1 PLEASE READ THESE GENERAL TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE. These terms and conditions apply to your use of this Site. Your use of this Site indicates your acceptance of these terms and conditions, and has the same force and effect as if you had actually signed these terms and conditions. If you do not agree with these Terms and Conditions you may not use the Site.
2 Site Information. The Site includes information, facts, reports, advertising and opinions (collectively, “Information”). Such Information is provided for informational and entertainment purposes only. Any views, analysis or opinions designated as those of the Company represent the views of the Company and do not necessarily represent the views of any of its employees, officers, or directors. The Information may change without notice. The Company has used its best endeavours to ensure that the Information contained on the Site, including information obtained from the Company’s licensors and other third parties is correct and current but the Company takes no responsibility for any error, omission or defect contained on the Site.
3 This is not Medical Advice. The Information does not constitute medical advice, diagnosis or treatment and does not replace the relationship with or advice from your qualified healthcare professional. All medical information provided on the Site is of a general nature and is not intended to be a substitute for medical advice, diagnosis or treatment. Users of this Site are directed to seek the advice of a physician or other qualified healthcare professional regarding medical issues or conditions. Never disregard professional medical advice, or delay seeking it because of anything that you read on this Site. The laws of most countries in which the Company does business require that the products sold by the Company be prescribed under the care and management of a physician or other qualified healthcare professional.
4 Links to third parties. The Site may contain links to other websites operated by parties that are not associated with the Company (“third parties”). The Site may also contain advertisements or facilitate the direction of advertisements to users. These links and advertisements have been provided solely for you to obtain further information about other relevant products and organisations. The Company has no control over the information or material on these sites or the products or services on them and therefore makes no representations regarding the accuracy or suitability of such information, material, services, or products. We recommend that you make your own enquiries in relation to third parties, events, books, publications and other matters described or linked on the Site. Inclusion of a link to a third party website or an advertisement should not be seen as the Company’s endorsement of the third party or advertiser’s website or products. By linking to sites of third parties, the Company is not authorising the reproduction of any material on such websites; as such material may be the subject of intellectual property rights.
5 Users’ Obligations and Responsibilities. You must not use the Site for any activities which breach any laws or infringe a third party’s rights or breach any applicable codes of conduct. You must not use the Site to breach or circumvent or attempt to breach or circumvent the security of the Site (including but not limited to ‘hacking’) or engage in any other malicious, illegal or damaging behaviour in relation to the Site. You must not use the Site or any of the services provided on the Site for any purpose that is unlawful or prohibited by these terms and conditions or in a way which interferes with other users (for example sending unsolicited or unwelcome electronic messages). You must not act in a way that in the Company’s reasonable opinion breaches or is likely to breach these terms and conditions, or is inconsistent with the intent of these terms and conditions.
6 Submitting Material to the Site. The Success Stories, Events and Support Groups Near You, and other similar facilities we may offer on the Site from time to time may consist of third-party information and/or links, and may include questions, comments, suggestions, postings and competition entries from Site users ("Submitted Material"). The Company does not take responsibility for the accuracy of Submitted Material. It is up to the person submitting the information and the persons reading the information to check its accuracy. You are solely responsible for your own communications, the consequences of submitting those communications, and your reliance on any Submitted Material. The Company is not responsible for the consequences of Submitted Material. In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately. If you think you may have a medical emergency, call your doctor or emergency medical services immediately. The Company reserves the right to edit and/or remove Submitted Material from the Site if, in its sole discretion, it deems it to be offensive, defamatory or inappropriate.
7 NO WARRANTIES. THE SITE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE FULLEST EXTENT PERMITTED BY LAW. Without limiting the foregoing, the Company makes no representations or warranties regarding the accuracy, reliability, completeness, currentness, or timeliness of the Information, text, graphics, links, or communications provided on or through the Site.
8 Limitation on Damages. Use of the Site is at your own risk. In no event shall the Company or any of its officers, directors, shareholders, employees, agents, representatives, information providers or licensors be liable for any indirect, special, consequential, exemplary or punitive damages arising out of the use of this Site, whether based on warranty, contract, tort, or any other legal theory, and whether or not the Company, its licensors, its suppliers, or any third parties mentioned on the Site are advised of the possibility of such damages. The Company, its licensors, its suppliers, or any third parties mentioned on the Site shall be liable only to the extent of actual damages incurred by you, not to exceed U.S. $1000. In no event shall Company, its licensors, its suppliers, or any third parties mentioned on the Site be liable for any personal injury, including death, caused by your use or misuse of the Site or the Information. Any claims arising in connection with your use of the Site, must be brought within the greater of one (1) year from the date of the event giving rise to such claim or the minimum period permitted under applicable law in your jurisdiction. The remedies provided under these Terms and Conditions are exclusive. Because some jurisdictions may not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, in such jurisdictions, the Company’s liability will be limited to the extent permitted by applicable law.
