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1. WHEN Fertility Pty Ltd (ACN 654 291 442, ABN 88 654 291 442) (WHEN Fertility, we, us, our) operates a digital health platform which provides products and services through the WHEN Fertility website (Website) as well as other distribution channels.
2. At WHEN Fertility we:
a. create and link customers to information about egg count;
b. provide sample collection kits; and
c. provide a link between our customers and:
i. pathology providers (Partner Providers); and
ii. registered Australian health practitioners, including medical practitioners and nurses (Practitioner Providers).
3. Our Partner Providers and Practitioner Providers are collectively referred to as Providers in these Terms and Conditions.
4. Throughout these Terms and Conditions "You" or "you" means, you the user or consumer that is accessing our Website, any Account or otherwise purchasing WHEN Fertility products or services.
5. It is important that you are aware that our Website’s content, test results and any communications you have with WHEN Fertility or our Providers are not a substitute for independent medical advice. You should always obtain medical advice from your regular medical practitioner.
6. The sample collection kit tests egg count only. It does not test egg quality. Indicated egg count does not predict your chance of becoming pregnant, whether now or in the future. This test does not diagnose, treat, cure or prevent any disease or medical condition. Test results, including any comments with your test report or in a consultation with a Practitioner Provider, are not a substitute for independent medical advice. You should speak with a medical practitioner if you wish to assess your fertility and before making any decisions about healthcare, including contraception. For details on the science and use of information about egg count, please visit whenfertility.com.au/science
7. By accessing, browsing or using the Website, you agree to these Terms and Conditions as amended from time to time, and acknowledge that you have read and understood these Terms and Conditions.
8. These Terms and Conditions govern the use of the Website, the purchases of any goods or services from WHEN Fertility (whether through the Website or from any other channel) and the provision of any services by WHEN Fertility whether through the Website or otherwise.
9. WHEN Fertility reserves the right to amend the Terms and Conditions at any time. If you are a registered user, you will be notified of these amendments by email. If you do not agree with the Terms and Conditions, you may unsubscribe and close your user account at any time (see paragraphs 39-41 below).
10. When creating a user account, you will be provided with these Terms and Conditions and our Privacy Policy in a pop up box and you will be required to read and agree to both before your account creation is finalised.
11. You are only permitted to create one registered user account (Account).
12. An Account is required to:
a. activate your sample collection kit;
b. complete the process for submitting a sample obtained after purchase of a WHEN Fertility sample collection kit;
c. create your profile;
d. see the progress of the analysis of your sample;
e. access the test results from the analysis of your sample; and
f. if relevant, attend appointments with Practitioner Providers.
13. To create an Account, you must access www.member.whenfertility.com.au/register and fill in your details. You must then confirm that you agree to these Terms and Conditions and our Privacy Policy and click the “create account” button.
14. On registration, you are required to create a password for your Account. It is your responsibility to remember your password and keep it confidential and secure.
15. If you suspect your Account has been accessed or used without your authority, you must immediately change your password and immediately notify WHEN Fertility at hello@whenfertility.com.au. This is important so that your personal information remains secure.
16. WHEN Fertility is not liable for any damages, losses or expenses suffered by you as a result of any unauthorised access to a user's Account except to the extent that such damages, losses or expenses are incurred as a result of fraud, wilful misconduct or negligent acts or omissions of WHEN Fertility.
17. A sample collection kit may be purchased from the Website or other sources.
18. Any valid discount codes must be applied at the time of purchase as WHEN Fertility cannot apply them retrospectively.
19. WHEN Fertility will dispatch your order to the address you have provided.
20. In order to activate your sample collection kit you must create an Account.
21. Always read the label and follow the directions for use.
22. If you do not follow the steps stated on the instructions that are contained within your sample collection kit to collect your sample correctly, WHEN Fertility and the Partner Providers will not be able to warrant the accuracy of your results. WHEN Fertility and the Partner Providers will not be responsible for any inaccuracy in results caused by incorrect sample collection other than where WHEN Fertility and/or the Partner Provider have made a negligent act or omission which contributed to that inaccuracy and in that case, WHEN Fertility and/or the Partner Provider's liability will be reduced to the extent of their negligence.
