LAST UPDATE TO THE TERMS: 21st July 2015

  1. INTRODUCTION

Thank you for selecting www.davidbergwerf.com.au, (referred to as “Site”, “David Bergwerf”, “we”, “our”, or “us”). Please read these Terms and Conditions of Use (“Terms”) carefully. The Terms are a legal agreement between you and us in relation to your use of the Site and all associated services (the “Agreement”).

  1. USE CONSTITUTES ACCEPTANCE

By accessing the Site, linking to the Site, or using any of our services you agree to these Terms. If you do not agree to these Terms, you may not use the Site or services and should leave this Site immediately.

  1. SCOPE

These Terms govern your use of the Site and its associated services, all communications, content, updates and new releases (collectively, the “Services”). It includes by reference our Privacy Policy. All of the Site and Services are within the scope of this Agreement.

  1. NO MEDICAL ADVICE

Any medical or health or fitness related content is not intended to be medical advice or instructions for medical diagnosis or treatment, and no physician-patient relationship is, or is intended to be, created. If you think you may have a medical emergency, call your doctor or your local emergency number immediately. The Site is not a substitute for professional medical advice, examination, diagnosis, or treatment. You should not delay or forego seeking treatment for a medical condition or disregard professional medical advice based on any Site content. You should always seek the advice of your physician or other qualified healthcare professional before starting or changing treatment. The Site should not be used to diagnose, treat, cure, or prevent disease without supervision of a doctor or qualified healthcare provider. The Site does not recommend or endorse any tests, physicians, products, procedures, opinions, or other information found on the Site. The Site is not regulated by any state or national medical board. Information posted to the Site publicly or sent in an unsolicited message to a user is not confidential and does not establish a physician-patient relationship without the express consent of the person providing any medically related content.

  1. PROTECTION OF MINORS

You must be 13 years or older to use the Site and Services. In cases where you have authorized a minor (someone under 18 years of age) to use the Site or Services, you acknowledge and agree that you are fully responsible for: (i) the online conduct of such minor; (ii) controlling the minor’s access to and use of the Site or Services; and (iii) the consequences of any misuse by the minor.

  1. ACCOUNT REGISTRATION

Anyone may visit and view our homepage, but you must create an account in order to use the Site or Services. You promise that all account registration information you provide will be accurate, complete and current. You must inform us as soon as you can if your account information requires updating. Please read our Privacy Policy which applies to any personal information we collect.

  1. ELECTRONIC COMMUNICATIONS AND NOTICES

You consent to receive notices and information from us in respect of our Site and Services by electronic communication. You may withdraw this consent at any time, although we may not be able to continue service to you if we cannot communicate with you electronically. We may provide you with notices, including those regarding changes to these terms by email, paper mail, publication on our Site, by SMS, or in any other way recognised by law. You may contact us through our Contact Us web form. You acknowledge and agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

  1. COOKIES

Cookies are small data files that your browser places on your computer or device.  Cookies help your browser navigate a website and the cookies themselves cannot collect any information stored on your computer or your files. We use cookies to learn more about the way you interact with our content and help us to improve your experience when visiting our Site. Cookies remember the type of browser you use and which additional browser software you have installed. They also remember your preferences, such as language and region, which remain as your default settings when you revisit the website. Some of the cookies we use are session cookies and only last until you close your browser, others are persistent cookies which are stored on your computer for longer. You can visit www.allaboutcookies.org for details on how to delete or reject cookies and for further information on cookies generally. Note, however, that if you reject the use of cookies you will still be able to visit the Site but the Site’s functions may not work correctly.

  1. CHANGES TO THIS SITE

We may discontinue or change any Site content, service, function or feature at any time with or without notice. This includes any changes to accounts and/or pricing.

  1. PERSONAL INFORMATION AND PRIVACY

Our Privacy Policy is provided on this Site. You agree to our Privacy Policy, and to any changes published by us. You agree that we may use and maintain your data according to the Privacy Policy as part of the Services.

