USER TERMS AND CONDITIONS
The WHEREFIT Platform is owned by Plonder Pty Ltd (trading as WHEREFIT; ABN 43 606 839 46).
By accessing or using the WHEREFIT Platform, you, the User, agree to be bound by these Terms. If you do not agree to these Terms you are not authorised to use the WHEREFIT Platform. You must not use the WHEREFIT Platform in any way other than in accordance with these Terms.
1. Platform Summary – Introductory Service Only
(a) The WHEREFIT Platform is an introductory platform that connects fitness providers with users of fitness services. The fitness services offered by an Affiliate may be offered in the form of packages, passes, membership subscriptions or other offers, referred to as Products. The Products may also be available for purchase as a bundle of Products, bundled by WHEREFIT at its discretion.
(b) You may create one (1) Account as per information requested on the Site.
(c) By accessing or using the Site, you acknowledge that Affiliates are not employees, contractors, partners or agents of WHEREFIT.
(d) Each User understands and agrees that the Site is an online introductory platform and payment platform only, and that WHEREFIT’s responsibilities are limited to facilitating the availability of the Site and the WHEREFIT Services.
(e) WHEREFIT is not a referrer or booking agent, and provides no such related services.
(f) The WHEREFIT Platform provides you, the User, with a directory of the Products and a payment platform through which to purchase Products, referred to together as the WHEREFIT Services.
(g) The Fees payable by the User for the Products offered will vary according to the Product(s) and particular Affiliate that is making the offer. The Fees include WHEREFIT processing fees.
(h) When you purchase a Product, an agreement is entered into between you and the Affiliate. WHEREFIT is not a party to any agreement entered into between you and an Affiliate. Any such agreement is strictly and expressly not part of your contract with WHEREFIT as set out in these Terms.
(i) All Products are offered subject to the relevant Affiliate’s own terms and conditions, over which WHEREFIT has no control. By purchasing such Products, you will be agreeing to those terms and conditions. Doing so will not affect the operation of these Terms in any way. The Affiliate’s terms and conditions may change from time to time, and it is the responsibility of the Affiliate to provide these and the User to check for such changes.
(j) WHEREFIT has no control over the conduct of Affiliates or other Users of the Site and/or the WHEREFIT Services. WHEREFIT disclaims all liability in this regard.
(a) These Terms form a binding legal agreement between you and WHEREFIT for use of the Site and WHEREFIT Services. By using the Site and WHEREFIT Services, you agree to comply with and be legally bound by these Terms. Please read the Terms carefully. If there are any questions, please contact WHEREFIT using the contact details at the end of these Terms.
(b) As the User of the Site, you agree that your use of the Site and the WHEREFIT Services indicates that:
(i) you have had sufficient opportunity to access the Terms and contact WHEREFIT;
(ii) you have read, accepted and will comply with the Terms;
(iii) you have legal capacity to enter into a contract for sale; and
(iv) you are 18 years or older, or if younger than 18 years, you have the approval of your parent or guardian.
(c) If this is not correct, or if you do not agree to these Terms, you are not permitted to use the Site or WHEREFIT Services.
(d) WHEREFIT may amend these Terms from time to time, and will give the User 14 days’ notice of the varied Terms by publishing an announcement on the Site. Use of the WHEREFIT Services following any such amendments will be deemed to be confirmation that you accept those amendments, which will apply to your use of the WHEREFIT Services and to any new purchases made after the varied Terms come into force. If you as the User have reasonable grounds to believe that the varied Terms will be detrimental to your rights, you may terminate this agreement to use the WHEREFIT Services without penalty within 14 days’ of receiving the notice of varied Terms. WHEREFIT recommends that you check the current Terms, before continuing use of the Services. WHEREFIT’s agents, employees and third parties do not have authority to change the Terms.
(f) These Terms supplement and incorporate:
(ii) the terms and conditions of any payment service available on the Site.
