THE LOW CARB CLINIC WILL SOON BECOME DIVERSA HEALTH. TERMS AND CONDITIONS UPDATED 23 NOVEMBER 2020.
Terms and Conditions
- Diversa Health supplies education and coaching services with the objective of effectively reversing Type 2 Diabetes and other insulin-induced conditions through low-carbohydrate, medical, diet and nutrition care (‘Services’).
- By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
- We may update these Terms from time to time without notice. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
- In the Terms, “we”, “our,” or “us” or “Diversa Health” means Diversa Health Services. Any reference to “you” or “your” or “Member” means you, as a user of our Website and/or Services.
2. SUBSCRIPTION REGISTRATION AND ACCEPTANCE OF TERMS
In order to access the Services, you must first purchase a subscription through the Website (the ‘Subscription’), pay the applicable fee for the selected Subscription (the ‘Subscription Fee’) and become a member (‘Member’).
- In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription purchased is suitable for your purpose.
- Once you have purchased the Subscription, you will then be required to enrol for an account where you may access features of the Services (‘Account’).
- As part of the registration process for our Subscription Services, Member must provide current, complete and accurate identification, and other information required during the registration process including but not limited to:
(c) a valid email address;
(d) telephone / mobile number;
(e) other information as applicable to set up and administer the
(f) Subscription to our Services.
By visiting, registering for, or using the Website, Member agrees that Diversa Health may send direct communications including short message service (SMS) to the email addresses and mobile devices that Member makes available.
- You warrant that any information you give to Diversa Health in the course of completing the registration process will always be accurate, correct and up to date.
- Once you have completed the registration process, you will be a registered Member of the Website and agree to be bound by the Terms. As a Member you will be granted immediate access to the Services from the time you have completed the registration process until the subscription period expires (the ‘Subscription Period’).
- You may not use the Services and may not accept the Terms if:
you are not of legal age (18 years old and above) to form a binding contract with Diversa Health; or
you are a person barred from receiving the Services under the laws of Australia.
Our Services are only valid for and available for subscription to Australian citizens and residents.
- The Member owns all right, title and interest in Member’s Data. Member grants to Diversa Health, or to any third parties used by us a license to use Member Data in order for Diversa Health to perform its obligations under these Terms.
- If Member Data changes, the Member must promptly update the Account to reflect those changes.
3. MEMBER’S OBLIGATIONS
- As a Member, you warrant the following:
(a) you are fully able to participate in the Services without undue risk; and
(b) you are authorised to access our Website and that all relevant consents have been obtained to use our Services.
- You have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services.
- The Services delivered to a Member is exclusive and personal to the Member.
- Any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Diversa Health of any unauthorised use of your password or email address or any breach of security of which you have become aware.
- Access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Diversa Health providing the Services.
- You will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Diversa Health.
- You will use the Website only for purposes permitted by these Terms.
- You will abide by any applicable law, regulation or generally accepted practices or guidelines related to the Subscription Services in the relevant jurisdictions.
- Diversa Health reserve the right to deny anyone access to a Member Account at any time for breach or suspected breach of these Terms.
4. SUBSCRIPTION FEES
- As a Member, you agree to pay the subscription fee (‘Subscription Fee’) advertised on our Website for the purchase of Services from Diversa Health.
- Payment of our Subscription Fee may be made through the payment gateway advertised on our Website (‘Payment Processing Service’). Member authorises Diversa Health to automatically charge Member the Subscription Fee through the Payment Processing Service, together with any processing or other associated fees charged by the Payment Processing Service.
- Members are responsible for ensuring that sufficient funds are available at the time of payment processing and that credit card details are correct in order to access our Services.
- If there are payment failures due to insufficient funds, incorrect or outdated payment information, Diversa Health reserves our right to:
(a) recover payment and deny a Member access to our Services; or
(b) cancel or suspend a Member’s Account if we are unable to process the fees for our Subscription Services.
- You acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Subscription Fee.
- You agree and acknowledge that Diversa Health can vary the Subscription Fee at any time and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period.
- After enrolment, you can log into the member portal and gain access to our Services. Your Account must be active and current to maintain access to our Services.
- Diversa Health reserves the right to increase or change the Subscription Fee at any time and without notice subject to your right of termination in accordance with these Terms.
- All payments for our Subscription Services are in Australian Dollar (AUD).
- Member agrees that Diversa Health may electronically store Member Data and Member’s payment information to process Subscription Fees.
