PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE
OF THIS WEBSITE
By using this Website (which shall include the use of any of our fee-based
products or offerings (“Fee-Based Products”) and
fixed price products and offerings ("Fixed Price Products"),
you agree to these Terms and Conditions of Use ("Terms & Conditions"). Unless
inconsistent with the context:
- these Terms and Conditions shall be incorporated into any agreement between
you and us (“Agreement”). In case of any
inconsistency between these Terms and Conditions and any Agreement, the terms
of the relevant Agreement shall prevail; and
- reference to this Website shall include reference to our Fee-Based Products
and Fixed Price Products (together "Products").
We reserve the right, in our sole discretion, to change, modify, add or remove
portions of these Terms & Conditions at any time. You should check
these Terms & Conditions periodically for changes. By using this
Website after we post any changes to these Terms & Conditions, you agree
to accept those changes, whether or not you have reviewed them. If you
do not agree to these Terms & Conditions, you should not use this Website
and, if applicable, you should cancel your membership with us. The Terms
and Conditions should be read carefully before using this website
Terms & Conditions
By using this Website, you agree to be legally bound and to abide by these
Terms & Conditions, just as if you had signed an agreement containing
these Terms & Conditions. If you do not comply with these Terms & Conditions
at any time, we reserve the right to cancel or terminate your password, user
account, and/or access to this Website (or any part thereof).
You agree that any termination or cancellation of your access to, or
use of, this Website may be effected without prior notice to you and without
providing any reason for such termination. If you do not abide by the
provisions of these Terms & Conditions, except as we may otherwise provide
from time to time, you acknowledge and agree that:
- we may immediately deactivate or delete your user account and/or all related
information and files in your user account and/or bar any further access
by you to such information and/or files, or this Website (or part thereof);
- we shall not be liable to you or any third party for any termination or
cancellation of, or variation of the applicable terms relating to, your access
to, or use of, this Website;
- we make no warranties in relation to Products and your rights with respect
to any dissatisfaction with Products are, unless we agree otherwise, limited
to those rights available to you under the Trade Practices Act 1974 (Cth),
equivalent state based fair trading legislation and any other applicable
statute or common law right;
Product Fees
By subscribing to or purchasing a Product, you agree as follows:
- To pay, using a valid credit card (or other form of payment which we may
accept from time to time), the fixed and periodic charges and fees set out
on this Website (such as the recurring Monthly Fees for Fee-Based Products
and the fixed price for the Fixed Price Products), applicable taxes, and
other charges, surcharges, costs and fees incurred in order to access or
purchase our Products (“Fees”).
With regard to Fee-Based Products we:
- reserve the right to increase the Fees, or to introduce new Fees
at any time, upon reasonable advance notice communicated to you through
a posting on this Website or such other means as we may deem appropriate
from time to time (including electronic mail or conventional mail).
- will automatically charge your credit card or other account at the
start of the relevant billing period (usually monthly or three-monthly
in advance) unless you terminate or cancel your subscription before
the start of the relevant billing period.
Each time you use or apply for our Fee-Based Products, you reaffirm your agreement
that we may charge your credit card (or other form of payment, if applicable). In
the event we cannot charge your account, we reserve the right to terminate
your access to our Fee-Based Products. Unless you advise us otherwise in advance,
your subscription to Fee-Based Products will automatically be renewed at our
standard subscription rates and for our standard period (usually monthly
or three-monthly) at the start of the relevant billing period. If
you wish to purchase alternative Fee-Based Products at any time, your
new Fee-Based Products will supersede your current Fee-Based Products at the
start of the next billing period, unless we agree otherwise.
- All Fees are quoted in Australian dollars and are inclusive of any applicable
GST, except where otherwise stated.
- For the purposes of your use and purchase of our Products, including identification
and billing, you agree to provide us with true, accurate, current and complete
information as required by the order form for our Fixed Price Products or
the subscription or sign up process to our Fee-Based Products ("Subscription
Data") including your complete legal name, address, telephone
number, email address and applicable billing information (e.g., credit card
number and expiration date) as required.
- You agree to allow us to share your Subscription Data with third parties
for the purpose of verifying the information you provide and billing your
credit card or otherwise charging your account. You agree to maintain
and promptly update the Subscription Data to keep it accurate at all times.
- You are entirely responsible for maintaining the confidentiality of your
password and user account information. You must notify us immediately
in the event of any known or suspected unauthorised use of your user account,
or any known or suspected breach of security, including loss, theft, or unauthorised
disclosure of your or anyone else's password or credit card information. You
are entirely responsible for any and all activities which occur under your
user account, as well as for paying any amounts billed to your credit card
by a third party which were not authorised by you.
Fixed Price Products
By placing an order for a Fixed Price Product you agree to these terms and
conditions as amended from time to time. You acknowledge that you are
an Australian citizen and that Fixed Price Products will only be delivered
to an Australian address.