9 Indemnity. You agree to defend, indemnify, and hold the Company and its officers, directors, shareholders, employees, agents, representatives, information providers or licensors harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your breach of any of these Terms and Conditions, your breach of any law or the rights of third parties, or from the content of any Submitted Material you submit to the Site.
10 Intellectual Property Rights. The Site, and all content included therein is owned by or licensed to the Company and is protected by international copyright and other intellectual property laws. All Submitted Material will be treated as non-proprietary and the transmitter irrevocably assigns all rights (including, but not limited to, copyright) in Submitted Material to the Company. You may not reproduce, adapt, upload, link, frame, broadcast, distribute or in any way transmit the material on the Site without the written consent of the Company, other than to the extent necessary to view the material for your personal, non-commercial use and as permitted by these terms and conditions and by law. Any use of the material on the Site not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may breach copyright, trademark, and other laws. All rights not expressly granted herein are reserved to the Company and its licensors. If you breach any of these Terms and Conditions, your permission to use the Information automatically terminates and you must immediately destroy any copies you have made of any portion of the Site.
11 The Future. Some of the matters discussed on the Site include forward-looking statements. Statements that are predictive in nature, that depend upon or refer to future events or conditions or that include words such as "expects," "anticipates", "intends", "plans", "believes", "estimates", and similar expressions are forward-looking statements. These statements involve known and unknown risks, uncertainties and other factors that may cause our actual results and performance to be materially different from any future results or performance expressed or implied by these forward-looking statements. Although we believe that the expectations reflected in the forward-looking statements are based upon reasonable assumptions, we cannot guarantee future results or performance. The Company does not have a policy of updating or revising forward-looking statements, and thus it should not be assumed that our silence over time means that actual events are occurring as expressed or implied in such forward-looking statements.
12 Take Precautions. Due to the nature of the Internet, the Company cannot guarantee or warrant that the functions on the Site will be uninterrupted, secure or error free or that the Site or the server that makes it available is free of any virus or other harmful elements. You must take your own precautions to ensure that the process which you employ for accessing the Site (or any linked website) does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.
14 Governing Laws and Jurisdiction. The Site and its use are governed by the laws of New Zealand without respect to any conflict of laws principles. You expressly agree that exclusive jurisdiction for any dispute with the Company, or in any way relating to your use of the Site, resides in the courts of New Zealand, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of New Zealand in connection with any such dispute including any claim involving the Company or its officers, directors, shareholders, employees, agents, representatives, information providers or licensors. If any provision of these Terms and Conditions is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect. No waiver of any of these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
16 UNITED STATES USERS: HIPAA. Please be aware that this Site is not subject to the provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or regulations that have been adopted pursuant to HIPAA to protect the confidentiality of medical records. No Information on this Site is medical information or records under HIPAA.
17 UNITED STATES USERS: Digital Millennium Copyright Act. The Company has a policy of responding to notices of alleged infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”), which response may include removing from the Site material claimed to be the subject of infringing activity, including Submitted Material. If the Company removes Submitted Material to comply with the DMCA, we will attempt to contact the provider of any Submitted Material so removed to enable them to make a counter notification pursuant to sections 512(g)(2) and (3) of the DMCA. It is our policy to document all notices of alleged infringement on which we act. A copy of the notice will be sent to a third party who will make it available to the public. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights.
18 UNITED STATES USERS: Filing DMCA Notice of Infringement. To file a notice of infringement, you must provide the Company with a written notice that includes each of the following items: detailed identification of the copyrighted work that you believe has been infringed; detailed identification of the material you claim infringes this copyrighted work; information reasonably sufficient to permit the Company to contact you (email address is preferred); the statement: "I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law. I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed” and your signature. Send the infringement notification to the following address: firstname.lastname@example.org, attention Legal Executive. The provider of affected content may make a counter notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter notification, we will reinstate the material in question. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others.
19 UNITED STATES USERS: Filing DMCA Counter Notification. To file a counter notification, you must provide the Company with a written notice that includes each of the following items: detailed identification of the material the Company has removed; your name, address, telephone number, e-mail address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or New York, New York if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) of the DMCA or an agent of such person; the statement: "I swear, under penalty of perjury, that I have a good faith belief that each search result or message identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled" and your signature. Send the counter notification to the following address: email@example.com, attention Legal Executive.
20 UK USERS: The following paragraph will be added to Clause 8: “This provision will not limit or exclude the Company’s liability for fraudulent misrepresentation or for death or personal injury resulting from the Company’s (including its officers, directors, shareholders, employees, agents, representatives, information providers and/or licensors) negligence.”(c) The following sentence of Clause 14 does not apply: “and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of New Zealand”. Third Party Rights: A person who is not a party to these General Terms and Conditions of Use has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of these terms and conditions.
These General Terms and Conditions of Use were last updated by Fisher & Paykel Healthcare Limited on October 2007.
