Terms of Service

WEBSITE AND USER TERMS AND CONDITIONS

Fitable Enterprises Pty Ltd (”Fitable”) provides an online platform providing exercise and wellness videos, content, material and related services which may include a Membership platform.

These terms and conditions (”Terms) govern the access and use of this Website, the Membership and the Fitable Platform.

1 DEFINITIONS

1.1 In these Terms, unless the context requires another meaning:

(a) “Business Day”

means a day (other than a Saturday, Sunday or public holiday) on which the banks are open for general banking business in Melbourne, Australia.

(b) “Claim”

includes in relation to a person, any claim in respect of any damage, loss, cost, expense or liability incurred by the person or a claim, demand, action, proceeding or judgment made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.

(c) “Confidential Information”

means any proprietary information or material belonging to the Customer or Fitable, including, without limitation, all data and information relating to the Customer or Fitable and their respective operations, facilities, personnel, positions advertised, assets, Services; clients, sales and transactions whether or not such information is provided to a party to these Terms before or after the date of these Terms.

(d) “Corporations Act”

means the Corporations Act in Australia (as amended) and includes all acts and regulations encompassed thereby and any statutory, modification or predecessor or re-enactment thereof.

(e) ”Equipment”

means all hardware and software from or through which the Fitable Platform may be accessed which may include, without limitation, computers, internet connection, online broadcast software or websites, offline software and access to various websites available on the world wide web.

(f) ‘GST’

means a goods and services tax, consumption tax, value-added tax, retail turnover tax or a tax of a similar nature.

(g) ”Fitable Platform”

means the online platform that Membership provides access to pursuant to these Terms.

(h) “Intellectual Property”

means all rights, whether registerable, registered or unregistered in any patent, trade mark, trade name, business name, company name, copyright, registered design or other design right or circuit layout right, or any applications for, or rights to obtain or acquire, any such rights.

(i) ”Membership”

means the right to access the Fitable Platform for a specified period pursuant to these Terms.

(j) “Membership Fees”

means those fees applicable to the Membership during the Term as described in these Terms.

(k) “Membership Term”

means a fixed 12 month term for the provision of the Membership subject to the terms of these Terms which term will automatically

rollover and renew unless othenwise cancelled by Fitable or the Customer pursuant to these Terms.

(l) “Services”

means all services delivered by Fitable to the Customer including provision of online videos and modules and including all the online

materials and data available on the Fitable Platform.

(m) “Terms”

means these Terms including any update or amendment to same from time to time.

(n) ”Website”

means the website www.fitable.com.au and its related pages, including any mobile site or mobile or other application that we may offer.

2 USE OF WEBSITE

2.1 Your access to, browsing, contributions to and use of this Website are subject to the following Terms as well as all applicable laws, rules and regulations.

By accessing or using this Website you accept and agree to the Terms, which are legally binding.   

2.2 If you do not agree to any of these Terms, you must not visit, use or continue to use the Website. We will, from time to time, revise and update the Terms and we will publish all such updates on our Website. All updated Terms become effective immediately upon being published on the Website.

3 CONTENT

3.1 All content and all intellectual property which includes text, images, trade marks (registered or unregistered), graphics, photographs, designs, icons, logos and service marks (”Content”) and the selection, arrangement and “look and feel” of all content contained on the Website, is the property of

Fitable or third parties who have granted Fitable permission to use it on the Website. All Content contained on the Website whether past, present or future and is protected by national and international copyright, design and trade mark and other laws. Your right to use the Content is limited only to

those rights expressly set out in the Terms.

4 USE AND REGISTRATION

4.1 Some of the material on this website may be for mature audiences, and parents and guardians should take responsibility for monitoring their children’s use of the Website.

4.2 No person under the age of 18 should use this Website without parental or guardian supervision. If we do find that someone under the age of 18 is accessing the Website, Fitable may restrict their access to the Website and may cancel or restrict access to any services to be delivered to the parent or guardian of that child. Any cancellation or restriction of services to an account holder as a result of the unsupervised use of this Website by a child will result in the account holder forfeiting any payments made to Fitable and no refund will be available.

