These terms and conditions apply to our online sites, including :
and AirFitness mobile applications (individually and collectively, the “online site”).
By accessing the online site or making any use of the online facilities, you agree to be bound by these terms and conditions. If you do not wish to be bound in this way, please do not access or use the online site or the online facilities – you are not authorised to access or make use of the online site or the online facilities other than on these terms and conditions.
IMPORTANT INFORMATION ABOUT PERSONAL DATA (PERSONAL INFORMATION)
DIRECT MARKETING OPT-OUT RIGHT: Regardless of our source of your personal data andof the basis on which we collect or hold it, it is our policy to observe any rights under any privacy law which applies to you to opt out of our direct marketing to you. Our direct marketing materials will generally tell you how to do this, but if you are not sure, a member of our privacy team will help you. Contact details for our privacy team are our address below or firstname.lastname@example.org
Who are we?
In these terms and conditions, ‘we’ and ‘AirFitness’ are, individually and collectively, AirFitness Pty Ltd ABN 44 622 361 406 of PO BOX 440 Rose Bay, NSW, 2029 Australia and its related bodies corporate (known as ‘AirFitness’). We have a number of offerings including AIRFITNESS™, MORFUS™and SUBACLASS™ and these terms and conditions apply to each and all of them.
We do not accept any obligation to you regarding information you provide to us via the online site or when making use of any online facilities. This is regardless of any form in which that information is put. Please do not send us any information in respect of which you seek any obligation from us, including confidentiality obligations. If you make any information available to us in whatever form, you give us a non-exclusive, royalty free worldwide licence, unlimited as to time, to make such uses and disclosures of it and to permit others to do the same, in any way we or they decide.
Your access commitments
You acknowledge and agree that the goods and services which may be promoted via the online site and online facilities are those of third parties, including health and fitness trainers and we are merely facilitating the advertising of those goods and services and transactions between third parties which may ensue.
You agree that we have no responsibility in respect of any guarantee, conditions or warranties regarding such goods and services and that any complaint you may have in respect of them should be directed to the relevant third party. If you decide to acquire any such goods or services, you agree to examine them and satisfy yourself regarding them and not rely on anything claimed to be our representation regarding those goods and services. As between you and ourselves, you agree to rely only on your own decision making regarding any acquisition of such goods or services. We make no representation and do not give any commitment that your use of the online site or any online facilities will meet any expectations you may have of us or any third parties. You use the online site and the online facilities in full acceptance of the risks that the commitments or representations that third parties make, whether as to the quality or fitness for purpose of their goods or services, as to payment or otherwise, including as communicated to you via the online site or the online facilities, may infringe your rights, may be false, confusing, misleading or deceptive or may not be honored.
The information on the online site or provided as part of any online facilities may not be accurate, adequate, complete or up to date and you should not rely on anything to the contrary.
Youagree that by facilitating the promotion of the goods and services of third parties (including health and fitness trainers) we are not making any recommendation or endorsement of any of their products and services. This is so regardless of whether the online site or the online facilities make provision for links to or from the online sites or facilities of third parties.
By making any use (including access) of the online site or the online facilities, you represent and warrant that:
· you take sole responsibility that your use will be free from all adverse claims and fully compliant with all rights anyone may have;
· you will not be in violation of any applicable law or of these terms and conditions;
· you will take precautions to prevent your use creating any exposure to any computer system connected with such use, including in relation to viruses;
· your use will be for your own individual personal use. You agree that you are not licensed to, and will not, exercise any intellectual property in any works or other subject matter comprising, depicted on or associated with the online site or the online facilities, including images and trade marks. You agree that you will not use any trade mark depicted in or on the online site as trade marks, in the absence of a separate written trade mark license with the trade mark owner;
· any information you provide, whether to us or in connection with any use of the online site or the online facilities will be accurate, complete and not in any way false, confusing, misleading or deceptive and will be fully honored by you;
· you agree and are aware that we may, but are not liable, to moderate (including to reject, change and remove) content and anything else connected with your use;
· we mayterminate your use of the online site or the online facilities, and remove content, in whole or in part, immediately, without notice to you and for any reason; and
· if you believe that an aspect of the online site or the online facilities constitutes an infringement of your or a third party’s rights, you will contact us as soon as possible and let us know. We do not condone or authorise the online site or any online facilities being implicated in any infringement of anyone’s rights or any conduct which is wrong.
Laws provide recourse to those who believe that certain online material infringes their rights. These include laws relating to intellectual property and consumer laws. In that event you agree to provide us with any information reasonably required by us, including where applicable any information appropriate having regard to those laws.
