1. NO LIABILITY REGARDING CONTENT & AUTHORSHIP
Back pain expects to attract Content from a wide variety of sources, and Back pain has limited capability to thoroughly verify the accuracy or authorship of Content, and largely relies on the word of contributors. You acknowledge and agree that:
(a) The Content (including opinions, ideas, products, information, statistics and representations) is not, and should not be regarded as, endorsed or guaranteed by N Back pain in any way, or relied upon as a substitute for professional advice. In respect of Content, Back pain accepts no responsibility, and liability in this respect is expressly disclaimed.
(b) Any representations regarding authorship of any work forming part of the Content must not be inferred as any endorsement by Back pain
(i) That the person named as author of any work is necessarily a true and complete representation of authorship of the relevant work;
(ii) That the person named as author has the legal right to submit the work for inclusion on the Website without unlawfully infringing intellectual property rights of any other person; and
(iii) That any work within the Website is necessarily the original work of the person named as author. 1
and News-Medical excludes all liability in respect of any breaches of same.
2. USING EXPERTS
Back pain expects the Website to contain from time to time links to Experts who may be available to provide various services to Users. The purpose of the Website is merely to act as a market place for buyers and sellers of such services and accordingly:
(a) Back pain neither makes nor endorses any representations or claims regarding the experience, competence, qualifications or suitability of an Expert to meet the needs of a particular User.
(b) Back pain expressly excludes all liability to Participants in relation to any service provided by any Expert engaged pursuant to an introduction via the Website, including but not limited to:
(i) Any liability to Users in respect of any wrong committed or alleged, whether arising in either contract, tort, statutory duty or otherwise, by an Expert in the provision of any service to a User; and
(ii) Any liability to Experts in respect of any failure by any User to pay fees and disbursements for any services provided by Experts to Users.
3. NO LIABILITY FOR LINKS, ADVERTISERS, STRATEGIC PARTNERS
(a) The Website may, from time to time, have links to other sites (including links to sites operated by News-Medical's strategic partners). NBack pain has no control over the content on any such sites and for that reason Back painl makes no warranties, either express or implied, concerning such content, including the accuracy, completeness, reliability or suitability for any particular purpose. Back painl also does not warrant that such sites or content are free from any breaches of copyright, trademark or other infringement of the rights of third parties or that such sites or content are devoid of viruses or other contamination.
(b) The Website may contain advertising and sponsorship. Advertising and sponsorship helps defray the costs of operating the Website, and is therefore a much welcomed contributor to the Website's ongoing viability. Advertisers and sponsors must ensure all advertising and other submitted material complies with relevant laws, including intellectual property laws. News-Medical excludes to the extent allowed by law any liability to Participants and third parties for any error or inaccuracy appearing in any advertising or sponsorship material, or for any breach in tort, contract or statutory duty (including duties imposed under copyright and other intellectual property laws) in relation to such material.
4. NO LIABILITY FOR ANY DISRUPTIONS TO YOUR SYSTEM
Whilst Back pain expects to maintain its IT infrastructure to the highest standards, it cannot accept legal responsibility to Participants for any act or omission (including viruses and the like) that inadvertently results in any damage, interference or other problems with any system, data or personal information. If you have any problems in that regard, Back pain would appreciate appropriate advice from Participants.
5. NO LIABILITY FOR INTERRUPTIONS OF SERVICE DUE TO MAINTENANCE, UPGRADES, ETC
Back pain shall not be liable for any disruptions to the Website for any reason, including but not limited to disruptions caused by any third party service provider, and any Website downtime for any reason, including but not limited to repairs, maintenance, Website design changes, or the implementation of any changes to the Content.
6. FURTHER ON EXCLUSION OF DAMAGES
(a) Exclusion of liability under these Terms and Conditions extends to exclude from liability Back pain and Related Parties.
(b) Exclusion extends to all kinds of liabilities, including but not limited to special, incidental, consequential, or indirect damages, loss of goodwill or business profits, work stoppage, data loss, computer failure or malfunction, all other commercial damages or loss, or exemplary or punitive damages relating to the Website.
(c) Exclusion of liability shall only apply to the extent permitted by law.
7. INDEMNITIES
(a) In respect of his/her relevant participation in the Website, each Participant (and if more than one in respect of participation, jointly and severally) indemnifies and holds Back pain and its Related Parties harmless from and against all claims, liabilities, and costs, including reasonable legal fees, incurred by Back pain and/or its Related Parties arising from any third party claim resulting directly or indirectly from the Participant's participation in the Website. Such indemnity includes but is not limited to claims in respect of the infringement of intellectual property rights.
(b) The relevant Participant shall reimburse Back pain and/or any relevant Related Party for all costs reasonably incurred by it/them in any such proceeding in which it is a party.
8. EXCLUSION OF WARRANTIES
You acknowledge and agree as follows:
(a) Your participation in the Website is at your own risk. The service is provided on an "as is" and "as available" basis. To the extent permissible by law, Back pain expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement;
(b) To the extent permitted by law, in respect of the Website and any associated service or advice provided (Services), whether supplied by or on behalf of Back pain or by a third party including any Expert, Supplier or Advertiser, News-Medical makes no warranty that:
(c) The Services will meet your requirements;
(d) The Services will be uninterrupted, timely, secure, or error-free;
(e) The results that may be obtained from the use of the Service will be accurate or reliable; and
(f) The quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations.
