TERMS OF USE – GENERAL

Aysha Christine O’Connor t/as Fertility with Aysha (ABN 52 623 283 913) (Website Owner) owns and operates this website. Access to and use of this Website, and the products and services available through this Website, including but not limited to the Program and the Sessions (collectively, Services), is subject to the following terms, conditions and notices (Terms of Use). By using the Services, you (Client) are agreeing to all of the Terms of Use, as may be updated by us from time to time. You should check this page regularly to take notice of any changes we may have made to the Terms of Use.

These Terms of Use shall be incorporated into any agreement between the Website Owner and the Client (Agreement). In case of any inconsistency between these Terms of Use and any Agreement, the terms of the relevant Agreement shall prevail.

  1. Amendments to Terms of Use

Website Owner reserves the right, in her sole discretion, to change, modify, add or remove portions of these Terms of Use from time to time. Amendments will be effective immediately upon notification on this Website. Your continued use of the Website following such notification will represent an agreement by you to be bound by the Terms of Use as amended.

  • Website

Access to this Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the Website without notice. We will not be liable if for any reason this Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts or all of this Website.

  • Linked sites

This Website may contain links to other websites (Linked Sites), which are not operated by Website Owner. Website Owner has no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from your use of them. Your use of the Linked Sites will be subject to the Terms of Use and service contained within each such site.

  • Privacy policy

Our privacy policy, which sets out how we will use your information, can be found at www.fertilitywithaysha.com/privacy. By using this Website, you consent to the terms of the privacy policy and warrant that all data provided by you is accurate.

  • Prohibitions
  • You must not misuse this Website. You will not:
    • commit or encourage a criminal offence;
    • transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene;
    • hack into any aspect of the Service; corrupt data; cause annoyance to other users;
    • infringe upon the rights of any other person’s proprietary rights;
    • send any unsolicited advertising or promotional material, commonly referred to as “spam”; or
    • attempt to affect the performance or functionality of any computer facilities of or accessed through this Website.

Breaching this provision would constitute a criminal offence and Website Owner will report any such breach to the relevant law enforcement authorities and disclose your identity to them.

  • We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Website or to your downloading of any material posted on it, or on any Linked Sites.
  • Intellectual property, software and content
  • Unless otherwise specified, you are granted a non-exclusive, non-transferable, limited right to access and use the Website and the material provided therein for your personal, non-commercial use, provided that you comply fully with the provisions of these Terms of Use.
    • You understand that only you may use your user account and password, and that your use of the Website is only valid for your personal, non-commercial use and may not be shared with others.
    • The intellectual property rights in all software and content (including photographic images) made available to you on or through this Website remain the property of Website Owner or its licensors and are protected by copyright laws and treaties around the world. All such rights are reserved by Website Owner and its licensors.
    • You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on this Website.
  • Disclaimer of liability
  • Subject to any non-excludable consumer guarantees and other consumer protection provisions set out in the Australian Consumer Law, the Services and the material displayed on this Website are provided without any guarantees, conditions or warranties as to its accuracy.
    • To the fullest extent permitted by law Website Owner hereby expressly excludes all warranties and other terms which might otherwise be implied by statute, common law or the law of equity and must not be liable for any damages whatsoever, including but without limitation to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, performance or failures of the Services, or this Website or the Linked Sites and any materials posted on those sites, irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law or otherwise.
    • This does not affect Website Owner’s liability for death or personal injury arising from its negligence, fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
  • Linking to this website

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. This Website must not be framed on any other site, nor may you create a link to any part of this Website other than the home page. We reserve the right to withdraw linking permission without notice.

  • Disclaimer as to ownership of trade marks, images of personalities and third party copyright

Except where expressly stated to the contrary all persons (including their names and images), third party trade marks and content, services and/or locations featured on this Website are in no way associated, linked or affiliated with Website Owner and you should not rely on the existence of such a connection or affiliation. Any trade marks/names featured on this Website are owned by the respective trade mark owners. Where a trade mark or brand name is referred to it is used solely to describe or identify the products and services and is in no way an assertion that such products or services are endorsed by or connected to Website Owner.

  1. Indemnity

You agree to indemnify, defend and hold harmless Website Owner, its directors, officers, employees, consultants, agents, and affiliates, from any and all third party claims, liability, damages or costs (including, but not limited to, legal fees) arising from your use of this Website or the Services, or your breach of the Terms of Use.