Some mandatory laws such as Schedule 2 of the Competition and Consumer Act 2010 (Cth) and comparable fair trading legislation of Australian states or territories may give you certain guarantees which cannot be excluded or limited for example in relation to acceptable quality of goods or services under certain supply contracts (Mandatory Laws). Everything in these terms is subject to the provisions of Mandatory Laws to the extent that apply to you and nothing in these terms shall be read as excluding or limiting their application to you to the extent their application is required by law.
Subject to the foregoing all terms (whether conditions, warranties or other) which would otherwisebe implied in these terms are excluded.
YOUR USE OF GOODS OR SERVICES ACQUIRED VIA THE ONLINE SITE OR THE ONLINE FACILITIES MAY RESULT IN DEATH OR PERSONAL INJURY OR PROPERTY DAMAGE. IF YOU SUSTAIN OR CAUSE ANY SUCH LOSS, IT MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESPONSES AND SO, TO THE EXTENT PERMITTED UNDER MANDATORY LAW (AS DEFINED ABOVE) YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE ARISING OUT OF OR RELATING TO A DEALING WHICH IS FACILITATED VIA THE ONLINE SITE OR THE ONLINE FACILITIES, AND FOR ALL LIABILITY WHICH WE MIGHT SUFFER OR INCUR IN RESPECT OF SUCH INJURY, DEATH OR DAMAGE.
Except in relation to liability for our breach of these terms (which you agree shall be limited, for all claims in aggregate, to paying an amount equal to the amount of fees we have received for goods or services supplied or acquired by you via the online site or the online facilities in the period of one year prior to the date of the relevant circumstances under your first claim) you agree that we are under no liability to you in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with these terms (including in respect of goods or services supplied pursuant to these terms).
Without limiting the following sentence, you warrant that you have not relied on any representation made by us which has not been stated expressly in these terms, or upon any descriptions, illustrations or specifications in any way relating to the online site or the online facilities including catalogues, website or publicity material made available by us. You acknowledge that to the extent we have made any representation which is not otherwise expressly stated in these terms, you have been provided with an opportunity to independently verify the accuracy of that representation.
In respect of any claim under or in connection with these terms, you and we agree that to the maximum extent permitted by law, these terms exclude the operation of any laws which would apportion any liability to us which would not have been so apportioned but for such laws.
To the extent permitted under Mandatory Law, you release, waive and discharge us and our related companies and their respective representatives, officers and employees and those in privity with them (“releases”) from and against:
· any loss (including legal costs and expenses and liability) incurred or suffered by any of the releasees arising from any claims against any of the releasees where such loss or liability was caused by a breach by you of your obligations under these terms or any of your wrongful, unlawful or negligent acts or omissions.
· any loss (including legal costs and expenses and liability) suffered or incurred you and your personal representatives, assigns, heirs, and next of kin or wards on account of death or injury to person or property, arising out of or related to any goods or services supplied, or the supply of which has been facilitated, via the online site or the online facilities, whether caused in whole or in part, by the sole or concurrent negligence of the releasees or otherwise, including, without limitation, negligent response as well as any and all actions, counterclaims or cross actions, claims, demands, damages, costs, legal fees and expenses of any kind whatsoever which may now exist or hereafter arise, whether brought by you or on your behalf (collectively “Claims”). The benefit to us under this clause is for all releasees and, in this regard, we shall be deemed to be, acting as agent on behalf of and for the benefit of those who are also named as releasees. To the extent permitted under Mandatory Laws, you agree to indemnify, defend, and save and hold harmless the releasees and each of them from any and all Claims.
By making any use (including access) of the online site or the online facilities, you agree that in addition to any statutory complaint rights you may have, for any complaints or disputes in connection with such use the following complaints and dispute resolution processes apply, with each of us not unreasonably withholding consent to the resolution of disputes through online means:
· we will first try to resolve issues without recourse to arbitration or litigation using mediation administered by a reputable recognised disputes resolution service reasonably specified by us (Dispute Service), such as the Australian Disputes Centreor the Australian Centre for International Commercial Arbitration (ACICA), in accordance with the rules/guidelines of that Dispute Service; and
· if we are unable to resolve issues promptly, either of us may refer any such complaints or disputes to be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as in force when the relevant issue arose. Any such arbitration shall be administered by the Dispute Service. The appointing authority shall be Dispute Service. The number of arbitrators shall be one. Subject to the above concerning resolution through online means, the place of arbitration shall be Sydney and the law to be applied is the law in force in that place. The language to be used in the arbitral proceedings shall be English.
These terms and conditions are governed by the laws in force in Sydney in the State of New South Wales, Australia.
Our contact details for these terms and conditions are:
ROSE BAY, NSW, 2029
These terms and conditions are current at the date below. We may change them periodically. If we propose to change these terms and conditions, we will display at least 2 weeks’ prior notice of the change on www.airfitness.fit.
Last updated: 10 September 2019