9. NEWS-MEDICAL'S COMMISSION
Back pain hereby discloses that a commission or listing fee may be payable by Experts to Back pain for any fees received by them as a result of an introduction of a client through the Website. Further details may be obtained from News-Medical on request.
10. PRIVACY & SECURITY
(a) Back pain is committed to protecting the privacy of all Participants and to keeping secure personal information that Participants provide to Back pain (Personal Information). Back pain is also committed to fully observing the privacy laws of Australia as they stand from time to time. Unless otherwise compelled by law, Back pain shall restrict access to Personal Information to such Back pain officers, employees, agents, contractors and advisers who are properly authorised by Back pain in good faith. Authorisation of such persons shall only extend to legitimate internal purposes of Back pain.
(b) By way of exception to this requirement and subject to relevant Australian laws:
(i) NBack pain may from time to time disclose part or all of the Personal Information supplied to Back pain by a User to third parties, including third parties who may wish to offer goods and services to the User, but Back pain may only disclose any such Personal Information to such third parties with the prior consent of the relevant User. Back pain may seek such consent from Users from time to time.(ii) As part of registration processes, Contributors and Experts can expect to be asked for certain Personal Information, including contact details, qualifications, and employment details. Disclosure of any such Personal Information by a Contributor or Expert to Back pain in any registration process shall be deemed to be a grant of permission by the relevant person to Back pain to publish any such Personal Information on the Website. Back pain will use reasonable endeavours to ensure all Personal Information published on the Website in respect of a Contributor or Expert is correct, but accepts no liability for any errors in that regard. If Contributors or Experts identify any errors in respect of their Personal Information on the Website, Back pain would appreciate prompt notification and will use reasonable endeavours to promptly make necessary corrections.
(iii) If Back pain disposes any part of its undertaking to a third party where such disposal necessitates any transferee having need in good faith to access to Back pain's records of Participants' Personal Information, then nothing in these Terms and Conditions prevents Back pain giving the relevant transferee access to such Personal Information for the purpose of carrying on the relevant undertaking.
11. USE OF WEBSITE
In any capacity as a Participant, whether as a User, Expert or Contributor, you agree to not participate in the Website (including but not limited to submission of Content and entering any arrangement for provision of service between User and Expert) as follows:
(a) To engage in any activity that is unlawful, harmful or threatening (including to minors), tortious, invasive of another's privacy, or otherwise objectionable;
(b) To misrepresent information about yourself, including your identity (whether by giving a fictitious name or the name of another person), contact details, qualifications, affiliation with any entity and the like;
(c) To misrepresent yourself as the owner or authorised licensee of intellectual property in any work or thing, or as the author of any work;
(d) To transmit or otherwise deal with any Content that infringes the intellectual property of any person, including Back pain :
(e) To transmit any material that contains software viruses or the like that may limit the functionality of any software or hardware or other equipment;
(f) To do anything which may impair the functionality of the Website;
(g) To breach any relevant law in the jurisdiction where you operate;
(h) To breach any part of these Terms and Conditions, including any directions forming part of the Website.
(i) To do anything which in the opinion of Back pain damages or could potentially damage the reputation and standing in the community of Back pain and any Related Parties.
Without limiting available remedies, Back pain reserves the right to cancel the participation of any person who engages in the above breaches. On such cancellation, Back pain may take any necessary action, including cancellation of any password and removal of any Content provided by them.
12. RIGHT TO MODIFY THE SERVICE
Without notice and without accepting liability to you in this regard:
(a) Back pain may modify or discontinue the Website (or any part), including any associated service (whether temporarily or permanently); and
(b) Back pain may amend these Terms and Conditions, except in relation to privacy and security affecting pre-existing Participants, where such changes are detrimental to those to whom an existing duty of privacy and security are owed.
13. PROPERTY RIGHTS OF News-Medical AND OTHERS
(a) You acknowledge and agree that the Website contains material that is the intellectual property of Back pain and others. Without limitation, intellectual property rights may subsist in parts of the Content, in software, domain names and trade marks of Back pain and any advertisers and strategic partners.
(b) Unless authorised by the legitimate owner or licensee of the relevant intellectual property, you agree:
(i) Not to do any act in breach of the intellectual property laws of Australia or the jurisdiction where you live, including without limitation, copy, distribute, or create derivative works based on the relevant material.
(ii) To indemnify fully Back pain and any related party for any loss damage or cost incurred in relation to such breach caused by you.
14. ANY DIRECTIONS ETC FORM PART OF TERMS AND CONDITIONS
The Website may, from time to time, contain directions regarding its use, which also may be modified from time to time. Any such directions are deemed to form part of these Terms and Conditions, and any breach thereof shall be considered a breach of these Terms and Conditions.
15. REMEDIES
No remedy conferred by any of the provisions of these Terms and Conditions is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise. The election of any one or more of such remedies by any of the parties hereto shall not constitute a waiver by such party of the right to pursue any other available remedy.
