(a) We will provide Our Services with due care and skill in accordance with any applicable legal obligations.

(b) You acknowledge and agree that:

• (i) the Services are:

  • (A) provided for educational and informational purposes only; and

    (B) not medical advice, mental health advice, diagnosis, treatment, healthcare, clinical care, nutritional therapy, psychological care, counselling, therapy, or practitioner-style care, nor should they be perceived to be or relied upon in such a way.

• (ii) in relation to medical (and therapeutic) advice:

  • (A) nothing provided through Our Services creates, or is intended to create, a practitioner-patient, clinician-patient, therapist-client, adviser-client or other professional relationship between You and Us, the founder, or any other Smart Bear representative, contributor, educator, moderator, contractor or affiliated person;

    (B) the information provided through Our Services is not intended to replace or be a substitute for professional medical advice, diagnosis, treatment or care that can be provided by Your own qualified healthcare practitioners, including doctors, general practitioners, nurse practitioners, pharmacists, physiotherapists, dietitians, nutritionists, psychologists, counsellors, therapists or other registered or licensed healthcare professionals;

    (C) You should not disregard, delay or avoid seeking professional medical advice because of anything You have read, viewed, heard or received through the Services. You should not stop, start or change any medication, supplement, treatment, therapy, exercise, diet, healthcare plan or other health-related intervention without first consulting Your chosen qualified healthcare practitioner;

    (D) if You have, or suspect that You have, a medical condition, mental health condition, injury, illness or other health concern, You should seek advice from the appropriate medical professional promptly;

    (E) Smart Bear does not diagnose, treat, prevent or cure any disease, disorder, injury, illness, physical ailment, mental health condition, emotional issue or other health condition;

    (F) any information relating to health, wellness, recovery, self-management, symptoms, conditions, testing, treatments, therapies, supplements, lifestyle strategies or healthcare options is provided for educational and informational purposes only and must be evaluated in consultation with Your chosen qualified healthcare practitioner before implementation;

    (G) the information and materials provided through the Services have not been evaluated by the Therapeutic Goods Administration or any other regulatory authorities unless expressly stated otherwise;

• (iii) in relation to personal responsibility and risk:

  • (A) the Services are provided for educational and informational purposes only and are not intended to replace Your own judgement, independent decision-making or the advice of appropriately qualified professionals;

    (B) You are solely responsible for evaluating, interpreting and determining the suitability of any information, ideas, options, recommendations, tools, resources or educational materials provided through the Services and any implementation of information obtained through the Services is undertaken at Your own discretion and risk;

    (C) that healthcare, lifestyle, financial, legal, business and other decisions involve inherent uncertainty and that individual circumstances, physiology, psychology, preferences, goals and risk factors vary significantly. As a result, information that may be appropriate for one individual may not be appropriate for another;

    (D) before making healthcare decisions or implementing healthcare-related changes, You should always consult with Your chosen licensed healthcare practitioner or other appropriately qualified professional;

    (E) You accept responsibility for Your actions, decisions, outcomes and results arising from the use, misuse or non-use of information provided through the Services unless Our Services have been provided negligently;

• (iv) in relation to guarantees and results:

  • (A) the Services are designed to provide You with information and education to support and assist You in reaching Your own goals, but Your success depends primarily on Your own unique circumstances, physiology, effort, motivation, commitment and follow-through. We cannot predict nor guarantee that You will attain a particular result using the tools and information provided by Us, whether related to health outcomes or benefits (physical, mental, emotional, spiritual or otherwise), or financial outcomes (future income, expenses, sales volume, profitability, business performance or any other financial result), of any kind that may be derived as a result of Your use of Our Services;

    (B) that each individual’s results depend and vary significantly based upon their unique background, physiology, psychology, actions, circumstances and a variety of other factors and that there are no guarantees as to the specific results You can expect from using the information You receive on or through the Services;

• (v) in relation to legal and financial advice:

  • (A) the Services are not to be perceived or relied upon in any way as business, financial or legal advice and that the information provided is not intended to be a substitute for professional advice that can be provided by Your own accountant, lawyer, financial advisor or other qualified professional. We do not provide legal, financial, taxation, accounting, investment or business advice;

    (B) from time to time, We may discuss legal, regulatory, workplace, disability, privacy, consumer or healthcare-related topics. Such information is provided for educational and informational purposes only and should not be relied upon as legal advice. You should obtain advice from a qualified legal practitioner regarding Your individual circumstances before making legal decisions or taking legal action;

    (C) from time to time, We may discuss financial considerations relating to healthcare, treatment options, budgeting, insurance, disability support, employment, lifestyle modifications or other topics and that any such information is provided for educational and informational purposes only and should not be relied upon as financial, taxation, accounting or investment advice and that You should always obtain Your own personal advice from an appropriately qualified professional before making financial decisions;

• (vi) We are not responsible for any financial, business, employment, commercial or investment decisions made by You, nor for any resulting income, earnings, expenses, profitability, business performance, financial outcomes or losses of any kind and that You remain solely responsible for evaluating information, obtaining appropriate professional advice and making decisions based on Your individual circumstances;any recommendation, reference, review or discussion of a third-party product, service or resource is provided for educational and informational purposes only and that You remain solely responsible for evaluating the suitability, safety, appropriateness and relevance of any third-party product, service or resource for Your individual circumstances;

