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1 About the Website
Welcome to www.laybysurgery.com (the Website) owned and operated by Layby Surgery Operations Pty Ltd (ACN 649 255 505) (Layby Surgery) (ABN 46649255505). Please read these terms and conditions (the Terms) carefully. Access to and use of the Website, or any of its associated services, is provided by Layby Surgery.
1.1 The Website facilitates a lay-by payment service and is a web based marketplace that allows Customers and Doctors to more easily connect with each other so that the Customer has an opportunity to browse, book and participate in a Treatment conducted by a Doctor that has been listed through the Website (the Services).
3.1. Layby Surgery reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Layby Surgery updates the Terms, it will use reasonable endeavours to provide you with notice of updates of the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, Layby Surgery recommends that you keep a copy of the Terms for your records. The access and use of the Website by you after Layby Surgery makes any changes constitutes the acceptance of any such changes and you will be bound by those changes. If you do not agree to any changes, you must cease usage of the Website and any of its associated products or Services immediately.
2 Acceptance of the Terms
2.1 By using and/or browsing 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 the Services, immediately.
2.2 You may also accept the Terms by clicking ‘I Accept’ or ‘I Agree’ to the Terms where this option is made available to you by Layby Surgery in the user interface of the Website.
2.3 These Terms are the agreement between you and Layby Surgery.
2.4 If you are accessing and using the Website on behalf of a corporation or other entity, you warrant that you have been authorised by the corporation or other entity to enter into and agree to these Terms on the corporation’s or entity’s behalf and bind them to these Terms.
2.5 You may not access the Website or use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Layby Surgery; or
(b) you are a person barred from receiving the Services under the laws of Australia, New Zealand, or other countries including the country in which you are a resident in or from which you use the Services.
3.3. Layby Surgery recommends that you regularly check these Terms for any material changes and to keep a copy of the Terms for your records.
3.1 Additional Terms means the terms and conditions specific to the Doctor’s business uploaded to the Website through the Online Portal and posted to the Doctor’s profile.
3.2 Booking means the date and time selected by the Customer through the Website on which the Doctor is to provide the Treatment to the Customer.
3.3 Customer means a User who makes a Booking, purchases and participates in a Treatment conducted by the Doctor.
3.4 Doctor means the User who posts a Treatment Listing onto the Website for Customers to book a Treatment and who conducts the Treatments.
3.5 Initial consultation fee is the consultation fee charged by the Doctor before the Customer books, purchases and participates in a Treatment conducted by the Doctor
3.6 Purchase Price means the price for the Treatment payable by the Customer.
3.7 Treatment means the counselling and/or coaching Treatment that the Doctor is selling on the Website.
3.8 Treatment means the medical services that the Doctor is selling.
3.9 User means any user of the Website.
4.1 In order to access the Services, you are required to register with the Website by creating an account. As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself, including the following:
(a) your name;
(b) your email address;
(c) your phone number;
(d) a valid payment method,
(e) (if using the Website as a Doctor) an Australian Business Number;
(f) a preferred username; and
(g) a preferred password.
4.2 You acknowledge and agree that:
(a) providing false and misleading personal information is grounds for immediate termination of your account or banning you from the Website without notice;
(b) by supplying Layby Surgery with your email address and phone number, you may receive regular emails, newsletters, telephone calls or SMS updates from Layby Surgery in order to keep you informed about Layby Surgery’s activities. If you do not wish to receive updates from Layby Surgery, you may contact Layby Surgery at [email protected];
(c) any personal and registration information you provide to Layby Surgery will always be accurate, correct and up to date. If at any time the personal information you have provided to Layby Surgery changes, you must update it immediately; and
(d) Layby Surgery is only providing you the Services, and does not participate in any transaction between the Customer and the Doctor.
5 The Services
5.1 By Layby Surgery offering its Services to you, you acknowledge and agree that:
(a) Layby Surgery is not a depository fund;
(b) unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are inclusive of GST;
(c) Layby Surgery may receive a commission, benefit, or fee from third parties in relation to the provision of the Services to you;
(d) Layby Surgery does not, at any time, provide any guarantees whatsoever, whether express or implied, with respect to the success of the Service;
(e) you shall remain solely responsible for assessing the implications and risks of using the Services; and
(f) these Terms do not create a relationship of employment, trust, joint venture, agency, partnership or other relationship of a fiduciary nature between the parties.
