ONLINE TERMS AND CONDITIONS
1.1 These terms and conditions (Terms) are between Pilates for Sports Pty Ltd ACN# 603 259 436, its successors and assignees (referred to as “we”, “us” or “our”) and you, the person, organisation or entity that purchases Services from us (referred to as “you” or “your”), and collectively the Parties. These Terms apply to all sales made by us to you.
1.2 You have requested specific services, described on and able to be used and viewed via our website www.10pfs.com (Site) including but not limited to 10PFS – 10 Week Challenge to improve performance online (Services). You indicate your acceptance of these Terms by ticking the online acceptance box (or similar button) that is presented to you at the time of your order of the Services on the Site.
1.4 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details at the end of these Terms. Using or purchasing our Services indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older. You must not order or use the Services if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to these Terms, you must not use or purchase our Services from us.
1.3 We may amend these Terms from time to time with immediate effect upon giving you notice of the varied Terms via the Site. Use of the Site or Services following any such amendments will be deemed to be confirmation that you accept those amendments. If you have reasonable grounds to believe that the varied Terms will be detrimental to your rights, you may terminate your account created under these Terms without penalty upon receiving the notice of varied Terms. We recommend that you check the current Terms before continuing to use the Site or Services.
2. SUBSCRIPTION AND SERVICES
2.1 Access to our Services, as set out on the Site will require you to provide information, including name, email address, country of origin, to register for an account and to pay either an upfront fee (Upfront Fee) or monthly subscription fees (Subscription Fees) depending on the Services you choose.
2.2 We may offer access to certain Services for free. If you do not pay the relevant Fee after any free trial period, your access to the Services will be disabled.
2.3 It is your responsibility to keep the details of your account, including user name and password, confidential. You are liable for all activity on your account, including any purchases made using your account details. You may not share your account details with any other person.
2.4 You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. We reserve the right to suspend or terminate your account and access to the Site and Services if any information provided to us proves to be inaccurate, not current, incomplete or otherwise does not comply with these Terms.
2.5 We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.
2.6 You agree that from time to time we may apply updates (including fixes, configurations, upgrades, enhancements, improvements, releases, corrections and modifications) to the software used to provide the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of modules, functionality, features or content).
3. FEES AND PAYMENT
3.1 You agree to pay us the amounts set out on our Site. All amounts are stated in the currency as set out on the Site. All amounts exclude any value added tax (where applicable). Payment may be made by way of Stripe, PayPal or other payment methods as set out on the Site when purchasing our Services.
3.2 When subscribing to our Services, you agree to pay us the applicable Fee as set out on the Site. The Upfront Fee or the Subscription Fee for the first month (as applicable) shall be paid at the time you subscribe for the Services. Future Subscription Fees shall automatically be charged to your credit card (details of which you provide upon subscription) on a monthly basis by automatic direct debit.
3.3 If we do not receive a Subscription Fee in full on its due date for any reason, we will disable your access to the Services.
3.4 You may cancel the Services at any time. If you do so, you will not receive a refund of any Subscription Fees which you have paid up to the date of cancellation but we will not charge any further Subscription Fees to your credit card.
3.5 Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The changes will apply to you for Services provided to you after the date of the change, and in any event no earlier than the date that the amended or new Terms are provided to you. After a pricing change, you have the choice to continue using the Services, or to cease to use the Services without penalty.
4. YOUR OBLIGATIONS AND WARRANTIES
4.1 You warrant that throughout the term of these Terms that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns; and
(c) you will not introduce malicious programs into our network or servers (e.g. viruses, worms, Trojan horses, email bombs).
5. OUR INTELLECTUAL PROPERTY
5.1 The Materials contain material which is owned by or licensed to us and is protected by Australian and international laws. We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
5.2 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.
5.3 Your use of our Materials does not grant you a licence, or act as a right to use, any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
5.4 You must not breach our Intellectual Property rights by, including but not limited to:
(a) copying, altering or modifying any of the Materials;
(b) creating derivative works from the Materials; or
(c) using our Materials for commercial purposes such as onsale to third parties.
5.5 Upon payment of the Fees, we grant you a non-exclusive, revocable and non-transferable licence to use the Material in accordance with these Terms.
