The Femtek website located at www.femtek.co (Website), and the Femtek downloadable
software application (Application) are owned, controlled and operated by Femtek Pty Ltd (ACN 643
651 905) (we, us, our, or Femtek).
other services provided by us and thr Femtek products offered or provided by us (Products) to you.
PLEASE CAREFULLY NOTE BEFORE READING:
• You use the Services (including any Products) at your own risk.
• You shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any third-party to: copy, modify, or create derivative works of the Services, in whole or in part; reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any Mobile App component of the Services, in whole or in part; or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person (including but not limited to web scraping), or that otherwise violates any law, regulation, or other legal requirement.
• Purchases are intended for you as the end user only and are not authorised for resale. We reserve the right to refuse or cancel your order if we suspect you are purchasing Services for resale.
• You understand that the Services have been designed by us to provide training and lifestyle recommendations by automatically gathering Biometric Data from you when you wear the Product, combined together with other observations and measures recorded by you directly into the Application (Recorded Data).
• The Services allow you to monitor your biomarkers with a wearable device and by tracking aspects of your cycle and life. The Services do not through any direct action perform contraception or conception, or protection from STD’s, but rather provide suggestions on how you may act.
• You understand and agree that we in no way guarantee the accuracy of the Product’s measurement outputs.
• You understand the the device is a choking and swallowing hazard for children and animals, and Femtek is not responsible or liable for any children, animals, or other, choking or swallowing the device.
• You understand that your use of the Services is no substitute for obtaining medical advice and regular and necessary consultation with a medical professional. The Services and Product are not a medical device.
• If you are a Consumer, the Services come with Consumer Guarantees under the ACL.
• If you are a Consumer, nothing in these Terms (including, without limitation, the disclaimers of liability contained in clause 10 and limitations of liability contained in clause 11) is intended to limit or exclude your Consumer Guarantees.
• Subject to any rights which you may have as a Consumer or otherwise at law, your use and access of the Services are provided on an “as is” basis and entirely at your own risk.
• Your ability to hold us responsible for any loss or damage that you may suffer from accessing or using the Services may be significantly restricted.
• There are restrictions and limitations that apply to your use of the Services, and there are significant consequences if you do not comply with such restrictions.
2. Description of the Services
2.1 Subject to clause 2.2, Femtek operates the Website and offers Products and the Application to you for purchase. The Application is only available for use by Users who have purchased a Product. When used together, the Application and Product provides a Registered Users with training, cycle, and lifestyle recommendations as follows:
a. The Product gathers certain biometric data (Biometric Data) from you when you wear the Product at night. The Biometric Data syncs to the Application;
b. You record certain observations and measurements about yourself directly into the Application (Recorded Data); and
c. The Application creates training and lifestyle recommendations for you based on the Biometric Data and Recorded Data from where you are in your cycle.
2.2 We reserve the right to introduce additional functions and services in relation to the Services and to alter existing Services at any time without notice to you.
2.3 There may be information contained in the Services that contains typographical errors, inaccuracies or omissions that may relate to Product descriptions, prices, special offers, promotions, shipping costs, delivery time and availability. We reserve the right to amend or correct any such inaccuracies at any time without prior notice to you.
2.4 We will not, under any circumstances be liable in any way for any content provided to you via the Services (Our Content), including any errors or omissions in any of Our Content, or any loss, damage, or injury you incur as a result of your use or reliance on Our Content. Your reliance on Our Content is at your own risk.
2.5 Information and material provided to you via the Services is not intended to be, nor should it be a substitute for obtaining medical advice from a medical professional, and attending regular and necessary appointments with a medical professional. The Services are not a diagnostic tool nor a medical device. The Services (including Our Content) are for informational purposes only. You should always promptly consult a medical professional if you have any health-related concerns. If you have a medical emergency, you should call emergency services.
2.6 Our Services do not involve the provision of medical advice to you by us. Our Services are not intended to diagnose, treat, cure or prevent any disease or medical condition, nor are they designed to function as a contraceptive for unwanted pregnancy.