5.2 You acknowledge and agree that Layby Surgery has entered into these Terms in reliance on the acknowledgements, representations and warranties given by you in these Terms.
6 Your obligations as a User
6.1 As a User, you acknowledge and agree with the following:
(a) to comply with the Terms;
(b) use the Website and the Services only for purposes that are permitted by:
(i) the Terms;
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(c) you have the sole responsibility for protecting the confidentiality of your password and/or email address and you will not disclose to any third party the password used to access your account. You agree to immediately notify Layby Surgery of any unauthorised use of your password or email address or any breach of security of which you have become aware. Use of your password by any other person may result in the immediate cancellation of the Services;
(d) any use of your registration information by any other person, or third parties, is strictly prohibited;
(e) 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 Layby Surgery providing the Services and only for the duration that you are a User;
(f) that you are personally liable for the account, even if you are acting on behalf of a third party;
(g) to not disclose to any third party the password used to access your account. If you discover that a third party has accessed your account or knows your account password, you must immediately notify Layby Surgery in writing at [email protected];
(h) that you are solely responsible for the activity that occurs under your account, including but not limited to any direct messages you send, or any Bookings that you make for a Treatment;
(i) you are not entitled to any “points”, “referral", or “loyalty” system, and if any is offered will be subject to additional terms and conditions;
(j) you must not:
(i) expressly or impliedly impersonate another User or use the account or password of another User at any time.
(ii) use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(iii) provide false information including false names, addresses and contact details;
(iv) use the Website unlawfully or in a manner that violates any applicable laws, regulations or these Terms;
(v) hack into any part of the Website or attempt to circumvent Layby Surgery’s security, systems, infrastructure or network to access data not intended for you;
(vi) interfere with the servers or networks connected to the Website or the Services, or violate any of the procedures, policies or regulations of networks connected to the Website or the Services;
(vii) engage in conduct or access the Website in a way that will impose an unreasonable or large burden of traffic demands on Layby Surgery’s infrastructure;
(viii) introduce or transmit files that contain a virus, malware, “spam”, “chain letters” promotional materials, or “junk mail”;
(ix) upload or post content to the Website which is false, misleading, defamatory or contains sexually explicit material, references or innuendos;
(x) act in a way that is unlawful, harassing, threatening, abusive, violent, discriminatory, intimidating, or predatory, or that otherwise would disrupt others’ enjoyment of the Website.
(xi) use the Website or Services in connection with any commercial endeavours except those that are specified or approved by the Terms;
(xii) use the Website or Services for any illegal and/or unauthorised use which includes collecting email addresses of other Users by electronic or other means for the purpose of sending unsolicited communication or unauthorised framing of or linking to the Website;
(xiii) create derivative works of the Website or an application substantially similar or a direct copy of the Website such that confusion may occur as to which Website is operated by Layby Surgery;
(xiv) resell or export the software associated with the Website or any of the videos uploaded on the Website; and
(xv) automate the use of the Website or the Services; and
(k) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Purchase Services. Appropriate legal action will be taken by Layby Surgery for any illegal or unauthorised use of the Website.
7 Using the Website as a Customer
7.1 As a Customer, the Website provides you with an opportunity to:
(a) view and browse Treatment Listings posted by the Doctor;
(b) purchase the Treatment(s) set out in the Treatment Listing for the Purchase Price from the Doctor; and
(c) make a Booking and participate in Treatments with the Doctor at a time and place suitable to you.
7.2 When purchasing the Treatments through the Website, the Customer agrees to pay the Purchase Price once the Booking is accepted.
7.3 Once the Booking is accepted, the Customer agrees to make payment instalments pursuant to the schedule agreed through the Website at the time of Booking.
7.4 The Customer acknowledges and agrees that the minimum term of the lay-by period is three (3) months and the maximum term of the lay-by period is twelve (12) months.
7.6 In the event that the Customer misses a payment or elects to pay the Purchase Price by way of direct debit and/or credit card and there is a chargeback by your credit provider, Layby Surgery may suspend or terminate the Services immediately. You will be charged Layby Surgery’s then current administration fee of $3.00, plus GST (TBA). All amounts owing will accrue interest at an annual rate of 15% and may be reported to a credit reporting or debt recovery company.
