Date of last revision: 14 September 2024

Disclosure Notice in accordance with section 47A of the Fair Trading Act 1987 (NSW)

Reliance on Site content (see clause 11.1)

TBS Physio makes the content of the Site available for general information only. The information on the Site is not a substitute for appropriate clinical advice from your health professional. You should speak to your health professional for personalised clinical advice.

Reliance on Platform (see clause 11.2)

The Platform is intended to provide general information for the self-management of your health and wellbeing. It does not provide clinical advice, nor is it intended to be used for the diagnosis, monitoring, treatment, alleviation of or compensation for an injury or disability. If you are concerned about a specific condition or injury, or are seeking clinical advice please consult your health professional.

1. Introduction

TBS Physio Pty Ltd ABN 13 625 007 169 (TBS Physio, we, us, our) provides the:
1. tbsphysio.com.au website (Site); and
2. [b]agile platform to assist you to self-manage your health and well-being (which may be accessed via bagile.com.au) (Platform),
- for access and use by you.
The terms you and your refer to the person accessing or using the Site or the Platform.
These terms and conditions (Terms of Use) are deemed to incorporate our privacy policy which explains how we collect, use and disclose or otherwise handle your personal information (Privacy Policy) and should be read together with these Terms of Use. The provisions of the Privacy Policy apply as if set out in full in these Terms of Use.
Please read the following Terms of Use carefully before using the Site or the Platform.

2. Acceptance of terms

These Terms of Use, including the Privacy Policy, govern your access to and use of the Site, the Platform and any Site Content (as defined below) provided through or in connection with the Site or the Platform.
By browsing, accessing or using the Site or the Platform, you acknowledge and warrant that you have read, understood and agree to be bound by these Terms of Use and any additional terms and conditions notified to you from time to time.
By accessing the Site or the Platform you confirm that you are at least 18 years of age. If you are under 18 years of age, you must not access or use the Site or the Platform unless a parent or guardian has read and accepted these Terms of Use on your behalf.
These Terms of Use form a legally binding agreement between TBS Physio and you or your parent or guardian (as applicable). If you do not agree to these Terms of Use, you must immediately exit and not access or use the Site or the Platform.
We may amend these Terms of Use at any time and will take reasonable steps to bring any material changes to your attention such as by posting the amendments on the Site. As you will be bound by any amendment to these Terms of Use, you should review these Terms of Use from time to time. By continuing to use the Site or Platform after any amendment to these Terms of Use, you will be deemed to have accepted the amended Terms of Use. If any change has a detrimental effect on you, you may cease accessing or using the Site or the Platform.

3. Privacy and security

If you use the Platform, sign-up to receive emails and/or newsletters regarding our services, fill in a ‘contact us’ form or submit a client review on the Site or the Platform, we will need to collect your personal information. Personal information requested by us may include, but is not necessarily limited to:
1. your first name and last name;
2. your email address;
3. your phone number;
4. your profession;
5. your age;
6. the suburb where you live;
7. your health information, including your responses to any exercise tests performed through your use of the Platform; and
8. your opinion of the Platform or our services as expressed by any client reviews you may submit.
The collection, use, disclosure and handling of personal information is governed by our Privacy Policy, together with other terms such as our privacy collection statements.
You confirm that all of the information you provide to us, including any personal details, will be complete, true and correct.
You acknowledge that the internet is an inherently insecure communication medium, and your use of the Site and the Platform is at your own cost and risk. You must take your own precautions to ensure that the process which you employ for accessing the Site and the Platform does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. You agree that we have no responsibility for any use, misuse, loss, corruption, interception or delay of information or data uploaded, downloaded, hosted or otherwise communicated via the Site or the Platform.
Certain parts of our Site and/or our Platform may require registration to use. If we make parts of our Site or Platform which require usernames, passwords or other security-based information available to you, you must keep all such security-based information secure and private at all times. If your username, password or other security-based information is lost or stolen, you must notify TBS Physio in writing and take any reasonable steps we advise you to take to mitigate the adverse impact of the lost or stolen security-based information at the earliest possible opportunity.