2.7 If you make changes to your training regime, contraception, sleep activity or other lifestyle activities based on recommendations provided to you via the Services, you agree that you do so fully at your own risk. We recommend you consult a medical practitioner before you make any changes to your training regime, contraception, sleep activity or other lifestyle activities, and do not perform activities that make you feel unwell or uncomfortable (despite any recommendations in the Services). We are in no way responsible for any health problems, unwanted pregnancies, loss of pregnancies, injuries or other discomfort you suffer arising directly or indirectly from recommendations, activities or other information provided to you via the Services. You agree that you use the Services at your own risk, and engage in any activities on this basis.
2.8 We do not guarantee you will achieve your desired outcomes or results by following guidance and information provided to you via the Services. Such recommendations are intended as a guide on how to act only, and various factors beyond our control impact whether such outcomes are achieved (including those outlined in clause 2.10 below).
2.9 The Services allow you to monitor aspects of your health and fertility by tracking your cycle. The Services are not intended to prevent against unwanted pregnancy or ensure conception through any direct action, but rather guide you on how you act. You should always use a form of contraception or barrier to prevent against unwanted pregnancy and sexually transmitted diseases.
2.10 The information in the Services may be inaccurate or misleading if:
a. You do not accurately enter and maintain each and every Recorded Data metric within the timeframes specified by the Application; or
b. Your physiological functions and responses differ significantly from the population averages due to medical conditions or rare natural differences.
C. Your physiological functions and responses differ significantly from the your average functions due to consumption of any substances or acts which may alter your Recorded Data.
to limit or exclude your Consumer Guarantees.
3. Licence to use the Website and Application
3.3 We are not obliged to maintain or support the Application or to provide you with updates, new released or other related services for the Application (although we may do so in our sole discretion).
4. User Account
4.1 In order to access the Application, you must first purchase an eligible Product and then register a user account on the Application (User Account). If you do not have a User Account, you will not be able to use the Application and access the functionality of the Product (for example, by recording your Recorded Data in the Application). You may only access and use the Application if you have purchased an eligible Product.
4.2 You can register a User Account by providing us with a username, password, email address, and such other details as we reasonably require from time to time.
4.3 You will be required to create a unique password to obtain access to your User Account (Password). You are solely responsible for maintaining the confidentiality of your Password and undertake not to allow the security of your User Account to be compromised through misuse of your
Password. You must immediately notify us of any suspected misuse of your Password.
4.4 Without limiting any other rights which we may have to communicate with you, you agree that we may send e-mails to the nominated e-mail address for your User Account for notification
4.5 We maintain the right at all times in our sole unfettered discretion and without prior notice to refuse to register, terminate or suspend any User Account.
5. Purchasing Products from our Website
5.1 We use the Payment Provider to provide payment processing services to you if you purchase a Product from us on the Website (“Payment Processing Services”). All Payment Processing
Account Agreement (https://stripe.com/au/connect-account/legal) and Checkout User Terms of Service
(which can be viewed at www.stripe.com/au/checkout/legal), PayPal’s User Agreement (https://www.paypal.com/us/webapps/mpp/ua/useragreement-full) and AfterPay’s Terms of Service
(https://www.afterpay.com/en-AU/terms-of-service), and such other relevant agreements from time to
time. You agree to provide us with accurate and complete information about you when requested (including but not limited to your Payment Methods), and you authorize us to share any such
information with Stripe, PayPal, and AfterPay, as well as transaction information related to your use of the Payment Processing Services provided by Stripe.
5.2 At the time of placing an order, you must, via the Website, provide your nominated credit card details and authorise us to deduct the payment in full for the Product Fees immediately from your nominated credit card.
5.3 Product prices are inclusive of all taxes where required by Applicable Law. You will also be charged the shipping and handling fees (Shipping Fee) disclosed to you upon checkout of the Product. In addition to the Product Fees and shipping and handling fees, the Buyer’s bank may
charge a processing or similar fee which Femtek cannot control and is in no way responsible for (Bank Fee). You agree to pay all Shipping Fees and Bank Fees. We are not responsible for the
performance of any third party credit card processing or third party payment services.
