Midnight Health Pty Ltd (ABN 13 647 966 738)
Microba Pty Limited (ABN 30 628 603 225)
The Website vidality.health and related mobile applications (“the Website”) have been created and are owned and controlled by Midnight Health Pty Ltd (ABN 13 647 966 738) in partnership with Microba Pty Limited (ABN 30 628 603 225)(hereby referred to as “We”).
By accessing or using Vidality, You acknowledge that You have read, understood and agreed to be bound by these Terms. If You do not accept these Terms, You must not submit a Microbiome Request, and You must refrain from otherwise accessing or using Vidality.
We may change these Website Policies & Terms at our discretion. By continuing to access or use this Website, you accept these Website Policies & Terms as they apply, including as amended, from time to time.
Please read these Terms carefully. By clicking “agree”, submitting a Microbiome Request or by otherwise using or accessing Vidality, You agree to the following Terms.
ANY INFORMATION PROVIDED BY US (INCLUDING ANY INFORMATION CONTAINED ON OUR WEBSITE OR IN ANY MICROBIOME REPORT) IS FOR INFORMATION PURPOSES ONLY. SUCH INFORMATION IS NOT MEDICAL ADVICE AND MUST NOT BE TAKEN TO BE A SUBSTITUTE FOR A CONSULTATION WITH YOUR HEALTH CARE PROFESSIONAL OR DOCTOR. IT IS NOT INTENDED TO DIAGNOSE CONDITIONS NOR PRESCRIBE THE USE OF ANY REMEDY, DIET OR LIFESTYLE PRACTICE. YOUR HEALTH IS YOUR RESPONSIBILITY AND IF YOU HAVE ANY CONCERNS RELATED TO YOUR HEALTH WE RECOMMEND THAT YOU SEEK THE ADVICE OF YOUR HEALTH CARE PROFESSIONAL OR DOCTOR.
You agree to:
- provide to Midnight Health Pty Ltd, as applicable, all reasonable required information and details requested by Midnight Health Pty Ltd, as applicable;
- contact your regular general practitioner immediately if directed to do so by Midnight Health Pty Ltd if your conditions change or worsen.
You warrant that:
- you are not experiencing dangerous, unusual or serious symptoms ;
- the need for Vidality services is not related to any accident or injury;
- you do not suffer from multiple or serious chronic health or medical conditions
- all information you have provided to Midnight Health Pty Ltd is true and accurate;
- you have not omitted disclosing any information in your patient questionnaire that is or might be relevant to your health or medical condition or the provision of Vidality services;
When you use the Website and the encrypted chat service which forms part of the Website, you grant Midnight Health Pty Ltd an unlimited royalty-free perpetual licence to use (in any way) any content you transmit via the Website including, without limitation, any text, audio and or video files, images or pictures in accordance with these Website Policies & Terms.
All information submitted to the Website through the encrypted chat service will be confidential between you and Midnight Health Pty Ltd and will not be made publicly available.
You warrant that the content that you upload to the Website and the encrypted chat service:
- will comply with these Website Policies & Terms;
- will not be illegal or of an unlawful nature;
- will not give rise or be capable or resulting in an infringement of any third party’s rights or a legal proceeding; and
- has not been subject to any legal proceeding or dispute.
You agree to indemnify and keep indemnified Midnight Health Pty Ltd against any claim, loss, damage, costs and/or expenses that Midnight Health Pty Ltd may suffer or incur in relation to or arising out of the content you upload to the Website and the encrypted chat service.
Midnight Health Pty Ltd reserves the right, and you acknowledge Midnight Health Pty Ltd’s right, to remove or alter any content that you submit to the Website and the encrypted chat service.
Our provision of the Vidality Services to You may be subject to You paying Us certain Fees as set out by Us on the Website or as otherwise notified to You by Us. You acknowledge that the availability of any part or feature of Vidality may be conditional upon the payment of such Fees. You acknowledge and agree We may change Our Fees at any time. We will endeavour to notify You via the Website of any changes to the Fees before they come into effect, however this may not always be possible.