23. Our Partner Provider is an independent third party engaged by WHEN Fertility. You must use the reply paid envelope included in your sample collection kit to post the sample to our Partner Provider to ensure your sample is received in a timely manner. If you misplace your reply paid envelope, do not use your own envelope. Please notify WHEN Fertility at hello@whenfertility.com.au as soon as possible to arrange a replacement reply paid envelope which will be sent to you free of charge.
24. Once the Partner Provider receives your sample, the Partner Provider will conduct testing on the sample.
25. WHEN Fertility will send you an email to notify you when your test results are available. You will be able to see the progress of the analysis of your sample and access your test results through your member portal which you access by logging into your Account.
26. If you have not received your results within 10 days, please contact WHEN Fertility at hello@whenfertility.com.au with details of when your sample was sent. If your sample is lost due to the fault of WHEN Fertility or our Partner Providers, we will send you a new sample collection kit free of charge.
27. If your results indicate a low egg count, you will be provided with instructions at the end of your test report to book an appointment with a Practitioner Provider to discuss your results. This appointment is at no additional cost to you.
28. If you wish to investigate your results further or if your results indicate a low egg count but you choose not to attend an appointment with a Practitioner Provider, it is important that you speak to your medical practitioner to obtain further advice.
29. The appointment with our Practitioner Provider can be booked through the member portal.
30. Your appointment will last up to 20 minutes, with the length depending on your test results and the topics discussed.
31. WHEN Fertility will send you a SMS reminder 24 hours prior to your appointment. WHEN Fertility will also send you a second SMS reminder 3 hours prior to your appointment.
32. If you fail to attend your appointment or if the appointment does not proceed or finish due to issues with your connection:
a. on one occasion, you will be given the option to reschedule your appointment; and
b. if it is the second time you have failed to attend your appointment for any reason and without providing the required notice pursuant to paragraph 33(a), your free of charge appointment will be forfeited and you will need to attend a meeting with your own medical practitioner.
33. If you are no longer able to attend your appointment, please let us know at least 2 hours prior to your appointment by emailing hello@whenfertility.com.au
a. If you provide us with at least 2 hours of notice, you will have the option to reschedule your appointment.
b. If you provide us with less than 2 hours of notice, this will be treated as though you failed to attend your appointment per paragraph 32 above.
34. If the Practitioner Provider fails to attend the appointment or if the appointment does not proceed or finish due to the Practitioner Provider or WHEN Fertility's fault, you will be given the option to reschedule your appointment.
35. Test results, including any comments with your test report or in a consultation with a Practitioner Provider, are not a substitute for independent medical advice. You should speak with a medical practitioner if you have any questions arising following the call with our Practitioner Provider, if you wish to assess your fertility and before making any decisions about healthcare, including contraception.
36. When you create an Account, you will be required to provide WHEN Fertility with personal information through the account creation process, including (but not limited to) identity information, including your name, phone number, address and email address.
37. The WHEN Fertility Privacy Policy can be accessed via www.whenfertility.com.au/privacy-policy, and sets out how we collect, store and use your personal information and sensitive information.
38. You agree that all information you provide to WHEN Fertility and the Providers will be accurate, up-to-date and complete. You agree that you will not omit any information that is reasonably relevant to the products and services provided through the Website and any other distribution channel. Should any information you have provided to WHEN Fertility or the Providers be inaccurate or become inaccurate, you agree that you will correct that information as soon as reasonably possible.
39. If at any time you wish to close your Account you should email hello@whenfertility.com.au with details of your request including your name, date of birth, address and email address.