4. Payment

In some circumstances, we may require you to pay to access the Platform (for example, if you are an individual wishing to obtain access to the Platform). The provisions of this clause 4 only apply where you are required to pay to access the Platform.
By requesting access to the Platform, you agree to pay TBS Physio the applicable fees and taxes and must agree to any additional terms and conditions supplied at the point of payment.
You acknowledge and agree that if you do not pay the applicable fees when they are due, you may not be able to access the Platform.
All fees payable under these Terms of Use or as otherwise required by TBS Physio are exclusive of any applicable taxes, including GST.

5. Intellectual property

Subject to clause 6.6, the entire contents and design subsisting in, relating to or arising out of the Site and the Platform and available through or in connection with the Site and the Platform including but not limited to copyright, logos, trade marks, designs, text, graphics, images, information, applications and other files, and their selection and arrangement (the Site Content) are the intellectual property of TBS Physio, our content providers or our licensors, with all rights reserved.
You must not do anything, or omit to do anything, which may infringe our intellectual property rights, except with our express written permission. You must not reproduce, frame, transmit (including broadcast), adapt, link to or otherwise use any of the material on the Site or the Platform, including audio and video excerpts, except as expressly permitted by statute or with TBS Physio's prior written consent.
No Site Content may be modified, distributed, communicated, framed, reproduced, republished, downloaded, displayed, posted, transmitted, sold, assigned, duplicated, licensed in any form or by any means, in whole or in part, without our prior written consent. In addition, you agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with the Site or the Platform.
You may view the Site, the Platform and the Site Content using your web browser and save an electronic copy, or print out a copy, of parts of the Site or the Platform solely for your own information, research or study, but only if you do not modify the copy from how it appears unless expressly authorised by TBS Physio and then only in accordance with these Terms of Use.
When you send us any feedback or suggestions in relation to the Site or the Platform, you agree that we can use any ideas, concepts, or techniques contained in the feedback or suggestions.

6. Submitted materials

The Site and/or the Platform may allow you to submit information, content and materials, such as client reviews of the Platform or our services (User Generated Content) to the Site, the Platform and/or TBS Physio.
You acknowledge and agree that if you choose to submit or post User Generated Content, you must own or have the right to submit that User Generated Content. User Generated Content that you submit must be your own opinion. User Generated Content must not: (i) infringe any intellectual property rights (including copyright, database right or trade mark right) of any person or be in breach of any legal duty owed to any person, such as a contractual duty or a duty of confidence; (ii) deceive or be likely to deceive any person; (iii) be used to impersonate any person (including TBS Physio, its related bodies corporate and representatives) or to misrepresent your identity or affiliation with any person (including TBS Physio, its related bodies corporate and representatives); or (iv) be illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, encourage any conduct that would be a considered a criminal offence, give rise to civil liability, violate any law or be otherwise inappropriate. If you become aware or reasonably suspect that any User Generated Content on the Site or the Platform may infringe these requirements, you must promptly inform us in writing.
User Generated Content that you submit or share on the Site or the Platform may be seen by other users of the Site and/or the Platform (each a User) or third parties. Where we have made relevant settings available, we will use commercially reasonable efforts to honour the choices you make about who can see your User Generated Content.
You agree that TBS Physio may: (i) edit or delete your User Generated Content; (ii) link your User Generated Content to other material, including User Generated Content submitted by other Users or material created by TBS Physio, its related bodies corporate and/or other third parties; (iii) use your User Generated Content for its business purposes; (iv) directly or indirectly benefit from your User Generated Content; and (v) share your User Generated Content with its related bodies corporate.
TBS Physio does not promise to display any User Generated Content that you provide.
TBS Physio does not claim any ownership rights in your User Generated Content, however, by submitting your User Generated Content to the Site, the Platform and/or TBS Physio you are deemed to grant TBS Physio (and its licensors) an irrevocable, perpetual, non-exclusive, royalty-free and worldwide licence to use, copy, modify, distribute, publish, communicate to the public and process that User Generated Content in connection with the Site and the Platform without any further consent, notice and/or compensation to you. By submitting and/or uploading your User Generated Content to the Site, the Platform and/or TBS Physio you consent to anything being done by TBS Physio in respect of that User Generated Material that could otherwise amount to an infringement of your moral rights in such User Generated Material, and warrant that you have obtained such consent from all other authors of such User Generated Material.

