Terms and Conditions

Terms of Use Agreement

Welcome to Personal Tuning for Fibromyalgia and Migraines Limited (“Company”).  This Company operates both online and via a clinic in Whangarei, New Zealand.  We teach a gentle exercise/movement with specific types of breathing technique, information and services via the website www.personaltuning.co.nz www.personaltuningwebinars.com   www.personaltuningaustralia.com  and any other website, channel, application, mobile feature, and/or platform we operate (“Site”). In these Terms and Conditions of Use, along with the Disclaimer/Contraindications on our Site ("Terms"), the use of the words “Company,” “we,” “our,” and “us” refer to Personal Tuning for Fibromyalgia and Migraines Limited. The words “user,” “you,” and “your” refer to entities or individuals that access and/or use the Site. These Terms do not alter in any way the terms or conditions of any other agreement you may have with us. If you are using the Site on behalf of any entity, you represent and warrant that you are authorised to accept these Terms on such entity’s behalf.


 

1. Read Carefully!

These Terms govern your access to and use of the Site provided by Company. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE. BY ACCESSING THE SITE AND/OR CREATING A USER ACCOUNT, YOU AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE SITE. COMPANY’S ACCEPTANCE OF YOUR ACCESS TO OR USE OF THE SITE IS EXPRESSLY CONDITIONAL UPON YOUR CONSENT TO ALL OF THESE TERMS.

2. Third Parties and Polices

Please be aware that when you access and/or use certain features of the Site, your access to or use of such features will also be subject to all guidelines, terms, agreements, and conditions applicable to such features, including third party policies (the “Policies”). All such Policies are incorporated into these Terms by reference, and if the applicability of these Terms is incompatible with your access to or use of the Services, the relevant terms of such third party Policies will control.

3. Changeability

We reserve the right to change or modify these Terms or any Policy and the Site we offer at any time without notice to you to reflect changes in our practices or keep current with relevant laws or industry standards. We also retain the right to create limits on your use and storage of User Content (defined below) at our sole discretion at any time without prior notice to you. In addition, Company may stop (permanently or temporarily) providing the Site (or any features within the Site) to you or to users generally and may not be able to provide you with prior notice. We may attempt to notify any registered users of material changes by sending an email to the email address you most recently provided us in your User Account (defined below), (unless we do not have such an email address), and/or by posting notice of the changes on the Site. Your access to and/or use of the Site will be subject to the most current version of these Terms posted on the Site at the time of your access or use. We recommend that you check the Site from time to time to inform yourself of any changes in these Terms, and stay apprised of any other Policies that may be applicable; you are solely responsible for reviewing and becoming familiar with any modifications to these Terms.

Should Company permanently stop the Site, you may terminate your use, User Account, pursuant to the termination process set forth in these Terms.

4. Our Stuff

Company’s proprietary content, including videos, designs, text, graphics, pictures, information, Services, data, software (and the selection and arrangement thereof) logos, and code (collectively, the “Site Materials”) are all property of Company and are protected by intellectual property laws, and except as permitted under these Terms, Company expressly reserves all right, title, and interest in and to the content and services of the Site and Site Materials, aggregate data, and reports, and all processing, analytics, and other software and technology used by Company in the analysis of User Content (as defined below) and/or the provision of the Site, including, without limitation, any derivatives, improvements, enhancements, or extensions thereof conceived, reduced to practice, or otherwise developed on or on behalf of Company, all of which are valuable assets of Company, and any copyright, patent, trademark, or any other intellectual property right pertaining thereto.

UNAUTHORISED USE, MODIFICATION, REPUBLISHING, TRANSMITTING, DISTRIBUTING, OR DUPLICATING OR ANY OTHER MISUSE OF THE SITE OR SITE MATERIALS BY YOU IS PROHIBITED.

5. Social Media

Company’s social media pages (“Social Media Sites”), including but not limited to Facebook pages, may now or in the future allow users to select and input information and data in connection with Social Media Sites and allow you or other users to post, link, store, or otherwise make available a wide variety of information, text, and/or other materials in connection with the use of the Social Media Sites or otherwise (collectively, “User Content”). You are solely responsible for your use of any User Content and use such User Content at your own risk. By posting any User Content, you represent and warrant that you own and control all of the rights to the User Content that you post, or that you otherwise have the lawful right to distribute and reproduce such User Content and to grant Company the license for the User Content described below and that your use and posting of such User Content does not violate these Terms, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for any third party.