You acknowledge that Our performance of any part of the Vidality Services is conditional upon Us receiving the Fees in advance. We do not represent or guarantee that the Vidality Services will be performed or completed within any specific timeframe. We will not be liable for any delay in the timely performance of the Vidality Services.
If You do not accept the Fees or any changes to the Fees, You must not access or use Vidality.
If You make any payments for Fees with a credit or charge card or an online payment account, You warrant that You are the cardholder or account holder and that the billing information provided is accurate, and You authorise Us to charge the designated credit or charge card or online payment account for the total amount of the Fees, plus any applicable GST. You acknowledge and agree that We may provide Your credit card information to third-party payment processors (such as Stripe) to enable Us to charge the designated credit card.
All payments and purchases made in connection with Vidality are in Australian dollars and are non-refundable.
We may, at Our absolute discretion, agree to issue a refund to You where a request is made in writing. In these instances, You agree that We may, at Our discretion, deduct a $40 postage and handling fee from the amount of the refund.
Where applicable, You agree to pay all GST and other similar taxes imposed in connection with the supply of the Vidality Services on You.
You are responsible for all internet service provider fees, telecommunication and other charges required for Your connection to, or use of, Vidality.
We offer Users the opportunity to register for an ongoing subscription to the Vidality Services (“Subscription”). Subscriptions are offered for a fixed term.
If You register for a Subscription, You authorise Us to charge Your credit card on a recurring basis depending on Your applicable Subscription period and the selected frequency of Vidality Services.
You may cancel Your Subscription at any time by sending an email to [email protected] or by using the method for cancelling a subscription set out on Our Website.
If You cancel Your Subscription:
- You are liable to pay all applicable Fees up to and including the day of cancellation;
- We are not obliged to provide any refunds, including for any remaining prepaid period in relation to the Subscription;
- Your rights and Our obligation to provide the Vidality Services associated with Your Subscription will cease upon the expiry of the prepaid period applicable to that Subscription (if any); and
- You can re-subscribe at any time following the cancellation, however We reserve the right not to permit such re-subscription.
You may also request to amend Your Subscription at any time by sending an email to [email protected]. Approval of any amendment requests will be at Our absolute discretion and may be subject to any reasonable conditions that We require.
We may cancel Your Subscription at any time by providing notice to You. If We cancel Your Subscription and You have prepaid amounts in relation to Vidality Services that have not been performed by Us as at the date of Our cancellation, We in Our absolute discretion may choose to either refund You such prepaid amounts or perform the outstanding Vidality Services.
You acknowledge and agree that We may change Our Fees in relation to Your Subscription at any time. We will notify You of any changes to the Fees before they come into effect. If You do not agree with Our proposed Fee changes, You must cancel Your Subscription. Your Subscription is not transferable unless specifically authorised by Us.
We may terminate Your Subscription with immediate effect if You fail to pay any Fees applicable to Your Subscription when due or where We suspect Your Subscription is being used in a way that was not intended by Us, and We will not be obliged to provide You with a refund with respect to such termination.
INFORMATION YOU PROVIDE TO US
Users will be required to send personal information to Us (including when submitting a Microbiome Request). Such information may include:
- personal information;
- health information;
- family health information and history;
- lifestyle information; and
- any other information that You provide to Us (including when registering as a User or completing a Microbiome Request), (“User Information”).
- to provide You with the Vidality Services; and
Where relevant to the Vidality Services We are providing to You, You further consent to Us disclosing to Australia Post certain personal information that You provide to Us (which may include Your email address, mobile phone details and/or Your residential address) in connection with Us providing the Vidality Services to You, and You acknowledge and agree that Australia Post may use such information for the purposes of providing notification of tracking events (and collecting any relevant feedback in relation to the delivery or tracking service).
