A. GENERAL TERMS

1. Introduction.

(a) This web site (the “Site”), web-based portal (the “Portal”) are owned by and under the control of FRESKIN. Use and access of the Site and/or Portal and their related internet-based services, features, content and functionality, including the appointment booking service (the “Booking Service” and, together with the Site and Portal, the “Service” or “Services”) is subject to the following terms and conditions of use (the “Terms and Conditions” or “Agreement”) and all applicable laws and regulations. There are significant limitations on FRESKIN’s responsibilities and liabilities with regard to the Service, and important requirements regarding your access to the Service. For these reasons, Users are strongly urged and required to read the Terms and Conditions. By accessing, viewing or otherwise using the Service you, on behalf of yourself and all of your authorized representatives (collectively, the “User,” “you” or “your”) agree to the Terms and Conditions. User and FRESKIN are individually hereinafter referred to as a “Party” and collectively as the “Parties”. YOU AFFIRM THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER AND ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, AND TO ABIDE BY AND COMPLY WITH THIS AGREEMENT, AND YOU HEREBY ACCEPT THE TERMS AND CONDITIONS WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE AND EXIT NOW.

(b) From time to time, FRESKIN may without advance notice: (i) supplement or make changes to the Terms and Conditions and other rules or access and use procedures, documentation, security procedures and standards for equipment; (ii) change the type and location of FRESKIN’s system equipment, facilities or software; or (iii) modify or withdraw any particular service or product referred to in the Service or any FRESKIN database, material, service or system. FRESKIN shall update the Agreement with said changes with the “Last Updated” date displayed at the top of the revised policy. User acknowledges its responsibility to review the Terms and Conditions from time to time and to be aware of any such changes.

(c) FRESKIN employs reasonable measures to be as accurate as possible when describing professional services provided by licensed professionals that contract with FRESKIN and/or third party products on the Site; however, to the extent permitted by applicable law, FRESKIN does not warrant that product descriptions or other content available on the Site are accurate, complete, reliable, current or error-free.

2. Services.

(a) FRESKIN’s Service is designed to enable you to request and book certain professional services to be provided by a licensed medical or aesthetic professional, as appropriate. FRESKIN DOES NOT PROVIDE MEDICAL SERVICES OR MEDICAL ADVICE. ONLY LICENSED HEALTH CARE PROVIDERS MAY PROVIDE MEDICAL SERVICES OR ADVICE. Use of the Service does not create a doctor-patient relationship. Users are solely responsible for their decision to obtain treatment from a medical professional. We encourage you to consult with your own health care provider before using FRESKIN’s Booking Service to book any services with licensed medical or aesthetic professionals. IF YOU ARE EXPERIENCING AN EMERGENCY, YOU MUST DIAL 000 OR CONTACT A MEDICAL PROVIDER DIRECTLY.

(b) Subject to the Terms and Conditions, FRESKIN shall provide the Service to User, and User may access and use the Service solely for its intended purposes, provided, however, that FRESKIN shall have no obligation to support User’s use of the Service in the event that: (i) User modifies the Service (or any component thereof) without FRESKIN’s prior written consent; (ii) any error is caused in whole or in part by persons other than FRESKIN, including without limitation, User’s failure to properly enter or transmit data; or (iii) any error is caused in whole or in part by User’s use of the Service in association with operating environments and platforms other than those specified, and supported, by FRESKIN.

(c) To the extent that the Service incorporates any third party software licensed by FRESKIN, then, in addition to the terms set forth herein, User must comply with any additional terms, restrictions or limitations applicable to such third party software, to the extent that FRESKIN has notified User of such terms, restrictions or limitations. Additionally, User acknowledges that FRESKIN shall have the right to subcontract performance of its hosting services, in which event the service levels provided by any third party hosting provider (including, without limitation, any service levels that are stricter than the service levels offered by User) will be incorporated herein by reference.

3. User IDs.

User will comply with all of FRESKIN’s rules and regulations and security restrictions in connection with use of the Service. If you decide to register for an account with FRESKIN for access to and use of the Service, you must provide your e-mail address and create a password (“User ID”). User shall be solely responsible for ensuring the security and confidentiality of all User IDs. User acknowledges that it will be fully responsible for all liabilities incurred through its inappropriate use of any User ID and that any transactions under a User ID will be deemed to have been performed by User, except where the User ID information was acquired by a third party from FRESKIN. Use or disclosure of any User ID by User, other than as provided in this Agreement, shall be considered a breach of this Agreement by User. User may not share its User ID with any other user of the Service.