By selecting and/or posting any User Content, you agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through the Social Media Site any of the following:

  • User Content that is unlawful, defamatory, obscene, pornographic, harassing, threatening, invasive of privacy or publicity rights, deceptive, fraudulent, or otherwise objectionable (as determined in our sole discretion);
  • User Content that would constitute, encourage, or provide instructions for a criminal offence, violate the rights of any party or violate any local, national, or international law;
  • User Content that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
  • User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; or that inappropriately provides private information of any third party including addresses, phone numbers, email addresses, health or location information, or similar information;
  • User Content that, in our sole discretion, is objectionable or which restricts or inhibits any other person from using and/or benefiting from our Site, including, without limitation, User Content that contains or installs any viruses, worms, malware, Trojan horses, or other harmful or destructive content;
  • User Content that is spam, is machine- or randomly-generated, contains unethical or unwanted commercial content, furthers unlawful acts (such as phishing) or misleads recipients as to the source of the material (such as spoofing);
  • User Content that in any way refers to or depicts persons under eighteen (18) years of age; or
  • User Content that attempts to disrupt the Social Media Site or Services.

We take no responsibility and assume no liability for any User Content posted, stored, or uploaded by you or any third party, or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, omissions, falsehoods, obscenity, pornography, or profanity you may encounter.

As a provider of services that may in certain ways be interactive, we are not liable for any statements, representations, User Content, or Advertiser and Corporate Partner Content (as defined below) provided by users in any form whatsoever in connection with the Social Media Site. Although we have no obligation to screen, edit, or monitor any of the User Content or Advertiser and Corporate Partner Content posted anywhere in connection with the Social Media Site, we reserve the right, and have absolute discretion, to remove, screen, or edit any User Content and Advertiser and Corporate Partner Content connected to the Social Media Site at any time and for any reason without notice. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Social Media Site at your sole cost and expense.

We do not own the User Content you post on or otherwise select or submit to the Social Media Site, but in posting and/or otherwise submitting User Content to the Social Media Site, you grant us an irrevocable, worldwide, transferable, nonexclusive, royalty-free, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such User Content and any information, data, or other material generated through the use of the Services on or in any and all media (now known or hereafter developed) to perform and provide the Services or for our own business purposes in accordance with our Privacy Policy. You also hereby grant each user of the Social Media Site a non- exclusive license to access your User Content and any information, data, or other material generated through the access to or use of the Social Media Site.

We may monitor use of the Social Media Site by all of our customers or visitors and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any of your personal information and/or identify you.

6. Your Use and Obligations

Use of the Site is subject to these Terms and is only permitted within normal access or use of the Site and in conformance with terms you may have with us. Your access to or use of the Site grants you no right or license to reproduce, or otherwise use any Company or third-party trademarks except as expressly set forth herein. All goodwill generated from use of Company’s marks will inure to our exclusive benefit. Other company, product, and service names and logos used and displayed via the Site may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Company.

You may access and use the Site only in compliance with these Terms, and all applicable local, state, national, and international law, rules, and regulations.

Absent breach by you of any of these Terms, and unless otherwise expressly permitted by Company, you are granted a limited, personal, non-transferable, non-sublicensable, revocable license to access our Site, use the Site, and, as permitted, to electronically view, and print to hard copy portions of the Site Materials.

However, in no case whatsoever shall you:

  • use any data mining, scraper, spider robots or similar data gathering or extraction methods to access, monitor, or copy any Site Materials or other content or information used by the Site;
  • use the Site in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise);
  • modify copies of any materials obtained from the Site;
  • use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text or without express authorisation from Company;
  • harvest or otherwise collect information about others, including e-mail addresses;
  • violate the restrictions in any robot exclusion headers on the Site or bypass or circumvent other measures used to prevent or limit access to the Site;
  • reverse engineer or alter the Site or the Site Materials or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
  • deep-link to any portion of the Site for any purpose, unless expressly authorised in writing by Company;
  • “frame,” “mirror,” or otherwise incorporate any part of the Site into any other web site, unless expressly authorised in writing by Company;
  • transmit any unlawful, threatening, defamatory, obscene, indecent, inflammatory, pornographic, or profane material; any material that could constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability, or otherwise violate any law; or for any other purpose that is unlawful or prohibited by these Terms;
  • link to the Site from any website that is unlawful, abusive, indecent, or obscene, that promotes violence or illegal acts or that is otherwise inappropriate in Company’s sole discretion;
  • attack the Site or any portion thereof via a denial-of-service attack or a distributed denial-of- service attack;
  • attempt to bypass methods Company may use to prevent or restrict access to the Site;
  • disguise the origin of the information transmitted through the Site or to Company;
  • submit false or misleading information to Company;
  • delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Site;
  • take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure or adversely affects the performance or function of the Site or any other computer systems or networks used by Company;
  • use the Site or the Site Materials other than for their intended purpose and as expressly permitted by these Terms;
  • violate any applicable laws or regulations; or
  • otherwise attempt to interfere with the proper working of the Site.