7.7 Following payment of the Purchase Price being confirmed by Layby Surgery, the Customer will be issued with a Booking Confirmation and Receipt from Layby Surgery through the Layby Surgery Website, to confirm that the payment has been received. The Doctor and Layby Surgery may record the Customer’s purchase details for future use.
7.8 The Customer acknowledges and agrees:
(a) that by submitting a Booking for a Treatment, they are making an offer to purchase the Treatment and, if accepted, entering into an agreement to buy that Treatment from the Doctor, not Layby Surgery;
(b) that Layby Surgery only offers the Services across Australia and New Zealand and is in no way responsible for the Treatments;
(c) that you must pay the entire Purchase Price before the Booking date. For the avoidance of doubt you will not be entitled to any Treatment until you pay the entire Purchase Price;
(d) that Layby Surgery reserves its right, at any time and without prior notice, to remove or disable your access to the Website at Layby Surgery’s discretion and for any reason, including but not limited to, if Layby Surgery believes that you have caused any abusive, threatening, sexist or racist comments or actions made towards the Doctor; and
(e) to communicate with the Doctor respectfully and professionally.
8 Using the Website as a Doctor
8.1 As a Doctor, the Website provides you with an opportunity to:
(a) post Treatment Listings and provide Treatments to Customers; and
(b) have administrative access to the Online Portal.
8.2 Layby Surgery will not provide any Services, including access to the Website and posting a Treatment Listing on the Website, unless you have met the following conditions:
(a) the Doctor will be registered through any regulatory body required by law, and hold the prerequisite licenses, certificates and qualifications to conduct the Treatment(s) (the Certification); and
(b) the Doctor will provide evidence of the Certification to Layby Surgery.
8.3 To use the Website, including posting a Treatment Listing on the Website, Doctors must:
(a) provide an accurate description and price of the Treatment(s);
(b) respond to any Customer inquiry prior to accepting a Booking;
(c) upload the Additional Terms in the Website (if any);
(d) maintain at its own cost, all the applicable registrations, certifications, insurances, permits, and the like; and
(e) provide and conduct the Treatment(s) at the highest standard.
8.4 The Doctor acknowledges and agrees:
(a) Layby Surgery is not responsible for the Purchase Price;
(b) that by accepting a Booking for a Treatment, you are entering into an agreement to sell that Treatment to the Customer, not Layby Surgery;
(c) that its performance may be measured for quality purposes;
(d) Layby Surgery will collect payment of the Purchase Price as the Doctor’s agent;
(e) that it will provide correct and accurate representations of its skills, degrees, qualifications, background and other information to Layby Surgery and the Customer, including, but not limited to, in the provision of the Treatments;
(f) not to post any unauthorised items which includes jobs, real-estate, animals, event tickets, expired food and drink, gift vouchers, prescription medication or illegal substances and tobacco products;
(h) that any time and date availability is kept up to date and is accurate;
(i) the Treatment will be sold to the Customer when you accept the Booking;
(j) you will be responsible for providing the Treatment stipulated in the Booking;
(k) that the Treatment will be conducted on the date and time agreed to in the Booking and the Doctor will use reasonable endeavours to make itself available at the date and time;
(l) the Treatment Listing will be of a professional standard and will not violate any applicable laws;
(m) the Treatment Listing posted does not infringe any intellectual property rights or other rights under the law;
(n) you have any required permissions or authorisations to upload the Treatment Listings onto the Website;
(o) any text, photos and information uploaded or posted onto the Website in relation to the Treatment Listing is accurate, current and correct to the best of your knowledge;
(p) Layby Surgery facilitates the acceptance of payments by the Customer to you, using a payment gateway or payment method selected by the Doctor;
(q) you will be fully liable for collection and payment of GST;
(r) you are responsible for removing Treatment Listings if the Treatment Listing breaches any relevant laws or upon Layby Surgery’s request;
(s) you will do all things and sign all documents necessary for Layby Surgery to obtain a Police Check, at your cost;
(t) advise Layby Surgery if it is charged with an indictable offence or a finding of guilt or conviction is made by a Court within 48 hours of being charged or of such finding; and
(u) to promote the Website:
(i) on the Doctor’s social media accounts; and
(ii) conduct all marketing related to the Website, pursuant to the instruction of Layby Surgery and the media or promotional guidelines (if any) and without referring to the Website or Service as a ‘buy now, pay later’ service.