3. Online Registration – Accounts
(a) You can browse and view Listings of Affiliate Profiles, Products and the Site as an unregistered user of the Site. You must register on the Site and create an Account to access certain features on the Site including to purchase certain Products.
(b) Account features may include the ability to manage all your passes, save time at check in by uploading your identification and signing Affiliate waivers online.
(c) Each User may only have one (1) Account on the Site. This requires providing name, email address, location and selecting a username and password.
(d) 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. WHEREFIT reserves the right to suspend or terminate your Account and your access to the Site and WHEREFIT Services if any information provided to WHEREFIT proves to be inaccurate, not current or incomplete.
(e) 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 that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorised such activities or actions.
(f) You will immediately notify WHEREFIT of any unauthorised use of your Account.
4. Users and Profiles
(a) Users who have created an Account may be permitted to create Profiles. The User’s Account and any Profile are created from the personal information you provide to WHEREFIT.
(b) You agree that communication entered into with another User is at your own risk. You should report to WHEREFIT, any activities of Users which are, or which you reasonably believe to be suspicious, inconsistent, illegal or likely to have a negative effect on the reputation of WHEREFIT, the Site, the WHEREFIT Services and/or a User.
(c) You agree that if the Site allows Users to communicate with each other, you are not permitted to share information of other Users.
(d) You represent and warrant that any information you post:
(i) will not breach any agreements you have entered into with any third parties;
(ii) will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to you in your local area and country; and
(iii) will not conflict with the rights of third parties.
(e) WHEREFIT assumes no responsibility for a User’s compliance with any applicable laws, rules and regulations.
(f) WHEREFIT reserves the right, at any time and without prior notice, to remove or disable access to any Account and/or Profile for any reason, including Accounts and/or Profiles that WHEREFIT at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site or Services.
5. Payments, Bookings and Proof of Payment Emails
(a) The Platform enables you to purchase Products and may enable you to book directly into classes and/or change or cancel those classes if you need to, subject to the Affiliate’s own terms and conditions.
(b) You are not required to pay fees to WHEREFIT to create an Account on the Site or to access the Services, but will be required to pay Fees for purchasing Products.
(c) If you purchase Products, you enter into an agreement between you and the Affiliate(s) selling those Product(s). WHEREFIT is not a party to the agreement nor liable for the agreement.
(d) The Fees payable for the Products are set out on the Site. You agree to pay the relevant Fees, in the currency specified on the Site, at the time that you purchase the Products. Goods and Services Tax (GST) will be charged where applicable.
(e) If during the course of your use of a Product, there is a change to your primary gym in accordance with that Affiliate’s terms and conditions, you understand and accept that the new primary gym may attract additional fees in addition to the amount paid for the Product.
(f) You may pay for Products by credit card or debit card. Once your payment is processed successfully, WHEREFIT will send an email to your nominated email address (the Proof of Purchase Email) with instructions to redeem the Product you have purchased.
(g) You must not pay, or attempt to pay, for the Products through any fraudulent or unlawful means. If your payment is not able to be successfully processed then the request for the Products may be cancelled.
(h) In the absence of fraud or mistake, all payments made are final and subject to the Affiliate’s terms and conditions and Australian Consumer Law, you will not have the right to cancel your purchase for any reason. You further agree to satisfy all such payments made, with exception to action taken under the Refund Policy set out in these Terms.
(i) If you make a payment by credit card or debit card, you warrant that the information provided is true, accurate and complete, that you are authorised to use the debit or credit card to make the payment, that the payment will be honoured by the card issuer, and that the User will maintain sufficient funds in the account to cover the purchase price.
(j) As the Affiliate’s limited payment collection agent, WHEREFIT will collect the Fees you pay, on behalf of the Affiliate.
(k) For subscription Products, a late payment fee of $10 will be charged each time your nominated account is unable to be debited on your usual payment day (the Late Payment Fee). Prior arrears may also be included. You authorise WHEREFIT to deduct any unpaid arrears outstanding on your account.
