Kim Beach Pty Ltd
Terms and Conditions for use of the Website and for use of the ‘NOEXCUSES’, ‘NOLIMITS’ and ‘NOEXCUSESLIFE’ Online Fitness Programs
- Terms and Conditions of use of the Program
1.4. By clicking “I accept” you agree to pay for the Program at the rate and in the manner specified on the Website as amended from time to time. All prices are in Australian Dollars (AUD) and are inclusive of GST.
2. Seek advice from Medical Professional
2.1. By clicking “I accept” you warrant that before beginning the Program you have consulted a health care professional to ensure that you are mindful of your current health, any restrictions that are appropriate for you, and that you are satisfied that the Program is suitable for you. You should immediately seek medical attention if there are any unanticipated changes to your physical condition at any time.
2.2. No information contained in the Program is intended to be used as medical advice and the Program is not intended to be used to diagnose, treat, cure or prevent any medical or mental health condition or for any therapeutic purposes. Before relying on any information in the Program, you should carefully evaluate the accuracy and relevance of the information for their purposes and obtain appropriate professional medical advice.
2.3. By clicking “I accept” you agree to consult a qualified medical professional if you have any questions concerning your medical condition or any injury.
- The Program
3.1. The ‘NOEXCUSES’, ‘NOLIMITS’ and ‘NOEXCUSESLIFE’ Programs will be delivered to you as described on the Website as updated from time to time.
- Information Provided on Website
4.1. To the extent permitted by law, we do not make any representations or warranties that any information we provide is reliable, accurate or complete and we make no guarantees of any specific result from use of the Program. To the extent permitted by law, we are not liable for any loss arising from any action taken or reliance by you on any information or material of the Program or on the Website.
4.2. We may provide health, fitness or nutritional information for educational purposes. We do not offer or provide professional medical advice, diagnosis, treatment or rehabilitation.
4.3. The Website, Kim Beach Facebook pages or Twitter account may contain hyperlinks to other third party websites. Such links are provided for convenience only and we take no responsibility for the content of any hyperlink.
4.4. The blog on the Website may accept forms of cash advertising, sponsorship, paid insertions or other forms of compensation which may influence the content the blog.
- Nutritional Information
5.1. Nutritional information provided as part of the Program may be taken from sources provided by third parties. Before relying on any nutritional information as part of the Program, you should carefully evaluate the accuracy, completeness and relevance of this information for your own needs, and obtain appropriate expert medical advice relevant to your circumstances. We give no warranty that the Program is free from error or suitable for your needs.
5.2. Nutrient composition of foods and ingredients can vary substantially between batches and brands because of a number of factors, including changes in season, changes in formulation, processing practices and ingredient source.
6.1. To the extent permitted by law, we are not liable or responsible for any recommendations provided to you as part of the Program.
7.1. You are responsible for making your own inquiries and agree to seek independent advice from a healthcare professional before acting on any information or material made available to you as part of the Program. The Program may not be suitable for your particular circumstances and is not a substitute for obtaining specific advice from a qualified health care professional.
7.2. You agree that the Program is an information service only, and that you are solely responsible for (at your own discretion) following (or not following) the Program.
7.3. We are not responsible for any injuries that you may suffer as a result of the Program.
7.4. To the extent that we supply any ‘recreational services’ or ‘recreational activities’ within the meaning of the Competition and Consumer Act (2010) (Cth) or any State or Territory civil liability or consumer protection legislation or corresponding services or activities under any other applicable local law from your jurisdiction), you acknowledge that your participation in the recreational services and activities may involve risks, including personal injury and death. Prior to participating in the recreational services and activities, you must assess all the risks involved, including risks that may be caused by your own acts or omissions, your health condition, and risks that are not known to you or are not readily foreseeable at the time of participating in the recreational services and activities. By participating, you are doing so voluntarily and at your own risk. To the extent permitted and required by law, this is a risk warning pursuant to the various civil liability and consumer protection legislation. You assume all risks in connection with your participation in any recreational services and activities that we may provide as part of the Program. To the maximum extent permitted by law, we exclude all liability arising from or in connection with any recreational services or activities for: (1) death; (2) physical or mental injury (including the aggravation, acceleration or recurrence of such an injury); (3) the contraction, aggravation or acceleration of a disease; and (4) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs: (a) that is or may be harmful or disadvantageous to you or the community; or (b) that may result in harm or disadvantage to you or the community, resulting from the supply of recreational services or recreational activities, but we do not exclude our liability to significant personal injury which is caused by our reckless conduct in the supply of recreational services or activities as part of the Program.
