Terms and Conditions
These Terms & Conditions are effective as at 18 January 2021.
PLEASE READ THESE TERMS & CONDITIONS CAREFULLY.
These Terms & Conditions cover important information about the Emily Skye FIT Apps, the Website, Program, and the Subscription and any applicable fees.
The provisions in the Pregnancy & Post-Pregnancy Programs Appendage form part of the Terms & Conditions and create a legally binding agreement between you and us where you participate in the pregnancy and/or post-pregnancy workout plans offered by us ("Pregnancy Program" and “Post-Pregnancy Program”).
Your Subscription is governed by these Terms & Conditions as well as our Billing Terms.
For the purposes of these terms and conditions the following definitions apply:
1. Affiliates means any of our associated entities as that term is defined in the Corporations Act 2001 (Cth);
2. App means the Emily Skye FIT Apps owned and operated by us, Forum, Program, products and/or services offered or provided by Emily Skye FIT excluding the Emily Skye Website;
3. Facebook Community means the Facebook Community where registered members are able to communicate together be it on the Website or App or other 3rd party platforms e.g. Facebook;
4. Licence means the licence granted by us to you governing your use of the Program and the Services (as defined below) in accordance with these terms and conditions;
5. Our, ourselves, us, we, refer to the Emily Skye Fitness Pty Ltd and affiliates who for the purposes of these terms and conditions refer to any person or entity we directly or indirectly own, control or operate, currently or in the future and/or which has a controlling interest in us and/or is an entity who has the right to operate with or on behalf of ourselves;
6. Party refers to a party to these terms and conditions and it includes that party successors, administrators and assignors and where a party consists of more than person, then these terms and conditions bind them jointly and each of them severally;
7. Program means the Emily Skye FIT program offered via the Website/App and the Pregnancy Program (if applicable);
8. Subscription means the subscription with Emily Skye FIT entitling you to use of the Program and/or the Facebook Community;
9. Terms and Conditions means these terms and conditions as amended from time to time;
10. Website means the website https://www.emilyskyefit.com, Facebook Community, Program, Pregnancy Program, products and/or services offered or provided by Emily Skye FIT excluding the App;
11. You or yours refers to you, the person accessing the Program and agreeing to the terms and conditions of your use of the Program and its contents;
12. One gender includes any other gender.
Note in these Terms and Conditions, the single includes the plural and the plural includes the singular;
13. By virtue of these Terms and Conditions, you are granted a non-exclusive, non-transferable, non-sublicensable Licence to personally access and use, for non-commercial purposes, the Website / App and the services offered on the Website / App (“Services”).
14. You may not use the Licensed eBooks on more than one computer system or device concurrently.
15. Full-scale reproduction of the Licensed eBook contents is expressly prohibited.
16. This Licence shall continue until terminated in accordance with this Agreement.
Website / App
17. These Terms and Conditions govern your right to use the Website/App and your access to and use of the App, Program, the Facebook Community and/or any products or services acquired in relation to the Program and/or any links provided on the Website/App to other websites.
18. In downloading and/or printing any content from the Program to your computer, you do not receive any ownership rights to such content and by downloading any content you agree not to use the content for any unlawful purpose. You agree that your use of the Program is only for your personal use and not for any commercial or another use contrary to these Terms and Conditions and our legal rights in respect of the Website, the App and/or the Facebook Community.
19. You agree that if you download any content from the Website/App you will not reproduce, distribute in person, publish, republish, print, upload to any third party, post on any social media site or Facebook Community, or distribute or modify or otherwise deal with any content in the Website/App in whatever format, personally or otherwise, and/or provide it, or any part of it, to a third party that would otherwise infringe our intellectual property rights.
20. You agree that in downloading any service or product from the Website/App, you will not rent, lease or lend it to a third party nor decompile, reverse engineer, modify or derive content from the Website/App and/or make it available over a network where it could be used by multiple devices at the same time.