16. SEVERANCE
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
17. SURVIVAL OF RIGHTS, DUTIES AND OBLIGATION
(a) Termination of these Terms and Conditions or cessation of participation in the Website by a Participant shall not release a party from any liability which at the time of termination has already accrued to another party or which thereafter may accrue in respect of any act or omission prior to such termination.
(b) Each indemnity in these Terms and Conditions is a continuing obligation, separate and independent from the other indemnities and survives termination of these Terms and Conditions or cessation of participation by a Participant.
18. ENTIRE AGREEMENT
(a) These Terms and Conditions embody the entire understanding and agreement between the parties as to the subject matter of these Terms and Conditions.
(b) No oral explanation or information provided by any party or its officer, employee, agent or adviser to another:
(i) affects the meaning or interpretation of these Terms and Conditions; or
(ii) constitutes any collateral agreement, warranty or understanding between any of the parties.
(iii) No waiver of any of the provisions of these Terms and Conditions by a party shall be effective unless made in writing addressed to the other parties and duly signed by the party making the waiver.
19. MUTUAL AGREEMENT
The parties recognise that it is impracticable to make provision for every contingency that may arise in the course of performance of the provisions of these Terms and Conditions and accordingly declare their intention that these Terms and Conditions shall operate among them with fairness and covenant and agree with each other that they shall act reasonably at all times in carrying out their respective obligations and use all reasonable endeavours to ensure that full effect be given to the terms of these Terms and Conditions in the spirit in which it was agreed.
20. ASSIGNMENT
These Terms and Conditions shall be binding on the parties hereto and their respective successors and assigns.
21. NO PARTNERSHIP
Unless otherwise specifically agreed in writing, nothing in these Terms and Conditions or in your participation in the Website in any capacity imply any relationship between News-Medical and you other than that of service provider and customer. No relationship of agency, partnership, joint venture, employment, or franchise shall be construed.
22. NOTICE
Any notice to you or to Back pain shall be made by either e-mail or regular mail.
23. FURTHER ASSURANCE
Each party shall promptly execute all documents and do all things that any other party from time to time reasonably requires of it to effect, perfect or complete the provisions of these Terms and Conditions and any transaction contemplated by it.
24. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of New South Wales, and where Commonwealth jurisdiction applies, the laws of Australia.
The parties irrevocably agree that the courts of New South Wales and the Australian Commonwealth shall have non-exclusive jurisdiction to settle any dispute, which may arise out of or in connection with these Terms and Conditions.
25. DISPUTE RESOLUTION
(a) Except for the right of either party to apply to a court of competent jurisdiction for an injunction or other provisional remedy to preserve the status quo or prevent irreparable harm, the parties will endeavour first to resolve any dispute, controversy or claim arising out of or relating to these Terms and Conditions among themselves prior to resorting to any other method.
(b) If the parties are unable to resolve the dispute, controversy or claim within 30 days, either party may submit such dispute, controversy or claim to conciliation administered by the Australian Commercial Disputes Centre Limited (the Centre) conducted and held in accordance with the conciliation rules of the Centre in force at the date of these Terms and Conditions.
(c) In the event that the dispute, controversy or claim has not been resolved within 30 days (or such period as agreed in writing between the parties) after the appointment of the conciliator by the parties, the dispute, controversy or claim shall be submitted to arbitration administered by the Centre conducted and held in accordance with the rules of the Institute of Arbitrators Australia for the conduct of commercial arbitrations. Arbitration shall be conducted by a expert appointed by the Centre. Notwithstanding anything else contained in these Terms and Conditions the Commercial Arbitration Act 1984 (NSW) shall apply to any arbitration referred to in this clause.
26. DEFINITIONS
(a) 'Content' means all content of the Website, including articles published on the Website, but excludes any content on any other website not operated by Back pain to which a hyperlink my be provided on the Website.
(b) 'Contributor' means any person who submits material for inclusion as Content on the Website, whether the author or otherwise of that material.
(c) 'Expert' means any person contactable through the Website for provision of advisory and related services to Users.
(d) 'Participant' means a Contributor, Expert or User, and includes a person who may take part in the Website more than one of these capacities.
(e) 'Related Parties' means in respect of Back pain, its successors and assigns, its subsidiaries, affiliates, officers, agents, co-branders or other strategic partners, contractors and employees, and the successors and assigns of any of them.
(f) 'User' means any member of the public who registers with Back pain to access Content and to generally operate.
(g) 'Website' means the website operated under the URL 'www.Back pain.com' or such substitute as Back pain decides from time to time, and includes any pages of that website.
(h) Reference to a person includes a corporation.
(i) Reference to the singular includes reference to the plural and vice versa.
(j) Headings are for convenience only and shall not affect the interpretation of this Agreement.
(k) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
27. ACKNOWLEDGE YOU ARE OVER 18 OR IF NOT, HAVE PARENTAL CONSENT
You acknowledge that as a Participant either :
(a) You are 18 years of age or over, or
(b) You are under 18 years of age but have the permission of a parent, guardian or other person with parental responsibility for you to use this Website.
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