4.3 Certain services will only be available after you have registered your details and activated an account with us on the Website. To register your details and open an account with us, you will be required to submit your data and personal information. You warrant and agree that all information provided to us is accurate, true and up-to-date in all respects and at all times. You also agree to update your account with any changes to your personal information previously submitted as soon as practicable after such personal information changes.

4.4 Fitable reserves the right in its sole discretion to refuse to register any account.

4.5 If you breach any of these Terms, we will be entitled to lock or delete any and all accounts, and not accept any further or future account requests, by the account holder and their associates.

4.6 You must not use another person’s account without their express prior permission nor permit anyone to use your subscription or account.

Unauthorised Use

4.7 You are solely responsible for all activity that occurs using your account, and solely responsible to keep your access to it and your passwords secure. Fitable does not accept any responsibility for activity or purchases made using your account by unauthorised access of your account.

4.8 If you suspect or become aware of any unauthorised use of your account or that your passwords are no longer secure, you must immediately notify Fitable and immediately take all reasonable steps to protect your account.

4.9 When you notify Fitable of your account being accessed without your authority or your account or passwords not being secure, we will immediately lock and cancel your account to prevent any further misuse.

4.10 We will allow you to register a new account only after we are satisfied, in our sole discretion, that you have taken all reasonable steps to ensure that your account and passwords will be kept secure in the future. You agree to release and indemnify Fitable from any loss or claim arising, whether directly or indirectly, from any unauthorised use of your account.

Communications

4.11 You acknowledge that when you register and use the Website, you will receive correspondence from Fitable, including newsletters, relating to the Website and the business of Fitable.

Limited licence to use

4.12 Fitable grants you a revocable limited non-exclusive licence to access, browse, use or contribute to the Website or the Content on your computer or similar device and download and use downloadable Content for personal, private or domestic purposes only or for the sole purpose of making purchases from or interacting with Fitable.

4.13 You warrant that you are not visiting or using the Website or Content or purchasing any goods or services from the Website or from Fitable for any commercial purpose and will not access, browse, use or contribute to the Website for a commercial purpose.

4.14 Except as expressly permitted in these Terms or on the Website, or with Fitable’s prior written permission, you are expressly prohibited from modifying, copying, downloading, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or otherwise using Content available via this Website for commercial or public purposes, including but not limited to use as meta tags or linking the Website or Content on other pages or sites on the world wide web.

Non-interference

4.15 You must not damage, interfere with or disrupt access to the Website or the Content or engage in any other conduct that will or may restrict or limit any other person from using or accessing the Website or the Content. You agree not to, or attempt to, circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on the use of the Website or the Content within it.

4.16 Fitable will hold you liable for any loss, damage or claims arising, directly or indirectly, from your interference with the Website, Content, security or access to the Website or Content or in any other way prevent the usual operation of the Website and its availability to the public.

Third party sites

4.17 Fitable selects third party partners and associates with care and with our customers’ needs in mind. We aim to provide information and services from reputable third parties with quality products or services who will be able to fully deliver that information or those services to you.

4.18 The Website may contain links to third party websites or content (Third Party Content). Fitable does not monitor, review or update, and does not have any control over, Third Party Content. Unless expressly stated otherwise, Fitable does not endorse or adopt Third Party Content and makes no representation, warranty or guarantee as to accuracy, completeness, timeliness or reliability of Third Party Content or the safety of any third party website.

4.19 If you use the links contained on our Website to access Third Party Content you do so entirely at your own risk and liability. In addition, without limiting any other part of the Terms, reference to any products, services, processes or other information by name, trade mark, manufacturer, supplier or otherwise on or via the Website does not constitute or imply any endorsement, sponsorship or recommendation by Fitable.

5 TERM

5.1 These Terms will apply to all access and use of the Website and to the full period of the Customer’s Membership including any initial term and any renewed term.

6 SERVICES

6.1 Fitable will make available on the Fitable Platform a variety of videos, modules and material which may be available for free, for purchase or be available through a Membership.

