By visiting or using this Site, including use of services offered on this Site, you are consenting to these Terms and Conditions. In using this Site, you agree to be bound by these Terms and Conditions. If you do not accept these Terms and Conditions, please discontinue using this Site. These Terms and Conditions must be read in conjunction with any other applicable Terms and Conditions governing the use of this Site.
‘ACL’ means the Australian Consumer Law Schedule of the Competition and Consumer Act;
‘Consumer’ is as defined by the ACL;
‘GST’ means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
‘I’, ‘Me’, ‘My’, ‘Trainer’ or ‘Personal Trainer’ means Lisa Newman-Morris, ABN 91 492 848 848, of PO Box 344 Patterson Lakes 3197;
‘Member Information’ means the personal details you provide via the Site as part of the Membership registration process to enable me to provide the Services.
‘Membership’ means a recurring monthly subscription the Consumer enters in to on the Site;
‘Online Content’ means the consumer exercise and / or nutrition content, blog posts, ability to post comments, access various commentaries and writing, access other user generated content, including text, photographs, images, graphics, videos and audio content offered and administered by YouCan Fitness via the Site;
‘Program’ means the exercise program I will provide You as a client;
‘Services’ means the services provided by YouCan Fitness on the Site;
‘Session’ or Sessions’ refers to coaching or training sessions delivered by me to you in person;
‘Site’ means the website YouCan Fitness;
‘Site Terms’ means these terms and conditions;
‘You’, ‘Your’ or ‘User’ means site visitors, customers, clients and any other users of the site, whether jointly or severally if more than one, using the site or using the Services offered on the Site by YouCan Fitness;
‘YouCan Fitness’ or ‘The Business’ means the business registered in Victoria, Australia as YouCan Fitness;
APPLICATION OF SITE TERMS
1. This Site is owned and operated by YouCan Fitness.
2. Through this Site:
2.1 you can purchase a Membership;
2.2 you can access the Online Content, subject to being eligible.
2.3 you may be able to from time to time, post reviews and/or comments regarding the features of this Site (Member Submissions).
3. YouCan Fitness may amend these Site Terms from time to time without notice. Any amendment will be effective immediately upon being posted on this Site. Your continued use of this Site after any amendment becomes effective will constitute your agreement to be bound by these Site Terms, as amended.
4. YouCan Fitness reserves the right to vary or modify the information contained on this Site, to change or discontinue any feature or part of this Site, to change the hours of availability and the equipment required to obtain access to this Site, without notice and without liability.
MEMBERSHIP AND PAYMENT TERMS
5. A Membership is a recurring monthly subscription.
6. The first monthly payment is made immediately upon activating the Membership through the Site. For subsequent months, payments will be automatically debited on the same day each month or thereabouts.
7. All monthly Membership fees for Services are paid in advance.
8. Interest may be charged on any overdue payment, accruing daily from the date when payment becomes due, until the date of payment, at a rate of 8% per annum (and such interest may compound monthly) after as well as before any judgment.
9. The recurring payment is not a contract. You can cancel the recurring payment by cancelling before the date when your next payment is due.
10. If you fall into arrears with your payments, the services may be suspended until all fees have been paid.
11. If any payment is dishonoured for any reason you may be liable for any dishonour fees incurred by me, as well as any costs and disbursements incurred by me in pursuing the debt (including legal costs and debt collection costs). Services may also be terminated or suspended until outstanding fees have been finalised.
12. I reserve the right to refuse any Client or any Membership application without ascribing any reason therefore.
13. Membership is non-transferable.
14. YouCan Fitness may terminate your membership at any time by notice to you.
PRICING AND PAYMENT FOR THE MEMBERSHIP
15. You agree to pay for the Membership in the manner specified in these Terms and on the Site.
16. Prices displayed for the supply of the Membership include GST, and any other taxes or duties imposed on or in relation to the Membership.
17. Payment for the Membership must be made via one of the payment options offered via the Site, immediately prior to confirmation of your order. You will not be able to access the Program until full payment is received.
DELIVERY OF PROGRAM
18. YouCan Fitness will make the Program available to you via a cloud storage program or via access from the Site, within 5 business days of activating your Membership.