  1. ADVERTSING AND AFFILIATE DISCLOSURE

David Bergwerf intends to display paid advertising on the Site and we may also enter into affiliate relationships with other commercial partners, and, from time to time, may link to other products and services mentioned in posts on our site. In such circumstances we may have an affiliate relationship with the merchant selling such products or services, and may get paid a commission if you purchase such products or services. We wish to be transparent in our dealings with you and hereby disclose the incorporation of paid advertising and compensated affiliate promotions on this Site.

  1. PAYMENTS

12.1 Payment via PayPal: Payments by you to us will be made via PayPal and are subject to PayPal’s Terms and Conditions.

12.2 Price Changes: Prices are subject to change at any time without notice.

12.3 Errors: We reserve the right to fix any processing errors we discover. We will correct any processing errors by charging or crediting your PayPal account and you expressly authorize us to do so.

12.4 Third Party Charges: Charges to a third party payment processor such as PayPal are subject to any additional terms and conditions imposed by such third party payment processor.

12.5 Records: We maintain records of your services, charges and payments and all such records are taken to be correct unless they are proven to be in error.

  1. COPYRIGHT, OWNERSHIP AND INTELLECTUAL PROPERTY

13.1 You Gain No Ownership: No intellectual property ownership rights transfer from you to us or us to you, as a result of this Agreement. The David Bergwerf domain name, logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof are the proprietary property of David Bergwerf or its licensors and are protected by Australian and international copyright laws. You may not reproduce, modify, copy or distribute or use for commercial purposes any of the materials or content on the Site without prior written permission from David Bergwerf.

13.2 License to Host Your Content: In these Terms, “your content” means all works and materials (including but not limited to text, photographs, images, illustrations, documents, graphics, audio material, video material, audio-visual material and files) that you submit to the Site. You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to store your content on and in relation to our Site and Services and any successor websites or services. Without prejudice to our other rights under this Agreement, if you breach this Agreement in any way, or if we reasonably suspect that you have breached this Agreement in any way, we may delete, un-publish or edit any or all of your content.

13.3 No Infringement of Third Party Rights: You warrant and represent that your content will not infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right and you possess all sufficient permissions, rights and/or licenses to provide or upload all and any content shared by you on or through the Site or Services. You agree and acknowledge you must not infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right of any third party through your use of the Site and Services and must only share content when you possess all sufficient permissions, rights and/or licenses to provide or upload all and any content shared by you on or through the Site. Further, in the event of you infringing the intellectual property rights of any third party through your use of the Site or Services, it is you and not David Bergwerf that will be liable.

13.4 Copyright Infringing Content: The Site is protected by international safe-harbor provisions for online service providers and follows international best practice such as the principles of the EU Directive on Electronic Commerce and the US Digital Millennium Copyright Act (DMCA). We will act expeditiously to remove content as soon as we have we have actual knowledge that it infringes copyright. If you believe there is copyright infringing material on the Site, please report it using our Contact Us web form with the following information:

  • The name and address of the complaining party
  • A description of the infringing materials and their Internet location, usually the URL
  • Sufficient information to identify the copyrighted works
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of
  • A statement of the accuracy of the notice and, under penalty of perjury, a statement that the complaining party is the owner or authorized to act on the behalf of the owner.
  1. LICENSE TO USE OUR SERVICES
  • You agree that we have no responsibility or liability for the deletion, corruption or failure to store any content maintained or transmitted on or by the Site.
  • You acknowledge that the features and services provided by us may change at any time without prior notice to you.
  • You acknowledge that we reserve the right to sign out, terminate or delete your membership at any time and for any reason at our sole discretion.
  • Except as expressly permitted by these Terms, you must not edit or otherwise modify any material on the Site.
  • We reserve the right to restrict your access to the Site and/or Services at our sole discretion and you must not circumvent or bypass, or attempt to circumvent or bypass, any such access restrictions.
  1. ACCOUNT SECURITY

 

15.1 Password: If you register for an account with us you may be required to use a password. You must keep your password confidential and you must notify us immediately if you become aware of any disclosure of your password. You are responsible for any activity on the Site arising out of any failure to keep your password confidential, and may be held liable for any damages or losses arising out of such a failure. We are entitled to assume that anyone who accesses your account or service using your password does so by your authority.