6.2 The Website will specify those features that are free, those features that require payment and those features that form part of a Membership. Different Membership packages may be available which may include different features which will be specified on the Website and/or as part of the Membership description.

6.3 By placing an order, you warrant you are not a legal minor and you are over the age of 18 years and you have full and due capacity and authority to make the order.

6.4 Fitable may update or remove any modules from time to time in its sole discretion without prior notice to or consent from the Customer.

6.5 The Customer acknowledges that the Membership grants access to the videos, modules and materials as are available from time to time and that there is no guarantee, warranty, promise or other representation that the modules that are available at the commencement of the Membership will continue to be available during the Term.

6.6 The features available through any Membership may be accessed at any time, 24 hours per day, by the Customer by logging into the Fitable Platform using their unique login details.

7 MEMBERSHIP

7.1 The Membership includes unlimited access to the Fitable Platform and access to the features specified in the Membership description for the Customer who has purchased the Membership during the Term.

7.2 At the expiration of the initial Term, the Membership will rollover and continue until terminated pursuant to these Terms. All Membership payments will continue to be payable by the Customer until the proper termination of the Membership.

7.3 Subject to these Terms, any termination of the Membership prior to the expiration of a Term will not entitle the Customer to a refund of the Membership Fees.

7.4 If any Service has any timeframe limitation or requirement, it is your responsibility to be available to receive the Service within the specified timeframe. If you fail to receive the Service within the specified timeframe the Service will expire and any unused portion of a Service cannot be redeemed for cash, credit or any other value.

7.5 You acknowledge that you are solely responsible for complying with all terms, conditions or instructions of any Service as described or referred to on the Website or otherwise notified to you (”Instructions”). Fitable is under no obligation to provide a Service to you if you do not comply with the Instructions.

7.6 You release and indemnify Fitable against any loss, damage or claims that may arise as a result, directly or indirectly, of the conduct of yourself or any third party in the provision or receipt of any services or program or your compliance with the Instructions.

7.7 You acknowledge that you are solely responsible for reading all instructions for the receipt of Services as specified on the Website and you are solely

responsible for complying with such instructions. If you believe the instructions to be unclear you must contact Fitable directly prior to the expiration of the specified timeframe for clarification of your obligations.

8 PAYMENT

8.1 Membership Fees are payable by the Customer to Fitable as a single upfront payment (unless otherwise specified on the Website) and the relevant Fees will depend on the Membership package that the Customer selects.

8.2 Access to the Membership features of the Fitable Platform will not be available until full payment of the Membership Fees has been received.

8.3 For any renewed Term, the Membership Fees will be payable in full prior to the commencement of the renewed Term.

Fee increase:

8.4 (a) Membership Fees may be increased in the sole discretion of Fitable from time to time. No increase in Membership Fees will apply during the Term, however any renewed period will be subject to the increased price.

(b) Fitable will notify the Customer no less than thirty (30) days prior to the expiration of the current Term of the increased price in order for the Customer to determine whether or not to continue its Membership.

8.5 The Customer is not entitled to make any set off, to withhold or deduct for any reason any monies payable to Fitable pursuant to these Terms.

9 FITABLE OBLIGATIONS

9.1 Fitable will use all reasonable endeavours to provide the Customer with the Services provided the Customer complies with its obligations under these Terms.

10 CUSTOMER OBLIGATIONS

10.1 The Customer will be solely responsible for ensuring its computer, website, data and files are backed up and that any of the videos, modules and materials that are available for download from the Fitable Platform have been downloaded or otherwise saved to its own server. Once the Membership has expired or these Terms has otherwise been terminated, videos, modules and materials comprising the Membership will cease to be available to the Customer.

10.2 The Customer must provide and maintain accurate payment details and notify Fitable within thirty (30) days if its card or other payment details change.

10.3 It is the sole responsibility of the Customer to ensure that:

(a) it has appropriate, working and up to date Equipment from which to access the Fitable Platform;

(b) it has access to appropriate software and technologies, whether online or offline, to access the Fitable Platform and all videos, modules and materials.