8.5 In regards to the Online Portal, the Doctor agrees to:
(a) update any Customer records as soon as practicable when necessary;
(b) upload all Customer records as soon as practicable after any Treatment; and
(c) maintain all Customer notes and records in the Online Portal.
8.6 The Doctor acknowledges and agrees that Layby Surgery will not hold or be responsible for obtaining any Customer medical records of any kind. Keeping and obtaining any Customer medical records is the sole responsibility of the Doctor.
8.7 The Doctor acknowledges and agrees that Layby Surgery reserves the right, at any time and without prior notice, to remove the Treatment Listing from or disable your access to the Online Portal of the Website at Layby Surgery’s sole discretion without notice and for any reason, including, but not limited to, if Layby Surgery finds that:
(a) the Treatment Listing is misleading or false;
(b) the Treatment Listing is offensive;
(c) the Treatment Listing is abusive, threatening, or discriminatory;
(d) the Treatment Listing violates these Terms;
(e) the Treatment Listing is harmful or damaging to the Website, the Services, and the Users;
(f) the Doctor has engaged in malpractice, or has received complaints from Customers;
(g) the Treatment Listing, in Layby Surgery’s sole opinion, may cause reputational harm or liability to Layby Surgery or any User;
(h) Layby Surgery is required to by law, or requested to by law enforcement; or
(i) a claim is made that the Treatment Listing violates the intellectual property rights of a third party.
8.8 The Doctor agrees not to offer any Customer introduced by Layby Surgery through the website or Online Portal other payment terms similar to the terms in this Agreement, or terms advertised on the website or Online Portal. If Layby Surgery finds a breach of this Clause, the Doctor will become liable for the full Service Fee payable.
9 The Treatments
9.1 Provision of the Treatment(s) in relation to a Booking will be organised directly between the Customer and Doctor. The delivery method of a Treatment is at the Doctor’s sole discretion and pursuant to the Additional Terms.
9.2 The date of Treatment cannot be less than sixty (60) days from the date of the final instalment payment of the Purchase Price.
9.3 The Doctor will use best efforts to ensure that Treatments are conducted at the time agreed upon via the Booking.
9.4 To prevent any issues from arising, the Customer must ensure that all information (such as the Customer’s name and contact details) provided to the Doctor is accurate and complete.
9.5 If the information provided to the Doctor is not accurate, the Doctor will not be liable for any additional costs and expenses that may be incurred in relation to the Treatment (and if applicable, re-delivery) of the Treatment.
10 Additional Terms
10.2 Layby Surgery, and its affiliates, employees, agents, contributors and licensors shall not be liable to the Doctor in any way, including, but not limited to, for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the Doctor, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss relating to any of your Additional Terms.
10.3 By making a Booking, the Customer acknowledges that they may be liable for an additional fee(s), or as stated in the Additional Terms (as applicable).
10.4 The Doctor shall indemnify and defend Layby Surgery and its employees, agents and contractors (those Indemnified) against claims, liabilities, losses, damages, costs and expenses made against, or suffered or incurred by, those Indemnified as a result of using or not using Additional Terms.
11 Complaints and Cancellation
11.1 Any complaint or cancellation in relation to a Treatment will be organised directly between the Customer and Doctor. The handling of a complaint and a cancellation of a Treatment is at the Doctor’s sole discretion pursuant to the Additional Terms. If a complaint is made to Layby Surgery regarding a Treatment, then Layby Surgery will refer the complaint to the Doctor.
11.2 If a Customer wishes to change the date and/or time of a Treatment, provided the Customer gives at least three (3) months written notice prior to the time of the Treatment, the Customer can choose a suitable alternative Treatment time and/or date that must not be more than fourteen (14) months from the payment of the first instalment of the Purchase Price. The Customer may change the date and/or time of the Treatment up to two (2) times. In the event that a Doctor is unable or unwilling to accept a Booking following a Customer requesting such a change, Layby Surgery will treat the Booking as cancelled by the Customer.
