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Last modified as of 5 April 2012
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF THIS WEBSITE CAREFULLY
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:
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 use of this Website is subject to important disclaimers, limitations of liability and indemnities, including regarding your health and which may affect your suitability to pursue your chosen regimen (“Regime”), which you should read carefully before using this Website.
Unless we indicate otherwise, these Terms & Conditions apply to your use of the Australian websites which are owned or operated by SP Health Co Pty Ltd (ACN 123 248 046) ("SP Health") trading as “ClickFit” and the Affiliates of SP Health (collectively, "we", "us" or "our"), including, without limitation, this Website and any other Australian website that we may own or operate currently or in the future (collectively, "Website"). For the purpose of these Terms & Conditions, "Affiliates" shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, SP Health, including, without limitation, their respective subsidiaries and affiliates; and “You”, “you” or “your” means any person or entity, and any subsidiary, affiliate or associate of such person or entity, that uses or purports to use this Website.
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). In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of this Website, including, but not limited to:
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 to the maximum extent permitted by applicable law:
By subscribing to or purchasing a Product, you agree as follows:
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.
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 12 month subscription prior to the end of your contract period, you accept that your account will continue to be debited until your end date. You understand and agree that to the maximum extent permitted by applicable law 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:
Upon cancellation or termination of your subscription to our Fee-Based Products, we may immediately deactivate your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, this Website (or part thereof).
You may cancel your subscription by contacting ClickFit Customer Service on 02 9923 8280 or by such other means as we may provide from time to time. We will attempt to process all cancellation requests within 72 hours after receipt of requests. If you cancel near the end of your current billing period and have been or are inadvertently charged the next billing period’s Fee, you should contact Customer Service to have the charges reversed. If you use a Fee-Based Product during that next billing period, you will be considered not to have cancelled the subscription and therefore will be liable to pay fees in respect of that next billing period and not entitled to a refund for that cancellation. We reserve the right to charge and collect Fees incurred before your cancellation takes effect.
By placing an order for a Fixed Price Product you agree to these terms and conditions as amended from time to time.
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.
The availability and use of our Fee-Based Products and Fixed Price Products may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to our Fee-Based Products and/or may terminate your subscription to our Fee-Based Products at any time based on these criteria. You understand that we may refuse to supply you with Fixed Price Products at any time based on these criteria. For example, pregnant women, and individuals under the age of 18 may not be provided with a Fixed Price Product or may not be able to subscribe to our Fee-Based Products. We may limit the subscription to a certain Fee-Based Product only to individuals currently attending meetings organised or controlled by us.
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. You agree to follow all instructions on this Website limiting the way you may use any of the Content. There are a number of proprietary logos, service marks and trade marks found on this Website. By making them available on this Website, SP Health is not granting you any licence to utilise those proprietary logos, service marks or trade marks. 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.
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 understand that only you may use your user account and password, and that your subscription to our Fee-Based Products is only valid for your personal, non-commercial use and may not be shared with others. You agree to be financially responsible for all usage or activity of Fee-Based Products.
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. All trade marks appearing on this Website are trade marks of their respective owners. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on this Website. You may not modify, publish, transmit, reuse, report, distribute, perform or participate in the transfer or sale of, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment, is strictly prohibited unless you receive our prior written consent.
Please note that all credit card payments are transmitted using 128-bit Secure Socket Layer (SSL) encryption.
There is no cost to being a public user of this Website. You do not have to become a registered user to use this Website. However, if you do not register, you may be precluded from using certain products, offerings, features, or resources of this Website. You must register in accordance with instructions that you will find on this Website to participate in, and to contribute to, any Forum or use of the My Account feature of this Website. A "Forum" means any Community Section, message board, bulletin board, or similar activity where you and other users of this Website can communicate. If you elect to become a registered user of this Website, you agree to provide us with true, accurate and complete information about yourself ("Registered User Data"), and to maintain and promptly update the Registered User Data to keep it accurate. Without limiting any other provision of these Terms & Conditions, if you provide any information that is untrue, inaccurate or incomplete, or we have reasonable grounds to suspect that this is the case, we reserve the right to suspend or terminate your user account and refuse any and all current or future use of this Website (or any portion thereof). You agree not to assign, transfer or sublicense your rights as a registered user of this Website.
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 "Postings"), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to, on or through this Website. We do not control the Postings of others and, as such, you agree that we have no responsibility for the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of this Website (as described below), you understand that by using this Website, you may be exposed to Postings that are (without limitation) inaccurate, offensive or objectionable. Except for Postings 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), to the maximum extent permitted by applicable law under no circumstances will we be liable in any way for any Postings, including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the access to or use of any Postings posted, emailed or otherwise transmitted to, on or through this Website.
You agree not to use this Website (including any Forums) to do, or attempt to do, any of the following (as to which you agree to accept us as sole arbiter in our absolute discretion):
Your privilege to use this Website (including the Forums) and to contribute to discussions on the Forums depends on your compliance with the community standards and conduct guidelines set forth above. 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. You acknowledge that, by providing you with the ability to distribute Postings in the Forums, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability relating to any Postings or activities in any Forum. Although we reserve the right to remove, without notice, any Forum posting for any or no reason, we have no obligation to delete Postings that you may find objectionable or offensive.