Appropriate for purposes

10.4 (a) The Customer must determine using its own discretion whether the Services are appropriate for its purposes.

(b) The Customer must undertake its own investigations of the videos, modules and materials to make its own determination as to whether the Fitable Platform is appropriate and to ensure that the outcomes and learnings from the videos, modules and materials will be applicable and useful for itself and the outcomes it desires to achieve.

11 PERSONAL INFORMATION

11.1 Fitable may collect your personal information for the purpose of delivering the services or programs and will hold and use your personal information in accordance with its privacy policy.

11.2 You agree that Fitable may disclose your personal information to third parties for the purpose of delivering the services.

12 NO WARRANTIES

12.1 The Website and Content are provided “as is” without warranty of any kind, express or implied. Except to the extent required by the law, Fitable does

not make any representations or warranties as to the Website, including but not limited to, warranties of merchantability and fitness for a particular purpose, title, non-infringement, security, informational content, system integration or accuracy and the express warranty of quiet enjoyment or as to the accuracy or suitability of information, descriptions, guidelines and images on the Website including colour, design and texture samples, descriptions of any materials or products, services, offers, merchants or any other information shown on the Website.

12.2 Fitable does not represent or warrant that the Website or its server(s), applications or functionalities are free of viruses or other harmful components, and you bear the entire risk of losses or damages that you may incur or suffer as a result of any use of or visit to this Website. Fitable does not guarantee continuous, uninterrupted, error-free or secure access to the Website or its services, since the operation of the Website may be interfered with by numerous factors outside of Fitable’s control.

13 INTELLECTUAL PROPERTY

13.1 The Customer acknowledges and agrees that the Customer will obtain no rights in Fitable’s Intellectual Property which, without limitation, is comprised in all content on the Fitable Platform and website and within all Services. Fitable’s Intellectual Property will at all times during these Terms and after its termination remain the sole property of the Fitable.

13.2 Unless expressly authorised in writing to do so, the Customer and its Authorised Users must not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any content, information, data or material that contains or comprises the Fitable Intellectual Property or the Intellectual Property rights of any third party.

13.3 The Membership confers on the Customer only the right to use the Fitable Intellectual Property for the purposes described in these Terms. The Customer must not use or disclose the Fitable Intellectual Property for any other purpose. The Customer must, immediately on becoming aware of or suspecting any breach of the Fitable Intellectual Property, notify Fitable of such breach or suspected breach and the Customer will do all reasonable things to assist Fitable in pursuing the offender and/or rectifying the breach.

13.4 To the extent that the Customer has or at any time acquires any right, title or interest in or in relation to the Intellectual Property of Fitable, the Customer by these Terms assigns to Fitable absolutely its entire right, title and interest in such Intellectual Property.

14 CONFIDENTIAL INFORMATION

Non-disclosure

14.1 Each party will:

(a) keep the Confidential Information of the other party confidential in the same manner as its holds its Confidential Information of like kind but in no event shall the recipient exercise less than reasonable care in maintaining the confidence of such information and shall not disclose it or make it available directly or indirectly to any third party (subject to disclosure permitted under clause 9.2); and

(b) use the Confidential Information of the other party solely for the purpose of performing its obligations under these Terms.

14.2

Each party may only disclose the Confidential Information of the other party to its officers, employees and permitted subcontractors who:

(a) have a need to know the Confidential Information (and only to the extent that each has a need to know); and

(b) have undertaken to maintain the confidentiality of the Confidential Information in accordance with this clause 8.

Officers and Advisors

14.3 Notwithstanding other provisions in clause 9.1, the Customer and Fitable may disclose the terms of these Terms (other than Confidential Information of a technical nature) to their respective solicitors, auditors, insurers, advisers and accountants on a ”need to know” basis.