5.6 This clause will survive the termination of these Terms.
6. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
6.1 If you provide information including any Intellectual Property to us, then you:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you; and
(c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
6.2 If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property in any manner by us;
(b) irrevocably consent to us using or applying the Intellectual Property without any attribution of authorship;
(c) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(d) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
6.3 This clause will survive the termination of these Terms.
7. FEEDBACK AND DISPUTE RESOLUTION
7.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
7.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(b) If the Parties cannot agree how to resolve the dispute at the initial meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
7.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
8.1 Either Party may terminate these Terms if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
8.2 We may terminate these Terms immediately, at our sole discretion, if:
(a) you commit a non-remediable breach of these Terms;
(b) you commit a remediable breach of these Terms and do not remedy the breach within 10 days after receiving notice of the breach;
(c) you act in a way which we reasonably believe will bring us or our Site into disrepute;
(d) you provide us with incorrect payment details or any other incorrect information;
(e) we consider, at our discretion, your account login is being shared between people; or
(f) for any other reason outside our control which has the effect of compromising our ability to perform the Services.
8.3 On termination of these Terms you agree that any payments made are not refundable to you.
8.4 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
9. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
9.1 Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
9.2 We guarantee that the Services we supply to you are rendered with due care and skill, fit for the purpose that we advertise, or that you have told us you are acquiring the Services for, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time.
9.3 Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Services is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
9.4 Availability: To the extent permitted by law, we exclude all liability for:
(a) the Services being unavailable; and
(b) any Claims (whether direct, indirect, incidental, special, consequential and/or incidental), for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Services even if we were expressly advised of the likelihood of such loss or damage.
(a) All suggestions and comments relating to the use of equipment such as rollers, straps, weights or any other equipment, poses and exercises and any instructions shown in any video and other Materials on our Site are not required to be performed or adhered to by you and are carried out or adhered to at your election. You acknowledge that you will participate in our fitness classes and/or follow the tips contained in the online videos at your own risk.
(b) You hereby identify and release us, our instructors, our agents, affiliates, employees, members, sponsors, promoters and any person or body directly and indirectly associated with us, against all liability (including liability for their negligence and the negligence of others) claims, demands and proceedings arising out of or connected with your participating in any of our fitness classes and/or following the tips contained in the online videos.
(c) You acknowledge that participating in a fitness class or any related exercises and activities may involve a risk of serious injury or even death from various causes including: overexertion, dehydration, equipment failure and accidents with equipment and surroundings.
(d) It is your responsibility to ensure that by participating in a fitness class, you will not exceed your limits while performing such activity, and you will select the appropriate level of class for your skills and abilities, as well as any mental or physical conditions and/or limitations you have. You understand that, from time to time, instructors may suggest physical adjustments or the use of equipment and it is your sole responsibility to determine if any such suggested adjustment or equipment is appropriate for your level of ability and physical mental condition.
(e) You recognise the difficulties associated with attending a fitness class and attest that you are physically fit to participate safely in the activity and that a qualified medical practitioner has not advised you otherwise.
(f) You understand the demanding physical nature of a fitness class or any related exercises and activities. You are not aware of any medical conditions, injuries or impairments that will be detrimental to your health if you participate in fitness or exercise or fitness or exercise related activities.
(g) In the event that you become aware of any medical conditions, injuries or impairments that may be detrimental to your health, you must immediately cease to use our Site, Services, or Materials and contact your medical practitioner.
9.6 Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
9.7 This clause will survive termination of these Terms.
10.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) your breach of these Terms;
(c) any misuse of the Services, the Site or the Materials by you, your employees, contractors or agents; and
(d) your breach of any law or third party rights.
10.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
10.3 This clause will survive termination of these Terms.
11.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
11.2 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
11.3 GST: If and when applicable, GST payable on the Fee for the Services will be set out on our Site. You agree to pay the GST amount at the same time as you pay the Fee.
11.4 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
11.5 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
11.6 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
11.7 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
11.8 Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address in your account. Our address is set out at the end of these Terms. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
11.9 Jurisdiction & Applicable Law: These terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
11.10 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
12.1 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria, Australia.
12.2 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to these Terms or otherwise.
12.3 Fees are the Upfront Fee and the Subscription Fee.
12.4 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
12.5 Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs (whether or not registered or registrable), any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, and any confidential information.
12.6 Materials means work and materials that we provide to you in carrying out the Services, including without limitation, video recordings, quizzes, flow charts, diagrams or worksheets.
12.7 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
Pilates for Sports Pty Ltd ACN# 603 259 436
2-4 Station Walk, Brighton Beach, Victoria 3186, Australia
Last update: September 2017