- Quality of the Program
8.1. You can email us anytime with any questions, concerns or thoughts during the Program which runs for eight (8) weeks. We will use our best endeavours to respond to your questions, concerns or thoughts as soon as possible.
8.2. You acknowledge that the Program may not be error-free or uninterrupted. We do not warrant that any computer files as part of the Program will be free of viruses or contamination or destructive features. Receipt of emails, or other communications such as via Facebook or Twitter from us cannot be guaranteed. However, we will use our best endeavours to provide an alternative form of communication wherever possible.
- Security of Information
9.1. No data transmission can be guaranteed as secure. While we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.
10. Third party products or services
10.1. Members and third parties are not permitted to advertise or promote their products or services, or the products or services of others, on any part of the Website or on the Kim Beach Facebook pages or Twitter account; without prior written consent from us. If in our opinion you are engaged in advertising, promotion or providing advice to other members of the Program, then we reserve the right to suspend or terminate any member from participating in the Program.
11.1. We do not accept responsibility for any loss or damage, however caused (including through negligence), which you may directly or indirectly suffer in connection with or arising from use of the Program including acts, omissions and conduct of any person. Where information is made available to you by third parties, for example via the Kim Beach Facebook page, we do not purport to endorse the contents of that opinion or advice, nor do we guarantee the accuracy or completeness of that content, and we will not accept liability for loss or damage arising from your reliance upon any information obtained through the Program. It remains your responsibility to evaluate the accuracy, completeness and usefulness of any such information.
11.2. The Program is for educational purposes only and is not intended as a substitute or replacement for professional medical advice, diagnosis, treatment, or rehabilitation. The Program could contain a range of content including marketing materials, testimonials, recipes, encouragement, and interesting articles on third party sites.
11.3. To the extent permitted by law, in no event will we (or our employees, agents and subcontractors) be liable to you for indirect, special or incidental, punitive, exemplary or consequential loss, costs, expenses and damages (or any loss of revenue, loss of data, loss of profits or loss of opportunity whether the losses be direct or indirect), suffered or incurred by you and arising out of or in connection with your access to or use of the Program; regardless of whether liability is based on any breach of contract, tort (including negligence) or warranty, arises under statute, or any other basis of liability.
11.4. To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms is excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to, at our option:
11.4.1. if the breach relates to goods, replacing, repairing or supplying goods equivalent to, those goods or paying the cost of replacing or repairing them or acquiring equivalent goods; or
11.4.2. if the breach relates to services, re-supplying, or paying the cost of re-supplying, those services.
11.5. To the extent permitted by law, our total liability in respect of all claims in connection with this agreement and the Program (whether based in negligence or any other tort, contract, statutory liability or otherwise) will be the total sum of all fees paid or payable by you under this agreement up until and including the date the cause of action accrued.
12.2. You agree to indemnity and hold us, our employees, agents and subcontractors, harmless against all demands, claims, causes of action, interest and costs which we, our employees, agents and subcontractors, may suffer as a result of your negligent actions and omissions.
12.3. You agree to indemnity us and our employees, agents and subcontractors, against all liability for loss, costs, damages, interest and expenses (including all legal costs incurred by us on a full indemnity basis) which may be paid, suffered or incurred by us, our employees, agents and subcontractors, in connection with any proceedings commenced by any person against us in any way relating to your conduct. Any such amounts will be payable by you on demand by us.
13. Intellectual Property
13.1. Unless otherwise indicated, the Program (including but not limited to its content, materials, recipes, exercise programs, text, graphics, logos, icons, sound recordings, video, software and advertisements) is owned or licensed by us.
13.2. We grant you a personal, limited, revocable, non-exclusive and non-transferable licence to access, view, listen to, use the Program solely for your personal, non-commercial purposes and only for those purposes. No part of the Program may be reproduced, reused, retransmitted, adapted, published, broadcast or distributed without our prior written permission.