Limitation of Obligation

14.4

The obligations of confidentiality under this clause do not extend to information that (whether before or after the date of these Terms):

(a) was rightfully known to or in the possession or control of the recipient prior to its receipt from the other party and which is not subject to an obligation of confidentiality on the recipient;

(b) is public knowledge (otherwise than as a result of a breach of confidentiality by the recipient or any of its disclosees);

(c) is independently developed by the recipient without the use of the other party’s Confidential Information; or

(d) is required to be disclosed by a governmental agency or law so long as the recipient promptly provides the other party with written notice of the required disclosure.

15 GENERAL WARRANTIES & LIMITATION OF LIABILITY

15.1 Except to the extent required by the law or as is expressly set out in the Terms, Fitable specifically disclaims all or any liability arising from your access to or use of the Website and Content, making any order or purchasing any services or program, and in no event will Fitable, its subsidiaries, affiliates, officers, directors, shareholders, employees or agents be liable for any loss or damage of any kind, including indirect, incidental, consequential, punitive, or special damages or any loss of use, loss of profits or loss of data, whether in an action in contract, tort, strict liability or otherwise (including but not limited to negligence), arising out of or in any way connected with those matters (even if Fitable has been advised of the possibility of such damages).

15.2 In any event, Fitable’s total liability to you for damages, losses, and causes of action (whether in contract or tort (including, but not limited to, negligence) or otherwise) will not exceed the amount paid by you, if any, for accessing the Website or purchasing any services.

15.3 Fitable’s liability for breach of any condition or warranty implied by legislation is, at Fitable’s option, limited to supplying services again or payment of the cost of having services supplied again.

15.4 Without limiting the above, you acknowledge that Fitable accepts no responsibility or any liability for orders made by you, and you acknowledge that Instructions are to be strictly observed and followed at your own risk. Fitable does not accept any responsibility or liability for any information or errors provided by you in the order, or in booking or receiving any services, including your failure to do all things necessary to ensure the order, booking and receipt of services, are suitable and safe for your circumstances.

Customer obligations

15.5 Fitable will not be liable for any loss, cost, expense, inconvenience or Claim incurred by the Customer which arises from:

(a) the Customer failing to supply accurate and timely information requested by Fitable or required by these Terms; or

(b) any change or update to any software used by the Customer that results in the videos, modules or materials on the Fitable Platform being unavailable or fail to be properly accessible by the Customer;

(c) the Customer using its own skill, experience, interpretation or understanding to implement or undertake any training in any manner from content available on the Fitable Platform; or

(d) the Customer failing to have or continue during or after the Term to have access to any Equipment or technology to enable the Customer to access or use the Services.

Fitness for Purpose

15.6 The Fitable Platform is provided solely for educational purposes in respect of the content contained within the Fitable Platform from time to time. It is the sole responsibility of the Customer to investigate the content prior to entering these Terms to determine whether the content and the Services are appropriate for its purposes.

15.7 Fitable makes no warranty of fitness for purpose apart from the purposes listed in these Terms.

Release

15.8 You release and forever discharge Fitable, its officers, employees and agents from all and any loss, damage or liability (including indirect, special or consequential) excluded under these Terms, including from any third party claim, except to the extent that any legislation applies and cannot be lawfully excluded.

Indemnification

15.9 You indemnify and will keep indemnified, Fitable and its subsidiaries, affiliates, officers, directors, agents, shareholders, employees or agents and will hold us harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of the Terms, or your violation of any law or the rights of any party. You also indemnify and will keep indemnified Fitable from any and all damage you may cause Fitable, its business, or the Website due to your interaction with the Website including without limitation your contributions, if any to the Website.

15.10 You indemnify and will keep indemnified and hold harmless Fitable, its officers, employees and agents against any loss or damage of any kind that is either excluded under the Terms, including from any third party claim, for any property or injury to or death of any person, or caused as a result in any way by a breach by you of the Terms, any negligent act or omission or wilful misconduct of yours or any claim, suit or action brought against Fitable as a result of your ordering, booking and receiving any services or programs.