Further, you agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through our Site any of the following material or information:

  • any message, data, information, text, music, sound, photos, video, graphics, code, or other material that is unlawful, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or otherwise objectionable;
  • material that would constitute, encourage or provide instructions for a criminal offence, violate the rights of any party, or that would otherwise create liability or violate any local or international law.
  • material that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
  • material that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
  • unsolicited promotions or political campaigning; or
  • private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Tax numbers, and credit card numbers.

Any use of the Site or Site Materials not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. If you wish to make any use of material on the Site other than as set out in this section, please address your request to: suzanne@personaltuning.co.nz

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any Site Materials, except as follows:

  • Your computer may temporarily store copies of the Site / Site Materials in Random Access Memory (RAM) incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Site and where we provide you access and downloadable documents on the Site, for your own personal use and not for further reproduction, publication, or distribution.

 

Access to certain areas of our Site may be restricted. Any access to or use of the Site or the Site Materials other than as specifically authorised in these Terms, without our prior written permission, is strictly prohibited and will terminate the license granted in these Terms. Such unauthorised use may also violate applicable laws including, but not limited to, copyright and trademark laws and applicable communications regulations and statutes. We reserve the right to restrict access to areas of our Site, or indeed our whole Site, at our discretion. We reserve the right to revoke your authorisation to access or use the Site if we believe in good faith that you have violated these Terms or any laws whatsoever. Unless explicitly stated herein, nothing in these Terms will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license granted by these Terms is revocable at any time.

You acknowledge and agree Company may conduct an audit of all your records that pertain to the Site within the scope of the license granted herein electronically remotely at any time with respect to information or records available to us based on your interaction with us, or in person, provided that we give you reasonable notice of said audit and conduct said audit during standard business hours between 8:00 a.m. to 5:00 p.m. (NZ Standard/Daylight Time) or as otherwise agreed by you and us.

7. Commenting and Comments

Company may allow posting of comments on its Social Media Site. Any user failing to comply with the Terms may be expelled from and refused continued access to, the ability to post comments or material in the future. Company or its designated agents may remove or alter any user-created material at any time for any reason. Information and material posted within these public forums may be provided by Company, our outside contributors, and/or by users not connected with us, some of whom may employ anonymous user names. Company expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information, or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, or our partners, employees, or representatives be liable for any loss or damage caused by your reliance on information obtained through these posted comments. The opinions expressed by anyone other than Company itself are solely the opinions of those parties, and do not reflect the opinions of Company or any of its subsidiaries or affiliates.

You also acknowledge and agree that any feedback, including but not limited to suggestions, comments, ideas or other information, provided by you in the form of email or other submissions (collectively, “Feedback”) to us is non-confidential and you hereby grant Company, its affiliates, subsidiaries, successors, and assigns an irrevocable, worldwide, transferable, nonexclusive, royalty-free, and fully sublicensable right to use such Feedback for any purpose without any compensation or attribution to you.

8. Important Information about Children

The Children’s Online Privacy Protection Act (“COPPA”) (https://www.ftc.gov/) requires that online service providers obtain parental (or legal guardian) consent before they collect personally identifiable information online from children who are under 13. Company’s Site does not target children, and is not intended to be used by children without involvement and approval of a parent or guardian. Therefore, we only knowingly collect personal information through the Services from a child under 13 where that parent or guardian (or a student’s school, district, and/or teacher has agreed to obtain parental/guardian consent for that child) to use the Services and disclose personal information to us, for the use and benefit of the learning environment. If you are a child or student under 13, please do not send any personal information about yourself to us if your parent, guardian, school, district, and/or teacher has not provided this prior consent to us, and please do not send any personal information other than what we request from you in connection with the Site. If we learn we have collected personal information from a child or student under 13 without parental/guardian consent being obtained or if we learn a child under 13 has provided us personal information beyond what we request from them for the Site, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information in violation of this paragraph, please contact us at suzanne@personaltuning.co.nz

Parents and legal guardians, if your child is under the age of 13, consent may need to be given in order for such child to use certain features of the Site. You are responsible for understanding how the Site you use, make available, and/or distribute on behalf of yourself or other users may collect and use information of users of Company’s Site. If you are the parent or legal guardian of a child who has created a User Account with us and you did not receive an email seeking your consent, you can email us at suzanne@personaltuning.co.nz to have that child’s User Account deleted.