5.4 Products purchased from the Website will be shipped to the address nominated by you at the time of purchase. Title for Products purchased from us passes to you at the time of delivery to you by us or our designated carrier. Femtek assumes no liability for an incorrect address provided during the checkout process, and will not be liable for replacements should the products be delivered to the wrong address.
5.5 We reserve the right to change the price for the Products on our Website at any time, without prior notice to you.
7. Your Conduct
7.2 You must comply, and are solely responsible for complying, with Applicable Laws.
7.3 You agree that you will not:
b. Interfere or attempt to interfere with, or obtain or attempt to obtain unauthorised access to, the proper working of the Website or Application or any Content, including (without limitation) through:
1. hacking or use of automated devices, scripts or bots;
2. destructive transmission of viruses, malware or any code or other conduct of a disruptive or destructive nature;
3. reverse engineering, circumventing, damaging, disassembling, attempting to discover the source code; or
4. other illegitimate means;
c. Contact Users of the Services for the purpose of sending unsolicited offers, advertisements, spam, junk e-mails;
d. Contact Users for the purpose defaming, abusing, threatening or defrauding Users;
e. Impersonate any entity or falsely claim an affiliation with any person or entity;
f. Scrape or otherwise obtain any data from the Website or Application for any purpose or use any Content to spam third parties; or
g. Contribute or distribute any User Content via the Website or Application that infringes Applicable Laws or any other legislation or regulations of any applicable jurisdiction
(including without limitation the jurisdiction in which you are using the Website or Application).
You agree that any legal consequences arising from a claim or action for infringement of any such legislation or regulation based on contributing or distributing User Content via the Website or Application are your sole responsibility and you are wholly liable for such claims or actions.
7.4 You are solely responsible for Your Content which you post on the Website or Application regardless of the manner in which you post it. Similarly, your use of, or reliance on, any material or content posted on the Website or in the Application is at your own risk.
7.5 You warrant that your User Content does not contain any:
a. Offensive, defamatory, obscene, blasphemous, hateful, violent, bullying,
discriminatory or threatening language, or content that creates a risk of personal injury or property damage or makes any threat to people or public safety;
b. Illegal, false, fraudulent, misleading or deceptive conduct, including but not limited to blackmail, extortion, financial or personal scams and attempts to impersonate others;
c. Content that infringes the personal or proprietary rights of others, including but not limited to Intellectual Property rights and rights to privacy; or
d. Spam, publicity or promotion of commercial activities or commercial content not specifically authorized by us with our prior written consent.
8. User comments, feedback and other submissions
8.1 If you send certain submissions (at our request), or you send unsolicited creative ideas, suggestions, proposals, plans, feedback, reviews or other materials, online, by postal mail, in the form of blog post comments, social media comments or otherwise (collectively the Comments), you agree that we may, at any time, without restriction, edit, copy, publish, distribute and otherwise use in any medium any Comments. We are not required to pay you any fees whatsoever in relation to your Comments.
8.3 We are not responsible for any Comments that are created, uploaded or submitted to, or otherwise appears on or in connection to the Website or Application. We do not endorse, support, represent or guarantee the accuracy, completeness or reliability of User Content appearing on the
Website or Application. Also, we do not endorse or represent the views of opinions contained in any User Content.
9. Intellectual Property
9.1 The Intellectual Property subsisting in any aspect of the Services including without limitation text, graphics, artwork, logos, software, trade marks, designs, copyright, compilations, algorithms, source code, video recordings and audio recordings, as well as the structure, layout,
9.2 You are not permitted to save, download, reproduce, display, copy, alter, conceal, adapt, perform, transmit, broadcast, sell, license or otherwise exploit any Femtek IP unless you have express prior written authorisation from us. Any unauthorised use of Femtek IP by Users is
granting or conferring, by implication, estoppel or otherwise, any right or title or interest to any Femtek IP.
