By clicking “I accept,” or by simply using this website, or submitting payment information through this website, you agree to be bound to these Terms and Conditions (the “Agreement”), constituting a legally binding agreement between Surgen Pty Ltd (ABN 12 654 956 591) trading as Surgen (hereinafter referred to as “Surgen”) and you (in either case, “You” or “Your”) concerning Your use of the Surgen website – www.surgen.com.au (the “Website”) and the services available through the Website (the “Services”). We encourage you to print this Agreement or copy it to your computer’s hard drive for your reference.

By using the Website and Services, You represent and warrant that You have read and understood, and agree to be bound by this Agreement and Surgens Privacy Policy (the “Privacy Policy”), which is incorporated herein by reference and made part of this Agreement.

If you do not understand this agreement, or do not agree to be bound by it or the privacy policy, you must immediately leave the website and cease using the services.

PRIVACY POLICY

By using the Website, You consent to the collection and use of certain information about You, as specified in the Privacy Policy. Surgen encourages users of the Website to frequently check Surgen’s Privacy Policy for changes.

CHANGES TO AGREEMENT AND PRIVACY POLICY

Internet technology and the applicable laws, rules, and regulations change frequently. Accordingly, Surgen reserves the right to change this agreement and its privacy policy at any time upon notice to you, to be given by the posting of a new version or a change notice on the website. It is your responsibility to review this agreement and the privacy policy periodically. If at any time you find either unacceptable, you must immediately leave the website and cease using the services.

Unless Surgen obtains your express consent, any revised Privacy Policy will apply only to information collected by Surgen after such time as the revised Privacy Policy takes effect, and not to information collected under any earlier Privacy Policies.

ELIGIBILITY

By using the website or services, you represent and warrant that you are at least 18 years old and are otherwise legally qualified to enter into and form contracts under applicable law. Any individual using the Website or Services on behalf of a company further represents and warrants that they are authorised to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.

LICENSE

Subject to Your compliance with the terms and conditions of this Agreement, Surgen grants you a non-exclusive, non-sub licensable, revocable as stated in this Agreement, non-transferable license to use the Website and Services. The Website, or any portion of the Website, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of Surgen. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of Surgen or any other party. The license granted in this section is conditioned on Your compliance with the terms and conditions of this Agreement. Your rights under this section will immediately terminate in the event that You breach, actually or potentially in the sole judgment of Surgen, any provision of this Agreement.

NO RELIANCE ON THIRD-PARTY CONTENT

Opinions, advice, statements, or other information made available by means of the Website and Services by third-parties, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Surgen does not:

(i) guarantee the accuracy, completeness, or usefulness of any third-party information on the Website; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice or statement made by a third-party by means of the Website and Services. Under no circumstances will Surgen be responsible for any loss or damage resulting from your reliance on information or other content posted on the Website or transmitted to or by any third-party.

ASSUMPTION OF RISK; RELEASE

You knowingly and freely assume all risk when using the website and services. You, on behalf of yourself, your personal representatives, and your heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Surgen and its shareholders, officers, directors, employees, tutors, agents, affiliates, consultants, representatives, sub-licensees, successors, and assigns (collectively, the “Surgen parties”) from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the website and services.

USER INFORMATION; PASSWORD PROTECTION

You represent and warrant that all user information You provide in connection with Your use of the Website and Services will be current, complete, and accurate, and that You will update that information as necessary to maintain its completeness and accuracy by visiting your personal profile. You represent and warrant that You will not create a profile for anyone other than a natural person. You represent and warrant that You will not create any fake profiles. For additional information, see the Section concerning “User Ability to Access, Update, and Correct Personal Information” in Surgen’s Privacy Policy.

You may also be asked to provide a user name and password in connection with Your use of certain of the Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, user name, or password of any other member at any time. You agree to notify Surgen immediately of any unauthorized use of Your account, user name, or password. Surgen shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by Surgen, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.

CONSENT TO RECEIVE EMAIL FROM SURGEN

By registering with the Website, you thereby consent to receive periodic email communications regarding the Services, new product offers, promotions, and other matters.

THIRD-PARTY WEBSITES

The Website is linked with the websites of third parties (“Third-Party Websites”), some of whom may have established relationships with Surgen and some of whom may not. Surgen does not have control over the content and performance of Third-Party Websites. Surgen has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through third-party websites. Accordingly, Surgen does not represent, warrant, or endorse any third-party website, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through third-party websites. Surgen disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of third-party websites.

PROHIBITED USES

Surgen imposes certain restrictions on Your use of the Website and the Services. You represent and warrant that you will not: (a) “stalk” or otherwise harass any person, or contact any person who has requested not to be contacted; (b) provide false, misleading or inaccurate information to Surgen or any other member; (c) impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity; (d) while, using the Website and Services, use “ad blocking” software or similar built-in web browser options designed to hide, block or prevent the proper display of online advertising; (e) modify or change the placement and location of any advertisement appearing on the Website; (f) harvest or otherwise collect information about Surgen users, including email addresses and phone numbers; (g) use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites; (h) access content or data not intended for You, or log onto a server or account that You are not authorised to access; (i) attempt to probe, scan, or test the vulnerability of the Services, the Website, or any associated system or network, or breach security or authentication measures without proper authorisation; (j) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (k) use the Website or Services to send unsolicited e-mail, including without limitation promotions or advertisements for products or services; (l) forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Website or Services; or  attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Surgen Parties in providing the Website or Services. Any violation of this section may subject you to civil and/or criminal liability.