- The Services delivered to a Member is exclusive and personal to the Member. Member must not allow another user without a licence to use any of the Services that Diversa Health delivers to Member under these Terms.
- We may suspend or terminate a Member Account if any misuse or fraudulent activity is detected.
- Member access to the Services will be disabled when Member Account is suspended, terminated or Member subscription ends.
5. HEALTH ATTESTATION
- Member attests that they are fully able to participate in the Services and programs in relation to the Services without undue risk.
- If Member is aware of any medical or physical issues that can impact on Member’s ability to participate in any program related to the Services, Member must inform Diversa Health at the time of enrolment.
6. AUSTRALIAN CONSUMER LAW AND THE STATUTORY GUARANTEES
- Diversa Health will process refunds in accordance with the Australian Consumer Law for major failures (‘Major Failures’) and minor failures (‘Minor Failures’).
- For example, a Major Failure occurs where you would not have bought the Services if you had known about the defect, the Services are significantly different to what was described, the Services are substantially unfit for their usual purpose or a purpose made known to you or the Services are unsafe. For major failures or major problems with the Services as defined under the Australian Consumer Law, you are entitled to a replacement or refund and compensation for reasonably foreseeable loss or damage.
- If the Services fail to be of acceptable quality, and the failure does not amount to a Major Failure (‘Minor Failure'), we are entitled an opportunity to fix the minor problem as long as this is within a reasonable period of time. If we cannot fix the Minor Failure, you are entitled to cancel the contract with us and obtain a refund for the proportion of the Services not already consumed at the time of the cancellation.
- Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For Major Failures with the Services, you are entitled:
(a) to cancel your service contract with us; and
(b) to a refund for the unused portion of the Services, or to compensation for its reduced value.
- We do not offer refunds for “Buyers Remorse” or if you “change your mind”.
7. INTELLECTUAL PROPERTY
- In these Terms:
“Intellectual Property (Rights)” means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, circuit layouts, domain names, know-how and other rights of a similar nature worldwide, whether registered or not, and any applications for registration or rights to make such an application.
“Works” means any material made available on the Website and included in our Subscription Services, including (without limitation) written texts, documents, articles, news, newsletters, posts, commentaries, surveys, data, photographs, pictures, graphic works, video, or images.
- The Member acknowledges that ownership of the Intellectual Property Rights relating to the Website or our Subscription Services is the property of, licensed by or vest on creation in Diversa Health.
- The Works on the Website or the Website, the Services and all of the related products of Diversa Health (‘Copyright Material’) are subject to copyright and owned by the copyright owner. The Copyright Material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Copyright Material and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, code, scripts, design elements and interactive features) are owned or controlled by us. Data procured from a third party may be the subject of copyright owned by that third party.
- The Website and the Copyright Material or any part of it (including, without limitation, any content or images) may not be copied, reproduced, adapted, publicly displayed, duplicated, translated or distributed in any way (including mirroring) to any other device, server, Website or other medium for publication or distribution, without our express prior written consent. Members shall take due care to protect the Intellectual Property Rights licensed via our Services from unauthorised use, copying, reproduction, lending, reselling, manipulation, disassembly, distribution or publication.
- All Intellectual Property including any trade marks, service marks, trade names and any other proprietary designations are owned, registered or licensed by us. Any other trade marks, service marks, logos, trade names and any other proprietary designations are the trade marks or property of the respective parties.
- Unless otherwise stated, Diversa Health retain all rights, title and interest in and to the Copyright Material on the Website and delivered under our Subscription Services. Nothing Member does on or in relation to the Website or our Subscription Services will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;
(b) right to use or exploit a business name, trading name, domain name, trade mark or industrial design;
(c) thing, invention, design, system, work or process that is the subject of a patent, registered design or copyright or any other Intellectual Property Right (or an adaptation, improvement, modification of such a thing, invention, design, system, work or process); or
(d) any proprietary rights to our database, know-how or technology.
- “Diversa Health” and all associated trade marks on the Website are our trade marks or any related entities.
(a) Diversa Health grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:
(i) use the Website pursuant to the Terms;
(ii) copy and store the Website and the material contained in the Website in your device’s cache memory; and
(iii) print pages from the Website for your own personal and non-commercial use.
(b) Diversa Health does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Diversa Health.
- Diversa Health retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer to you, any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process).