4. Proprietary Rights.

(a) User acknowledges FRESKIN’s proprietary rights in the Service, Technology (as defined below) and Content (as defined below) and shall protect the proprietary nature thereof. FRESKIN retains all right, title and interest in and to the Service, Technology and Content, subject only to the licenses expressly granted under this Agreement and separately to third parties. “Content” includes all information and documentation made available through the Service, including but not limited to text, data, files, documents, software, scripts, layout, design, function and “look and feel,” graphics, images, interactive features and any other materials that you may view and access through the Service. Occasionally there may be Content that contains typographical errors, inaccuracies or omissions. FRESKIN reserves the right to correct any errors, inaccuracies or omissions in Content; however, FRESKIN undertakes no obligation to update, amend or clarify Content, except as required by law. No specified update or freshness date applied to the Service should be taken to indicate that all Content has been modified or updated.

(b) You acknowledge and agree that any questions, comments, ideas, feedback or other information provided by you to FRESKIN (“Feedback”) are not confidential and that FRESKIN may reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Feedback as it deems appropriate, for any and all commercial or non-commercial purposes, in its sole discretion. If User suggests any new features, functionality or performance for the Service that FRESKIN subsequently incorporates into the Service (or any other software or service), User further acknowledges that (i) FRESKIN shall own, and has all rights to use, such suggestions, and the Service (or any other service) incorporating such new features, functionality or performance shall be the sole and exclusive property of FRESKIN; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon FRESKIN.

(c) Users have the ability to access and use the object code of certain technology and intellectual property owned by FRESKIN or its third-party licensors (the “Technology”). Subject to Users’ compliance with the Terms and Conditions, FRESKIN hereby grants Users a limited, non-exclusive, non-transferable, non-sublicensable right and license in the United States to access and use the Technology solely for its intended purpose as contemplated in this Agreement. Users acknowledge and agree that, as between each User and FRESKIN, each User is solely responsible and liable for its acts and omissions. Users shall not: (i) except as expressly permitted herein, license, sublicense, sell, resell, rent, lease, transfer, distribute, disclose, assign, pledge, time share or otherwise make the Technology available to any third party; (ii) use the Technology in violation of applicable laws; or (iii) interfere with or disrupt the integrity or performance of the Technology or the data contained therein.

(d) All trademarks, service marks, logos, slogans and taglines displayed on or through the Service are the property of FRESKIN or their respective owners and nothing contained herein should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed on or through the Service without the express written permission of FRESKIN, or such third-party that may own the trademark, service mark, logo, slogan or tagline.

5. User Information; Data Retention and Collection.

(a) User grants to FRESKIN a non-exclusive license to copy, use and display any and all data, information or communications (including personally identifiable data) sent or entered by Users while accessing the Service (“User Information”) solely to the extent necessary for FRESKIN to provide the Service. User acknowledges that FRESKIN exercises no control whatsoever over the content of the User Information and it is the sole responsibility of User, at its own expense, to provide the information, and to ensure that the information Users transmit or receive complies with all applicable laws and regulations now in place or enacted in the future. FRESKIN is under no obligation, however, to review User Information for accuracy, potential liability or for any other reason.

(b) FRESKIN shall have the right to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize and analyze any non-personally identifiable data or information (including, without limitation, User Information) resulting from User’s access and use of the Service (“Blind Data”). To the extent that any Blind Data is collected by FRESKIN, such Blind Data shall be solely owned by FRESKIN and may be used by FRESKIN for any lawful business purpose without a duty of accounting to User, provided that the Blind Data is used only in an aggregated, fully de-identified form, without specifically identifying the source of the Blind Data. FRESKIN agrees to comply with the applicable U.S. laws and regulations respecting the dissemination and use of such Blind Data.

(c) FRESKIN has security measures in place which are designed to protect personally identifiable information and sensitive data that is generated by User’s use of the Service and received by FRESKIN. While no computer system or server is completely secure, FRESKIN believes the measures it has implemented reduce security problems. Accordingly, FRESKIN’s Privacy Policy located at www.freskin.com.au is hereby incorporated into this Agreement by reference.