You may request that We delete Your personal information that We hold about You by sending Us an email at [email protected]. Upon receiving this request, We will provide You with a form which must be signed and returned to Us so that We may process the request. You agree that any such request will only be effective from the point in time that We process Your request. You acknowledge that if We delete any of Your personal information then We may not be able to provide You with some or all of Our service.
MICROBIOME REQUESTS, MICROBIOME SERVICES, AND SAMPLE COLLECTION
Any User may submit a Microbiome Request. Upon receiving a Microbiome Request (as well as any additional consents We may require before We provide any Vidality Services) and payment of the relevant Fees, We will send to You a Vidality Sample Kit. Vidality Sample Kits are subject to availability. We will not be liable for any delay in providing You with a Vidality Sample Kit. We may decline to send a Vidality Sample Kit for any reason upon receiving a Microbiome Request. If We do decline to send a Validity Sample Kit, We will refund payment of any relevant Fee.
You must collect, package and send the Sample to Us within 12 months of Us sending You a Vidality Sample Kit. We will only accept Samples that have been sent to Us using the prescribed Vidality Sample Kit and otherwise collected and packaged in accordance with Our instructions to You as set out in the Vidality Sample Kit. Certain Vidality Services may require more than one Sample over a period of time.
If You fail to provide Us with a Sample within 12 months of Us sending You a Vidality Sample Kit then You agree that We are not obliged to accept any Sample from You and that We shall not be liable to refund payment of any relevant Fee.
We are not obliged to provide You with a refund or replacement if You damage, misuse or misplace a Vidality Sample Kit (for example, if You fail to follow Our instructions for Sample collection). If You require a replacement Vidality Sample Kit due to damage, misuse or misplacement, We may charge You a replacement fee.
All Samples will be at Your risk until they are received by Us. We are not liable for any Samples damaged in the sampling process or lost or damaged in transit. In such circumstances, We may choose to either provide You with a new Vidality Sample Kit for free or We may charge You a replacement fee (as determined by Us in Our absolute discretion).
We will label each Vidality Sample Kit with the details of the User that has submitted the Microbiome Request and is required to provide the Sample. You warrant that any Sample You send to Us or Our Research Partners contains only materials from that User’s body and You irrevocably consent to Us carrying out Microbiome Services on that Sample. Where You have submitted a Microbiome Request for or on behalf of another person, You warrant and represent to Us that that person consents to Us carrying out Microbiome Services on that Sample and has read and understood these Terms.
It is acknowledged that Microba Pty Limited (ABN 30 628 603 225) is the entity within Our group that will provide the Microbiome Services. Microba Pty Ltd will carry out the Microbiome Services using reasonable care and skill, however We make no guarantee that We will be able to successfully perform the Microbiome Services on Your Sample (for example, if Your Sample does not contain sufficient biological material or the results from Our Microbiome Services do not meet Our standards for accuracy). If We determine in Our absolute discretion that the Microbiome Services cannot be accurately and safely carried out on the Sample provided by You (“Failed Sample”), We will notify You and may request that You submit another Sample. In the event of a Failed Sample, We may choose to either provide you with a new Vidality Sample Kit for free or We may charge you a replacement fee (as determined by Us in Our absolute discretion).
We retain the right to make any changes to the Microbiome Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Microbiome Services. You acknowledge that We will not return any Sample to You. We may destroy, dispose and/or retain any Samples as We see fit depending on the nature of the issue and the type of Sample.
You agree that We may provide You with Your Microbiome Report online (in which case, You may access Your Microbiome Report by logging into Your account). We may agree to provide a hard-copy of Your Microbiome Report upon request, which may be subject to additional Fees.
A dietary supplement is issued to you entirely at the direction of a Pharmacist.
Midnight Health Pty Ltd does not guarantee that a Pharmacist will issue you with a dietary supplement following gut microbiome testing.
Midnight Health Pty Ltd is not liable in any way for any dietary supplement issued by a Pharmacist or any party’s failure to deliver a dietary supplement to you (including, but not limited to, to the correct address or within any specified timeframe).