9. Purchases

Company reserves the right not to accept or process orders that do not comply with our business policies and/or vendor agreements. All services offered by Company are provided subject to applicable New Zealand laws.

All orders are subject to acceptance by Company and availability. By submitting a purchase request to us (directly, or through our Site or our authorised vendors or affiliates) for any service, you represent and warrant that all information submitted to us in connection thereto is complete and accurate. At our discretion, purchase requests will be processed, but we reserve the right not to accept your purchase request at our sole discretion. In such case, we may inform you by email or via your User Account.

Prices (if any) indicated on the Site are inclusive of Goods and Services Tax (if any). Prices are subject to change. However, such changes will not impact the price or the description of the services for which you have already submitted a purchase request.

You may pay for your order using the payment methods available on the Site. The price for the purchase of services as indicated by Company, may be charged to your chosen available payment method. You agree to pay Company (or our authorised vendors or affiliates) in full as identified in the purchase process via the Sites or the third party method. To ensure that your credit or debit card is not being used without your consent, Company (or our authorised vendors or affiliates) may validate your name, address, and certain other personal information supplied by you in placing the order. Company reserves the right to implement any additional and/or other payment security system from time to time.

10. Refunds and Returns

Refunds or returns, for whatever reason, if available for the service ordered, of any payment to be received by you may take place using the same method of payment you chose during the check- out procedure. Company, will not be responsible for any delays or conditions beyond its control, including without limitation delays caused by the method of payment/refund or those attributable to the card issuer.

11. Third Party Stuff

The Site allows (or may in the future allow) you to select, input, and share information and data in connection with and through designated user accounts maintained by you on certain third-party social media platforms or via third parties for services (together, “Third Party Services”). The Site allows (or may in the future allow) you to access Third Party Services using the Site to post, link, message users of Third Party Services, or otherwise act on a wide variety of information accessed by the Site and originating from user accounts on Third Party Services, and to collect data and generate reports based on these activities (collectively, “User Materials”). Such information, data and reports does not include Company’s Confidential Information.

You are solely responsible for User Materials. By accessing Third Party Services through the Site, you represent and warrant that you have the lawful right to access such Third Party Services, and that the creation, distribution, and reproduction of the User Materials complies with the terms applicable to the Third Party Services. You shall ensure that your use of the Site, including access to or use of User Materials with the Site and Third Party Services, does not contain code, files, content, or programs that may interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, including, without limitation, by introducing viruses or similar code into the Site, hosted systems or servers, or systems or servers maintained by providers of Third Party Services accessed through the Site. Company is not responsible for any loss or damage to User Materials. You assume all risks for the User Materials and are solely responsible for protecting and backing up the same.

The Site may also contain links to sites, third parties, or content not under the control of Company. Company does not assume, and expressly disclaims any and all, responsibility for the sites and/or content of any page or material not of the Site. Links to third-party web sites on the Site are provided solely as a convenience to you. Company has not reviewed these third-party web sites, and does not control and is not responsible for any such sites or content displayed thereon. If you decide to access any of the third-party sites linked to the Site, you do so entirely at your own risk, and the inclusion of any third-party link on the Site does not imply any endorsement or guarantee whatsoever by Company of such third-party site. If you have questions or concerns about any Third Party Services or material available through such, you may contact us at suzanne@personaltuning.co.nz. Once you link to a third- party site, you are subject to the terms of use and privacy policy of such site.