9.3 Subject to the rights granted to us under clause 9.4, you will retain exclusive ownership and/or control of any Intellectual Property subsisting in any User Content which you share via, or submit or upload to, the Website and/or Application.
9.4 Notwithstanding clause 9.3, you hereby grant to us a perpetual, non-exclusive, fully paid, royalty-free, transferable, sub-licensable, non-revocable, unlimited, worldwide licence to reproduce, exploit, use, copy, reproduce, process, adapt, modify, publish, transmit, display and
distribute any User Content which you share via, or submit or upload to, the Website and/or Application, in any and all media, at our sole discretion.
10. Consumer Guarantees and Disclaimers
excludes, limits or otherwise restricts any Consumer Guarantees applicable to you under the ACL, to the extent that they do, this clause 10.1 will prevail.
10.2 Where you do not acquire our Services as a Consumer, or clause 10.1 does not apply, then to the extent permitted by law:
a. We do not guarantee or warrant that the Services will be suitable or fit for any particular purpose, including the purpose for which the Services are ordinarily provided;
b. We do not guarantee or warrant that access to and use of the Services will be uninterrupted and fault-free at all times;
c. We do not provide any guarantee or warranty for any incomplete, inaccurate, incorrect or out-of- date information in Our Content on the Website and Application; and
10.3 The Website and Application may integrate with or host hyperlinks to third party web services, or host third party information or content within the Website and Application. All third party content hosted on the Services are the responsibility of its author, and we do not endorse or
represent the views or opinions contained therein. We are not responsible for any material contained on third party web services that is hosted on the Website and Application in any way, and any dealings between you and third parties is your sole responsibility.
11. Product Refunds
11.1 We do not provide refunds for change of mind on Products purchased from us via our Website.
11.2 If you believe that a Product you have purchased through our Website is faulty, you must promptly contact us at firstname.lastname@example.org, and provide details of the fault and any other information we request in relation to your claim. You may be required to send your Product back to us in order for us to assess if it is faulty or not.
11.3 Shipping costs you incur for returning a product to us will only be refunded to you to reasonable amount upon production of a tax invoice for such costs if we determine your Product is faulty.
11.4 Once we comply with our promise under this clause 10, we will not be liable to you and you will have no further remedy in respect of the faulty Product.
12.1 If you are a Consumer, our liability to you for any Loss or Claim suffered as a result of us failing to comply with any Consumer Guarantees in relation to the Services (including in circumstances in which we deem a Product to be faulty) during the relevant period (Affected Period) is limited at our election to:
For Services (excluding Products):
a. the resupply of the Services for a period equivalent to the period of the breach, or
b. payment of the cost of resupply of the Services equivalent to Affected Period.
a. Replacing the faulty Product or supplying an equivalent product;
b. Repairing the faulty Product;
c. Crediting you the cost of replacing the faulty Product or of acquiring an equivalent
d. Crediting you for the cost of repairing the faulty Product.
a. Your use of, or inability to use, the Services;
b. Any failure by Femtek, its Payment Provider, or other third parties to provide any information, service, feature or functionality via the Services;
c. Statements or conduct of any third party using the Services;
d. Any Comments that are made, uploaded, submitted, or otherwise appears, on the Website or otherwise are published in relation to the Services;
e. Your reliance on any training or lifestyle recommendations we make to you via the Services;
f. Any failure by you to achieve a desired outcome from relying on training or lifestyle recommendations via the Services (such as conception, weight loss or other such outcomes);
g. Any health problems, unwanted pregnancies, injuries or other discomfort you suffer arising directly or indirectly from recommendations, activities or other information provided to you via the Services;
h. The accuracy and reliability of Biometric Data captured via the Product;
i. Where you fail to comply with any Applicable Laws when using the Services; and
j. Anything outside the reasonable control of us including without limitation natural disasters, acts of God, equipment or infrastructure failure, civil riots, war (include cyber attacks), strikes, data breaches, viruses or malicious code.
month period prior to the limitation being ineffective or warranty not being able to be excluded or $10,000 (whichever is the greater).