In circumstances where any dietary supplement is damaged, incorrectly dispensed or delivery is delayed, you agree to contact the pharmacy who is directly responsible for dispensing and delivering the medications to seek to resolve any issues.
You understand that Midnight Health Pty Ltd acts as agent only for any pharmacies recommended by Midnight Health Pty Ltd to you for dispensation of dietary supplements prescribed by a Pharmacist and Midnight Health Pty Ltd is not responsible for dispensation of any medications prescribed to you in any way.
You agree and consent that:
- to the extent it is permitted or required by law; or
- where You have otherwise given Us Your express consent (which consent You may withdraw at any time online via Your registered account).
We may de-identify and aggregate User Information, Your Microbiome Report and any other results, data and other information generated, inputted or derived from performing the Vidality Services, including by removing personal identifiers and removing or altering other information that may allow identification (“De-identified Data”). Without limitation, We may use such De-identified Data to conduct, publish and/or present research studies, and/or to develop diagnostics, therapeutics or other products/services. To the extent that De-identified Data is owned by You, You grant Us an irrevocable perpetual, nonexclusive, assignable, worldwide and royalty free licence (with a right to sub-licence) to use and commercialise the De-identified Data for such purposes as We see fit. This right continues even if You no longer use Vidality or are deregistered as a User.
You acknowledge that You acquire no rights in any research or commercial products that may be developed or derived by Us or Our licensees from any De-identified Data
Midnight Health Pty Ltd and Microba Pty Ltd own all Intellectual Property in Vidality (including without limitation text, information, graphics, logos, business/trading names, design, layout, downloads, pricing, software, products and services, architecture and coding and any copyright subsisting in them).
We own all trade marks, branding and logos contained in, or relating to, Vidality. Nothing in these Website Policies & Terms or your use of the Website or the Vidality Services has the effect of transferring, assigning, licensing or otherwise transmitting any of Midnight Health Pty Ltd’s intellectual property to you. You cannot use them for any purpose without Our express written consent.
Without limiting the above, all Intellectual Property rights in all Microbiome Reports are owned by Us. If We provide You with a Microbiome Report as part of the Vidality Services, You may access and download Your Microbiome Report and may disclose such information to family and medical professionals for the purposes of obtaining medical advice, however You must not modify, publish, transmit, distribute, participate in the transfer or sale, create derivative works, or in any way exploit, Your Microbiome Report in whole or in part without Our prior written permission
OUTCOMES AND RELIANCE ON INFORMATION
Nothing contained in any Microbiome Report or on Our Website should be construed as medical advice. Any information We provide to You (including information set out in Your Microbiome Report or on Our Website) is provided on an “as is” basis for general information only and must not be considered professional medical advice or a recommendation. You must not rely on such information and should not make any decisions in reliance on such information.
We are not a medical or health provider and the Vidality Services are not supported by clinical verification. Any information We provide (including any Microbiome Report) is not intended to diagnose conditions nor prescribe the use of any remedy, diet or lifestyle practice. We will not diagnose, treat or prevent any condition or disease. While We provide information and perform the Microbiome Services, We do not give medical advice and any concerns You might have should be directed to Your health care professional or doctor. Any and all information We provide to You (including any information set out in any Microbiome Report) must not be considered a substitute for medical advice or a doctor’s consultation, evaluation or treatment, and You should discuss any information set out in Your Microbiome Report with a medical professional. You accept liability for any decision made (or not made) or action taken (or not taken) in reliance on any information contained or omitted from Your Microbiome Report. You must not disregard professional advice, or delay seeking it, because of any information contained in Your Microbiome Report.
As part of the normal operation of the Vidality Website, your internet browser will be sent a “cookie” (a temporary internet file). This cookie enhances the Website’s functionality with features such as account login and electronic ordering. By itself, this cookie can only identify your computer to Midnight Health Pty Ltd’s server and so we can track your use of the Website. It is not used to identify you personally.