7. Cookies

By using the Site or the Platform, you acknowledge and agree that we may use cookies or other similar tracking technologies on the Site and the Platform to help us track your Site and Platform usage and remember your preferences. More information about how TBS Physio uses cookies and how you can enable or disable cookies can be found in our Privacy Policy.

8. Prohibited activities

When using the Site and/or the Platform, you must not:
1. infringe any intellectual property right (including copyright, database right or trade mark right) of any person or be in breach of any legal duty owed to any person, such as a contractual duty or a duty of confidence;
2. reproduce any Site Content without our express written permission, which we may grant or withhold at our absolute discretion;
3. seek reimbursement from any other party for access to the Site or the Platform or on-sell any information obtained from the Site or the Platform;
4. engage in any conduct which is likely to mislead or deceive us or any other person, impersonate any other person while using the Site or the Platform, conduct yourself in an offensive manner while using the Site or the Platform, or use the Site or the Platform for any illegal, immoral or harmful purpose;
5. submit, post, upload, email or otherwise send or transmit to the Site or the Platform, or any user of the Site or the Platform, anything that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly to the Site or the Platform; or
6. interfere with the Site, the Platform or the servers or networks underlying or connected to the Site or the Platform or violate any of the procedures, policies or regulations of the Site, the Platform or any networks connected to the Site or the Platform.

9. Linked Sites

We may provide links to third party websites or may divert your devices to third party websites from time to time (Linked Sites). Unless otherwise noted on a Linked Site, Linked Sites are not reviewed, controlled or examined by us in any way. The provision of links to the Linked Sites does not mean that TBS Physio endorses or recommends, or has any association with, the Linked Sites or the relevant third party goods and services.
You acknowledge and agree that we are not responsible for the content, availability, advertising, products, services or other materials of any Linked Sites, or any additional links contained on Linked Sites, or the conduct of any person associated with a Linked Site.
Linked Sites may be subject to their own terms and conditions of use and privacy policies. You acknowledge that it is your sole responsibility to review and comply with those terms and conditions, and we have no responsibility for your actions when using a Linked Site.

10. Availability

While we take reasonable steps to ensure the availability and security of the Site and the Platform, you accept that the Site and the Platform are provided on an “as is” basis. We do not warrant that the Site or the Platform will be continuously available and we will not be liable if the Site, the Platform or any part of the Site or Platform is unavailable at any time or for any reason. Neither we nor our licensors represent, warrant or undertake that the Site or the Platform (or any software underpinning the Site or the Platform) will be error, defect, “bug” or “virus” free.
The Site and the Platform is not a storage service and you agree that we have no obligation to store, maintain or provide you with a copy of any User Generated Content that you provide, except to the extent required by applicable law or as provided in our Privacy Policy.

11. Disclaimer

The Site is intended to provide general information only. It is not in the nature of clinical advice. While every effort is taken to ensure the information is accurate, we do not represent or warrant that this information is correct, current, complete, reliable or suitable for any purpose and it must not be relied on by you or any other person as a substitute for appropriate advice tailored to your specific circumstances (such as clinical advice for your circumstances).
The Platform is intended to provide general information for the self-management of your health and wellbeing. It does not provide clinical advice, nor is it intended to be used for the diagnosis, monitoring, treatment, alleviation of or compensation for injury or disability. If you are concerned about a specific condition or injury, or are seeking clinical advice, please consult your health professional.
The information on the Site and the Platform is provided on the basis that all persons accessing the Site and the Platform undertake responsibility for assessing the relevance and accuracy of its content.