19. Any period or date for the access of the Program stated by YouCan Fitness is an estimate only and not a contractual commitment.
20. YouCan Fitness will use its reasonable endeavours to meet any estimated dates for access to the Program but will not be liable for any loss or damage suffered by you or any third party for failure to meet any estimated date.
21. You must advise YouCan Fitness in writing within 72 hours after having been advised that the Program is available for access:
21.1 of the inability of the Program to be accessed;
21.2 if there is damage to the Program; or
21.3 that the wrong Program has been received.
USE OF PROGRAM
22. You acknowledge and agree that the Program is protected by copyright or other intellectual property rights and laws and remain the property of YouCan Fitness or third party suppliers as the case may be.
23. Other than as required to use the Program for your personal enjoyment and improvement, you may not and may not authorise any third person to:
23.1 copy, distribute, transmit, transfer, communicate, disseminate, display, perform, reproduce, publish, license, transfer, or sell the Program;
23.2 modify or make any alterations, additions or amendments to any part of the Program;
23.3 create derivative works from, any content, information, software, Program;
23.4 convert the Program into an electronic format other than the one in which it was supplied;
23.5 reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Program or reproduce all or any portion of the said components;
23.6 remove, alter, circumvent or tamper with any trade marks, copyright notices, copyright protection devices, disclaimers or other legal notices.
24. Regardless of whether the Program includes security technology that limits your use of the Program, you must comply with these provisions or you may infringe copyright.
CANCELLATIONS AND REFUNDS
25. If YouCan Fitness is unable to deliver or provide the Program, then it may cancel your order (even if it has been accepted) by notice to you. In such circumstances, YouCan Fitness will refund to you the purchase price.
26. You are legally entitled to a refund (or replacement, exchange or credit note) in limited circumstances. Please retain your online payment confirmation or statement of payment as proof of purchase for these situations.
27. You may terminate your membership by written notice to YouCan Fitness or by cancelling before the date when your next payment is due.
28. Refunds are not available for unused fees, unused Programs or unused Sessions or if you simply change your mind.
29. I offer a money back guarantee if you are not satisfied with the Services received as part of your Membership or find the Services inappropriate for the location or equipment you have indicated in your Member Information.
30. If you wish to apply for a refund you must make your request within 72 hours of receiving your Program or using your Sessions. Before a refund is issued, I will offer you a Program review, a new Program or a replacement Session.
31. If your refund request is granted, the amount of the refund that will be granted to you will be limited to the amount which has been paid by you for the current month of Membership, provided it has been paid in full.
32. YouCan Fitness reserves the right to decline any request for a refund for any reason other than what is required by law.
33. The Program is my recommendation to fulfill your goals and objectives according to the Member Information provided to me, by you, throughout the registration process or via any other means of communication you use to engage my services.
34. I will ask you to tell me your goals and objectives before commencing any Program. Throughout the course of the Program, other goals and objectives may be identified. I will provide the Program in line with these goals and objectives and the content of the Program may be adjusted as required to meet your needs as I see them.
35. The extent of the Program and its content will depend on your individual needs, which I will assess and we will agree to mutually before and during the Program.
36. I may suggest you view a variety of offline or online resources during the Program. It is your responsibility to make a note of those resources and access these at the most appropriate time to meet the needs of the Program.
37. I do not guarantee the success or otherwise of your goals or objectives as a result of your participation in the program.
38. I am not qualified to provide medical advice, and any information provided to you regarding medical considerations is not intended as such. You should refer any and all medical concerns to appropriately qualified professionals.
39. Prior to being able to purchase a Membership, you will be required to submit certain personal information (Member Information) which will allow YouCan Fitness to provide the Services to you. If you do not wish to provide the required Member Information, YouCan Fitness may be unable to provide you with the Service.
40. Membership is only available to persons over the age of 15 years. If you are 15 years or older but under the age of 18 years, a parent or guardian must complete the Member Information on your behalf.
41. You may be prompted to register for access to this Site and to submit certain information in order to fully utilise the Online Content.