(l) Nothing prevents WHEREFIT or the Affiliate from taking any action necessary to recover any unpaid Fees. If you fail to pay, your information will be passed on for collection and or legal action. You acknowledge and agree that you are liable for and will pay all such costs in connection with action taken by WHEREFIT to recover unpaid Fees, including but not limited to debt collection, commission, solicitor’s fees and any out of pocket expense. If you breach WHEREFIT’s payment terms and as a result are passed on for collection and or legal action, WHEREFIT may place a default against you with a credit reporting agency.
(m) WHEREFIT’s pricing structure or payment methods may be amended from time to time in its sole discretion. Such changes will apply to new purchases made after the change. After any such change, you have the choice to continue using the Site to make future purchases, or to cease to use the Site to make future purchases without penalty. For the avoidance of doubt, nothing in this clause changes the obligations of the Parties in connection with purchases occurring before any such changes.
6. Limited Payment Collection Agent
(a) WHEREFIT acts as the Affiliate’s limited payment collection agent solely for the purpose of accepting payments from Users for the Affiliate Products.
(b) You agree that payment of Fees in respect of an Affiliate to WHEREFIT, as that Affiliate’s limited payment collection agent, will be considered the same as a payment made directly to the relevant Affiliate and the Affiliate will provide the relevant Product, as outlined in the relevant Listing, as if the Affiliate had received payment directly.
(c) You agree that WHEREFIT, as the Affiliate’s limited payment collection agent, may permit an Affiliate to cancel a purchase reflected in a Proof of Purchase Email and provide a refund in accordance with the cancellation and refund policy set out in the Affiliate’s terms and conditions accessible through the Affiliate’s Listing.
(d) Notwithstanding WHEREFIT’s appointment as limited payment collection agent of each Affiliate, WHEREFIT disclaims all liability for any acts or omissions of the Affiliate or any other third parties.
7. Offers and Promotions
(a) WHEREFIT may make offers or promotions which may be applicable to the Affiliate Services. The conditions of such offers or promotions will be specified on the Site.
(b) WHEREFIT may, at its sole discretion, remove or extend any offers or promotions, and WHEREFIT will not be responsible or liable for any potential loss or damage which you incur as a result of the removal or extension of any offers or promotions.
8. Feedback and Dispute Resolution
(a) By using our Site and Services, you agree that any legal remedy or liability that you may seek to obtain for actions or omissions of an Affiliate, other User or third party, will be limited to a claim against the Affiliate, other User or third party, who caused harm. WHEREFIT encourages Users to communicate directly with Affiliate, other User or third party to resolve any disputes.
(b) Please contact the Affiliate directly using the Affiliate contact details on the Listing to ask any questions about an Affiliate’s services or Products or to give an Affiliate any feedback.
(c) WHEREFIT welcomes your feedback regarding the WHEREFIT Services. WHEREFIT seeks to resolve concerns quickly and effectively. If you have any feedback or questions about the WHEREFIT Services, please contact any member of the WHEREFIT staff or email [email protected].
(d) If you have a complaint about the WHEREFIT Services, WHEREFIT will aim to respond and provide a suitable solution within 45 days. If you are not satisfied with WHEREFIT’s response, you and WHEREFIT agree to the following dispute resolution procedure:
(i) 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. You and WHEREFIT agree to meet in good faith to seek to resolve the dispute by agreement between them.
(ii) If a resolution cannot be agreed upon at the initial meeting, either the User or WHEREFIT may refer the matter to a mediator. If the User and WHEREFIT cannot agree on who the mediator should be, the complainant will ask the Law Society of NSW to appoint a mediator. The mediator will decide the time and place for mediation. Each party to the dispute must attend the mediation in good faith, to seek to resolve the dispute.