15.2 Your Security Responsibilities: The security of information transmitted through the Internet can never be guaranteed. We disclaim all liability for any interception or interruption of any Internet transmissions or any changes to or losses of data. You are responsible for maintaining the security of any password, account ID or username, or other form of authentication involved in obtaining secured access to our Site or Services. In order to protect you and your data, we may suspend your use, without notice, pending an investigation, if any breach of security is suspected. You are solely responsible for determining whether the security provided by us and our suppliers is sufficient for your purposes. If you do not agree the security is sufficient, it is your responsibility to either implement your own additional security or not use the Site.

15.3 Communication of Personal Information: You acknowledge and agree that by providing us with personal information through our Site or Services, you consent to the transmission of that personal information over international borders as necessary for processing in accordance our Privacy Policy.

15.4 Access by Authorized User Only: Portions of the Site and Services may be restricted and/or are protected by password authentication. Such access and use is restricted strictly to authorized users. Any unauthorized access to such areas is strictly prohibited and may lead to criminal prosecution.

  1. THIRD PARTIES AND EXTERNAL LINKS 

16.1 Third Party Suppliers: You agree that your dealings with third party suppliers found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the third party supplier, and you agree not to hold David Bergwerf liable for any disputes you may have with any such third party supplier.

16.2 Links from this Site: This Site provides, and third parties may provide, links to other websites or resources. As we have no control over such websites and resources you agree that links to third party websites are provided solely for your convenience and we are not responsible for the availability of such external sites or resources and are not liable for the content found at such websites or resources.  If you decide to access any third party websites linked to this Site you do so entirely at your own risk.

16.3 Linking to this Site: If you would like to link to this Site you must comply with the following:

  • You do not have permission to use or incorporate any of our Site content and must not in-line, frame, or create any browser or border environments around our content.
  • The only form of linking permitted is an underlined, textual link from your site to our homepage. No other linking to this Site is permitted without our express, prior written permission.
  • Do not link to us in any way which suggests we have any relationship or affiliation with your site or endorses your site, products or services.
  • Do not present any misleading or false information about us or our products or services.
  • Do not use any of our logos, designs, slogans, trademarks, service marks, or any other words, or metatag data or other location information tools used to identify and select sites without first obtaining our express written permission.
  • We do not allow any linking to sites that contain any distasteful, offensive or controversial content, or content that can be construed as such.
  • Unauthorized links to our Site, or the framing of any content or information contained on our Site, or any portion of our Site is strictly prohibited unless you have obtained our prior express written permission.
  • Do not archive, cache, or mirror any of our pages or any portion of our pages. We reserve the right to disable any unauthorized links or frames, and hereby disclaim all liability for any material on any third party sites that may contain links to this Site.
  • In order to use, reprint, frame, or redistribute any content from this Site, you must first request our express written permission by contacting us via the Contact section of the Site with the following information:
    • your name
    • e-mail address
    • telephone number
    • company name
    • URL where requested use will occur; and
    • Details specifying the proposed linking or framing, including the content of our Site you would like to use.
  1. PROHIBTED USE
    You must not:
  • Use our Site or Services in any way or take any action that causes, or may cause, damage to them or impair their performance, availability or accessibility
  • Use our Site or Services in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity
  • Use our Site or Services to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, root kit or other malicious computer software
  • Conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our Site or Services without our express written consent
  • Access or otherwise interact with our Site or Services using any robot, spider or other automated means
  • Use data collected from our Site or Services for any direct marketing activity, including without limitation email marketing, SMS marketing, telemarketing and direct mailing.
  1. YOUR CONTENTS

18.1 Your Content: You grant us a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use any content you provide to us in any way.

18.2 Use of Your Feedback: You agree that we may use your feedback, suggestions, or ideas in any way, including in future modifications of the Site or Services, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback or suggestions you provide to us in any way.

18.3 Prohibited Content: You may not use the Site or Services for any of the following purposes:

  • Disseminating any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material.
  • Transmitting material that is or which encourages conduct that constitutes a criminal offence, results in civil liability or otherwise breaches any relevant laws, regulations or code of practice.
  • Gaining unauthorised access to other computer systems.
  • Interfering with any other person’s use or enjoyment of the Site.
  • Breaching any laws concerning the use of public telecommunications networks.
  • Interfering or disrupting networks or websites connected to the Site.
  • Making, transmitting or storing electronic copies of materials protected by copyright without the permission of the owner.
  • Engaging in technically harmful behaviour, which includes but is not limited to: computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data and other malicious software or harmful data.