21. You agree that your use of the Website/App will not violate any laws without limitation, including those governing competition, advertising, consumer protection laws, privacy, obscenity, spamming, stalking, intellectual property rights and/or defamation in Australia and when accessed in another jurisdiction the laws of that jurisdiction and Australian law, so far as the laws are not inconsistent, in which case you agree to be bound by the laws for New South Wales, Australia.
22. You agree that in using the Website/App, you will not post threatening, harassing, defamatory, obscene, offensive, hate mail or speech or facilitate others to commit such acts in whatever format.
23. You agree that we may, and reserve the right to, remove any comments made by you about the Website/App, any of its content, its individual representatives, officers, directors, consultants and/or employees which we believe in our sole discretion to be damaging to Emily Skye Fit.
24. The content on the Website/App, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like and the trademarks, service marks and logos contained therein, are owned by or licensed to us, subject to copyright and other intellectual property rights under law.
Your Agreement and Subscriptions
25. In accessing, registering or using the Website/App and/or the Services and products, information, text and images offered or provided on the Website/App, you are deemed to have read and personally agreed to the Terms and Conditions.
26. We offer one (1), three (3) and twelve (12) month Subscriptions. Payment for each Subscription is governed by these Terms and Conditions as well as our Billing Terms which form part of these Terms and Conditions.
27. We may offer promotional offers and special discounts from time to time which will be subject to separate terms and conditions to be read in conjunction with these Terms and Conditions.
28. You represent and warrant that you are at least 18 years old and will be responsible for the information provided when creating a Subscription. This Program is not designed or recommended for anyone under 18 years old. If you are accessing and using the Program or any of the Programs services or products on behalf of a party who is not at least 18 years of age then you are representing that you are that party's legal guardian and you will indemnify us for any losses or damage suffered as a consequence of the party who is less than 18 years of age failing to comply with these Terms and Conditions.
29. Without limitation, the Program is available only to individuals with whom legally binding contracts can be formed under Australian law.
30. We have the right to refuse to deal with you, at any time, at our sole discretion, including the suspension or termination of your Subscription, if we believe that you may or will bring our reputation, those individuals who represent us in the marketplace, our other users, and/or Facebook Community members into disrepute or otherwise will interfere with other parties rights to have reasonable use of and access to the Program or to the contents and components of the Program or are in any way in breach of these Terms and Conditions.
31. You agree to provide accurate and truthful details about yourself for the purposes of your Subscription, for the Program and/or inclusion in the Forum and we reserve the right to suspend or terminate your Subscription if at any time we discover you have provided inaccurate, incomplete or misleading personal information.
32. Once you register on the Website/App, you will be given access to a "Clients only" email subscription and Facebook Community access.
33. Access to the information provided through email subscription and the Forum is for your sole use only.
34. Any password or right given to you to obtain access to the "Clients only" email subscription and the Facebook Community , and the contents or use of either the email subscription or Forum, is not transferable to any third party.
35. We reserve the right, in our sole discretion, to terminate your access to the "Clients only" email subscription or Facebook Community if, in our opinion, you have failed to comply with any of the provisions of these Terms and Conditions.
36. We reserve the right, at our sole discretion to terminate your access to the Facebook Community once you have cancelled your membership.
37. We may use third parties to assist us to provide our Services to you including payment processing and client registrations. These third parties may have access to certain personal information required to perform their function. They cannot use your information for any other purpose.
39. You acknowledge that Facebook Community membership provides for public communications.
40. To become a Facebook Community member you agree to provide truthful, accurate personal details about yourself as required on the signup page for Facebook.
41. You will use the Facebook Community only for positive and supportive purposes and not post or comment negatively or in terms that could or might be offensive to other users of the Facebook Community, either on the Facebook Community itself or otherwise, the Program, the Facebook Community and/or the individuals representing the Program and/or their employees.
42. You will not use the Facebook Community:
a. for any unlawful, disrespectful, harmful, threatening, abusive or otherwise objectionable purpose;
b. to incite others to conduct the activities described in subparagraph 8.4(a);
c. to interfere with the lawful and reasonable use of the Forum by others; and
d. to attempt to directly or indirectly, allow or facilitate a third party to enter the Forum through your Subscription.