INTELLECTUAL PROPERTY – COMPLIANCE WITH LAW

You represent and warrant that, when using the Website and Services, You will obey the law and respect the intellectual property rights of others. Your use of the Website and Services is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property generally. You agree not to upload, post, transmit, display, perform or distribute any content, information or other materials in violation of any third-party’s copyrights, trademarks, or other intellectual property or proprietary rights. You shall be solely responsible for any violations of any laws and for any infringements of third-party rights caused by your use of the website and services. You bear the sole burden of proving that content, information, or other materials do not violate any laws or third-party rights.

COPYRIGHTED MATERIALS: COPPYRIGHT NOTICE

All content and other materials available through the Website and Services, including without limitation the Surgen logo, design, text, graphics, and other files, and the selection, arrangement, and organisation thereof, are either owned by Surgen, or are the property of Surgen’s licensors and suppliers. Except as explicitly provided, neither Your use of the Website and Services nor this Agreement grant You any right, title, or interest in or to any such materials.

DISCLAIMERS; LIMITATION OF LIABILITY – NO WARRANTIES

To the maximum extent permitted by Australian and International law, Surgen, on behalf of itself and its licensors and suppliers, hereby expressly disclaims any and all warranties, express or implied, regarding the website, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Surgen nor its licensors or suppliers warrants that the website or the services will meet your requirements, or that the operation of the website or the services will be uninterrupted or error-free. The liability of Surgen for damages arising out of the furnishing of services pursuant to this agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, or other defects, representations, or arising out of the failure to the furnish services, whether caused by acts of commission or omission, or any other damage occurring, shall be limited to the maximum extent permitted by law. Surgen shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Surgen, Surgen parties, or Surgen users, or their agents or representatives.

YOUR RESPONSIBILITY FOR LOSS OR DAMAGE; BACKUP OF DATA

You agree that your use of the website and services is at your sole risk. You will not hold Surgen or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to or use of the website, including without limitation any loss or damage to any of your computers or data. The information and services may contain bugs, errors, problems, or other limitations.

Importantly, you hereby acknowledge that a catastrophic disk failure or other event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to back up your data to your personal computer or external storage device and to ensure such backups are secure.

LIMITATION OF LIABILITY

The liability of Surgen and its licensors and suppliers is limited to the maximum extent permitted by law. In no event shall Surgen or its licensors or suppliers be liable for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to Surgen or its licensors and suppliers arising out of or in connection with your use of the website or services. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. Additionally, the maximum liability of Surgen and its licensors and suppliers to you under all circumstances shall be $50.00. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Surgen and you. The website and services would not be provided without such limitations.

APPLICATION

The above disclaimers, waivers and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Surgen or between you and any of Surgen’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Unless limited or modified by applicable law, the foregoing disclaimers, waivers and limitations shall apply to the maximum extent permitted, even if any remedy fails its essential purpose. Surgen’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the website or otherwise shall alter any of the disclaimers or limitations stated in this section.

YOUR REPRESENTATIONS AND WARRANTIES

You represent and warrant that Your use of the Website and Services will be in accordance with this Agreement and any other Surgen policies, and with any applicable laws or regulations.

INDEMNITY BY YOU

Without limiting any indemnification provision of this Agreement, You (the “Indemnitor”) agree to defend, indemnify and hold harmless Surgen and all Surgen Parties (collectively, the “Indemnities”) from and against any and all claims, actions, demands, causes of action, and other proceedings (collectively, “Claims”), including but not limited to legal costs and fees, arising out of or relating to: (i) the relationship between You and Surgen, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) Your access to or use of the Website or Services; (iv) Your provision to Surgen or any of the Indemnities of information or other data; or (v) Your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) Your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. The Indemnities each have the individual right, but not the obligation, to participate through counsel of their choice in any defence by You of any Claim as to which You are required to defend, indemnify, or hold harmless any, each, and/or all Indemnities. You may not settle any Claim without the prior written consent of the concerned Indemnified Parties.

TERMINATION BY SURGEN

Without limiting any other provision of this agreement, Surgen reserves the right to, in Surgen’s sole discretion and without notice or liability, deny use of the website and/or services to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this agreement, or of any applicable law or regulation.

AUTOMATIC TERMINATION UPON BREACH BY YOU

This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties, or covenants. Such termination shall be automatic, and shall not require any action by Surgen.

BY YOU

You may terminate this Agreement and Your rights hereunder at any time, for any or no reason at all, by providing to Surgen notice of Your intention to do so, in the manner required by this Agreement.

EFFECT OF TERMINATION

Any termination of this Agreement automatically terminates all rights and licenses granted to You under this Agreement, including all rights to use the Website and Services. Upon termination, Surgen may, but has no obligation to, in Surgen’s sole discretion, rescind any services and/or delete from Surgen’s systems all Your Personal Information and any other files or information that You made available to Surgen or that otherwise relate to Your use of the Website or Services. Subsequent to termination, Surgen reserves the right to exercise whatever means it deems necessary to prevent Your unauthorized use of the Website and Services, including without limitation technological barriers such as IP blocking and direct contact with Your Internet Service Provider.

LEGAL ACTION

If Surgen, in Surgen’s discretion, takes legal action against You in connection with any actual or suspected breach of this Agreement, Surgen will be entitled to recover from You as part of such legal action, and You agree to pay, Surgen’s reasonable costs and attorneys’ fees incurred as a result of such legal action. The Surgen Parties will have no legal obligation or other liability to You or to any third party arising out of or relating to any termination of this Agreement.

SURGEN PTY LTD – 2022