40. Your Account will be closed within 30 days.
41. You may subscribe to WHEN Fertility information alerts by creating an Account or by providing us with your email address through the Website. If at any time you wish to unsubscribe from WHEN Fertility information alerts, please click the 'unsubscribe' button at the bottom of any WHEN Fertility email.
42. Prices for all WHEN Fertility goods and services are displayed on the Website and are current at the time of issue. Prices and availability of the goods and services may change from time to time.
43. You are responsible for any taxes, duties or other liabilities imposed by any government or agency, including without limitation, any customs duty, goods and services taxes or any value added tax imposed on any goods or services acquired or ordered by you from the Website.
44. Unless otherwise indicated, Intellectual Property Rights in:
a. all materials or media in any form on the Website including the text, information, graphics, logos and design;
b. the sample collection process and product;
c. test reports or results;
d. any instructions, materials, designs or labelling of the sample collection kit;
e. any educational materials or media;
f. any other products and services provided by WHEN Fertility, are owned by or licensed to WHEN Fertility IP Pty Ltd (WHEN IP Rights).
45. You must not copy, exploit, adapt, reproduce, store, transmit, distribute, sell, modify, publish, print or create derivative works of the whole or any part of the WHEN IP Rights for any purpose whatsoever without the prior written consent of WHEN Fertility IP Pty Ltd or, in the case of third party material or media, from the owner of the Intellectual Property Rights in that material or media. However, you may provide a copy of your test report to show your medical practitioner.
46. WHEN is a trade-mark of When Fertility IP Pty Ltd. All other trade marks used on the Website are trade marks of respective third party owners.
47. Nothing contained on the Website should be construed as granting any licence or right to use any trade mark displayed on the Website without WHEN Fertility IP Pty Ltd's express permission, or permission from the third party owner of the respective trade mark. All third party trade marks used on the Website are used with the consent of the third party owners and does not include a licence for you to use the trade marks.
48. Please contact WHEN Fertility IP Pty Ltd using the contact form on the Website or by emailing hello@whenfertility.com.au with any requests to use materials or media available on the Website.
49. In these terms and conditions, Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include:
a. all rights in all applications to register these rights;
b. all renewals and extensions of these rights; and
c. all rights in the nature of these rights, excluding moral rights.
50. The Website may contain links to or display the content of third parties, including links to websites operated by third parties. Where WHEN Fertility is displaying or linking to third party content, this will be made clear on the Website.
51. WHEN Fertility does not control these linked websites and content. WHEN Fertility provides these links and content for convenience only, and does not endorse, support or approve or make any warranty or claim regarding them, the products, services or information available on these third party websites, the owner or operator of these third party websites, or their conduct.
52. In the event you have any concerns about any content or links on our Website please contact WHEN Fertility by emailing hello@whenfertility.com.au
53. You must not use the Website or your Account:
a. in a way that breaches any applicable laws or regulations;
b. for commercial purposes; or
c. to harm, abuse, harass, stalk, threaten or otherwise offend others.
54. You must not use the Website or your Account to interfere with, disrupt, or create an undue burden on the Website or your Account or attempt to transmit any material of any kind to the Website or your Account which contains a virus, malicious computer code or another harmful component.
55. Without limiting any of the above conditions, you will not and will not permit a third party to:
a. link to, frame, mirror or use any data extraction tools on any part of the Website or your Account except with WHEN Fertility's written authorisation;
b. use any product, method or process (including but not limited to data scraping, web-bots, collection or accumulation tools, robots, spiders or scripted responses) in order to obtain, process, copy, replicate, distribute, reconfigure, republish, view, assess, analyse, modify or replace the whole or any part of the Website or your Account;
c. use, obtain, or attempt to use or obtain from the Website or your Account, information in relation to business methodology or systems; and
d. do anything which will or may cause damage, disruption or interference with the operation of the Website or any Account.
56. If you believe that a user has breached any of the above conditions, please contact us at hello@whenfertility.com.au.