12. Ads and Promotions

We may now or in the future allow advertisers and corporate partners to post content on the Site and provide links to sites and content of third parties (collectively the “Advertiser and Corporate Partner Content”) as a service to those interested in this information. These advertisements may be targeted to users based on information provided while registering for a User Account, through use of the Site, through queries made through the Site, or based other information. We do not control, endorse, or adopt any Advertiser and Corporate Partner Content and we make no representation or warranties of any kind regarding the Advertiser and Corporate Partner Content. The types and extent of advertising by Company on the Site are subject to change. You acknowledge and agree Company may access and use data and information received or generated through your access to or use of the Site to identify other potential users of the Site, demonstrate the capabilities of the Site, and/or pursue additional marketing and promotional activities using such. You further agree that we may send you messages, alerts, and other communications through the Site, including via email, web alert, text messages, push notifications and other similar means, in accordance with the preferences you may set through the Site, and you agree to accept such messages, and pay any applicable network access, data usage, or similar fees.

13. Registration

By agreeing to the Disclaimer/Contraindications and creating a User Account, you represent and warrant that any information that you submit to us is true and accurate and that you are eighteen (18) years of age or older and are fully able and competent to enter into and abide by these Terms. If you are under the age of eighteen (18) years of age, you acknowledge that you require a parent or caregiver to create a User Account on your behalf. You agree to (a) provide accurate, current, and complete information about you as may be prompted by any signup, login, and/or registration forms within our registration process (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current, and complete; (d) accept all risks of unauthorised access to the Registration Data and any other information you provide to us; and (e) notify us immediately of any unauthorised access to or use of your User Account or any other breach of security by emailing us at suzanne@personaltuning.co.nz. Access to or use of the Services is void where prohibited.

 

14. Fees and Payments

All fees charged by Company are inclusive of Goods and Services Tax (if any). All payments due will be charged on the day you sign up to a User Account.

You also authorise your credit card issuer, bank, or payment service to pay any amounts described herein and associated with your User Account.

You represent and warrant that you are authorised to use such credit card, bank, or payment service for the purpose of purchasing such services from us. You must of course provide us with current, complete, and accurate billing, credit card, and Registration Data information. If payment is not received from your credit card issuer, bank, or payment service, you agree to pay all amounts due upon demand. You also agree to pay all costs of collection, including legal fees and costs, on any outstanding balance. Company reserves the right, with respect to any amount not paid when due, to charge a finance charge equal to one and one-half percent (1.5%) of the unpaid balance per month determined and compounded daily from the date due until the date paid.

15. Termination

To close your User Account please email us at suzanne@personaltuning.co.nz or as otherwise indicated by Company from time to time. Suspension, amendment, or termination does not relieve your obligation to pay amounts due and owing to Company.

Upon suspension or termination for any reason, Company will cease providing the suspended or terminated Services; Company shall delete or confirm you have deleted all copies of any relevant Company software (if one is provided) or data from your web page(s) or computers; any outstanding balance you owe to Company will become immediately due and payable and any collection expenses incurred will be included in the amount owed; you will not be entitled to any refunds of any fees, unless expressly agreed by Company; and all of your historical report data will no longer be available to you through Company. You understand and acknowledge that, unless and until all Company software (if one is provided) and data is deleted from your web page, computers, or User Account, we may continue to track data on an automated basis. Upon termination, you agree to delete any Confidential Information (as defined herein) in your systems within one (1) calendar month after the effective date of termination.

Company may terminate or suspend your access to use the Site, and to block or prevent your future access to and use of the Site, without prior notice or liability, if you breach this Agreement, or for any other reason.

16. Equitable Relief

You agree that Company has expended significant monetary resources to develop, maintain, and host the Site, and that monetary damages would be inadequate to compensate Company for any violation of these Terms. Accordingly, you agree and acknowledge that any such violation or threatened violation will cause irreparable injury to Company and that, in addition to any other remedies that may be available, at law, in equity, or otherwise, Company will be entitled to obtain injunctive relief against the actual or threatened violation of these Terms without the necessity of providing security or proving actual damages to Company.

17. Electronic Communications

By accessing the Site and submitting to us your contact information, you consent to receiving electronic communications from us. Such communications may include notices about your User Account and information concerning or relating to the Site. You agree that any electronic notices, signatures, acknowledgements, transfers, agreements, disclosures, or other communications will satisfy any legal communication requirements, including any requirements that such communications be in writing.

18. Confidential Information and Privacy Policy

Confidential Information” means any information disclosed to you by us, directly or indirectly, in writing, orally, through any online content including shared through video. Confidential Information includes Trade Secrets. You agree to not use any Confidential Information for any purpose except as permitted by these Terms.

