Content, including the Free Resources, with other practitioners not using the Platform; 

(i)    use the Platform if you are based at, and work from, the United States of America including its territories and protectorates;

(j)    engage in fraudulent activities while using our Platform; 

(k)    tampering with or modifying our Platform, knowingly transmitting viruses or other disabling features, or damaging or interfering with our Platform, including (without limitation) using Trojan horses, viruses or piracy or programming routines that may damage or interfere with our Platform;

(l)    anything that might violate any local, state, national or other law or regulation or any order of a court, including, without limitation, CPD requirements relevant to your profession;

(m)    using our Platform to find a Client or Practitioner and then completing a Booking or transaction independent of our Platform in order to circumvent the obligation to pay any fees related to our provision of the Platform;

(n)    offering any Items that you do not intend to honour or cannot provide or procure;

(o)    sharing any of our Content or data with third parties, including clients sourced by you outside of our Platform; 

(p)    using our Platform to send unsolicited email messages; or

(q)    facilitating or assisting a third party to do any of the above acts.
You acknowledge that a failure to refrain from the prohibited conduct outlined in this section is a breach of these Terms which is incapable of remedy and we have no Liability to you arising from such forfeiture.  
 

Exclusion of competitors

You are prohibited from using our Platform, including the information, Free Resources and materials available on it (Content), in any way that competes with our business.  If you breach this term, we will hold you responsible for any loss, damage or expense, howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent (Liability) we suffer, and hold you accountable for any profits that you may make from non-permitted use. 

Information

The Content is not comprehensive and is for general information purposes only. It is not intended to substitute informed medical advice and care. It does not take into account your specific needs, objectives or circumstances, and is not advice.  While we use reasonable attempts to ensure the accuracy and completeness of the Content, we make no representation or warranty regarding it, to the extent permitted by law. The Content is subject to change without notice. However, we do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date. It is the Practitioner’s responsibility to ensure the currency of the Content, including the relevance of the Content for each Client treated by them via the Platform.  

Intellectual Property rights

Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) in our Platform and all of the Content and you assign to us all intellectual property developed by you (whether or not in collaboration with us) via the Platform immediately upon creation. Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable): 

(a)    copy or use, in whole or in part, any Content; 

(b)    reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or

(c)    breach any intellectual property rights connected with our Platform, including (without limitation) by:

(1)    altering or modifying any of the Content;

(2)    causing any of the Content to be framed or embedded in another website; or 

(3)    creating derivative works from the Content.

You acknowledge that a failure to refrain from the prohibited conduct outlined in this section is a breach of these Terms which is incapable of remedy and we have no Liability to you arising from such forfeiture.  
 

User Content

You may be permitted to post, upload, publish, submit or transmit relevant information and content, including Reviews or blogs (User Content) on our Platform.  By making available any User Content on or through our Platform, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through, or by means of our Platform.

You agree that you are solely responsible for all User Content that you make available on or through our Platform.  You represent and warrant that: 

(a)    you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and

(b)    neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We do not endorse or approve and are not responsible for any User Content. We may, at any time at our sole discretion, remove any User Content.

Third party sites: Our Platform may contain links to websites operated by third parties.  Unless expressly stated otherwise, we do not control, endorse or approve and are not responsible for the content on those websites.  You should make your own investigations with respect to the suitability of those websites.  

Discontinuance: We may, at any time and without notice to you, discontinue our Platform, in whole or in part.  We may also exclude any person from using our Platform, at any time at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion, including any loss or corruption to your data. You are responsible for backing up any data you wish to protect in the event of data loss or corruption. 
 

Consumer Guarantees

(a)    Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

(b)    Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.  

(c)    The items provided by a Warehouse might also confer you certain Statutory Rights. 

Warranties, disclaimers and indemnity 

To the extent permitted by law, we make no representations or warranties about our Platform, the Content, Practitioners, Clients, Warehouses Items or Practitioner Listings including (without limitation) that:

(a)    they are complete, accurate, reliable, up-to-date and suitable for any particular purpose; 

(b)    our insurance renewal reminder will be accurate and error-free; 

(c)    access will be uninterrupted, error-free and free from viruses; 

(d)    our Platform will be secure;

(e)    Items will be requested by Clients or that Clients will find desirable Items; or 

(f)    Items are of a particular standard of workmanship or meet the description on the Platform.

We provide the Platform on an “as-is” basis and make no guarantee and hold the exclusive and complete right and discretion to alter, stop, remove, temporarily or indefinitely, any feature, functionality or purpose of the Platform, at any time, and without any notice.
We aim to provide accurate Commission Panel Reports to Practitioners, but we cannot guarantee the accuracy or completeness of such reports. Practitioners should consult their accountants to confirm the GST and other tax commitments which apply. 
We provide Commission Panel Reports “as-is” and we are not responsible to provide any further accounting related information.
You read, use, and act on our Platform, Commission Panel Reports and the Content at your own risk.

Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law: 

(a)    our maximum aggregate Liability arising from or in connection with these Terms (including the services we provide and/or the subject matter of these Terms) will be limited to, and must not exceed the aggregate amount of fees paid by you to us during the three-month period immediately preceding the event that gave rise to the Liability or $100 if no such fees have been paid; and

(b)    we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

(c)    Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:  
(1)    event or circumstance beyond our reasonable control;
(2)    acts or omissions of you or your personnel;
(3)    any defect, error, omission, lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit), inaccessibility of, interruption or outage with respect to the Platform;
(4)    failure of our insurance renewal reminder function of the Platform; 
(5)    use of the Platform and/or Content;
(6)    interaction you have with other users whether in person or online;
(7)    any injury or loss to any person;
(8)    your recommendation of any Items, including any medical advice you provide to Clients;
(9)    the consequences, if any, of any medical advice you provide to Clients;  
(10)    any negligence on your part while using the Platform; 
(11)    Content which is incorrect, incomplete or out-of-date; or 
(12)    breach of these Terms or any law.

(d)    You agree that, to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.

(e)    This clause will survive the termination or expiry of these Terms.

Indemnity: To the maximum extent permitted by law, you must indemnify us, and hold us harmless, against any Liability suffered by us arising from or in connection with your use of our Platform or any breach of these Terms or any applicable laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end.  It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.    
 

Refund and Cancellation Policy 

Any cancellation, exchange or refund of Practitioner-only Items is strictly a matter between the Practitioner, the Client and, if applicable, the Warehouse. These terms and conditions agreed to between the Practitioner and the Client should be set out clearly in the Practitioner’s communication with the Client in respect of the Items. 
Termination

(a)    You may cancel your Account and terminate these Terms at any time via the “Cancel Account” feature (or similar) on our Platform or by sending us an email to the address at the end of these Terms. You can also deactivate your Account at any time by contacting us and we will deactivate your Account for you. If you cancel or deactivate your Account as a Practitioner, any Bookings will be automatically cancelled and your Clients will receive a full refund for Services which have not yet been rendered. 

(b)    We may cancel your Account and terminate these Terms if we form the view or become aware that (a) you are not using the Platform for an extended period of time with an insufficient explanation or, (b) you have not generated sufficient sales of Items during your time using the Platform. 

(c)    We may cancel your Account and terminate these Terms for convenience at any time by giving you 30 days’ notice via email to the email address in your Account.

(d)    At our sole discretion, we may suspend your Account or terminate these Terms immediately without notice if (i) you are in breach of these Terms, any applicable laws, regulations or third-party rights (ii) you commit a non-remediable breach of these Terms (iii) as a Practitioner your Listings or medical services at any time fail to meet any applicable quality or eligibility criteria, (iv) we have received complaints about you including due to repeated cancellations of Bookings.

(e)    If we suspend your Account or terminate these Terms, we will cancel any existing Bookings and in the case of a Practitioner breach you will refund the relevant Clients.

Disputes: We encourage Practitioners and Clients to attempt to resolve disputes (including claims for returns or refunds) with other users directly. In the event of any dispute arising from, or in connection with, these Terms (Dispute), the party claiming there is a Dispute must give written notice to the other party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet at least once to attempt to resolve the Dispute or agree on the method of resolving the Dispute by other means, in good faith.  All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute or (if the Dispute is not resolved) agree on an alternate method to resolve the Dispute, within 21 days after receipt of the notice, the Dispute may be referred by either party (by notice in writing to the other party) to litigation. We must be notified immediately by the Practitioner of any potential legal claim to which the Practitioner is party. 

Assignment 

You may not assign, transfer or delegate these Terms and your rights and obligations under the Terms without our prior written consent. We may without restriction assign, transfer or delegate these Terms and any rights and obligations under these Terms, at our sole discretion, with 30 days prior notice. Your right to terminate these Terms, in accordance with these Terms, remains unaffected. 

Severance

If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable. If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Resources 

Practitioners are provided with free access to otherwise paid resources including the Bio Concepts Education Centre and the Natural Standards Database ('Free' Resources). At our sole discretion, we may disable access to the Free Resources where a Practitioner is no longer an Account holder or has not treated a sufficient number of Clients, as assessed by us, to justify continued access to the Free Resources. Such Practitioners may continue to receive access to the Free Resources by paying the subscription fee as set out on the Platform. Under no circumstances are these Paid Resources to be used by Practitioners for the benefit of clients not using the Platform. 

Jurisdiction

Your use of our Platform and these Terms are governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts. 
Our Platform may be accessed throughout Australia and overseas. We make no representation that our Platform complies with the laws (including intellectual property laws) of any country outside Australia.  If you access our Platform from outside Australia, you do so at your own risk and are responsible for complying with the laws of the jurisdiction where you access our Platform.

For any questions and notices, please contact us at:

Nutridesk Pty Ltd (ABN 66 082 390 896) 
Email:  info@a8h.com.au 
Last update: 22 June 2018
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