(e) Any attempts made by a party to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of either party under these Terms, by law or in equity.
9. Cancellation of Registration
(a) As a User, you can deactivate your Account at any time via the Site once any active Product payment commitments have ceased.
(b) No refunds will be made upon cancellation except as specified in the Refund Policy set out in these Terms.
10. Consumer Guarantees
(a) 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 the User with rights, warranties, guarantees and remedies relating to the provision of the WHEREFIT Services by WHEREFIT to the User which cannot be excluded, restricted or modified (Statutory Rights).
(b) If you are a consumer as defined in the ACL, the following notice applies to the User from WHEREFIT: “WHEREFIT guarantees that the WHEREFIT Services supplied to the User are rendered with due care and skill; fit for the purpose that WHEREFIT advertises, or that the User has told WHEREFIT he, she or it is acquiring the WHEREFIT Services for or for a result which the User has told WHEREFIT he, she or it wishes the WHEREFIT Services to achieve, unless WHEREFIT considers and discloses that this purpose is not achievable; and will be supplied within a reasonable time. To the extent WHEREFIT is unable to exclude liability; WHEREFIT’s total liability for loss or damage suffered or incurred by the User from the WHEREFIT Services is limited to WHEREFIT re-supplying the WHEREFIT Services to the User, or, at WHEREFIT’s option, WHEREFIT refunding to the User the amount, if any, that he, she or it has paid WHEREFIT for the WHEREFIT Services to which his, her or its claim relates.”
(c) Nothing in these Terms excludes a User’s Statutory Rights as a consumer under the ACL. You agree that WHEREFIT’s liability for WHEREFIT Services provided to Users who are defined as consumers is governed solely by the ACL and these Terms.
(d) WHEREFIT excludes all conditions and warranties implied by custom, law or statute except for the User’s Statutory Rights. Except for the User’s Statutory Rights, all material and work is provided to the User without warranties of any kind, either express or implied, and WHEREFIT expressly disclaims all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.
11. Refund Policy
(a) In relation to the WHEREFIT Services, WHEREFIT will provide refunds as required under the Australian Consumer Law.
(b) WHEREFIT may decide in its sole discretion and at your request to assist you by communicating a cancellation, exchange or refund to an Affiliate on your behalf. However, any cancellation, exchange or refund of an Affiliate Service or Product is strictly a matter between you and the Affiliate. The Affiliate’s terms and conditions should be set out clearly in the Affiliate’s Listing.
12. WHEREFIT Intellectual Property
(a) All logos, slogans, content, designs, diagrams, drawings, graphics, images, layouts, appearance, videos, ideas, methods, databases, codes, algorithms, software, fees, pricing, notes, documents, domain names, confidential information, copyright, registered or unregistered trade marks, trade names, patent, know-how, trade secrets and any other intellectual or industrial property whether such rights are capable of being registered or not (collectively Intellectual Property), including but not limited to copyright which subsists in all creative and literary works displayed on the Site and Services, the layout, appearance and look of the Site together with any applications for registration and any rights to registration or renewal of such rights anywhere in the world, whether created before or after the date of these Terms and whether used or contained in the Site is owned, controlled or licensed to WHEREFIT (or its affiliates and/or third party licensors as applicable).
(b) You agree that, as between you and WHEREFIT, WHEREFIT owns or holds the relevant licence to all Intellectual Property rights in the Site and Services, and that nothing in these Terms constitutes a transfer of any Intellectual Property. The Intellectual Property, Site and WHEREFIT Services are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary or industrial rights whether such rights are capable of being registered or not, and also may have security components that protect digital information only as authorised by WHEREFIT or the owner of the content.
(c) Some Intellectual Property used in connection with the Site and WHEREFIT Services are the trademarks of their respective owners, this is collectively referred to as Third Party Marks.
(d) WHEREFIT’s Intellectual Property and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of WHEREFIT or the applicable trademark holder or Intellectual Property owner.