You will not disclose, make accessible, or communicate any Confidential Information to third parties. You will not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody our Confidential Information and that are provided to you in accordance with these Terms. You will use your best efforts to protect the secrecy of and avoid disclosure and unauthorised use of the Confidential Information. Without limiting the foregoing, you will take at least those measures that you take to protect your own most highly confidential information. You will reproduce our proprietary rights notices on all copies made containing any Confidential Information or as directed by Company. You will immediately notify us in the event of any unauthorised use or disclosure of the Confidential Information.

ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” WE MAKE NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION.

All documents and other tangible objects containing or representing Confidential Information and all copies of them will be and remain the property of Company. Upon our request, you will (a) promptly deliver to us all Confidential Information, without retaining any copies, and (b) promptly destroy analyses, studies, and other documents prepared based on the Confidential Information, without retaining copies. Nothing in this Agreement is intended to grant any rights to you under any patent, copyright, or other intellectual property right of Company, nor will this Agreement grant you any rights in or to the Confidential Information, except as expressly set forth in this Agreement.

Your obligations regarding Confidential Information will survive until all Confidential Information becomes publicly known and made generally available through no action or inaction of you. You acknowledge that any breach or threatened breach of these Terms regarding Confidential Information would cause irreparable harm to us, and in addition to any other remedies at law or in equity that we may have, we are entitled, without providing security, to equitable relief, including injunctive relief and specific performance. You agree to indemnify and hold us harmless from any damage, loss, cost, or liability (including reasonable legal fees) arising or resulting from any unauthorised use or disclosure of the Confidential Information by you.

You may disclose Confidential Information to the extent compelled by law to do so, provided you give us prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at our cost, if we wish to contest the disclosure.

Please refer to our Privacy Policy, which also applies to your access to and use of the Site, and describes our practices and policies related to the collection, use, and storage of information about users of the Site. You acknowledge and agree that you are solely responsible for the accuracy and content of your personal information. You expressly consent to the use and disclosure of your personal information and other data and information as may be defined and described in the Personal Tuning Privacy Policy.

Company may collect, extract, compile, synthesise, and analyse non-personal and/or aggregate information (information that does not identify a natural person) resulting from your access to and use of the Site in connection with our Privacy Policy. To the extent any such non-personal and/or aggregate information is collected or generated by Company it will be solely owned by Company and may be used by Company for any lawful business purpose without a duty of accounting.

19. Legal Indemnification

You agree, at your sole expense, to defend, indemnify, and hold us, our independent contractors, service providers, and consultants, and their respective directors, employees, and agents, harmless from and against any and all actual or threatened suits, actions, legal proceedings, judgments, and any other legal claims, damage awards, or other compulsory payment or performance of any kind arising out of, resulting from, attributable to or in any way incidental to: (a) your access to or use of the Site and/or the Site Materials; (b) your conduct; (c) your violation of these Terms; (d) your violation of the rights of any third party; and (e) any User Content posted by you. Company is not liable for any loss or damage that results from your failure to comply with your obligations in these Terms or from unauthorised access to or use of your User Account.

If you are enjoined, have an injunction or specific performance claim brought against you, or otherwise prohibited from using the Site or a portion thereof based on an allegation that the Site violate any third party intellectual property right (including a Claim), or if we reasonably determine that such prohibition is likely, then we will, at our sole expense and option: (a) obtain for you the right to use the allegedly infringing portions of the Site; (b) modify the allegedly infringing portions of the Site so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Site with non- infringing items of substantially similar functionality. If we determine that the foregoing remedies are not commercially reasonable, then we may terminate the Agreement. However, we will have no obligation for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; any aspects of the Site that are provided to comply with designs, requirements, or specifications required by or provided by you, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Site by you for purposes not intended or outside the scope of the license granted to you; your failure to use the Site in accordance with written instructions provided by us, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Site not made or authorised in writing by us where such infringement or misappropriation would not have occurred absent such modification.

This section states Company’s sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Site.

20. Professional Advice Disclaimer

The material on the Site is provided for educational purposes only, and is not to be used for medical advice, diagnosis, or treatment. Use of the Site is subject to our Terms.

THE SITE OFFERS HEALTH, NUTRITIONAL INFORMATION AND ARE DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A DOCTOR OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID, OR DELAY OBTAINING MEDICAL OR HEALTH-RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR VIEWED ON THE SITE. THE USE OF ANY INFORMATION PROVIDED ON THE SITE IS SOLELY AT YOUR OWN RISK.

NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY OF OUR SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH-CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS, OR ADVICE.

