TERMS AND CONDITIONS
1.1 These Terms and Conditions (Terms) are between Kylianne Rose Turton t/as the Movement Room (ABN 73 031 524 780), its successors and assignees (referred to as “we”, “us” or “our”) and you, the person, organisation or entity described in these Terms (referred to as “you” or “your”), collectively the “Parties” and each a “Party”. These Terms apply to all Services and Products provided by us to you. These Terms are also available on our Website, www.themovementroom.com.au (Site).
1.2 You have requested the Services set out in these Terms. You accept these Terms by either:
(a) accepting these Terms on the Site;
(b) confirming by email that you accept these Terms;
(c) instructing us to proceed with the Services or a supply of Products;
(d) making part or full payment for the Services or Products on the Site; or
(e) making part or full payment for the Services or Products as set out in our tax invoice to you (Invoice).
1.3 You agree that these Terms form the agreement under which we will supply Services and/or Products to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details on the Site. Purchasing Services or Products from us 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 or purchase our Products 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 or Products from us.
1.4 We will not commence performing the Services or supplying the Products until you have paid in full.
2.1 We agree to perform the Services or provide the Products with due care and skill.
2.2 We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
2.3 We will provide the Services for the period set out on the Site or as agreed by the Parties, in writing, from time to time (Service Period). At the end of the Service Period the Parties may agree to continue the Services under these Terms for an additional period.
2.4 In order to make use of some of our Services you may have to register on the Site or on a Third Party website or platform and create a username and password (Account). You may only have one (1) Account at a time. Basic information is required when registering for an Account. You must provide certain information including but not limited to your name, email address, location and payment details. You must provide accurate, current and complete information during the registration process and update such information to keep it accurate, current and complete. We reserve the right to terminate your Account if the information you have provided to us proves to be inaccurate, not current or incomplete.
2.5 It is your responsibility to keep your Account details, username and password confidential. You are liable for all activity on your Account, including purchases made using your Account details. You agree not to disclose your password to any third party and that you will take sole responsibility for any activities or actions undertaken via your Account, whether or not such actions have been authorised by you.
2.6 We may provide the Services to you using our employees and contractors, and they are included in these Terms.
2.7 Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties.
2.8 If you request amended or additional Services or Products, including but not limited to changes to the scope, quantity or variations to the Services or Products (Variation), we have discretion as to whether we perform this work for you and whether an adjustment to the Fee may be required in respect of the same. If we are unable to accommodate the Variation, we may request that we be paid for the Services or Products rendered to date and terminate these Terms.
2.9 If we agree to perform a Variation, then we will inform you of any additional cost (Variation Fee). You need to approve the Variation and Variation Fee before we commence work. We will invoice you accordingly for the Variation.
2.10 Our Services may include access to and advice in respect of exercise equipment, exercise classes and training techniques. You acknowledge and agree that you are aware of the inherent risks of injury or ill health resulting from use of the Services and Products and from participating in exercise generally. You acknowledge and agree to release us, our agents, affiliates, employees, members, sponsors, promoters and any person or body directly or indirectly associated with us against any liability (including liability for their negligence and the negligence of others), claims, demands, and proceedings arising directly or indirectly, from your access to or use of the Services or Products. Any advice we provide you is general and should not be used as a substitute for medical advice or treatment. We accept no responsibility and will not be liable for any harm, loss, and/or damage that you suffer, directly or indirectly as a result of any advice that is inaccurate, incomplete, unsuitable or incorrect. In the event that you become aware of any medical condition, injury or impairment that may be detrimental to your health, you must immediately cease to use our Services and Products and you must contact your medical practitioner. You are solely responsible for determining the suitability of any of the Services and Products and your reliance on any information that is provided to you through our Site, Services or Products is at your own risk.
3. MOVEMENT SUPPORT
3.1 Where you have engaged us to provide Movement Support as a part of the Services, support sessions will be held at the times mutually agreed by the Parties, in writing from time to time (including by email).