2 General. We respect your concerns about privacy. Our Policy gives you information about our use of personal and non-personal information collected from Site users, and will apply to our use of such information whether you are in New Zealand, Australia, Canada, the United Kingdom or the United States or South Africa. “Personal Information” is information, recorded in any form, from which your identity reasonably can be ascertained. Your Personal Information is stored and processed in New Zealand, Canada and in other locations from time to time and may be accessed globally. You acknowledge that in the event that an information service provider is located in a country other than your own, your personal information may be processed and stored in that country and the governments, courts, law enforcement or regulatory agencies of that country may be able to obtain disclosure of your information through the laws of that country. You acknowledge and agree that the above constitutes prior written notice to you of, and your consent to the collection, use and disclosure of your personal information as described above.
In addition, if you are in New Zealand, we will comply with New Zealand privacy laws when we handle Personal Information about you, as we are bound by the Information Privacy Principles (“Principles”) in the Privacy Act 1993 (New Zealand). If you are in Australia, we will comply with Australian privacy laws when we handle Personal Information about you, as we are bound by the National Privacy Principles (NPPs) in the Privacy Act 1988 (Australia) and if you are in the United Kingdom we will comply with the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2003. If you are in Canada, we will comply with Canadian privacy laws when we handle Personal Information about you, as we are bound by the Personal Information Protection and Electronic Documents Act (Canada). If you are in South Africa, we will comply with your constitutional right to privacy and data protection when we handle Personal Information about you, as we are bound by Section 14 of the Constitution of the Republic of South Africa, Act 108 of 1996, and any other provincial privacy laws as may be applicable.
3 Personal Information. We may collect your Personal Information to improve and personalise your experience of the Site and/or Membership Services. We only collect Personal Information about you that you volunteer to us. For that reason, by submitting your Personal Information to the Site, you are providing us with your consent to collect such Personal Information from you (including information about your health). The Personal Information we may collect from you includes information you enter into the Site, in an online form, or give us in any other way. Such Personal Information may include your name, contact details, date of birth, country of residence, information about your obstructive sleep apnea (“OSA”) equipment and information about your experiences of living with OSA and using OSA equipment. You can choose not to give us some or all Personal Information we ask for, but this may prevent you from using some of our Site’s features, such as our Membership Services.
4 Submitting Material to the Site: Any information, other than Personal Information, submitted by you for publication on the Site is by design available to the public and is not a private, secure service. Anything you submit for publication may be seen, disclosed or collected by third parties and may be used by others in ways that cannot be controlled or predicted, including to contact you for unauthorised purposes (if you request that your contact details be published).
5 Children’s Privacy. We are committed to protecting the privacy of children. You should be aware that this Site is not intended or designed to attract children under the age of eighteen(18). We do not collect personally identifiable information from any person we actually know is a child under the age of eighteen (18).
7 Use of Information. We will use non-personal information such as facts, reports, advertising and opinions to provide you with information through our Site, and other services that you request. We will use Personal Information to ensure our delivery and your receipt of our communications to your nominated electronic address.
9 Electronic Communications. When you register as a member, you are given the option of receiving electronic communications from us, such as Your Health News, Equipment Reminders, New Product Updates, special offers and other email communications. We will not send you this material unless you have consented to receiving that material as part of the membership registration process. You can change your preferences at any time through the Update Your Profile facility on this Site.
10 Security. We have systems in place to protect Information and we take all reasonable steps to keep Information secure, accurate and up to date. One such protection system is a firewall, which is a barrier that only allows permitted traffic through. We track all access to our records through logs that are reviewed periodically, and investigate unusual activity.
12 Policy Revised from Time to Time. Our Policy may change as we improve the Site and/or as privacy legislation changes. We recommend that you review this Policy regularly to ensure that you are familiar with our privacy practices. The date on which the Policy was last updated will be specified. Amendments are effective immediately upon updating this posting. Your continued use of the Site following amendment represents an agreement by you to be bound by the updated Policy, General Terms and Conditions of Use and/or Terms and Conditions of Membership.
13 Governing Laws. The Site and its use are governed by the laws of New Zealand, and by the privacy laws of the jurisdiction in which you live.
14 Contact Details and Privacy Officer. If you wish to change how we use your email address, you can change your preferences at any time in your Profile on this Site. Upon request, we will inform you of the existence, use, source and disclosure of your Personal Information and will provide you access to such information. You will be permitted to challenge the accuracy and completeness of your Personal Information and have it amended as appropriate. The Company will respond to all requests within a reasonable time (but not later than 30 days) after receipt of the request at minimal or no cost to the individual. If you have any questions about this Policy, please contact our Privacy Officer at firstname.lastname@example.org
15 CANADIAN USERS. A Canadian individual who wishes to challenge our compliance with the principles contained in this Policy should address those concerns to the Privacy Officer. All complaints will be investigated and, if found to be justified, appropriate measures will be taken, including, if deemed necessary, amending our privacy policies and practices. If the Canadian individual is not satisfied with our response to a complaint, that individual may submit a complaint to the Federal Privacy Commissioner within 6 months. Appeals from decisions of the Federal Privacy Commissioner may be made to the Federal Court of Canada within 45 days after the Commissioner's report has been released.