(e) Users of the Site do not obtain any interest or licence in the Intellectual Property or Third Party Marks without the prior written permission of WHEREFIT or the applicable Intellectual Property owner. Users may not do anything which interferes with or breaches the Intellectual Property rights.
13. Your Licence
(a) Subject to these Terms, WHEREFIT grants you a personal, non-exclusive, non-transferable, limited and revocable licence to use the Site and WHEREFIT Services for the User’s own personal and/or non-commercial use only on a computer or mobile device owned or controlled by the User as permitted in accordance with these Terms, and not to use the Site and WHEREFIT Services in any other way or for any other purpose, apart from local fair dealing legislation in accordance with the Copyright Act 1968 (Cth). All other uses are prohibited without WHEREFIT’s prior written consent.
(b) These Terms govern any update to, or supplement or replacement for the Site and Services, unless separate Terms accompany such updates, supplements or replacements, in which case the separate Terms will apply.
14. Your Content including Ratings and Reviews
(a) The WHEREFIT Services may include the ability for Users to post Ratings and Reviews regarding an Affiliate and/or its services or Products. You must provide true, fair and accurate information in your Rating or Review.
(b) Such Ratings and Reviews can be viewed by any User. Your Ratings and Reviews may remain viewable after your Account is removed or terminated.
(c) If, in WHEREFIT’s reasonable assessment, the Rating or Review is untrue, unfair, inaccurate, offensive or inappropriate, WHEREFIT may delete the Rating or Review, ban you from posting Ratings and Reviews, and/or deactivate and delete your Account.
(d) WHEREFIT does not undertake to review each Rating or Review and other than as required by law. WHEREFIT has no liability for any Rating or Review.
(e) To the fullest extent permitted by law, WHEREFIT is not responsible for the content of any Ratings and Reviews.
(f) You are permitted to post, upload, publish, submit or transmit relevant information and content, referred to as User Content. By making available any User Content or any Intellectual Property on or through the Site and Services, the User grants to WHEREFIT a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content and Intellectual Property, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content and Intellectual Property on, through, or by means of the Site and Services.
(g) You agree that you are solely responsible for all User Content and Intellectual Property that you make available through the Site and Services. You represent and warrant that:
(i) you are the sole and exclusive owner of all User Content and Intellectual Property that you make available through the Site and Services, or that you have all rights, licences, consents and releases that are necessary to grant to WHEREFIT the rights in such User Content or Intellectual Property, as contemplated under these Terms; and
(ii) neither the User Content nor the posting, uploading, publication, submission or transmittal of the User Content or WHEREFIT’s use of the User Content (or any portion thereof) on, through or by means of the Site and the WHEREFIT Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(h) WHEREFIT may at its sole discretion remove any User Content that is in breach of these Terms.
15. Permitted and Prohibited Conduct
(a) You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site and Services, or Intellectual Property.
(b) You are solely responsible for compliance with any and all laws, rules, regulations, including but not limited to tax obligations that may apply to your use of the Site and Services.
(c) You must not post, upload, publish, submit or transmit any content that:
(i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(ii) is fraudulent, false, misleading or deceptive;
(iii) denigrates WHEREFIT, the Site, Services, Users, or Affiliates;
(iv) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(v) is defamatory, obscene, pornographic, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or
(vii) promotes illegal or harmful activities or substances.