THE SITE IS CONTINUALLY UNDER DEVELOPMENT AND COMPANY MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS, OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SITE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

COMPANY ADVISES THAT THE TREATMENT MUST BE FOLLOWED STRICTLY TWICE A DAY AS INSTRUCTED BEFORE ANY IMPROVEMENT OF SYMPTOMS MAY BE NOTICEABLE.

21. Warranties Disclaimed

THE SITE, THE SITE MATERIALS, AND ALL USER CONTENT, OTHER SUBMISSIONS, AND OTHER MATERIALS, INFORMATION, PRODUCTS, AND SERVICES INCLUDED IN OR MADE AVAILABLE IN CONNECTION WITH THE SITE AND THE SITE MATERIALS ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. COMPANY EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPANY DISCLAIM ANY WARRANTIES REGARDING THE ACCURACY, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY, COMPATIBILITY, AND PERFORMANCE OF THE SITE, THE SITE MATERIALS, AND THE USER CONTENT. COMPANY DISCLAIM ANY WARRANTIES FOR SERVICES RECEIVED THROUGH OR ADVERTISED ON THE SITE OR IN CONNECTION WITH THE SITE OR RECEIVED THROUGH ANY LINKS DISPLAYED ON THE SITE OR ANY USER CONTENT, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS DISPLAYED ON THE SITE OR ANY USER CONTENT.

YOU AGREE THAT YOUR ACCESS TO OR USE OF THE SITE, THE SITE MATERIALS, AND ALL USER CONTENT SHALL BE AT YOUR SOLE RISK.

YOU UNDERSTAND AND AGREE THAT YOU OBTAIN MATERIAL OR DATA THROUGH THE ACCESS TO OR USE OF THE SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT, AT YOUR OWN DISCRETION AND RISK. COMPANY DOES NOT WARRANT THAT THE SITE, THE SITE MATERIALS, OR ANY USER CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT DATA WILL NOT BE LOST OR THAT THE SITE OR THE SERVER THAT MAKES SUCH CONTENT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN SUCH EVENT, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE ACCESS TO OR USE OR THE RESULTS OF THE ACCESS TO OR USE OF THE SITE, THE SITE MATERIALS, OR ANY USER CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST COMPANY, ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WITH RESPECT TO THE SITE, SERVICES PROVIDED BY US, THE SITE MATERIALS, AND THE USER CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTIES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).

NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED AS A WARRANTY THAT THE SERVICE WILL BE SUCCESSFUL

22. Limitation of Liability

COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS ASSUME NO LIABILITY OR RESPONSIBILITY FOR, AND IN NO EVENT, INCLUDING NEGLIGENCE, SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM, ANY:

  • PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, THE SITE MATERIALS, OR ANY USER CONTENT;
  • UNAUTHORISED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN;
  • INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE;
  • BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE, OR SITES LINKED TO BY THIS SITE, BY ANY THIRD PARTY; AND/OR
  • ERRORS OR OMISSIONS IN ANY CONTENT MADE AVAILABLE BY COMPANY OR OUR USERS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY EXCEED $100.00. THIS ALLOCATION OF RISK UNDER THESE TERMS IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS SHALL BE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS SET FORTH IN THESE TERMS. THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

EXCEPT FOR LIABILITY ARISING OUT OF COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO COMPANY.

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN YOU AND COMPANY. THIS ALLOCATION IS REFLECTED IN PRICING OFFERED BY COMPANY TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Except for actions for non payment or breach of proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either you or Company more than one (1) year after the cause of action has accrued, as long as it complies with the statute of limitations. If there is a conflict, then the Limitation Act 2010 prevails.

23. Enforcement

You agree that we may, without any limitation whatsoever: (a) investigate any suspected breaches of the security of the Site or our information technology or other systems or networks; (b) investigate any suspected breaches of the Terms; (c) involve and cooperate with law enforcement authorities in investigating any such matters; (d) prosecute violators of the Terms to the full extent of the law; (e) delete or modify any materials on or available via the Site, including any materials you may submit; and (f) discontinue the Site or terminate your access to it at any time, without notice, if we have reason to suspect, at our sole discretion, that the terms have been breached for any reason and without any obligation to you whatsoever.

24. Governing Law and Applicable Venue

These Terms and your use of the Site will be governed by and construed in accordance with the laws of New Zealand, applicable to agreements made and to be entirely performed within New Zealand, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms or your access to or use of the Site will be filed only in the country of New Zealand and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms and/or your access to or use of the Site.