15.11 This clause contains continuing separate obligations and it survives termination.

16 TERMINATION

16.1 Fitable reserves the right, without notice and in its sole discretion, to restrict or terminate your ability to use the Website, and to limit, block or prevent access to and use of this Website, including access to and use of your account or orders, without any liability to you. Failure by you to abide by the Terms revokes your authorisation to use the Website and its services, including any licence granted.

16.2 Fitable reserves its right to refuse service, terminate an order or change or remove the Website or Content at its sole discretion and will not be liable for any damages, loss or expenses of any kind, including indirect or consequential loss or damage, suffered or incurred by you in any way (including due to negligence) as a result of refusal, termination, change or removal, or in connection with your reliance on the Order in any way, other than a refund that is expressly permitted under the Terms.

16.3 The Membership is a fixed term Agreement and may not be terminated by either Party other than as described in these Terms.

Fitable Termination

16.4 Fitable may immediately terminate any Membership by written notice to the Customer if:

(a) Fitable determines in its sole reasonable opinion that its Intellectual Property is not secure or that any breach of its Intellectual Property rights has occurred, is likely to occur or is suspected;

(b) Fitable determines in its sole reasonable opinion that the Customer is behaving in a fraudulent, misleading or controversial manner with respect to the Fitable Platform, any other user or in respect to Fitable;

(c) Fitable determines in its sole reasonable opinion, that the behaviour of the Customer whether or not with regard to the Fitable Platform, is such to bring the Customer and/or Fitable into disrepute; or

(d) Fitable or any of its representatives experiences any form of discrimination, harassment, aggressive, condescending, disrespectful or anti-social behaviour from the Customer or any of its officers, employees, agents, contractors or from any visitor attending at the premises of the Customer.

Consequences of termination

16.5 On the expiration or termination of the Membership all access to the FitablePlatform will cease.

16.6 All information, data and materials contained on the Fitable Platform will cease to be available and Fitable is under no obligation to store or maintain such data. If the Customer wishes to keep a copy of its records, reports or other information it must ensure that such information is saved on its own servers prior to the expiration or termination of the Membership.

16.7 If the Membership is terminated prior to the end of any Term, no refund of Membership Fees will be applicable. In exceptional circumstances only, Fitable may agree to refund Membership Fees such decision being made in the sole discretion of Fitable acting reasonably.

17 GENERAL PROVISIONS

Goods and Services Tax

17.1

(a) All Fees are exclusive of GST unless otherwise expressly advised.

(b) If a payment by a party under these Terms is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment must be inclusive of any GST payable and will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.

Continued Rights

17.2

The expiry or termination of these Terms will not affect or limit any accrued

rights of the parties.

Force Majeure

17.3 (a) A party will not be liable for any failure or delay in the performance of its obligations under these Terms if that failure or delay is due to circumstances beyond that party’s control (”Force Majeure”). Any party who is, by reason of Force Majeure, unable to perform any obligation or condition under these Terms must notify the other parties as soon as possible specifying:

(1) the cause and extent of such non-performance;

(2) the date of commencement of non-performance; and

(3) the means proposed to be adopted to remedy or abate the Force Majeure.

(b) A party who is, by reason of Force Majeure, unable to perform any obligation or condition under these Terms must:

(1) use all commercially reasonable endeavours to remedy or abate the Force Majeure as quickly as possible;

(2) resume performance as quickly as possible after cessation of the Force Majeure; and

(3) notify each party when the Force Majeure has terminated or abated to an extent which permits resumption of performance to occur.

(c) Subject to any other termination provisions a non-performance by either of the parties of any obligation or condition under these Terms shall be excused during the time and to the extent that such performance is prevented, wholly or in part, by an event of Force Majeure of which notice has been given under clause 12.4(a).

(d) The period of time during which performance of any obligation or condition is prevented by Force Majeure shall be added to the time provided in these Terms for performance of that obligation or condition and to the time required for the performance of any act dependent on that obligation or condition.

18 Governing Law

This document is governed by the law of the State of Victoria and, where applicable, Australia each of the parties irrevocably submits to the non-exclusive jurisdiction of the State of Victoria and the country of Australia.