11.3 The Customer acknowledges and agrees that if the Customer does not attend the Treatment at the agreed upon time, and the Treatment has not been cancelled or rescheduled, then, in additional to any other fee, the Customer will be required to pay the entire Purchase Price.
11.4 If a Doctor wishes to change the date and/or time of a Treatment, in the event that the Customer is unable or unwilling to agree to such change, Layby Surgery will treat the Booking as cancelled by the Doctor and will refund the Customer the full amount of the Booking.
11.5 The Doctor acknowledges and agrees that it shall promptly deal with any complaints and respond to the Customer within 48 hours of receipt of a complaint.
11.6 The Doctor shall use its best endeavours to reach a resolution to any complaints within ten (10) business days and must notify Layby Surgery of any correspondence between the Doctor and the Customer in relation to the complaint.
12 Service Fee
12.1 You acknowledge and agree that Layby Surgery may receive a Service Fee from third parties relating to your use of the Website and Services.
12.2 You acknowledge and agree that Layby Surgery may receive up to 20% of the Purchase Price received by the Doctor from the Customer (the Service Fee) for the use of the Website and Services.
12.3 You acknowledge and agree that Layby Surgery may evenly spread the Service Fee depending on the number of instalments required for full payment of the Purchase Price.
12.4 You acknowledge and agree that the Service Fee is subject to change at any time (the Changes). Layby Surgery will make all reasonable endeavours to inform you of the Changes. You agree to accept any changes to the Service Fee.
12.5 You acknowledge that the first consultation fee is paid in addition of the Service Fee and is non refundable in the event you do not undergo a Treatment or cancel a Treatment
13 Refund Policy
13.1 If the Booking is cancelled before a Treatment, the Customer will be entitled to a refund of the Purchase Price less the Service Fee. If the Booking is cancelled within the first 30 days, the Customer will be entitled to a full refund.
13.2 Any refunds pertaining to a Treatment are to be organised directly between the Customer and Doctor. A refund is at the Doctor’s sole discretion pursuant to the Additional Terms and will not include any fees, including Service Fees, received by Layby Surgery. Layby Surgery is not liable or responsible for any refunds pertaining to a Treatment, or once the Purchase Price is transferred to the Doctor.
13.3 If the Booking is cancelled after the final instalment payment of the Purchase Price and the Treatment has been delivered, the Customer will not be entitled to any refund.
14 Copyright and Intellectual Property
14.1 The Website, the Services and all of the related products of Layby Surgery are subject to copyright. The 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 site content and compilation of the Website (including text, graphics, logos, button icons, video images, audio clips and software) (the Content) are owned or controlled for these purposes, and are reserved by Layby Surgery or its licensors.
14.2 Layby Surgery, or any of its related entities, retains all rights, title and interest in and to the Website and all related Content. Nothing you do on or in relation to the Website will transfer to you:
(a) the business name, trading name, domain name, logo, trademark, industrial design, patent, registered design or copyright of Layby Surgery or any of its related entities; or
(b) the right to use or exploit a business name, trading name, domain name, logo, trademark or industrial design; or
(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).
14.3 Each User retain all rights, title and interest (including copyrights, patents and trade marks) in its Treatment Listing and any of its other content uploaded on the Website (the Uploaded Content). The User grants to Layby Surgery a non-exclusive, transferable, royalty-free licence to use your Uploaded Content, trade marks and business name for marketing and promotional purposes via the Website, social media and any other medium Layby Surgery deems fit. Layby Surgery will own any results, methodologies, data or meta data, including any analyses, index results, or reports, which is either contained within, gleaned through, derived from, captured by, or generated by your use of the Services or the Uploaded Content (Derivative Materials).
14.4 You acknowledge and agree that Layby Surgery exclusively and unconditionally owns the Moral Rights in all the Derivative Materials, Uploaded Content, materials and documents relating to the Products or Services.
14.5 You acknowledge and agree that to the extent that you have Moral Rights in any of the Content, Derivative Materials, Uploaded Content, materials, and documents relating to the Terms, you will provide a Moral Rights Consent to Layby Surgery.
14.6 You may read and copy the Material to the extent necessary to use the Services and receive the Products, but you may not publish, resell or sub-licence it. Layby Surgery makes no guarantees, representations or warranties about the accuracy or correctness of any of the information on Layby Surgery.