43. You acknowledge that the moderators of the Facebook Community reserve the right to remove any messages in the Facebook Community that are inappropriate or that they reasonably believe may have a negative impact upon the Program and/or its reputation.
Renewal & Termination
44. Your Website Subscription will automatically renew for the same term of your initial Subscription unless you cancel your Subscription via the billing platform your Subscription was purchased on.
a. Website Cancellations
i. If the account was created on the Emily Skye Fit website (www.emilyskyefit.com), the Subscription can be canceled by going to the settings page on the Website, navigating to the Subscription section and selecting ‘Cancel Subscription’.
b. App Cancellations
i. If your Subscription was created as an In-App Purchase (via Apple App Store or Google Play Store) you must cancel your subscription via Apple Subscriptions or the Google Play Store.
45. You may cancel your Subscription by following the steps in clause 9.1. Please note a refund will not be issued when cancellation. At the end of your paid Subscription period, we can then deactivate any account in your name, your membership of the Website/App and archive any information about you, or your account, stored in our database as well as cease the provision of any information to you. Your information may be stored for up to 7 years from the date of purchase and/or Subscription at which point in time it will be deleted or destroyed. Please be aware that if your Subscription is for the 12 month plan paid in monthly installments (available through the Website only), upon cancellation, you will still be charged monthly until the completion of the 12 month term. You will only be able to cancel this Subscription when you are in the 11th month of the 12 month commitment period via the “Profile” section of the website.
46. We can terminate your Licence, Subscription and/or participation in the Facebook Community at our sole discretion if we believe you have breached any of the Terms and Conditions of the Licence and/or you have or are facilitating the unlawful activity of a third party in respect of the Program and further, we are at liberty to take any other action necessary to enforce these Terms and Conditions.
47. In purchasing any product or Service from the Website/App ("the Purchase") you agree to:
a. pay using a valid credit card (or other form of payment as we may allow);
b. provide us with current and complete information as detailed in the purchase order form including full legal name, email address, credit card details and billing information as required and without limiting any of our rights and remedies if we discover or believe that any information provided by you is inaccurate or incomplete, we reserve the right to refuse to continue with your Purchase, or put on hold or terminate your access to the website, the Program or any of the services or products provided by us at any stage at our sole discretion and you forfeit any right to a refund of any payment made by you for the Purchase; and
c. pay all costs, fees, charges, applicable taxes and other charges as may be incurred in respect of the Purchase (“the costs”)
48. All costs are in US Dollars unless otherwise indicated.
49. You acknowledge and agree that prices will vary depending on the type of Subscription as well as the region you are located.
Risk and Limitation of Liability
50. You will receive access to the Program upon payment from you.
51. We provide no estimate as to time of delivery and you agree that time is not the essence with respect to delivery.
52. Where we provide access to the online Program, and you claim that you have not received such access, then you must cost us via email@example.com within 7 days of the date by which you purchased the Program for us to investigate your claim.
53. To the extent 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/s, those of other users of the Website 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.
Warranty / Refund
54. Subject to the rights granted to you by statutory consumer protection legislation, which cannot be excluded, due to the nature of the Program and/or the products and services offered by the Website/App, and as we make no representations to you in respect of your use of the Program and/or the products or Services offered by the Website/App, we provide no warranty as to any results or outcomes associated with using the Program, nor in respect of any use of the products or services offered by the Website.
55. You expressly acknowledge that your use of the Website and/or App and its products and/or services is at your sole risk.
56. We do not offer refunds or credits for unused subscription periods, accidental purchases, medical conditions, or any similar reason or event, unless required by law to do so.
58. We are not a medical organisation and we do not and cannot give or purport to give you any medical advice or assistance in whatever form. Nothing in the Program or anything associated with it should be taken or understood as medical advice or assistance nor should it be interpreted in substitution for any medical advice or assistance or used or referred to instead of seeking appropriate medical advice or assistance from qualified practitioners for your particular circumstances and needs. You are solely responsible for evaluating and assessing your own health and wellbeing and whether, in all the circumstances, you should access and use the Website/App and/or participate in the Program and/or its products and Services. We encourage you to seek appropriate medical advice or assistance before embarking on any use of the Website/App, the Program and/or its products or Services.