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 SP Health or any Affiliate uses such material. SP Health and/or any Affiliate is free to use, without any compensation to you, any concepts, ideas, know-how or techniques contained in any communication you send to us or this Website for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products using such information. However, you agree and understand that neither SP Health nor any Affiliate is obligated to use any such ideas or materials and you have no rights to compel such use.
You also hereby irrevocably and unconditionally consent, to the maximum extent permitted by applicable law (either present or future), to each of SP Health and the Affiliates or any person authorised by SP Health or any Affiliate, using, disclosing, reproducing, copying, adapting, publishing, performing, exhibiting, communicating or transmitting the Submissions or any adaptation of the Submissions (or any part of the Submissions or of any such adaptation) anywhere in the world:
You also warrant to SP Health and the Affiliates that:
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.
You may order services, merchandise or other products through this Website from other parties (collectively, the "Third Party Sellers"). All matters concerning the services, merchandise and other products promoted by or available from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as):
Where we receive commissions from Third Party Sellers, we will notify users of this Website.
This Website may contain contests, invitations to participate in contests or surveys that request you to send in to us or post on this Website material or information about yourself. Each contest or survey will have its own rules, and you must read and agree to all those rules prior to entering into any such contest or responding to any survey.
Participation in these contests or surveys is completely voluntary and the user therefore has a choice whether or not to disclose this information. Some of the information requested may be of a personal nature but there is no obligation to answer any or every question. In particular, submission of your email address will be optional. Information requested may include contact information (such as name and shipping address) and demographic information (such as post code, age, gender and marital status). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the use and satisfaction of this Website. Large population demographics may be compiled and published using this data but no individual information will be disseminated.
This Website provides an Online Health Club and information applications and content published over the Internet and is intended only to assist users in their personal Regimes. SP Health 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 Regime and are specifically warned to seek professional medical advice before using this Website.
Please note to the maximum extent permitted by applicable law the following disclaimers of warranties that form part of these Terms & Conditions:
You expressly understand and agree that to the maximum extent permitted by applicable law neither SP Health or any Affiliate shall 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:
You acknowledge that, by undertaking any Regime, you are doing so voluntarily and you are aware that there may be dangers in participating in a Regime. You are aware that your undertaking a Regime 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 a Regime 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 applicable law and you agree that you assume all risks in connection with your participation in a Regime. To the maximum extent permitted by applicable law, SP Health (including its respective officers, employees and agents) and its Affiliates are not liable for the breach of any express or implied warranty that any services provided by SP Health will be provided with reasonable care and skill.
You agree to use your own equipment (if any) to participate in any Regime 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 Regime.
You agree to participate in any Regime in a manner that is not reckless or dangerous to yourself or other people.
To the maximum extent permitted by applicable law, you hereby agree to release, discharge, waive and forever hold harmless SP Health and the Affiliates and each of their 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 a Regime, use of your own equipment, or any activity incidental to a Regime, 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 Regime.
Where your loss is not or cannot by the operation of applicable law be excluded by these Terms & Conditions then:
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.
In addition to the limitations of liability contained in clause 19, you expressly understand and agree that, in relation to the Fixed Price Products, SP Health and the Affiliates, to the maximum extent permitted by applicable law:
In no event will SP Health and/or the Affiliates 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.
You acknowledge that the limitations of liability of us in this clause 20 and in the other provisions of these terms and conditions and the allocation of risk herein are an essential element of the bargain between you and us, without which we would not have supplied the Fixed Price Products. Our pricing of the Fixed Price Products reflects this allocation of risk and the limitation of liability specified herein.
To the maximum extent permitted by applicable law, you agree to indemnify, hold harmless and, at our option and in accordance with our instructions and directions, defend each of SP Health and/or the Affiliates 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 applicable law, you agree to indemnify each of SP Health and/or the Affiliates their officers, directors, employees, stockholders, agents and representatives 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 a Regime, use of your own equipment, or any activity incidental to a Regime, 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 Regime.
To the maximum extent permitted by applicable law, you agree that the waivers, releases, discharges and indemnities contained in these Terms and Conditions shall operate in favour of each of SP Health and/or the Affiliates their officers, directors, employees, stockholders, agents and representatives 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 each of SP Health and/or the Affiliates their officers, directors, employees, stockholders, agents and representatives arising out of or as a consequence of your participation in a Regime, use of your own equipment, or in any activity incidental to a Regime.
These Terms & Conditions shall be governed by and construed in accordance with the laws of the state of New South Wales, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of this Website or these Terms & Conditions shall be filed only in the state or federal courts located in New South Wales and you hereby irrevocably consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and in our discretion, terminate the rights of any user to use this Website (or any part thereof) who infringes the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact our designated agent for notice of claims of copyright infringement: The Copyright Infringement Officer, SP Health Co Pty Limited, PO Box 1971, North Sydney NSW 2059, Australia.
(Last modified as of 5 April 2012)