The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.

Recognising the global nature of the internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from New Zealand or in the country in which you operate or reside and to comply with any other local laws affecting the Site.

 

25. Copyright Issues

In accordance with the Copyright Act 1994 and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, access to the Site for users who we have deemed, in our sole discretion, to be repeat infringers. We may also, at our sole discretion, limit and/or terminate access to the Site for any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Additionally, we reserve the right to limit access to the Site for any users for reasons of our own discretion that we are not obligated to reveal, at any time.

If you believe that anything on our Site infringes upon any copyright you own or control you may file a notification of such infringement with our Designated Agent as set forth below.

  • Name of Agent Designated to receive notification of claimed infringement: Suzanne Chappell
  • Full address of Designated Agent to which notification should be sent: 71 Tatton Rd, RD9, Whangarei 0179, New Zealand.
  • suzanne@personaltuning.co.nz

You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages including but not limited to costs and legal fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

26. Additional Terms and Provisions

Relationship of the Parties. The relationship between Company and you is not one of a legal partnership relationship, but is one of independent contractors. No agency, partnership, joint venture, employment, or franchise relationship is intended or created by this Agreement. Nothing in these Terms, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

Access. You are responsible for: (a) making all arrangements necessary for you to have access to the Site (e.g., providing your own equipment and Internet connection and paying any Internet access fees).

Local Laws. Access to the Site from jurisdictions where such access is illegal is prohibited. If you choose to access the Site from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws. Company is not responsible for any violation of law. You agree that the Site, and these Terms shall be interpreted and governed in accordance with New Zealand law or, if Company transfers your User Account to another location, where Company currently maintains your User Account. The Site shall be deemed a passive website and service that does not give rise to personal jurisdiction over Company, either specific or general, in jurisdictions other than New Zealand. You agree and hereby submit to the exclusive personal jurisdiction of New Zealand courts, or, if Company transfers your User Account to another location, where Company currently maintains your User Account. You further agree to comply with all applicable laws regarding the transmission of technical data exported from New Zealand and the country in which you reside (if different from New Zealand).

Cross Border Data Transmission. Company is headquartered in New Zealand and all of its primary data storage and processing facilities are in New Zealand. If you are accessing the Site from another country, please note that all data collected will be transmitted outside of your country and into New Zealand, where it will reside and be processed. In addition, your data may pass through or be temporarily stored or processed in countries beyond your country and New Zealand. By continuing to access the Site, you explicitly consent to have your data so transmitted and stored. Please review our Privacy Policy to see what types of data we collect, transmit, process, and store.

Compliance with Laws. We will strive to comply with all New Zealand laws in our provision of the Services. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request. You will comply with all laws in your use of the Site.

Headings. The headings of the sections contained in these Terms are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of these Terms.

Survival. In addition to those provisions identified in the Terms to survive termination, all provisions of the Agreement which, by their nature, are intended to survive its termination or expiration, shall survive its termination or expiration.

Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

Notice. Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by e-mail to the appropriate party using the contact information noted in these Terms or provided by you to Company. Either you or we may change its email address for receipt of notice by notice to the other in accordance with these Terms. Notices are deemed served when sent to the email address provided by you or us.

Force Majeure. A party will not be liable to the other should its performance under these Terms be prevented, restricted, or interfered with by circumstances or events beyond its reasonable control (“Force Majeure Event”), provided that the affected party uses its best efforts to resume performance promptly at the end of the Force Majeure Event.

Assignment. You will not assign or transfer any of your rights hereto. We may assign our rights or obligations to any affiliate or in the event of merger, reorganisation, sale of all or substantially all of our assets, change of control, or operation of law, or to any third party we choose without your consent.

Entire Agreement. These Terms, including all Policies and the Disclaimer/Contraindication, constitute the entire agreement between Company and you concerning the Site. These Terms supersede any and all prior agreements or communications between Company and you concerning the subject matter of these Terms.

Authority. Each party represents and warrants to the other that it has full power and authority to enter into these Terms and that such are binding upon such party and enforceable in accordance with its terms.

27. Questions and Contact Information

Questions, comments, and any other correspondence regarding our site may be directed to us at the email address below.

Personal Tuning for Fibromyalgia and Migraines Ltd
suzanne@personaltuning.co.nz

Last Updated: December 2020