(d) FRESKIN will not alter any information received from User through User’s use of the Service if such alteration would render the information inaccurate.

6. User Restrictions.

User agrees not to: (a) copy, decompile, reverse engineer, disassemble, attempt to derive the source code, modify, transcribe, store, translate, sell, lease, transfer, distribute or create derivative works of the Service, Technology or Content, in whole or in part, without the prior written approval of FRESKIN; (b) upload or distribute in any way files that contain viruses, trojans, worms, time bombs, logic bombs, corrupted files or any other similar software or programs that may damage the operation of the Service or another’s computer; (c) use the Service for illegal purposes; (d) violate or attempt to violate the security of the Service or use the Service to violate the security of other web sites by any method; (e) access data not intended for User or log into a server or account which User is not authorized to access; (f) remove, alter or obscure any proprietary notice or legend of FRESKIN or its licensors upon the Service or Technology (g) interfere or disrupt networks connected to the Service; (h) upload, post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful or racially, ethnically or otherwise objectionable material of any kind or nature; (i) upload amounts of data and/or materials in excess of any limits specified by FRESKIN from time to time and not to create large numbers of accounts or otherwise transmit large amounts of data so as to clog the Service or comprise a denial of service attack or otherwise so as to have a detrimental effect on the Service; or (j) upload, promote, transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability. FRESKIN may take whatever remedial action it determines in its sole discretion is appropriate if User violates these restrictions, including, but not limited to, immediate suspension or cancellation of the Service.

7. Booking Service Payments, Refunds and Credits.

(a) By booking an appointment through the Booking Service, you agree to pay the fee indicated for the booked service to either FRESKIN or the applicable FRESKIN affiliate or subsidiary using one of our Payment Processors (defined below) for the state in which the booked service is being provided. Payments will be charged at the time of the professional service.

(b) FRESKIN REQUIRES AT LEAST 24-HOUR ADVANCED NOTICE OF RESCHEDULING OR CANCELLATION. You will be charged a fee of fifty dollars ($50.00) if you no-show or reschedule or cancel less than 24 hours prior to your appointment time. Services booked less than 24-hours in advance cannot be cancelled.

(c) By using the Booking Services, you hereby authorize FRESKIN or the applicable FRESKIN affiliate or subsidiary for the state in which the booked service is being provided to automatically charge your credit card (or other payment method) for the applicable fees or charges, plus any applicable taxes. FRESKIN DOES NOT ACCEPT HEALTH INSURANCE AS A FORM OF PAYMENT IN CONNECTION WITH ANY SERVICES. FRESKIN does not collect credit and debit card information directly through the Service and kindly asks you not to share this information with FRESKIN when submitting requests for additional information. FRESKIN does partner with third-party payment card processors (“Payment Processor”) so that Users may purchase products and services. For Users submitting payments through the Service using one of our Payment Processors, please note that your credit and debit card information (number, expiration date, security code) is provided directly to the Payment Processor and is stored by the Payment Processor and not by FRESKIN, and as such, it is important to review the Payment Processor’s terms to understand its information security practices.

(d) If during the Booking Service process, you misrepresent yourself in any manner, including but not limited to, a misrepresentation of your age or medical history, FRESKIN (or the applicable FRESKIN affiliate or subsidiary for the state in which the service is being provided) and/or the licensed health care professional reserve the right to cancel your booked service without notice or refund and charge you the full amount of the booked service. If, at the time of your booked service, you are under the influence of drugs or alcohol, the licensed health care professional will not perform the service and you will be charged the full amount.

(e) if you are booking for a consultation, it is consultation only and it does not include any services. We might contact you to reschedule/cancel your appointment under specific circumstances.