14.7 For purposes of clause 14.8, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified in the media or promotional guidelines (if any).
14.8 Subject to these Terms, you hereby grant to Layby Surgery and its affiliates for no consideration, a limited, non-exclusive and non-transferable license to use your Marks, on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth in media or promotional guidelines (if any). All goodwill related to the use of any Marks shall inure to the benefit of the owner of such Marks. Each Mark licensor reserves the right to revoke the licensee’s permission to use the licensor’s Marks should the use be noncompliant with the media or promotional guidelines (if any), or negatively impacts or disparages the Mark.
14.9 You may not, without the prior written permission of Layby Surgery and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose.
16 General Disclaimer
16.1 You acknowledge and agree that Layby Surgery does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Treatments other than provided for pursuant to these Terms.
16.2 Layby Surgery do not warrant or represent that the Treatments listed on the Website are free from error or omission or that they have been accurately described.
16.3 Layby Surgery does not provide any guarantees as to the quality of the Treatments listed on the Website and that the Treatments will meet your expectations.
16.4 Layby Surgery does not guarantee any referrals of Customers and makes no representations regarding the volume or number of interactions that a Doctor will have with Customers.
16.5 Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law and the New Zealand equivalent (or any liability under them) which by law may not be limited or excluded.
16.6 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 these Terms are excluded; and
(b) Layby Surgery 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 Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
16.7 Use of the Website, the Services, the Online Portal and any of the products of Layby Surgery is at your own risk. Everything on the Website, the Services, the Online Portal and the products of Layby Surgery, are provided to you on an "as is" and "as available" basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Layby Surgery make any express or implied representation or warranty about its Content or any products or Services (including the products or Purchase Services of Layby Surgery) referred to on the Website. This 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 Service, or any of its Content related products (including third party material and advertisements on the Website);
(c) any interruption to the access of the Website for a period of time;
(d) costs incurred as a result of you using the Website, the Services or any of the Products;
(e) the Content or operation in respect to links which are provided for the User's convenience;
(f) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
(g) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
16.8 Layby Surgery does not warrant that:
(a) the Website and/or the Online Portal will meet the Doctor’s requirements;
(b) the Website and/or the Online Portal will be uninterrupted, timely, secure, or error-free;
(c) any information that may be obtained for the use of the Website and/or Online Portal will be accurate or reliable; and
(d) any errors in the Website and/or Online Portal will be corrected.
17.1 If you are in the business of providing similar Services as Layby Surgery, for the purpose of providing them to users for a commercial gain, then you are a competitor of Layby Surgery. Competitors are not permitted to use or access any information or content on the Website. If you breach this clause, Layby Surgery will hold you responsible for any loss that Layby Surgery may sustain and hold you accountable for all profits that you might make from such a breach.
18 Limitation of Liability
18.1 All Parties’ 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 most recent Purchase Price paid by you under these Terms, or where you have not paid the Purchase Price, then the total liability of Layby Surgery is the resupply of the Services to you.
18.2 You expressly understand and agree that the Parties to these Terms, and their affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
18.3 Layby Surgery is not responsible or liable for, including loss of profit, in any manner for:
(a) any site content (including the Content and Third Party Content) posted on the Website or in connection with the Services, whether posted or caused by users of the Website of Layby Surgery, by third parties or by any of the Services offered by Layby Surgery;
(b) any loss, including loss of profit, if the Customer fails to pay the Purchase Price;
(c) any failure or delay due to matters reasonably beyond our control;
(d) if the Customer or Doctor does not attend the Treatment at the time arranged;
(e) the Doctor’s use of, or inability to use, the Online Portal; or
(f) unauthorised access to the Doctors data.
18.4 Layby Surgery does not control and is not responsible for:
(a) the behaviours and actions of Users. Accordingly, Layby Surgery is not responsible for any offensive, inappropriate, obscene or unlawful actions that you may encounter when liaising with the Customers or Doctor, or in connection with your use of the Services; or
(b) arranging the date, time and facilitation of the Treatment.