Title to a Fixed Price Product will pass to you when
you provide full payment for the Fixed Price Product or when you receive
the Fixed Price Product, whichever is the later. Risk of loss or damage to
the Fixed Price Products shall pass to you on the date that we provide the
Fixed Price Product to a third party for delivery to you.
Any estimates made in relation to any
delivery date of Fixed Price Products are estimates only, and we provide
no warranty or representation that such an estimate will be correct. By ordering
a Fixed Price Product you agree that timing is not of the essence with
regard to delivery of Fixed Price Products.
The published price of the Fixed Price Products will be inclusive of
GST unless we have stated otherwise.
Subscription Cancellation
Either you or we may terminate or cancel your subscription to our Fee-Based
Products at any time. If you choose to cancel or terminate your ongoing
or 12 month subscription prior to the end of your contract period, you accept
that your member account will be frozen until which time you resubscribe. You
understand and agree that the cancellation or termination of your subscription
is your sole right and remedy with respect to any dispute with us including,
without limitation, any dispute related to, or arising out of:
- these Terms and Conditions (including our enforcement or application of
these Terms and Conditions);
- any of our practices or policies, including our Privacy Policy, (and including
our enforcement or application of these policies);
- the Content available through this Website including any change in content
provided through this Website;
- your ability to access and/or use this Website; and
- the amount or types of our Fees or billing methods, or any change to our
Fees or billing methods.
Ownership
All materials on this Website, including but not limited to information, software,
photographs, video, text, graphics, music, sounds, questions, creative suggestions,
messages, comments, feedback, ideas, recipes, notes, drawings, articles, audio,
images and other materials ("Content"), are protected
by copyright and other intellectual property rights under Australian law, international
conventions and other laws. You may not distribute, exchange, modify,
sell or transmit anything you copy from this Website, including but not limited
to any text, images, audio and video, for any business, commercial or public
purpose. Any unauthorised use of the Content may violate copyright laws,
trade mark laws, the laws of privacy and publicity, and civil and criminal
statutes. If you download any Content from this Website, you may not
remove any copyright or trade mark notices or other notices that go with it.
Content Restrictions
Unless otherwise specified, we grant you a non-exclusive, non-transferable,
limited right to access and use this Website and the material provided
hereon for your personal, non-commercial use, provided that you comply fully
with the provisions of these Terms and Conditions.
You acknowledge that you
may only use the Fixed Price Products for personal, non-commercial use,
and may not sell, lease, licence or otherwise receive any consideration for
allowing the Fixed Price Products to be used by any other person or entity.
You agree to indemnify us and keep us indemnified against any loss suffered
by us due to you selling, leasing, licencing or otherwise receiving any consideration
for allowing the Fixed Price Products to be used by any other person
or entity.
You acknowledge that this Website contains
Content that is protected by copyrights, patents, trade marks, trade
secrets and/or other proprietary rights, and that these rights are valid and
protected in all forms, media and technologies existing now or hereafter developed.
All Content is protected under applicable laws and we own copyright or other
property rights in the selection, coordination, arrangement and enhancement
of all such Content.
Conduct
You acknowledge that all Content and all information, software, photos, video,
text, graphics, music, sounds, questions, creative suggestions, messages,
comments, feedback, ideas, recipes, notes, drawings, articles and other materials
posted, emailed, or otherwise transmitted to, on or through this Website, whether
posted at our request or voluntarily, and whether publicly posted or privately
transmitted (collectively, the "Posts"), are the
sole responsibility of the person who made such Posts. This means that you
are entirely responsible for all Posts that you post, email or otherwise transmit
to, on or through this Website. We do not control the Posts of others and,
as such, you agree that we have no responsibility for the accuracy, integrity
or quality of such Posts. Except for Posts created by us (as to which you agree
that liability shall rest with the entity which created the relevant
Content and shall be governed by these Terms & Conditions), under no circumstances
will we be liable in any way for any Posts, including, but not limited
to, for any errors or omissions in any Posts, or for any loss or damage of
any kind incurred as a result of the access to or use of any Posts posted,
emailed or otherwise transmitted to, on or through this Website.
We may revoke
your privileges to use all or a portion of this Website and/or take any
other appropriate measures to enforce these community standards and conduct
guidelines if violations are brought to our attention. Further, if you fail
to adhere to our community standards and conduct guidelines, we may terminate,
in our sole discretion and without providing any reasons, your use of, or participation
in, any Forum.
All Forum communications, including,
but not limited to, message board communications, are public and not
private communications. We reserve the right to monitor any areas of this Website
(including any Forum) for adherence to the community standards and conduct
guidelines set forth above or for any other purpose, but you agree we have
no obligation or duty to do so and you release us from any such obligation
or duty.