13.3. You must not:
13.3.1. share the Program with any other persons;
13.3.2. publish or post any of the Program’s content (such as recipes or exercise programs) on any other website, including on social media pages or websites;
13.3.3. use the Program to describe, market, endorse or promote any goods or services (including but not limited to goods and services such as meal plans and personal training services); and
13.3.4. register or maintain any social media pages or websites that misrepresent or are reasonably likely to misrepresent any affiliation with, or endorsement by, us or Kim Beach.
13.4. Despite anything in the preceding clause you can share information which is publicly available on the Kim Beach Facebook page or Twitter account, so long as in our opinion you do not bring the reputation of Kim Beach into disrepute
13.5.1. the frequency and nature of any downloads; and
13.5.2. the time of access and IP addresses used to access the Program.
14. User-Generated Content
14.1. You may post information, photos, content, and/or upload materials to the Kim Beach Facebook page of Twitter account (User Content). We have the right, but not the obligation, to monitor and review User Content from time to time and we may, at our sole discretion and without prior notice to you, remove or edit any of your User Content for any reason (or for no reason at all).
14.2. Notwithstanding our right to monitor, review and edit any User Content, we are not obliged to do so. We accept no responsibility or liability for any User Content. In particular, you acknowledge and agree that we do not authorise, condone or endorse any User Content of any other user, and are not responsible for the accuracy, legality or decency of such content. You are solely responsible for verifying the veracity of any claims or statements made in any User Content.
14.3. We are not responsible for how other users may use your User Content. You should take care before posting anything sensitive or personal about yourself to any part of the Kim Beach Facebook page of Twitter account that is accessible to the public or other users of the Program.
14.4. Some User Content may refer to events or activities that are organised by other users of the Program. We are not responsible for organising these events and activities, and do not authorise or endorse them. You are solely responsible for determining whether to participate in these events and activities, at your own risk.
14.5. You are legally responsible for all User Content you submit.
15. Payment and Refunds
15.1. Orders for participation in the ‘NOEXCUSES’, ‘NOLIMITS’ and ‘NOEXCUSESLIFE’ Online Fitness Programs are subject to acceptance by us. Acceptance (or rejection) of an order will be notified to you as part of the ordering procedure. Acceptance and continued access to our service is always subject to payment first being made by you. For the avoidance of doubt, by placing an order, you make an offer to purchase the relevant ‘NOEXCUSES’, ‘NOLIMITS’ and ‘NOEXCUSESLIFE’ Online Fitness Program subscription that is the subject of your order. We reserve the right to terminate your access to the Program if you are not up to date with any payment plan that may be offered.
15.2. All fees are non-refundable, unless the Program is not available for a period lasting more than 3 days. In this circumstance, a pro rata refund may be granted upon written request by you.
17. Personal Information Collection Notice
17.1. In registering for access or using the Program, you may be required to give us certain personal information in which you have certain rights. Personal information relating to you which we collect, use and disclose may include sensitive information, such as information about your health, your details related to how you pay for our services, your age, height and weight. If you do not provide all of the personal information that we request, then we may not be able to provide all or some of the Program to you.
18. Severance & Termination
18.1. We may in our sole and absolute discretion refuse registration, or suspend or terminate the Program at any time and for any reason.
18.2. If a provision of these terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other terms.
19.1. The terms underneath the following headings survive the termination and expiry of this agreement: “limitation of liability”, “indemnity”, “intellectual property” and “user-generated content”.
20. Governing Law & Jurisdiction
20.1. This Agreement is governed by the law of the New South Wales, and the parties, submit to the non-exclusive jurisdiction of the courts of that State.
21. Dispute Resolution
21.3. On receipt of the notice referred to in this clause by that party, both parties must endeavour to other resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, or determination or similar techniques agreed by them.
21.4. If the parties do not agree within seven days of receipt of the notice (or such further period as agreed in writing by them) as to:
21.4.1. The dispute resolution technique and procedures to be adopted;
21.4.2. The timetable for all steps in those procedures; and
21.4.3. The selection and compensation of the independent person required for such technique,
then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the State of New South Wales.
21.5. The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
21.6. If the mediation referred to above is not completed within four weeks of reference to a mediator either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
21.7. The costs of the mediation will be borne equally by the parties.
Kim Beach Pty Ltd
- Collection and Purpose
2.1. We may collect personal information that you voluntarily submit to us when you apply to join to the Program via the Website or any other information you provide to us (whether orally, by mail, email or online); such information includes: your name; your contact details such as your telephone number, physical address and email address; your date of birth; information that allows us to process your payment to us, such as bank account details and credit card information; information about yourself such as your goals, hobbies, interests, and occupation. If you do not provide us with some of the information requested by us, you may be unable to enjoy the full functionality of the Program.