- You may not, without the prior written permission of Diversa Health and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
- The obligations accepted by Members under this clause survive termination or expiry of these Terms.
9. GENERAL DISCLAIMER
- Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
- Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) Diversa Health will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
- Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Diversa Health make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Diversa Health) referred to on the Website, includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of Diversa Health; and
(d) the Services or operation in respect to links which are provided for your convenience.
- None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Diversa Health (including any third-party providers) make any express or implied representation or warranty about the Services. This includes (but is not restricted to) loss or damage Member might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website or Services;
(c) costs incurred because of Member using the Website or Services;
(d) operation in respect to Website links which are provided for the Member’s convenience;
(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
(f) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
- Member shall not, at any time, be obliged to act on any information, suggestion, advice or guidance given by Diversa Health as part of the Services, but if and to the extent that it does so, it shall do so at their own risk. Member hereby unconditionally and irrevocably waives any rights of action it may have as against Diversa Health in relation to any such information, suggestions, advice or guidance. Member is advised to take independent appropriate professional or medical advice before acting on such Guidance given within the Services.
- There may be risks associated with participating in the programs covered under the Services for people in both good or poor health or with pre-existing physical or mental health conditions. Although thorough instruction is included in the program, Member participates of its own free will and accordingly, knowingly and voluntarily assumes all risks associated with such nutritional and weight loss activities.
10. LIMITATION OF LIABILITY
- Except where otherwise required by law, Diversa Health’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
11. TERMINATION OF CONTRACT
- The Terms will continue to apply until terminated by either you or by Diversa Health as set out below.
- If you want to terminate the Terms, you may do so by:
(a) not renewing the Subscription prior to the end of the Subscription Period;
(b) providing Diversa Health with 7 days’ notice of your intention to terminate; and
(c) closing your accounts for all of the services which you use, where Diversa Health has made this option available to you.
Your notice should be sent, in writing, to Diversa Health.
- Diversa Health may at any time, terminate the Terms with you if:
(a) you do not renew the Subscription at the end of the Subscription Period;
(b) you have breached any provision of the Terms or intend to breach any provision;
(c) Diversa Health is required to do so by law; and
(d) the provision of the Services to you by Diversa Health is, in the opinion of Diversa Health, no longer commercially viable.
- Subject to local applicable laws, Diversa Health reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Diversa Health’s name or reputation or violates the rights of those of another party.
- You agree to indemnify Diversa Health, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
- all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with the use of the website;
- any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
- any breach of the Terms.
13. DISPUTE RESOLUTION
- Compulsory. If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
- Notice. A party to the Terms claiming a dispute (‘Dispute‘) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
- Resolution. On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
(a) Within 7 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 7 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australia Mediation Association or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in Melbourne, Victoria, Australia.
(a) All communications concerning negotiations made by the Disputants arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable law of evidence.
- Termination of Mediation. If 3 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
14. NO WAIVER
- Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.
- Member agrees that Diversa Health may assign, transfer, sub-licence or otherwise deal with our rights and/or obligations under these Terms.
- Member may not without our prior written consent assign, transfer, sub-licence or otherwise deal with any of Member rights and obligations under these Terms.
16. THIRD PARTY RIGHTS
- An agreement under these Terms is for our benefit and Member benefit and is not intended to benefit or be enforceable by any third party.
17. ENTIRE AGREEMENT
18. INDEPENDENT LEGAL ADVICE
- Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
- If any part of provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part of the provision otherwise it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
20. LAW AND JURISDICTION
- The Terms and information on this Website are governed by and construed in accordance with the laws of Victoria, Australia. Member submits to the non-exclusive jurisdiction of the Courts of Victoria, Australia and Courts of Appeal from them for determining any dispute concerning these Terms.
- If any provision of these Terms is found to be invalid or unenforceable by a Court of Law, such invalidity or unenforceabiility will not affect the remainder of the Terms which will continue in full force and effect.
21. FORCE MAJEURE
- Notwithstanding any other provision of these Terms, Diversa Health need not act if it is impossible to act due to force majeure, meaning any cause beyond our control (including war, riot, pandemic, natural disaster or law taking effect after the date of these Terms). Member agree that Diversa Health have no responsibility or liability for any loss or expense suffered or incurred by Member because of not acting for so long as the force majeure continues.
22. HOW TO CONTACT US
- Member can contact us through the contact details on our Website or by email at the following address: firstname.lastname@example.org