14.3 Upon termination, you will no longer have access to the Application. We will be under no obligation to store the User Content contributed through your User Account or provide you with further access to such User Content.
14.4 Notwithstanding clauses 14.1 to 14.3:
b. We may store any User Content on our servers at our discretion, whereby our rights under clause
9.4 will continue in perpetuity.
15. Jurisdiction & Choice of Law
16. Complaints and Dispute Resolution
16.3 If a Dispute is not resolved by agreement within 20 business days of us receiving a Dispute Notice, either party may refer the Dispute to confidential mediation to be conducted by an independent mediator appointed by agreement between the parties, or failing agreement within 30 business days of us receiving the Dispute Notice. The costs of the mediator shall be borne equally between the disputing parties.
17.2 We reserve the right to perform maintenance of the Website or Application (whereby the functionality of the Website or Application may not be accessible for a certain period of time) without notice to you.
determine the eligibility for any such promotions, discounts or benefits.
a. The singular includes the plural and vice versa;
b. Words such as including or for example do not limit the meaning of the words preceding them;
c. A reference to a document includes the document as assigned, novated, altered, supplemented or replaced from time to time;
d. You must perform your obligations to us, and we will perform our obligations, on the dates and times fixed by reference to Melbourne, Victoria.
e. A reference to any party to these Terms and Conditions, includes that party’s executors, administrators, successors and permitted assigns and substitutes;
f. A reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
g. A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
h. A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and
i. An obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally.
“ACL” means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth)
“Applicable Laws” means any and all applicable laws, statutes, regulations, instruments and by-laws and all other subordinate legislation or orders made by any authority with jurisdiction over the use of the Website, Application and Product by you.
“Services” means the services listed in clause 2.1 and any subsidiary services provided by us via or in relation to the Application from time to time. It also includes our Products and Websites.
“Claim” mean any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature, whether present or future, fixed or un-ascertained, actual or contingent, at law, in equity, under statute or otherwise.
“Consumer” means a User who views, accesses and uses the Website, Application and/or a Product in Australia, and:
a. the amount payable for the Services does not exceed $40,000;
b. the Services provided are of a kind ordinarily acquired for personal, domestic or household use or consumption; or
c. is a “Consumer” as defined under the ACL.
“Content” means all content on the Website or Application including without limitation text, photographs, logos, names, designs, information, Personal Information, financial information, data,
drawings, URL links, video recordings and audio recordings.
“GST” is as defined in GST Act; “GST Act” means A New Tax System (Goods and Services) Act 1999 (Cth); and “GST Laws” means the GST Act and all related subsidiary regulations.
“Guests” means people who visit, view, browse, access or otherwise use the Website.
“Intellectual Property” means all intellectual property and quasi-intellectual property rights (past, present and future) conferred by law (whether registered or unregistered) including without
limitation business names, trade marks, patents, designs, copyright, trade secrets, computer programs, databases, inventions, moral rights and all proprietary rights and all other intellectual property defined in Article 2 of the Convention Establishing the World Intellectual Property
Organisation (July 1967).
“Loss” means loss, damage, liability, charge, expense, payment or cost of any nature or kind, including all legal and other professional costs (calculated on an indemnity basis).
“Payment Provider” means the third party engaged by Femtek from time to time to facilitate payments on the Website which is, at the time of writing these Terms, are services known as ‘Stripe’,
‘PayPal’, and ‘AfterPay’, and/or related companies in Australia or overseas.
“Payment Method” means valid payment details for credit cards/debit cards, or any other payment methods such as PayPal accounts or direct debit arrangements through nominated bank accounts, available from time to time on the Website.
“Personal Information” means any information or opinion which can reasonably identify an individual. “Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time.
“Registered User” means a user who has registered an account on the Application.
“Representatives” means Femtek’s directors, officers, contractors, employees, consultants, or other affiliates.
“Users” includes Registered Users and Guests.
“User Account” has the meaning provided in clause 4.1.
“User Content” means any Content shared via, or submitted or uploaded to, the Website and/or Application by a User, and includes without limitation, Biometric Data and Recorded Data.