2.2. We collect, hold and use your personal information for a number of purposes, including to assist us in providing the Program to you and to give you the best possible service; contact you or respond to your queries; display, update and maintain the content on the Website; send information about future events, regular email communications or newsletters (both electronic and hardcopy) outlining news, services or events; advertise our services and the Program (however, we will seek your consent before we use your photograph publicly for this purpose); for our internal administrative, marketing and planning requirements; to compile and report statistics.
- Disclosure of personal information
3.2. We may display personal information about you (including your health information and your profile photograph) on the Website, the Kim Beach Facebook pages or Twitter account. This is for the purposes of publicly profiling your fitness, displaying the results of competitions, promoting our services and the Program and encouraging other members. If you do not wish this to happen, then you must contact us.
3.3. From time to time, we will also disclose your personal information (on a confidential basis) to agents and others that we use in the ordinary operation of our business, such as account and billing, shipping and fulfilment, marketing and promotion, user experience research and surveys, website hosting and support and maintenance. We will only disclose your information to the extent required for the limited purpose of the third party providing services contracted to us so that we may service you.
3.4. We may also disclose aggregated data (in a form that does not identify you individually) to our advisors for the purposes of conducting market and user experience analysis.
- Credit Card Details
4.1. Any credit card details you provide to us are only stored for the purpose of processing payment and will be deleted once payment is processed and recieved.
- Marketing Material
5.1. We may use your personal information to provide you with material, promotions and communications from time to time about services and products available to you from us, or from other service providers in partnership with us, or to invite you to continue to use our services. This information will only come from us. We will not on-sell your personal information to other providers without your consent.
5.2. You may opt out of receiving promotional materials from us at any time by contacting us.
- Protecting and Maintaining Personal Information
6.1. We will take all reasonable steps to protect the information we hold about you from unauthorised access, use and disclosure, however we cannot guarantee that our systems and stored data will be completely free from third party interception or are free from corruption.
6.2. Certain parts of the Website (such as those parts that require you to provide us with your credit card number) provides the ability for you to transmit information to our Website in an encrypted form by using secure socket layer technology (SSL). However, other parts of the Website are not protected by any form of encryption to protect information you send from your computer to us over the Internet. Further, no method of transmission over the internet, or method of electronic storage, is 100% secure. In light of this, we cannot ensure or warrant, and do not warrant, the security or privacy of your personal information, including payment and account details. You transmit this information at your own risk. If you have any questions regarding security you can contact us.
6.3. If you use our Website to link to another site we encourage you to view their terms and conditions of use, privacy policies and security statements before disclosing any of your personal information on those sites.
- Accessing Personal Information
7.1. It is your responsibility to advise us of any changes to your personal details to ensure we can keep our records accurate and up to date. If you believe that the personal information we hold about you is incorrect, you are entitled to request amendment of such information. You may also request that we delete the personal information that we hold about you. Please note that if we delete your contact information, we may not be able to provide you with the Program.
7.2. If you request us not to use personal information in a particular manner or at all, we will adopt reasonable measures to observe your request but we may, to the extent permitted by law, still use or disclose your information if you subsequently consent to the disclosure or we believe the use or disclosure is reasonably necessary to assist a law enforcement agency or as otherwise required or authorised by law. If you know the information we hold about you is not accurate or complete, please notify us.
- Privacy Concerns
8.1. If you have any concerns about how we handle your personal information or require further information, please contact us. Please contact us if you no longer consent to receiving marketing material from us, or to the posting of your personal information on the Website.
8.2. We may change this document from time to time to reflect changes to our information practices. If we make any material changes we will notify you by email (sent to the e-mail address specified in your account) or by means of a prominent notice on this Website prior to the change becoming effective. Although we intend to observe this policy at all times, it is not legally binding on us in any way. From time to time we may regard it as necessary or desirable to act outside the policy. We may do so, subject only to any statutory rights you have under the Privacy Act or other applicable legislation. We encourage you to regularly review this statement to inform yourself of any amendments.