Electronic Submissions
If, at our request or on your own, you send, email, post or otherwise transmit
to us or this Website information, software, photos, video, text, graphics,
music, sounds, questions, creative suggestions, messages, comments, feedback,
ideas, recipes, notes, drawings, articles, stories about yourself or your weight
loss, or other materials (including, but not limited to, posting, emailing,
or otherwise transmitting Postings on any Forum) (collectively, the "Submissions"),
the Submissions shall be deemed, and shall remain, our property. Except
as provided in our Privacy Policy, none of the Submissions shall be subject
to any obligation of confidence on our part, and we shall not be liable for
any use or disclosure of any Submissions.
Submissions will be collected and may be used to improve the Content
of this Website, to customise the Content and/or layout of our page for
each individual consumer, to notify consumers about updates to this Website,
and may be used by us to contact consumers for marketing purposes. By submitting
any such material, you give up any claim that any use of a Submission,
or any part or derivative element of a Submission, violates any of your rights
including moral rights, privacy rights, proprietary or other property rights,
publicity rights, rights to credit for material or ideas, or any other right,
including the right to approve the way PhysioEx uses such material.
You also warrant to us that:
- you own or otherwise control all of the rights in or to your Submissions
including, without limitation, all the rights necessary for you to send,
email, post or otherwise transmit to us the Submissions;
- any third party holder of any Rights, including moral rights in such Submissions,
has validly and irrevocably granted to you the right to grant the Rights
and give the consent stated above; and
- each person depicted in any images, photos and/or videos contained in your
Submissions (if any) has consented to the use of such images, photos and/or
videos in accordance with the above licence; and
- we and our successors and assigns shall be entitled to unrestricted use
of the Submissions for any purpose whatsoever, commercial or otherwise, without
being obliged or required to give or pay any compensation to the provider
of the Submissions or any third party holder of any Rights.
Children
This Website is not for use by any person less than eighteen (18) years of
age (each a “Child”) and is not directed to Children. This
Website is for use and access by individuals who are eighteen (18) years or
older.
Disclaimer
This Website (PhysioEx) provides exercise programs and information applications
and content published over the Internet and is intended only to assist users
in their personal Regimes. PhysioEx is not a medical organisation
and our staff cannot and do not give, or purport to give, you medical advice
or diagnosis. Nothing contained in this Website should be construed as
such advice or diagnosis. The information and reports generated by us
should not be interpreted as a substitute for medical consultation, evaluation,
or treatment by a qualified medical practitioner. You are urged and advised
to seek the advice of a medical practitioner before beginning any Regime. This
Website is intended for use only by healthy adult individuals. Individuals
who are pregnant or who have certain health conditions, including, without
limitation, people suffering from cancer, liver disease, kidney disease, renal
failure, eating disorders, type 1 diabetes or who are elderly or who have a
low body mass index may not be suitable candidates for undertaking any form
of exercise program and are specifically warned to seek professional medical
advice before using this Website.
Warranty Disclaimer
Please note the following disclaimers of warranties that form part of these
Terms & Conditions:
- the products, content and materials on this Website are provided "as
is" and, to the extent permitted by law, without warranties of any
kind, either express or implied;
- we disclaim all warranties, express or implied, including but not limited
to implied warranties of merchantability and fitness for a particular purpose,
title, compatibility, security, accuracy or non-infringement in respect of
any product, service or publication contained on this Website, or able to
be accessed through any link on this Website;
- PhysioEx or any of our service providers or suppliers warrant that this
Website or any function contained in this Website will be uninterrupted or
error-free, that defects will be corrected, or that this Website or the servers
that make this Website available, are free of viruses or other harmful components;
- any product, offering, content and material downloaded or otherwise obtained
through the use of this Website is done at your sole risk and you will be
solely responsible for any damage to your computer system or loss of data
that results from the download of any such product, offering, content or
material;
Limitation
of Liability
You expressly understand and agree that we shall not be liable for any direct,
indirect, incidental, special, consequential exemplary or punitive damages,
or any other damages whatsoever, or for any damages for loss of profits, goodwill,
use, data or other intangible losses (even if we have been advised of the possibility
of such damages) whatsoever arising out of, or resulting from:
- the use or the inability to use this Website;
- the use of any content or other material on this Website or any website
or websites linked to this Website;
- the cost of procurement of substitute goods and services resulting from
any goods, data, information or services purchased or obtained or messages
received or transactions entered into through or from this Website;
- unauthorised access to or alteration of your transmissions or data;
- statements or conduct of any third party on this Website;
- any other matter relating to this Website;
You acknowledge that, by undertaking any exercise program, you are doing so
voluntarily and you are aware that there may be dangers in participating in
a program. You are aware that your undertaking a program may result in
serious personal injury, permanent disability or death and/or property loss
and damage.