(d) You must not and agree that you will not:
(i) use the Site or WHEREFIT Services for any commercial or other purposes that are not expressly permitted by these Terms;
(ii) register for more than one Account or register for an Account on behalf of another individual and/or entity;
(iii) use the WHEREFIT Services to find an Affiliate and then complete, or assist another individual to complete, a transaction independent of the WHEREFIT Services in order to circumvent the obligation to pay any fees related to WHEREFIT’s provision of the WHEREFIT Services;
(iv) post any Rating or Review or upload any content (including but not limited to User Content) that is offensive, contains nudity or inappropriate language, contains racial or religious ranting or discrimination or defames WHEREFIT, another User, Affiliate, Profile or Listing;
(v) submit any false or misleading information;
(vi) violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
(vii) copy, store or otherwise access any information contained on the Site and WHEREFIT Services or content for purposes not expressly permitted by these Terms;
(viii) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
(ix) use the Site or WHEREFIT Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(x) use the Site or WHEREFIT Services in connection with the distribution of unsolicited commercial email, i.e. spam or advertisements;
(xi) stalk or harass any other user of the WHEREFIT Services or collect or store any personally identifiable information about any other user other than for purposes of transacting as a User on the Site;
(xii) use, display, mirror or frame the Site or any individual element within the Site or WHEREFIT Services, WHEREFIT’s name, any WHEREFIT trademark, logo or other Intellectual Property, information, or the layout and design of any page or form contained on a page, without WHEREFIT’s express written consent; or
(xiii) advocate, encourage, or assist any third party in doing any of the foregoing.
(a) WHEREFIT does not guarantee that Users will be able to find desirable Affiliate Services or Products on the Site.
(b) WHEREFIT does not endorse any User Profile, Affiliate Profile, Listing or Product. WHEREFIT requires Users and Affiliates to confirm that they have provided accurate information. WHEREFIT does not perform any sort of background checks of Users or Affiliates, and does not confirm any User’s or Affiliate’s identity, Profile, Listing or Products.
(c) WHEREFIT cannot and does not control the content contained in any Listings, Affiliate Services or Products or the condition, legality or suitability of any Affiliate Services or Products. WHEREFIT accepts no responsibility for and makes no representations or warranties to the User or to any other person or entity as to the reliability, accuracy or completeness of the information or content contained in Listings, Affiliate Services or Products. WHEREFIT disclaims any and all liability related to any and all Listings, Affiliate Services or Products.
(d) WHEREFIT takes no responsibility for, and will not be liable for, the Affiliate Services or Products being unavailable, of a particular industry standard, failing to meet the Listing description, failing to meet your needs, or being of less than merchantable quality.
(e) You are responsible for checking the terms on which the Products are offered by each Affiliate, including but not limited to the opening hours of the Affiliate, the availability of any specific or additional services you are interested in and whether there are any additional charges charged by the Affiliate, such as additional charges for equipment or use of amenities. You will be alone responsible for any such additional charges.
(f) WHEREFIT takes no responsibility for any loss suffered by you that is caused by any act or omission by the Affiliate, including, without limitation, if the Affiliate becomes insolvent, is wound up, or goes into receivership or administration and can no longer provide you with the Affiliate Services or Products. You agree and accept that all such or similar events are governed by that Affiliate’s terms and conditions.
(g) To the fullest extent allowable under applicable law, WHEREFIT disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Site or WHEREFIT Services are merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors.
(h) WHEREFIT excludes all express and implied conditions and warranties, except for your Statutory Rights, to the fullest extent permitted by law, including but not limited to:
(i) WHEREFIT expressly disclaims any implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in these Terms;
(ii) WHEREFIT does not warrant that the Site, the Services, or your access to the Site or the WHEREFIT Services will be error free, that any defects will be corrected or that the Site or the server which stores and transmits material to you are free of viruses or any other harmful components; and
(iii) WHEREFIT will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special, consequential and/or incidental, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal, bodily injury, death or emotional distress, loss of 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, loss of programs or other data on the User’s information systems or costs of replacement goods, or otherwise, suffered by the User or claims made against the User, arising out of or in connection with the Site, the Services, content on the Site, inability to access or use the Site, the Services, any Profile, any Listing, the Affiliate Products or the Terms, even if WHEREFIT was expressly advised of the likelihood of such loss or damage.
(i) You agree not to attempt to impose liability on, or seek any legal remedy from WHEREFIT with respect to such actions or omissions.