18.4 Right to Remove: We reserve the right to refuse to post material on our Site or to remove material already posted on the Site.

  1. WARRANTIES AND DISCLAIMERS

We provide this Site and its contents “AS IS.” We and our suppliers make no express warranties or guarantees about this Site. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM IMPLIED WARRANTIES INCLUDING ANY WARRANTY THAT THE SITE IS OR WILL BE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THIS SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, IS ERROR-FREE, RELIABLE, OR WILL OPERATE WITHOUT INTERRUPTION. Because some jurisdictions do not permit disclaimer of implied warranties, you may have additional consumer rights under your local laws.

  1. LIMITATIONS OF LIABILITY

You may not assert claims for money damages arising from this Site or its contents. We and our suppliers shall not be liable for any indirect, special, incidental, consequential or exemplary damages, even if we knew or should have known of the possibility of such damages. Because some jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such jurisdictions, our liability, and the liability of our company and suppliers, shall be limited to the extent permitted by law.

  1. YOUR REPRESENTATIONS AND WARRANTIES

You represent and warrant to us that:

  • This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
  • You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
  • You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
  • All information you supply to us in connection with your use of our services is true and complete in all material respects and will be kept up to date if it changes.
  1. INDEMNITY

You agree to indemnify and hold harmless David Bergwerf and its employees, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against them based on or arising from any claim resulting from your breach of this Agreement, your violation of any law or third party right, any claim that use of our services has harmed a third party, your use of the Site, the Services or your data. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by us in connection with or arising from any such claim, suit, action, or proceeding. David Bergwerf reserves the right, in its sole discretion and at its own expense, to assume the exclusive defence and control of any claims. You agree to reasonably cooperate as requested by David Bergwerf in the defence of any claims.

  1. TERMINATION

We reserve the right, in our absolute discretion, to terminate your access to all or part of the Site or Services without notice. Upon such termination or suspension you will be denied access to any information or files you have stored on the Site.

  1. JURISDICTION LIMITATIONS

As some jurisdictions do not allow some of the exclusions or limitations as established above, some of these exclusions or limitations may not apply to you. In that event, the liability will be limited as far as legally possible under the applicable legislation.

  1. INTERNATIONAL USE

We make no representation that content on this Site is appropriate or available for use in locations outside Australia. If you choose to access this Site from a location outside Australia, you do so on your own initiative and you are responsible for compliance with local laws. Further, access to, linking to and use of this Site are subject to all applicable international, federal, state and local laws and regulations. You agree not to access, link to or use this Site in any way that violates such laws or regulations.

  1. EVENTS BEYOND OUR CONTROL

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by events outside our reasonable control or due to our compliance with any applicable laws or regulations.

  1. GENERAL PROVISIONS

27.1 Entire Agreement: This Agreement contains the entire understanding between you and us and supersedes all prior representations, agreements, statement and understandings, either verbal or in writing.

27.2 Governing Law:  You agree that the laws of the state of New South Wales (NSW), Australia govern these terms and conditions of use, its subject matter, your use of the Site, and any claim or dispute that you may have against us. You further agree that any disputes or claims that you may have against us will be resolved by the courts of NSW, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

BY AGREEING TO THESE TERMS OF USE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, THE COURTS OF NSW OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; and (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.

27.3 Waiver: Our failure to exercise or enforce any right or provision of these terms is not a waiver of such right or provision.

27.4 Severability:  If any provision is found by a court of competent jurisdiction to be invalid, the parties agree that the court must as far as possible give effect to the parties’ intentions as reflected in it, and these terms otherwise remain in full force and effect.

27.5 Compliance with Laws: In using the Services, you must comply with all applicable laws and regulations and, without limitation you must not use the Site or Services (or allow them to be used) in connection with or in furtherance of any fraudulent scheme or purpose.

27.6 Software Updates: In order to keep the Site and Services up-to-date, we may offer automatic or manual updates at any time and without notice to you.

LAST UPDATE TO THE TERMS AND CONDITIONS: 21st July 2015