You are aware that the risks mentioned in the preceding paragraph may
be caused by your own acts or omissions, the acts or omissions of others participating
in an exercise program or other risks not known to you or that are not readily
foreseeable at the time of using this Website. You further acknowledge
that this is a risk warning pursuant to relevant State legislation and the
Trade Practices Act 1974 and you agree that you assume all risks in connection
with your participation in an exercise program. PhysioEx (including its
respective officers, employees and agents) are not liable for the breach of
any express or implied warranty that any services provided by PhysioEx will
be provided with reasonable care and skill.
You agree to use your own equipment (if any) to participate in an exercise
program and you are completely satisfied with the adequacy and condition of
your equipment and you are satisfied that it is suitable for use in a program.
You agree to participate in any exercise program in a manner that is
not reckless or dangerous to yourself or other people.
To the maximum
extent permitted by law, you hereby agree to release, discharge, waive
and forever hold harmless PhysioEx (including its officers, employees,
and agents) against all and any claim, right or cause of action however arising,
whether or not presently ascertained, immediate, future or contingent
which you may otherwise have for or arising out of loss of life or injury,
damage or loss of any description whatsoever and howsoever caused which you
may suffer or sustain in the course of or consequent upon your participation
in an exercise program, use of your own equipment, or any activity incidental
to a program, whether direct, consequential or foreseeable and whether caused
by accident or any negligent or wilful act or omission, breach of contract,
breach of statutory duty or otherwise in connection with a program.
Where your
loss is not or cannot be excluded by these Terms & Conditions
then:
- in no event shall our total liability to you for all damages, losses and
causes of action (whether in contract, tort (including, but not limited to,
negligence or otherwise) exceed the amount paid by you, if any, for accessing
this Website; and
- our liability in relation to any loss or damage directly or indirectly
related to any warranty or condition which is not excluded by these Terms & Conditions and
conditions is limited to, at our election:
in the case of goods, any one or more of the following:
- 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 payment of the cost of having the goods repaired; or
in the case of services:
- the supplying of the services again;
- the payment of the cost of having the services supplied again.
If you are dissatisfied with any portion of this Website, or with any of these
Terms & Conditions, your sole and exclusive remedy is the discontinuation
of your use of this Website.
Limitation of Liability for Fixed Price Products
In addition to the limitations of liability, you expressly understand and
agree that, in relation to the Fixed Price Products, we, to the extent permitted
by law:
- exclude all conditions and warranties implied into these Terms and Conditions;
and
- limit our liability for breach of any such condition or warranty that we
cannot exclude to the greater of:
- resupplying the Fixed Price Products which are the subject of the breach;
- paying the cost of having the Fixed Price Products which are the subject
of the breach resupplied; or
- repayment of all monies you have paid to us for the Fixed Price Products
which are the subject of the breach.
In no event will we be liable for any indirect, incidental, special, consequential,
or punitive damages, or for damages, whether in an action in contract or tort
(including negligence), even if we have been advised of the possibility of
such damages or if such damages are foreseeable.
Indemnification
You agree to indemnify, hold harmless and, at our option and in accordance
with our instructions and directions, defend us, and our and their officers,
directors, employees, stockholders, agents and representatives from any and
all third party claims, liability, damages and/or costs (including, but not
limited to, reasonable lawyers' fees and expenses) arising from your improper
use of this Website or our products or offerings, your violation of these Terms & Conditions,
any misrepresentation or breach of a warranty given by you in accordance with
these Terms & Conditions or your infringement, or the infringement or use
by any other user of your account, of any intellectual property or other
right of any person or entity.
To the maximum extent permitted by law, you agree to indemnify PhysioEx
(including its officers, employees and agents) against any claim, right
or cause of action however arising, whether or not presently ascertained,
immediate, future or contingent which you may otherwise have for or arising
out of loss of life or injury, damage or loss of any description whatsoever
and howsoever caused which you may suffer or sustain in the course of or consequent
upon your participation in an exercise program, use of your own equipment,
or any activity incidental to an exercise program, whether, direct, consequential
or foreseeable and whether caused by accident or any negligent or wilful
act or omission, breach of contract, breach of statutory duty or otherwise
in connection with an exercise program.
You agree that the waivers, releases, discharges and indemnities contained
in these Terms and Conditions shall operate in favour of PhysioEx (including
its officers, employees and agents) and shall so operate whether or not
the loss, injury or damage is due to or attributable to any act, neglect
or omissions of any one or more of them.
You acknowledge and agree that these
Terms and Conditions may be pleaded as a bar to any action, suit or proceeding
taken at any time by you against PhysioEx (including its officers, employees
and agents) arising out of or as a consequence of your participation
in a Regime, use of your own equipment, or in any activity incidental to an
exercise program.