17. User Assumption of Risk
(a) Please consider the suitability of any Affiliate Services or Products you purchase, for your own needs, and seek medical guidance or approval if required. You use the Affiliate Services or Products at your own risk. You understand that there are certain inherent risks and dangers in exercising and that the classes you may attend offer a range of activity and intensity level.
(b) You agree that it is your responsibility to consult with your doctor prior to participating in Affiliate Services or Products. It is your responsibility to ensure that by participating in the Affiliate Services or Products, you will not exceed your limits while performing such activity, and you will select the appropriate Affiliate Services or Products for your skills and abilities, conditions and/or limitations you have. You attest that you are physically fit to participate safely in the Affiliate Services or Products and that a qualified medical practitioner has not advised you otherwise.
(c) You acknowledge that participating in the Affiliate Services or Products may involve a risk of property damage as well as a risk of serious injury or even death. You agree that you are aware of these risks which include, but are not limited to, property damage, illness, bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. You specifically assume the risk of property damage, injury, harm, illness or death and WHEREFIT excludes all liability for any such property damage, injury, harm, illness or death.
(d) You indemnify and release WHEREFIT and any person or body directly and indirectly associated with WHEREFIT, against all liability, claims, demands and proceedings arising out of or connected with the User participating in any of Affiliate Services or Products, including with respect to property damage, injury, harm, illness or death. You understand and accept that you participate in the Affiliate Services or Products entirely at your own risk.
18. Limitation of Liability
(a) To the extent permitted by law, WHEREFIT’s total liability arising out of or in connection with the Site, the WHEREFIT Services or the Terms, however arising, including under contract, tort, negligence, in equity, under statute or otherwise, is limited to WHEREFIT re-supplying the WHEREFIT Services to you, or, at WHEREFIT’s option, WHEREFIT refunding the amount you paid for the WHEREFIT Services to which your claim relates. WHEREFIT’s total liability to you for all damages in connection with the WHEREFIT Services will not exceed the price paid by you under these Terms for the 6 months period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made. For the avoidance of any doubt, you understand and accept that under no circumstances will WHEREFIT be liable for any loss or damages you suffer arising in connection with your agreement with the Affiliate, and that such agreement is covered by that Affiliate’s terms and conditions.
(b) The limitations of damages set forth above are fundamental elements of the basis of the bargain between WHEREFIT and the User. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
(c) This limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these terms are for the benefit of WHEREFIT.
(a) You agree to defend and indemnify and hold WHEREFIT (and WHEREFIT’s parent, related bodies corporate, officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to the User’s use of or access to the Services; any breach by the User of these Terms; any wilful, unlawful or negligent act or omission by the User; and any violation by the User of any applicable laws or the rights of any third party.
(b) WHEREFIT reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.
(c) This defence and indemnification obligation will survive these Terms and the User’s use of the Site or Services. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by the User, but may be assigned by WHEREFIT without restriction.
(a) Accuracy: While WHEREFIT will endeavour to keep the information up to date and correct, WHEREFIT makes no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site for any particular purpose. You acknowledge that such information and materials may contain mistakes, inaccuracies or errors and WHEREFIT expressly excludes any liability for such to the fullest extent permissible by law.
(b) Termination: WHEREFIT reserves the right to refuse supply of the WHEREFIT Services required by any User, terminate any User’s Account, terminate WHEREFIT’s contract with any User, and remove or edit content on the Site, if the User commits a non-remediable breach or a remediable breach that is not remedied within 5 days, in its sole discretion. If WHEREFIT decides to terminate a User’s Account any of the following may occur, with or without notice to the User: (a) the User’s Account will be deactivated, your password will be disabled and you will not be able to access the Site, WHEREFIT Services or your Account; (b) any Proof of Purchase Email reflecting your purchase(s) of Affiliate Services or Products will be immediately cancelled and will no longer be valid; (c) WHEREFIT may communicate to the relevant Affiliate that that User’s Proof of Purchase Email is no longer valid; (d) WHEREFIT may refund you for the purchase(s) reflected in the Proof of Purchase Email, regardless of the cancellation and refund policy; and (f) you will not be entitled to any compensation for the purchase(s) reflected in a Proof of Purchase Email that were invalidated as a result of a suspension, deactivation or termination of your Account.