59. You agree that neither we, nor any of our affiliates, service providers and/or suppliers, warrant or make any representation about the contents, products, services or offers referred to in the Program, and specifically do not make any representation about the risks, results, reasonableness, or accuracy or otherwise of such contents, products, services or offers and your use of the Website/App or its products and services, is at your sole risk.
60. Persons with pre-existing medical conditions, in poor health, or with any concerns as to commencement of a new fitness program should consult with an appropriate healthcare professional before beginning any of the Programs.
61. You are responsible for making your own inquiries and seeking independent advice from an appropriately qualified healthcare professional before acting on any information or material made available to you through the Website. The information on the Website may not be suitable to your particular circumstances and is not a substitute for obtaining specific advice from a qualified health care professional.
62. You should first consult an appropriately qualified healthcare professional before following any exercise programs or using any of the information on the Website, particularly if you (or your family) have a history of high blood pressure or heart disease or if you have experienced chest pain when exercising or chest pain in the past month when not engaged in physical activity, are pregnant, breastfeeding, have an ongoing physical condition, are suffering from cancer or other long term illness, are living with liver disease, kidney disease, or renal failure, have diabetes, blood pressure or cholesterol issues, are obese, smoke, have high cholesterol, have a bone or joint problem that could be made worse from physical activity, or are recovering from or recently recovered from illness and/or injury.
Limitation of Liability
63. Subject to the rights granted to you by statutory consumer protection legislation, which cannot be excluded, in no event shall we be liable to you for any injury, or incidental, undue damages, whatsoever including damages for loss of income, data, or personal injury or consequential damages (or any loss of revenue, loss of data, loss of profits or loss of opportunity whether the losses be direct or indirect) 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, except to the extent such limitation or exclusion of liability is not permitted by law.
64. 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.
Our rights to modify services
65. You acknowledge that we are entitled at any time, to change, modify, vary, delete or otherwise deal with the Website/App and/or the Terms and Conditions, as we see fit.
66. We will give you notice of any changes, for instance by:
a. publishing them on our website or
b. writing to the address (post or email) you last gave us
67. The most up to date terms and conditions always apply.
68. You agree that we may transfer, assign, license or deal with our interest in the Program, Facebook Community, copyright or any other published material to any Affiliate or to any third party who shall, in any event, be bound to meet the obligation of any agreement you have with us for services we provide to you for payment. We will give you notice of any change or dealing within 28 days in the manner provided by clause 16.2.
69. These Terms and Conditions are governed by the laws of New South Wales, Australia and you agree to the non-exclusive jurisdiction of the Courts of that jurisdiction and any appeals from those Courts.
70. You agree to indemnify us to the full extent needed from any and all third party claims, liabilities, costs, expenses including solicitor/client costs on an indemnity basis, that we may incur or suffer as a result of your improper or illegal use of the Website/App and/or from your breach of any of the Terms and Conditions and/or any facilitation or support by you of a third party causing any loss or damage to us.
71. You are liable for all content posted by you on the Facebook Community
72. You are required to exercise due care to conform to any Australian laws relating to publication, broadcasting, media controls, advertising standards and social media legal considerations, as they may arise or be applied to you in respect of any content you post on the Forum or in relation to the Program or that by your actions of conduct.
73. You agree to indemnify us for any claims, losses, liabilities, costs or expenses ("losses") incurred by us you may cause, or contribute to such losses.
74. Entire agreement These Terms and Conditions form the entire agreement between us and you in relation to the Program and your use of it.
75. Waiver Any failure or delay on our part to exercise a power or right we have under these Terms and Conditions (unless in writing to you) does not amount to a waiver of that power or right and will not preclude our entitlement to exercise that power or right at a later date.