12. Limitation of liability and indemnity

Without limiting any other provisions of these Terms of Use, we will not in any way be liable to you for any kind of loss or damage incurred as a result of your use of the Site or the Platform including any viruses or other malicious software that may affect you while you use the Site or the Platform or for any faults, failures or interruptions or the accuracy, timeliness, completeness, security or reliability of any communications (including any transactions) made using the Site or the Platform.
Nothing in these Terms of Use is intended to exclude, restrict or modify any condition, guarantee, warranty, right or remedy that you may have under the Competition and Consumer Act 2010 (Cth) or any other applicable legislation which may not be excluded, restricted or modified by agreement (Non-excludable Rights).
Except for liability in relation to breach of any Non-excludable Rights and liability under clause 12.4, our total maximum liability to you in contract, tort (including negligence), statute or otherwise, is limited to one thousand Australian dollars (AUD $1,000).
To the maximum extent permitted by law, our liability for breach of any Non-excludable Rights is limited to:
- replacement or refund for a major failure and you may seek compensation for any other reasonably foreseeable loss or damage; or
- replacement or repair if the services fail to be of acceptable quality and the failure does not amount to a major failure.
To the extent permitted by applicable law, under no circumstances will TBS Physio be responsible to you or any third party whether in contract, tort (including negligence), in equity or under statute for any special, indirect, consequential, incidental or punitive damages, or for any damages for loss of opportunity, data, profits, revenue or goodwill, regardless of whether or not such loss or damage was foreseeable and even if advised of the possibility of such loss.
You agree to indemnify, defend and hold us harmless from and against all losses, expenses, damages and costs (including reasonable solicitor's fees) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person against you or us where such loss or liability arose out of, in connection with or in respect of your conduct or breach of these Terms of Use.

13. General

Entire Agreement: These Terms of Use, together with any additional terms and conditions set out on the Site or the Platform from time to time, constitute the entire agreement relating to its subject matter and supersedes and extinguish any prior drafts, versions, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.
Force majeure: We will not be in breach of these Terms of Use or otherwise liable to you or any other person for any unavailability or failure of the Site or the Platform or any delay or other failure by us to comply with these Terms of Use that is caused by or arises from any event or circumstances beyond our control.
Rights cumulative: The rights, powers, privileges and remedies provided under any provision of these Terms of Use are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under any other provision of these Terms of Use or by applicable law or otherwise.
Waiver: No failure to exercise nor any delay in exercising by us of any right, power, privilege or remedy under these Terms of Use shall impair or operate as a waiver thereof in whole or in part. No single or partial exercise of any right, power privilege or remedy under these Terms of Use shall prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy.
Invalidity: If any clause or provision of these Terms of Use is determined to be illegal, invalid or unenforceable for any reason, then such clause or provision will be construed, to the extent feasible, to render the clause or provision enforceable. If no feasible interpretation would save such clause or provision, it will be severed from the remainder of these Terms of Use without affecting the enforceability of all remaining clauses and provisions.
Interpretation: In these Terms of Use, unless the context requires otherwise: (i) any reference to a “person” includes any individual, company, corporation, firm partnership, joint venture, association, organisation or trust (in each case, whether or not having separate legal personality) and references to any of the same shall include a reference to the others; (ii) any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; (iii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa; and (iv) the headings and sub-headings are inserted for convenience only and shall not affect the meaning of these Terms of Use.
Governing Law: These Terms of Use are governed by the laws of New South Wales, Australia. You are deemed to submit to the non-exclusive jurisdiction of the courts of New South Wales. The Site and the Platform may be accessed throughout Australia and overseas. TBS Physio makes no representation that the Site Content complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Site or the Platform from outside Australia, you do so at your own risk and are responsible for ensuring that your access to the Site and/or the Platform is not illegal or prohibited by laws which apply to you.

14. Contact us

If you have any questions about our Terms of Use or any queries or concerns about the Site, the Platform, the Site Content or our services, please contact us at tim.bushnell@tbsphysio.com.au or +61 410 895 714.