3.2 You can request Movement Support by making a booking with us through the Site, via Youcanbookme.com, Mindbody or such other method advised by us from time to time.
3.3 You acknowledge that Movement Support services are subject to your personal interpretations and are not to be treated as professional, medical or psychological advice.
3.4 You acknowledge that any information, insights or guidance contained in our Site or Services that relates to Movement Support is not an attempt to practice medicine or provide medical or professional advice. It is not to be used or relied on for any diagnostic or treatment purposes. Use of the Movement Support services does not establish a doctor-patient relationship. Movement Support services should not be used as a substitute for professional diagnosis and treatment. Any health information in our Site or provided as a part of the Services that relates to Movement Support is provided simply for your convenience.
3.5 You acknowledge that Movement Support services do not guarantee a particular outcome or change to your mental or physical wellbeing.
4. PRICE, INVOICING AND PAYMENT
4.1 You agree to pay us the Fees for the Services and/or Products that you have requested, using the Payment Method set out on the Site or as advised by us, in writing, from time to time. All amounts are stated in Australian dollars. All amounts include Australian GST (where applicable).
4.2 Where you have purchased face-to-face small group personal training services from us, you agree to pay our Invoices within the Invoice terms. If an amount is unpaid for more than seven (7) days we will cease to provide the small group personal training services to you until we receive payment of the Invoice.
4.3 If invoices are unpaid for seven (7) days after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us.
4.4 We reserve the right to report bad debts to independent credit data agencies.
4.5 If you cancel a session or sessions prior to their scheduled date(s), we may in our absolute discretion give you a full or partial refund of the Fees paid or offer to rebook your session(s).
4.6 Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for Services and Products provided to you after the date of the change. All other changes will apply from the date that the amended or new Terms are provided to you, or posted on the Site whichever is earlier.
5. YOUR OBLIGATIONS AND WARRANTIES
5.1 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior 12 month period.
5.2 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 cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services or provide the Products as requested by us from time to time, and comply with these requests in a timely manner;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Services or Products;
(e) you will inform us if you have reasonable concerns relating to our provision of Services or Products under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(g) you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
(h) if applicable, you hold a valid ABN which has been advised to us; and
(i) if applicable, you are registered for GST purposes.
6. OUR INTELLECTUAL PROPERTY
6.1 The work and materials that we provide to you in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). 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.
6.2 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.
6.3 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.
Our material licensed to you
6.4 We will license to you our exercise videos, nutritional guides, and our educational material on the Site (Licensed Material), upon full payment of our invoices.
6.5 We grant you a non-transferable licence to use the Licensed Material for your own personal use.
6.6 This clause will survive the termination of these Terms.
7. CONFIDENTIAL INFORMATION
7.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary in the interests of your physical and mental health); to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you; to provide better quality services to you, and not for any other purpose.
7.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
7.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
7.4 This clause will survive the termination of these Terms.
8. FEEDBACK AND DISPUTE RESOLUTION
8.1 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 or Products, please contact us.
8.2 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, including by way of video-link, to seek to resolve the dispute by agreement between them (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 Western Australia 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.
8.3 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.
9. TERM AND TERMINATION
9.1 This Agreement will begin on the date it is accepted or deemed accepted and will continue for the period set out on the Site or otherwise agreed by the Parties in writing, unless it is terminated earlier in accordance with this clause.
9.2 Either Party may terminate these Terms, if there has been a material breach of these Terms, subject to the dispute resolution procedure in these Terms.
9.3 We may terminate these Terms immediately, at our sole discretion, if:
(a) we consider that a request for the Service or Products is inappropriate, improper or unlawful;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services or Products;
(c) we consider that our working relationship has broken down including a loss of confidence and trust; or
(d) for any other reason outside our control which has the effect of compromising our ability to perform the work required or provide the Products within the required timeframe.