8. Disclaimer of Warranties.

THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. FRESKIN MAKES NO REPRESENTATION OR WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY (OTHER THAN ERRORS INTRODUCED BY FRESKIN), MERCHANTABILITY OR NONINFRINGEMENT. FRESKIN DOES NOT WARRANT THAT THE SERVICE WILL SATISFY YOUR REQUIREMENTS OR OPERATE UNINTERRUPTED OR ERROR-FREE. FRESKIN DOES NOT WARRANT ANY THIRD PARTY SOFTWARE, PRODUCTS OR EQUIPMENT. ALL CONTENT AVAILABLE THROUGH THE SERVICE IS INFORMATIONAL ONLY AND FRESKIN DOES NOT REPRESENT OR WARRANT THAT ANY CONTENT IS ACCURATE, TIMELY, COMPLETE OR APPROPRIATE, OR THAT ANY ERRORS IN CONTENT MADE AVAILABLE THROUGH THE SERVICE WILL BE CORRECTED. USER ASSUMES THE RESPONSIBILITY TO TAKE ADEQUATE PRECAUTIONS AGAINST DAMAGES TO USER’S SYSTEMS OR OPERATIONS WHICH COULD BE CAUSED BY DEFECTS OR DEFICIENCIES IN THE SERVICE. USER ALSO ACKNOWLEDGES THAT ELECTRONIC COMMUNICATIONS AND DATABASES ARE SUBJECT TO ERRORS, TAMPERING AND BREAK-INS AND THAT WHILE FRESKIN WILL IMPLEMENT REASONABLE AND APPROPRIATE SECURITY PRECAUTIONS DESIGNED TO PREVENT SUCH OCCURRENCES, FRESKIN DOES NOT GUARANTEE THAT SUCH EVENTS WILL NOT TAKE PLACE. USER SHALL IMPLEMENT AND TAKE RESPONSIBILITY FOR BACKING UP ALL USER DATA. THE DISCLAIMERS SET FORTH ABOVE ARE INDEPENDENT OF ANY OTHER REMEDY SET FORTH HEREIN, AND ARE INTENDED TO APPLY WHETHER OR NOT ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL FRESKIN OR ITS SUPPLIERS/LICENSORS BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), WHICH INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, ITS CONTENT OR PRODUCTS, OR ANY OF THE THIRD PARTY CONTENT AVAILABLE THROUGH THE SERVICE, EVEN IF FRESKIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Indemnification.

Without limiting the generality or effect of other provisions of this Agreement, as a condition of use, you agree to indemnify, hold harmless and defend FRESKIN and its parents, subsidiaries, affiliates, licensors, licensees, suppliers, partners and providers and their officers, directors, affiliates, subcontractors, agents and employees (each, individually, an “Indemnified Party”) against all costs, expenses, liabilities and damages (including reasonable attorney’s fees) incurred by any Indemnified Party in connection with any third party claims arising out of (a) your use of the Service; (b) your failure to comply with any applicable laws and regulations; and/or (c) your breach of any obligations set forth the Terms and Conditions. You shall not settle any such claim without the written consent of the applicable Indemnified Party.

11. Term; Termination.

(a) This Agreement shall commence upon a User’s visit to the FRESKIN Site or FRESKIN providing User with access to the Service and shall continue until terminated in accordance with the terms hereof. FRESKIN may terminate this Agreement immediately as it relates to a User in the event such User breaches any of these terms. Termination will be effective upon notice. User may terminate this Agreement at any time by ceasing to use the Service. Additionally, FRESKIN reserves the right to terminate access to the Service or take other actions it reasonably believes necessary to comply with the law or to protect its rights or the rights of its Users.

(b) Upon termination of this Agreement for any reason, User’s right to use the Service shall immediately cease. The terms and provisions of this Agreement, other than the continued use of the Service, shall survive any termination of this Agreement. Termination of this Agreement shall not relieve either Party of any obligation accrued prior to the termination date.

(c) User acknowledges and agrees that in the event of a material breach of this Agreement by User, FRESKIN shall be entitled to seek injunctive relief against User.

12. Communications.

(a) Services Related Communications

As part of the Services, you may receive communications through the Services, including messages that FRESKIN sends you (for example, via email or text message). You represent that if you provided an email and/or phone number, that this is your email and/or phone number, as a client of FRESKIN, and you consent to receive texts or emails about the Services you receive, including, without limitation, appointment reminders, confirmation emails, questions about scheduling or services, medical provider communications, etc. You represent that all information entered is your own, and that you consent to receive non-marketing email or text communications to the addresses and numbers provided. 

Keep in mind that if you opt out of receiving transactional text messages from us you may not receive important and helpful information and reminders about your appointments and treatment.