In some instances, cookies may collect and store personal information about you. Such personal information will only be used by Midnight Health Pty Ltd in accordance with these Website Policies & Terms.
Your personal username and password to access the Website protect your privacy. We recommend that you do not disclose, share or reveal your account details to any other individual.
ACCESS TO VIDALITY
We reserve the right to suspend, withdraw, discontinue or amend all or any part of Vidality without notice. We will not be liable if, for any reason, Vidality is unavailable at any time or for any period. From time to time, We may restrict access to all or any part of Vidality. You are responsible for making all arrangements necessary for You to have access to the Website. You are also responsible for ensuring that all persons who access the Website through Your internet connection are aware of these Terms, and that they comply with them.
Unauthorised access or use of Vidality may give rise to a claim for damages and/or be a criminal offence.
CHANGES TO THE VIDALITY SERVICES AND ITS AVAILABILITY
We may change or improve Vidality at any time. We may also stop making Vidality available or modify its availability in any way. We are under no obligation to update any material that may be out of date at any given point in time.
We will always try to give You notice of any significant changes to Vidality or its availability before such changes take effect, although this may not always be possible. To the maximum extent permitted by law, We do not accept liability for any damage or loss which You may suffer or incur as a result of such change.
You agree that You will only use Vidality for lawful purposes. If You send or post information on or using Vidality, You are responsible for anything You send or post. You must not send or post anything that is:
- infringes any person’s rights;
- is against any applicable law; or
- which We think is inappropriate.
You must ensure that Your access to and use of Vidality is not illegal or prohibited by any laws which apply to You. By participating in any Research Project or otherwise using Vidality, You represent and warrant that You will not:
- infringe the rights of any other person, including without limitation any Intellectual Property rights;
- defame another person;
- provide false information, misleading or inaccurate information to Us or any other User;
- impersonate, or otherwise misrepresent affiliation, connection or association with, any person or entity;
- disclose another person’s confidential information or otherwise contravene Your privacy obligations or any other person’s privacy obligations;
- 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 Vidality for any purpose, including without limitation use on third-party websites;
- attempt to probe, scan, or test the vulnerability of Vidality or any associated system or network, or breach security or authentication measures without proper authorisation;
- threaten, offend or abuse Us or another User; or
- do anything which is otherwise, in Our view, inappropriate or harmful to Vidality.
To access Vidality Services via the Website, you must create an account and become a registered user of the Website.
To create an account and become a registered user, you must:
- be over 18 years of age;
- reside in Australia;
- be capable of entering into a binding agreement with Midnight Health Pty Ltd; and
- agree to these Website Policies & Terms.
You must ensure that all of your information supplied to Midnight Health Pty Ltd remains accurate and up to date.
Once you have successfully created an account and registered as a user of the Website, you will be provided with a username and password for accessing the Website.
You must maintain the confidentiality of your username and password and must not authorise others to use your account. You are responsible for all activities conducted through your account. If you believe someone has gained unauthorised access to your account, you must contact Midnight Health Pty Ltd immediately.
Midnight Health Pty Ltd may disable your account or use of the Website and in seeking any services provided by Vidality, without notice and for any reason.
USE OF WEBSITE
You must only access and use the Website in accordance with
- these Website Policies & Terms;
- all applicable laws and regulations.
You agree to not:
- use a false identity or provide false details to Midnight Health Pty Ltd;
- use the Website for any other purpose other than for accessing and receiving Vidality services;
- send, upload or transmit any illegal information or material, offensive material, viruses, worms, spyware or other similar codes via the Website;
- use the Website to cause harm or offence to any other person;
- use the Website in any way that will infringe any third party’s rights;
- do anything which will or might affect, cause damage to, disrupt or interfere with the operation and system of the Website;
- attempt to derive the source code of the Website or any part of it or reverse engineer any of the systems or technologies used to create or operate the Website;
- copy, reproduce, publish, exploit or use any part of the Website for the purpose of creating or operating an online platform similar to the Website or for any other purpose other than as expressly permitted under these Website Policies & Terms;
- use the Website in a way that might cause damage or loss to Midnight Health Pty Ltd and Microba Pty Ltd;
- use the Website in a way that might affect the brand or reputation of Midnight Health Pty Ltd and Microba Pty Ltd;
- use the Website for commercial purposes;
- allow or assist anyone else to carry out the above mentioned activities;
- violate or breach any of these Website Policies & Terms or any laws which relate to them.