Information provided on Website
All information provided by us on the Website/App is provided in good faith. We derive our information from sources which we believe to be accurate and up to date as at the date of publication. We may update any information at any time but you acknowledge that the information on the Website may not be the most current knowledge. In addition, 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 (unless expressly stated) we make no guarantees of any specific result from use of this Website or the information service provided through it. 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 available on the Website.
Pregnancy & Post-Pregnancy Program Appendage
76. In addition to the above terms and conditions (as applicable), these provisions apply when you participate in the Pregnancy and/or Post-Pregnancy Programs. If you do not agree to these provisions, you must not participate in the Pregnancy and/or Post-Pregnancy Program.
77. When participating in or receiving any of the services that form part of our Pregnancy and/or Post-Pregnancy Program, you acknowledge and agree to the following:
a. we assume that you are in good physical and mental health and your pregnancy and/or post-pregnancy and health is without risk factors or complications;
b. you must complete a medical registration form prior to attending any group, one on one or virtual group sessions;
c. if any medical conditions arise whilst you are participating in or receiving any of the services that form part of our Pregnancy and/or Post-Pregnancy Program, you will cease participating in and receiving the services and let us know immediately;
d. you are participating in the Pregnancy and/or Post-Pregnancy Program entirely at your own risk, and acknowledge that if you make any modifications to the Pregnancy and/or Post-Pregnancy Program while participating in the Pregnancy and/or Post-Pregnancy Program, or if you undertake, while pregnant, any program or workout not recommended by us, you also do so entirely at your own risk. In addition, you understand that, in participating in the Pregnancy and/or Post-Pregnancy Program postnatal, there is (amongst other health risks), a risk of organ prolapse, back pain, bladder leakage, poor C-section scar healing, and the rate of reduction of diastasis recti (abdomen separation post-birth). You acknowledge that these matters can all be affected by the pace, frequency, and nature of exercise that you engage in post-pregnancy;
e. you need to use caution and seek professional health advice if you are at all unsure about your health or fitness at any time during the Pregnancy and/or Post-Pregnancy Program;
f. you have obtained and relied on the medical clearance of your doctor, physician, obstetrician, or another medical professional in determining to participate (and once commenced, to continue participating in) the Pregnancy and/or Post-Pregnancy Program;
g. we are not aware of and cannot determine your individual suitability for the Pregnancy and/or Post-Pregnancy Program. To the maximum extent permitted by law, you indemnify and hold us harmless against all claims, demands, lawsuits, actions, proceedings, investigations, liabilities, damages, losses, costs or expenses including reasonable attorneys fees, in any way arising out of, in relation to or in connection with directly or indirectly:
i. your participation in the Pregnancy and/or Post-Pregnancy Program; or
ii. your breach of any of the provisions of the Pregnancy and/or Post-Pregnancy Appendage;
h. any information provided by you in connection with the Pregnancy and/or Post-Pregnancy Program is true, and you further acknowledge that we have relied on this representation in assuming that you can participate safely in the Pregnancy and/or Post-Pregnancy Program;
i. you know that you need to stop exercising and seek medical advice if at any time during or after having undertaken any exercise as part of the Pregnancy and/or Post-Pregnancy Program, you feel unwell or experience any of the following symptoms (including without limitation any symptoms that your doctor, physician, obstetrician or other medical professional advised you of prior to engaging in the Pregnancy and/or Post-Pregnancy Program, or at any time thereafter):
iii. Pain, including without limitation, chest pain, abdominal pain, or pelvic pain
iv. Vaginal bleeding
v. Are short of breath
vi. Have a headache
vii. Muscle weakness
viii. Experience difficulty walking or standing
x. Painful heat in the lower legs
xi. Burning or difficulty urinating
xii. Painful breasts
xiii. Experience dizziness
xiv. Feel faint or light-headed
xv. Calf pain or swelling
xvi. Notice an irregular or rapid heartbeat
xvii. Reduced movement by the baby
xviii. Fluid leaking from the vagina
j. you give us permission to contact at our discretion your emergency contact/medical practitioner/midwife/therapist should the need arise.
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