19 Termination of Contract
19.1 The Terms will continue to apply until terminated by either you or by Layby Surgery as set out below.
19.2 If you want to terminate the Terms, you may do so by:
(a) providing Layby Surgery with one (1) month’s written notice at any time of your intention to terminate by writing to Layby Surgery via the ‘Contact Us’ link on the Website’s homepage; and
(b) closing your accounts for all of the Services which you use, where Layby Surgery has made this option available to you.
19.3 Your elected termination will be effective upon one (1) month of receipt of the notice of your intention to terminate by Layby Surgery, however, if you have an outstanding Booking, you may not terminate these Terms until the completion of the Treatment.
19.4 Layby Surgery may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) Layby Surgery is required to do so by law;
(c) the partner with whom Layby Surgery offered the Services to you has terminated its relationship with Layby Surgery or ceased to offer the Services to you;
(d) Layby Surgery is transitioning to no longer providing the Services to Users in the country in which you are resident or from which you use the service; or
(e) the provision of the Services to you by Layby Surgery is, in the opinion of Layby Surgery, no longer commercially viable.
19.5 Subject to any applicable laws, Layby Surgery reserves the right to discontinue or cancel your use of and access to the Website 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, including a Booking, without notice if:
(a) you breach any provision of the Terms or any applicable law;
(b) if you are a Doctor, the Doctor no longer holds the required registration with the relevant authority; or
(c) your conduct impacts Layby Surgery's name or reputation or violates the rights of those of another party.
19.6 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Layby Surgery have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
20.1 You agree to indemnify Layby Surgery, 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 your use of the Website and/or Services, including, but not limited to:
(a) any misuse of the Website or Services by you, including and without limitation, any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by you;
(b) your breach of the Terms, including any misuse of the Content;
(c) any interaction between the Customers and the Doctor, including but not limited to the provision of the Treatment, the activities conducted in the Treatment, sale of a Treatment, a Treatment or a Treatment Listing; or
(d) any activity which you engage in on the Website or through Layby Surgery, including uploading or posting information.
20.2 This indemnity will survive termination of the Terms.
21 Force Majeure
21.1 Force Majeure Event means a cause beyond a Party’s reasonable control such as acts of God, regulation or other acts of civil or military authority, a change in laws, fires, riots, protests, embargoes, floods, epidemics or any communicable diseases, quarantine restrictions, delays in transportation,
inabilities to obtain necessary labour, materials, or manufacturing facilities, or telecommunication or utility failure or outage.
21.2 No Party to the Terms will liable to any other Party for any loss or damages resulting from for the delay or failure to perform as required by any provisions of the Terms, or Additional Terms, that result from or related to a Force Majeure Event, excluding payment by the Customer.
22 Dispute Resolution
22.1 If a dispute arises out of or relates to the Terms, any parties 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):
(a) 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.
(b) On receipt of that notice (Notice) by that other party, the parties to the Terms (the Dispute Parties) must within seven (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.
(c) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Dispute Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee.
(d) 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.
(e) The mediation will be held in Sydney, New South Wales.
(f) For the avoidance of doubt, the Dispute Parties need not attend the mediation or other means of resolution in person. The Dispute Parties may attempt to resolve the matter via any means of electronic communications.
(g) All communications concerning negotiations made by the Dispute Parties 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 laws of evidence.
(h) If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Dispute Party may ask the mediator to terminate the mediation and the mediator must do so.
(i) In the event that the Dispute is not resolved at the conclusion of the mediation, either Dispute Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
23 Venue and Jurisdiction
23.1 The Services offered by Layby Surgery is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
24 Governing Law
24.1 The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
25 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.
26 Entire Agreement
These Terms and any terms referenced or linked herein constitute the entire agreement between the parties concerning the subject matter of the agreement and supersede all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
28.1 A waiver of any right, power or remedy under these Terms must be in writing signed by the party granting it.
28.2 A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
28.3 The fact that a party fails to do, or delays in doing, something the party is entitled to do under these Terms does not amount to a waiver.
29.1 You may not assign your rights or delegate your duties under these Terms or any additional terms without our prior written consent.
29.2 A purported assignment without written consent will be deemed to be void and convey no rights.
29.3 Layby Surgery may assign its rights or delegate its duties under these Terms or any additional terms without our prior written consent.
If you wish to notify us about anything relating to these Terms, please contact us at [email protected]