(b) Marketing Communications

By providing your email and accepting our terms, you may also receive marketing-related communications from FRESKIN including, without limitation, updates, offers, promotions and educational content. You may also choose to consent to marketing SMS by checking “I agree” when booking an appointment, in which case you authorize FRESKIN to send automated marketing communications to the number you provide. You understand that consent to marketing communications is not required to make a purchase.

If you wish to opt out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe option in the promotional email itself.

(c) SMS Communication Policies

Message and data rates may apply for text messages that you receive. To stop receiving text messages, text the word STOP from the mobile device receiving the message.

13. Confidential Information.

(a) “Confidential Information” means the Service and all features, content and functionality therein, and/or other information disclosed by FRESKIN under this Agreement, provided any of the foregoing is designated as confidential or by its nature would reasonably be expected to be kept confidential.

(b) Notwithstanding the previous paragraph, FRESKIN’s Confidential Information shall not include information that (i) is or becomes publicly available through no act or omission of User; (ii) was in User’s lawful possession prior to the disclosure and had not been obtained by User either directly or indirectly from FRESKIN as evidenced by written records; (iii) is lawfully disclosed to User by a third party not bound by a duty of non-disclosure; or (iv) is independently developed by User as evidenced by written records without access to or use of the Confidential Information.

(c) User agrees to hold the Confidential Information in confidence. User agrees not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than performing its obligations or enjoying its rights under this Agreement. User agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement.

(d) Notwithstanding the foregoing, User may disclose the Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that User provides to FRESKIN prior written notice of such disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure.

B. MISCELLANEOUS TERMS

1. Relationship Between The Parties. This Agreement shall not be construed as creating any agency, partnership, joint venture or other similar legal relationship between the Parties; nor will either Party hold itself out as an agent, partner or joint venture party of the other Party.

2. Compliance With Law. Each Party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.

3. Notice. FRESKIN may direct all notices intended for a User to the User’s email address provided upon registration of the Service (which a User may update from time to time in the User settings available within the Service). All notices required to be delivered to FRESKIN shall be delivered to FRESKIN via e-mail info@freskin.com.au

4. Waiver. No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective unless in a writing signed by both Parties.

5. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.

6. Assignment. User may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of FRESKIN. FRESKIN may assign and delegate this Agreement to successors in the event of a merger, acquisition or other change in control. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

7. Governing Law; Arbitration. This Agreement and all claims related to it, its execution or the performance of the Parties under it, shall be construed and governed in all respects according to the internal laws of the State of NEW SOUTH WALES without regard to the conflict of law provisions thereof. User hereby waives any right to bring any claim against FRESKIN in court (including any right to a trial by jury), except as provided by the rules of the arbitration forum in which a claim is filed. User waives any right it may have to start or participate in, and agrees to opt out of, any class action against FRESKIN arising from or relating to the Service or this Agreement. Any controversy or claim arising out of or relating to an alleged breach of this Agreement or the operation of this Service shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association before a single arbitrator. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Sydney and the language of such arbitration shall be English and Chinese. FRESKIN may seek any interim or preliminary relief from a court of competent jurisdiction necessary to protect FRESKIN’s rights or property pending the completion of arbitration. The arbitrator shall not have the authority, power or right to alter, change, amend, modify, add or subtract from any provision of this Agreement. The arbitrator shall have the power to issue mandatory orders and restraining orders in connection with the arbitration. The award rendered by the arbitrator shall be final and binding on the Parties, and judgment may be entered thereon in any court of competent jurisdiction.

8. Force Majeure. Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar causes beyond FRESKIN’s control. Certain obligations may require the cooperation of third parties outside the control of a Party. In the event such third parties fail to cooperate in a manner that reasonably permits the performance of a Party’s obligations, such failures shall be considered as causes beyond the control of the Party for the purposes of this Section and shall not be the basis for a determination that such Party is in breach of any of its obligations under this Agreement or is otherwise liable.

9. Entire Agreement. This Agreement, together with all the other agreements, including without limitation the Privacy Policy, shall constitute the complete agreement between the Parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be amended, modified, supplemented or rescinded unless agreed to by FRESKIN.

C. CONTACT INFORMATION

If you have questions or concerns with respect to the Terms and Conditions, please contact FRESKIN.