(c) Fraudulent Activities: You acknowledge and agree that, in the event WHEREFIT reasonably suspects that there are fraudulent activities occurring within the Site and Services, WHEREFIT reserves the right to immediately terminate any Accounts involved in such activities, contact the relevant authorities and provide all necessary information to assist in proceedings and investigations.
(d) Force Majeure: WHEREFIT will not be liable for any delay or failure to perform its obligations under the Terms if such delay is due to any circumstance beyond its reasonable control.
(e) Notice: Any notice in connection with the Terms will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
(f) Waiver: Any failure by a party to insist upon strict performance by the other of any provision in the Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by WHEREFIT of any of the Terms shall be effective unless WHEREFIT expressly states that it is a waiver and WHEREFIT communicates it to the User in writing.
(g) Assignment: A User must not assign any rights and obligations under the Terms whether in whole or in part without WHEREFIT’s prior written consent.
(h) Severability: If any of the Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
(i) Jurisdiction and Applicable Law: These Terms, use of this Site and the WHEREFIT Services and any dispute arising out of any User’s use of the Site or WHEREFIT Services is subject to the laws of NSW, Australia, and subject to the exclusive jurisdiction of the NSW courts. The Site may be accessed throughout Australia and overseas. WHEREFIT makes no representation that the content of the Site complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Site from outside Australia, you do so at your own risk and you are responsible for complying with the laws in the place where you access the Site.
(j) Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between WHEREFIT and each User, and supersede any prior agreement, understanding or arrangement between WHEREFIT and each User, whether oral or in writing.
(a) Account means the personal account created by a User on the Platform.
(b) Affiliate means each fitness provider that offers Products or Affiliate Services on the Platform.
(c) Affiliate Profile means the profile created by an Affiliate on the Platform.
(d) Affiliate Services means the fitness and/or wellness services provided by the Affiliate at the Affiliate Premises and includes the Products.
(e) Fees means all amounts payable by the User to WHEREFIT as set out on the Site.
(f) Intellectual Property is as defined in clause 12(a).
(g) Late Payment Fee is as defined in clause 5(k).
(h) Listings means a listing of a Product or Products, available on the Platform.
(i) Platform or WHEREFIT Platform means the e-commerce enabled platform accessible through the Site on which the Affiliate’s Existing Packages and/or WHEREFIT Exclusives are featured, through the offer of the Products and where Users can purchase the Products.
(j) Premises means the location at which the Affiliate Services are provided by or on behalf of the Affiliate.
(l) Profile means a profile which may be created by a User on the Platform.
(m) Proof of Purchase Email means the email sent to the User by WHEREFIT after the User has purchased a Product from an Affiliate, reflecting that purchase, as described in clause 5(f).
(n) Rating or Review means a User’s rating or review regarding an Affiliate and/or their Profile, Affiliate Service or Product.
(o) Site means the WHEREFIT website to access the Platform, available at wherefit.com.
(p) Terms means these terms and conditions.
(q) Third Party Marks are as defined in clause 12(c).
(r) User means any user of the Site, Platform or WHEREFIT Services.
(s) User Content means any information and content that a User posts, upload, publishes, submits or transmits on the Platform.
(t) WHEREFIT Services are as defined in clause 1(f).
For questions and notices, please contact:
Plonder Pty Ltd (trading as WHEREFIT; ABN 43 606 839 463)
Level 2, 11 York Street, Sydney NSW 2000
Last updated: 5 February 2020