  1. Invalidity

If any part of the Terms of Use is unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of the Terms of Use will not be affected and all other clauses remain in full force and effect. So far as possible where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause must be interpreted accordingly. Alternatively, you agree that the clause must be rectified and interpreted in such a way that closely resembles the original meaning of the clause/sub-clause as is permitted by law.

  1. Complaints

We operate a complaints handling procedure which we will use to try to resolve disputes when they first arise. Please let us know if you have any complaints or comments.

13         General

  1. Force majeure
    1. Neither Party has any liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.
    1. The Party affected by such circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
    1. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.
    1. Amendments

Website Owner has the right in its absolute discretion at any time and without notice to amend, remove or vary any page of this Website.  Any agreement between the Parties in relation to the Services may only be amended in writing signed by duly authorised representatives of the Parties.

  1. Assignment
    1. Subject to clause 13.3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party.
    1. Entire agreement
      1. This agreement contains the whole agreement between the Parties in respect of the subject matter of agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
      1. The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
    1. Waiver
      1. No failure or delay by the Website Owner in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
      1. The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
    1. Further assurance

Each Party to this agreement must at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

  1. Severance

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement. It will not in any way affect any other circumstances of or the validity or enforcement of this agreement.

  1. Notices

A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this agreement, or sent by facsimile to the facsimile number of the addressee.

  1. Law and jurisdiction

This agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

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TERMS OF USE – SERVICES

The following terms and conditions are particular to the Services (as defined).

14         Definitions

In this agreement, the following words have the following meanings.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the Consultant in the course of the Consultant’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.

Consultant means Aysha Christine O’Connor or any person or persons that Aysha Christine O’Connor designates to perform the Services on her behalf.

Fees means the Fees as set out in the Consultant’s fee schedule available on the Website.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property includes trade marks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.

Information includes information provided directly or indirectly in oral, electronic or documentary form or by way of models, biological or chemical materials or other tangible form or by demonstrations and whether before, on or after the date of this agreement.

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature.

Parties means the Consultant and the Client, and Party means either one of them.

Program means the online program and associated services.

Sessions means the individual coaching sessions between the Consultant and the Client.

15         Sessions

  • The Consultant will provide the Sessions to the Client via video teleconferencing facilities. This is in consideration for the Client paying the applicable Fee to the Consultant, subject to the provisions of this agreement.
    • The Consultant and the Client will agree the time and place for the performance of the Services subject to the availability of the Consultant.

16         Program

  • Upon payment by the Client of the applicable Fee, the Consultant will grant to the Client access to:
  • the Program’s online content hub, by issuing a unique username and password;
  • the Program’s exclusive Facebook group; and
  • the group video conferencing sessions with other participants in the Program,

 (Access)

for a 12 week period (or such other period if otherwise agreed to by the parties) (Term), commencing upon the date that access is enabled.

  • Upon:
    • the expiry of the Term; or
    • the termination of this Agreement, if earlier,

the Client’s Access will be withdrawn.  The Consultant however reserves the right, in its sole discretion, to allow the Client continued access to the Program’s online content hub until such access is withdrawn at a future date, such date and any applicable Fee to be at the Consultant’s sole discretion.

17         Standard of Services

  • The Client acknowledges and agrees that the role of the Consultant is not to:
  • prescribe or assess micro- and macronutrient levels;
  • provide health care, medical or nutrition therapy services, including but not limited to mental health therapy;
  • diagnose, treat or cure any disease, condition or other physical or mental ailment of the human body.
    • The Client acknowledges that:
  • the Consultant is a mentor and guide who has been trained in holistic health coaching;
  • the Consultant is not acting in the capacity of a doctor, medical practitioner, licensed dietician, nutritionist, psychologist or other licensed or registered professional (“Health Care Professional”);
  • any opinion, advice, assistance or recommendations provided by the Consultant to the Client as part of the Services is not to be considered medical or nursing advice, or a diagnosis;
  • the Services are not intended to take the place of advice that the Client may seek from a Health Care Professional; and
  • it is recommended that the Client seek the advice of a Health Care Professional prior to participating in the Services.
    • The Client agrees that if the Client is under the care of a Health Care Professional or is taking prescription medications at the same time as the Services are provided pursuant to this agreement, then the Client will consult with the Health Care Professional in relation to any dietary changes or potential dietary supplements use that may be recommended by the Consultant as part of the Services, and will not discontinue the use of any prescription medications without first consulting with the Health Care Professional.
    • The Client acknowledges and agrees that the role of the Consultant is to help the Client reach their own health goals by helping the Client devise and implement positive, sustainable lifestyle changes.
    • The Client acknowledges and agrees that the Services call for the provision of opinions, advice, assistance and/or recommendations. The Parties acknowledge and agree that the Consultant may give an opinion or an interpretation on a set of facts or an issue provided by the Client which is fully in accord with its obligations under this agreement. However, another consultant within the industry may give a different opinion or interpretation on the same facts or issue.