• (vii) information provided during Our Services or on Our Website is accurate as at the date of publication but may become outdated from time to time.  You should independently evaluate the Content with Your healthcare practitioner before being relied upon for important decisions;

• (viii) in relation to any use of AI:

  • (A) any AI generated or AI assisted information (including educational content, chatbots, AI tools, templates, comparisons and summaries) is provided for educational and informational purposes only and should not be relied upon as a substitute for professional advice, independent verification, clinical judgement or appropriate decision-making processes;

    (B) You remain solely responsible for evaluating any information provided through AI assisted tools or resources and for determining its suitability, accuracy and relevance to Your individual circumstances before acting upon it, including when making healthcare decisions or implementing changes, being done in consultation with Your chosen licensed healthcare practitioner;

• (ix) in relation to the use of online and digital Services:

  • (A) We cannot guarantee that Your access to Our Services will not be suspended or restricted from time to time, including to allow for repairs, maintenance or updates, although We will try to limit the frequency and duration of any suspension or restriction;

    (B) the provision of digital health education, research, products, Content and Services necessarily involves the transmission of personal and health information via the internet and other electronic communication platforms;

    (C) We do not control and cannot guarantee the security, reliability or performance of the internet or any third-party telecommunications networks, platforms, or systems used in connection with the delivery of Our Services; and

    (D) You are responsible for ensuring that You have a suitable and secure internet connection, up-to-date software, and appropriate privacy settings on Your device prior to using Our Services.

(c) To the maximum extent permitted by applicable law, Smart Bear is not responsible for the following except when We have been negligent:

• (i) decisions, actions or outcomes arising from Your reliance upon, implementation of, or failure to independently evaluate such information;

  (ii) the choices, actions, decisions, results, use, misuse or non-use of information provided or obtained through Our Services;

  (iii) any loss, damage, liability or other consequences arising from Your use of, access to or reliance upon any third-party product, service, resource or recommendation;

  (iv) any loss, damage, liability or other consequences arising from Your use of, access to or reliance upon any third party or Third Party Resources;

  (v) any errors, omissions, inaccuracies or outdated information contained within or referenced by Services;

  (vi) decisions, actions or outcomes arising from reliance upon AI generated or AI assisted information;

  (vii) any damages or refunds, or for any other recourse, should Our Services become unavailable or access becomes slow or incomplete for any reason, including but not limited to system back-up procedures, internet traffic volume, upgrades, overload of requests to the servers, general network failures or delays, or any other cause which may from time to time make Our Services inaccessible to You;

  (viii) any loss, damage, or harm (including any unauthorised access to, or disclosure of, Your personal or health information) arising from or in connection with:

  • (A) any failure, interruption, delay, or degradation of internet connectivity or telecommunications services, however caused, that affects the delivery of Our Services;

    (B) any unauthorised interception, access, or disclosure of information transmitted electronically during or in connection with Our Services, except to the extent caused by Our failure to implement reasonable security measures in accordance with applicable laws;

    (C) any malfunction, failure, or incompatibility of Your hardware, software, or internet connection;

    (D) any act or omission of a third-party technology or telecommunications provider; or

    (E) any other risk inherent in the use of the internet or electronic communications for the purposes of accessing educational, informational, research or other health-related resources, products, Content and Services.

• (ix) outcomes arising from incomplete, inaccurate or misleading information provided by You or a third party;

  (x) decisions, actions or omissions by You, or any other person in reliance upon information provided through Our Services;

  (xi) decisions, advice, treatment or services provided by other healthcare practitioners or other third parties;

  (xii) interruptions, delays, technical failures or circumstances beyond Our reasonable control; or

  (xiii) third-party products, services, websites, content or other resources that may be referred to, linked to or made available through Our Services.

(d) to the maximum extent permitted by applicable law, We make no representation or warranty regarding the likelihood of achieving any particular outcome based on the experiences of others.

(e) Nothing in these Terms and Conditions should be interpreted as attempting to exclude, restrict or modify the application of relevant consumer protection, consumer guarantees (including for personal injury) or other similar laws that apply to this agreement and cannot be contractually excluded, restricted or modified.

(f) Subject to clause 15.1(e) and to the fullest extent permitted by law, Our maximum aggregate liability for any Loss, however caused, suffered by You in connection with this agreement or Your access to or use of the Services is limited to the total amount of Fees paid by You to Us under this agreement for the relevant Services.

(g) Subject to clause 15.1(e), to the extent permitted by law, Our liability to You in relation to any claim under any applicable consumer laws relating to Your access and use of the Services or otherwise arising under or in connection with this agreement or Services is limited, at Our election and discretion to:

• (i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, the refund of fees paid for the goods, or the payment of the cost of having the goods repaired; and

  (ii) in the case of services, the supplying of the services again, the refund of the fees paid for the services, or the payment of the cost of having the services supplied again.