9.4 On termination of these Terms you agree that any payments made are not refundable to you, and you are to pay all outstanding fees for the Services purchased by you.
9.5 On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information, Intellectual Property, Licensed Materials and/or documents containing or relating to our Confidential Information, Intellectual Property or Licensed Materials.
9.6 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
9.7 On completion of the Services or provision of the Products (as the case may be), we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
9.8 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
10. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
10.1 ACL: If you are a consumer as defined in the ACL, the following applies to you: You are entitled to a refund or replacement for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality. You are also entitled to have services remedied if they are not rendered with due care and skill or they are not fit for purpose and the failure does not amount to a major failure. To the extent we are able to exclude liability; our total liability for loss or damage you suffer or incur from our Services or Products is limited to us re-supplying the Services to you or replacing the Products, or, at our option, refunding to you the amount you have paid us for the Services or Products to which your claim relates.
10.2 Delay: Where the provision of Services or Products depends on your information or response, we have no liability for a failure to perform the Services or supply the Products in the period set out on the Site or as advised by us, in writing, from time to time where it is affected by your delay in response, or supply of incomplete or incorrect information.
10.3 Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
10.4 Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
10.5 Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services, Products and these Terms, except those set out in these Terms, including but not limited to:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
(b) the Services or Products being unavailable; and
(c) any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services or Products, and the late supply of Services or Products, even if we were expressly advised of the likelihood of such loss or damage.
10.6 Limitation: To the extent permitted by law our total liability arising out of or in connection with the Services or Products, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
10.7 This clause will survive the termination of these Terms.
11.1 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) any breach of these Terms; and
(c) any misuse of the Services or Products from or by you, your employees, contractors or agents.
11.2 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 or Products including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
11.3 This clause will survive the termination of these Terms.
12.1 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.
12.2 Publicity: You consent to us advertising that we have undertaken work for you. If we want to use images of you in our advertising we will ask you to give us your verbal consent prior to taking the images and we will tell you the way in which we intend to use the images.
12.3 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.
12.4 GST: If and when applicable, GST payable on the Services will be set out on our Invoices. By accepting these Terms, you agree to pay us an amount equivalent to the GST imposed on these charges.
12.6 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).
12.7 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.
12.8 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. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 Business Days' notice in writing.
12.9 Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to you at the address provided by you. Our address is set out on the Site. 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.
12.10 Jurisdiction & Applicable Law: These terms are governed by the laws of Western Australia and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia.
12.11 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 you and us, whether oral or in writing.
13.1 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Western Australia, Australia.
13.2 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 this Agreement or otherwise.
13.3 Confidential Information includes your personal information, your credit card or payment details, the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as "confidential".
13.4 Fees are set out on the Site, or as advised by us, in writing, from time to time.
13.5 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.
13.6 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, patents, improvements, registered and unregistered trademarks, designs, 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.
13.7 Invoice Terms is set out on the Invoice provided by us.
13.8 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).
13.9 Movement Support means one-on-one and group coaching, mentoring and support services for mothers who have or are experiencing ongoing physical or psychological changes and symptoms post birth delivered via remote video link, including but not limited to Skype, interactive online programs, social media groups and in person.
13.10 Payment Method is set out on the Site.
13.11 Products means articles of clothing, accessories, nutritional supplements and other equipment and/or products advertised on the Site from time to time.
13.12 Services means any one or more of the following services as purchased by you; Movement Support, lifestyle coaching services, access to exercise videos, nutritional guidance, educational materials and support in respect of the aforesaid via the Site, access to a Facebook community and/or face-to-face small group personal training services at a locality advised by us from time to time.
Unless otherwise defined herein or the context otherwise requires, capitalised terms used in these Terms will have the meanings given to them in these Terms.
Kylianne Rose Turton t/as the Movement Room ABN 73 031 524 780
Last update: 25 November 2016
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