18         Fees

  • In consideration of the provision of Services in accordance with this agreement, the Client will pay the Consultant the Fees.
    • Where the Fees are based on an hourly rate (such as for Sessions), any time spent which is less than an hour is charged on a pro-rated basis.
    • Where the Fees are based on a monthly membership subscription:
      • the Consultant reserves the right to amend the Fees, or to introduce new Fees at any time, upon reasonable advance notice to the Client.  If the Client gives notice to the Consultant within 7 days of receiving the Consultant’s notice that it does not accept the amended Fees, then the Client’s membership will be terminated and clause 16(b) will apply;
      • the Consultant will automatically charge the Client’s credit card or other account at the start of the Term, and each relevant billing period (whether monthly or as otherwise agreed between the parties) unless the Client terminates the membership before the start of the relevant billing period;
      • in the event that payment for a billing period is unsuccessful for whatever reason, then the Client’s membership will be terminated immediately and clause 16(b) will apply.
    • Payment of any tax invoice must be made by the Client to the Consultant within 7 days following receipt of the Consultant’s invoice.
    • If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, the Consultant is entitled:
  • to charge interest on the outstanding amount at the rate of 2% per year above the base lending rate of the Commonwealth Bank of Australia, accruing daily;
  • to require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
  • not to perform any further Services (or any part of the Services).
    • When making a payment the Client must quote relevant reference numbers and the invoice number.

19         Client’s obligations

  • During the performance of the Services the Client will:
  • co-operate with the Consultant as the Consultant reasonably requires;
  • communicate with the Consultant honestly;
  • provide the information and documentation that the Consultant reasonably requires;
  • be open and willing to receive feedback and assistance; and
  • provide at least 24 hours’ prior notice if a Session needs to be rescheduled or cancelled, otherwise the Fee will remain payable for the Session.
    • The Client accepts that they are responsible for implementing their own physical, mental and emotional well-being, decisions, choices, actions and results, based on the recommendations made by the Consultant in the delivery of the Services.
    • The Client is entirely responsible for maintaining the confidentiality of the unique password and username.  The Client must notify the Consultant immediately in the event of any known or suspected unauthorised use of the Client’s account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of the Client’s password or credit card information.

20         Confidentiality

    • The Client and the Consultant acknowledge that information resulting from the activities of the Consultant pursuant to this agreement will also be regarded as Confidential Information and the Consultant agrees that the Consultant’s obligations in clause 20(a) extend to this category of information.
    • The Consultant’s obligations with regard to the Confidential Information will continue for so long as this information is maintained on a confidential basis by the Client.
    • The Confidential Information does not include information which:
  • is generally available in the public domain otherwise than as a result of a breach of clause 20(a) by the Consultant; or
  • was known by the Consultant prior to the Client disclosing the information to the Consultant.
    • The Consultant agrees to indemnify the Client fully against all liabilities, costs and expenses which the Client may incur as a result of any breach of this clause by the Consultant.
    • The Consultant acknowledges that damages may be an inadequate remedy for breach of this clause and that the Client may obtain injunctive relief against the Consultant for any breach of this clause.
    • The obligations accepted by the Consultant under this clause survive termination or expiry of this agreement.

21         Warranties

  • The Consultant warrants that it will use reasonable care and skill in performing the Services.
    • The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by any date, whether stated in this agreement or elsewhere.

22         Termination

  • If the Consultant becomes unavailable and the Parties cannot agree on a suitable replacement to perform the Services, to the extent that the Consultant is required to perform any Service in a personal capacity, then either Party may terminate this agreement by written notice to the other Party.
    • Notwithstanding anything in this agreement to the contrary, either Party may terminate this agreement by notice in writing to the other if the Party notified fails to observe any term of this agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 7 days’ notice of the breach being given in writing by the notifying Party to the other Party.
    • Notwithstanding anything in this agreement to the contrary the Client may terminate this agreement at any time by notice in writing to the Consultant, if the Consultant is guilty of any dishonesty, serious misconduct or serious neglect of duty, in or in connection with the provision of the Services.
    • On termination of this agreement, the Consultant may immediately deactivate the Client’s Access, and bar any further access to the Website or Services.  The Client must pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Consultant for the performance of the Services prior to the date of termination.

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