57. If you breach any provision of these Terms and Conditions, WHEN Fertility will notify you of that breach. If the breach is not rectified within 7 days of notification, WHEN Fertility may block or suspend your Account, and modify or remove any material uploaded, posted, transmitted or otherwise made available by you on the Website or through your Account.
58. If the breach damages, disrupts or interferes with the operation of the Website, any Account or disrupts other users' use of the Website or any Account, WHEN Fertility reserves the right to block or suspend your account, and to modify or remove any material uploaded, posted, transmitted or otherwise made available by you on the Website or through your Account, without notice.
59. WHEN Fertility is not liable for any claims, loss, damage, tax, liability and/or expense arising from or in connection with your, or any other customer's, breach or failure to comply with these Terms and Conditions except to the extent that the claims, loss, damage, tax, liability and/or expense arises as a result of WHEN Fertility's fraud, wilful misconduct or negligent acts or omissions.
60. WHEN Fertility is not liable for any material uploaded, posted, transmitted or otherwise made available on the Website or in any Account by any person other than WHEN Fertility. WHEN Fertility does not endorse any opinion, advice or statement made by any person other than WHEN Fertility.
61. To the extent permitted by law, WHEN Fertility is not liable for any loss or damage, howsoever caused, which may result from your use of or failure to access the Website or your Account, the content contained on the Website or in your Account or due to the fact that the Website or any Account content is wrong, incomplete or out of date except to the extent that the loss or damage arises as a result of WHEN Fertility's fraud, wilful misconduct or negligent acts or omissions.
62. To the extent permitted by law, WHEN Fertility disclaims any liability arising from your use of our products and services except to the extent the liability arises as a result of WHEN Fertility's fraud, wilful misconduct or negligent acts or omissions.
63. By accessing our Website and/or your Account, you assume all risks associated with its use, including but not limited to the risk that your computer, software or data may be damaged by any virus transmitted by the Website or by any third party content (as described in paragraph J above), except to the extent that any damage or risks arise as a result of WHEN Fertility's fraud, wilful misconduct or negligent acts or omissions.
64. These Terms and Conditions are governed by the laws of New South Wales, Australia.
65. WHEN Fertility will retain title to the goods you order until you have made payment in full for those goods.
66. WHEN Fertility will dispatch your goods once we have received your payment in full.
67. If delivery times are published on the Website or otherwise provided, these are estimates and are indicative only. WHEN Fertility is not liable for any failure to observe these delivery times except to the extent that any delay or damage arises as a result of WHEN Fertility's fraud, wilful misconduct or negligent acts or omissions.
68. WHEN Fertility is not required to cancel your order, provide a refund or provide a replacement if you change your mind. However, if your product has not been dispatched yet, please contact WHEN Fertility via hello@whenfertility.com.au and we may be able facilitate a change of mind refund.
69. WHEN Fertility will provide you with a refund or replacement if the goods or services we provide do not meet the consumer guarantees in the Australian Consumer Law, including if:
a. the goods we provide are not of acceptable quality, including if they are not fit for purpose or if there are defects; or
b. the services we provide are not rendered with due care and skill or are not fit for purpose.
70. Subject to rights that are guaranteed or cannot be waived under Australian Consumer Law, we are not able to issue returns and refunds for any other reason due to the medical nature of our product.
71. If you would like to request a cancellation or refund, or you think your product is faulty or has been damaged in transit, please contact hello@whenfertility.com.au and we will be happy to assist.
72. Any provision of these Terms and Conditions, which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these Terms and Conditions enforceable, unless this would materially change the intended effect of these Terms and Conditions.
73. The obligations in paragraphs 1 to 10, 16, 22, 35 to 38, 44 to 46, 49 to 51, 59 to 62, 63 to 64 and 72 to 73 of these Terms and Conditions survive any termination or expiry of this document.
If you have any queries regarding these Terms and Conditions, please contact us at hello@whenfertility.com.au
Policy Number: WF007.v3