You agree to indemnify Midnight Health Pty Ltd and Microba Pty Ltd and each of the officers, employees, agents, contractors, suppliers and licensors of Midnight Health Pty Ltd and Microba Pty Ltd in respect of any liability, loss or damages (including all legal and other costs on a full indemnity basis) suffered or incurred by them arising (in whole or part) out of the breach of or failure to comply with any of these Website Policies & Terms, or any other default or wrongful conduct in relation to the subject matter of these Website Policies & Terms, on the part of you or any of your officers, employees, agents, contractors, suppliers and licensors.
LIABILITY AND DISCLAIMER
To the maximum extent permitted by law (including the Australian Consumer Law), We (and Our directors, employees and agents) do not accept any liability for, and You agree to release Us from any claim in relation to any loss, howsoever caused, suffered or incurred by You arising from Your use of Vidality (including without limitation any Consequential Loss or damage and any loss arising through negligence).
Without limiting the above, to the extent permitted by law (including the Australian Consumer Law), any liability We do owe (including any liability for failure to comply with consumer guarantees required by the Australian Consumer Law) is limited to the amount You paid to use Vidality, or (if We choose) Us providing the service or product again.
Midnight Health Pty Ltd does not provide any warranty in relation to your use of the Website or as to the currency, completeness or accuracy of the information contained on the Website.
You agree to indemnify Midnight Health Pty Ltd and Microba Pty Ltd (and Our directors, employees and agents) from and against all claims, liabilities, losses and expenses (including reasonable legal fees on a full indemnity basis) that arise from:
- any reliance on any information We provide to You;
- any breach of these Terms by You;
- any breach of any rights of a third party by You; or
- any breach of any applicable law by You
If you have a complaint in relation to use of Vidality Services or the Website, you may contact us via email at [email protected]
In relation to complaints against Midnight Health Pty Ltd:
- you must notify us of the details of the complaint as soon as possible;
- a representative of Midnight Health Pty Ltd will contact you to discuss your complaint;
- if your complaint is not resolved in your discussion with a Midnight Health Pty Ltd representative, the matter will be referred to an independent third party as agreed between the parties or, in the absence of agreement, an independent party selected by the Queensland Law Society;
If you have any complaints or concerns that cannot be resolved by Midnight Health, you can contact the Office of the Health Ombudsman.
Office of the Health Ombudsman
GPO Box 13281George Street,
Brisbane QLD, 4000
Telephone: 133 646
Email: [email protected]
- the parties will be bound by the decision of the selected expert with respect to the complaint; and
- the parties will share the costs of engaging the expert equally.
If your complaint relates to your consultation with a Doctor or any other matter for which a Doctor is responsible, we may refer your complaint to the relevant Doctor.
If your complaint relates to any matter for which a pharmacy, including the pharmacy recommended by Midnight Health Pty Ltd, is responsible, we may refer your complaint to the relevant pharmacy.
Midnight Health Pty Ltd is not responsible in any way for resolving your complaints against or in relation to a Doctor or any pharmacy.
The laws of Queensland in Australia govern these Website Policies & Terms, as applicable, and you agree to submit to those laws and their exclusive jurisdiction, including the courts of Queensland in Australia, in your use of this Website and these Website Policies & Terms.
If any of these Website Policies & Terms are held to be invalid or unenforceable, then the validity and enforceability of the remaining Website Policies & Terms will not be impacted.
Please contact us at [email protected] if you have any queries with respect to these Website Policies & Terms.