42. Upon becoming a member, you may be asked to create a login and password. You are responsible for maintaining the confidentiality and security of your login and password details. You are responsible for any and all activities on this Site which occur under your login and password.
43. You are responsible for the content of all Member Information entered on this Site. All Member Information you enter must be accurate, complete and not misleading. You are responsible for maintaining and updating your Member Information.
44. You must indemnify YouCan Fitness for any losses, costs, expenses or damages that YouCan Fitness may suffer or incur if any if the Member Information provided by you is not correct.
SECURITY OF INFORMATION
46. Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any Member Information which you transmit to us. Accordingly, any Member Information which you transmit to us is transmitted at your own risk.
47. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such Member Information. You agree that you will not share your password, let anyone else access your account, or do anything that might put the security of your account at risk.
48. We reserve the right to remove your username or similar identifier in respect of your account if appropriate. You acknowledge sole responsibility for and assume all risk arising from your use of this Site.
49. You consent to use of your name, image, business name and logo, and any testimonial provided by you for the ongoing promotion of my services.
LINKS TO OTHER SITES
50. You may be able, through hypertext or other computer links, to gain access to other sites operated either by YouCan Fitness, its affiliates or other third parties (Linked Sites) from time to time. Unless otherwise specified, the Linked Sites are not under YouCan Fitness’s control. The Linked Sites may have different terms and conditions and privacy requirements. Unless otherwise specified, YouCan Fitness is not responsible for the content of any Linked Sites, or any changes or updates to such sites. YouCan Fitness provides these links for your convenience only. You link to any such Linked Sites at your own risk. YouCan Fitness is not a party to any transaction between you and a Linked Site. Unless specified, YouCan Fitness does not sponsor, endorse, adopt, confirm, guarantee or approve of any material or representations made in those Linked Sites.
DISCLAIMER (USE OF THE SITE)
51. YouCan Fitness does not warrant, guarantee or make any representation regarding the accuracy, adequacy, reliability, completeness or timeliness of the information provided to you on the Site (Information) or that it is suitable for your intended use. The Information is provided by YouCan Fitness in good faith on an “as is” basis without warranty of any kind.
52. YouCan Fitness does not warrant or represent that the Information is free from human or mechanical error, technical inaccuracies or other typographical errors or defects. The use of this Site is at your own risk.
53. All warranties, representations and statutory guarantees and any liability which may arise in relation to your access to or use of this Site or the Information is expressly excluded to the maximum extent permitted by law.
54. YouCan Fitness makes no warranties, guarantees or representations that the use of the Site or the Information will not cause damage or that the material is free from any computer virus or other defects. It is your responsibility to complete a virus check on any Information accessed or downloaded.
55. YouCan Fitness recommends that you consult with a medical practitioner or other provider if you have concerns in relation to the Information.
56. The information is not intended to be a substitute for professional medical advice, diagnosis or treatment in any manner. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding any medical condition. Always consult a qualified medical professional before beginning any exercise program.
LIMITATION OF LIABILITY (USE OF THE SITE)
57. YouCan Fitness will in no way be liable to any party for any injury, loss or damage arising out of or related to the use (or the inability to use) the Information on this Site. Under no circumstances will YouCan Fitness be liable for any direct, indirect, incidental, special or consequential loss or damage, including loss of programs or data, loss of business, business interruption, or lost profits. If your use of this Site results in the need for servicing or replacing of equipment, YouCan Fitness will not be liable for those costs.
58. Where liability cannot be excluded, any liability incurred by YouCan Fitness is limited to the re-supply of the Information on the Site, or the reasonable costs of having the Information re-supplied.
THIRD PARTY MATERIAL
59. Certain Information may be provided to you which includes material from third parties.
60. You agree that YouCan Fitness is not responsible for examining or evaluating the content or accuracy of the third party material and YouCan Fitness does not warrant and, to the fullest extent permitted by law, will not have any liability or responsibility for any third party material.
61. You agree that you will not use any third party material in a manner that would infringe or violate the rights of any other party and that YouCan Fitness is not in any way responsible for any such use by you.
ACKNOWLEDGEMENT OF RISK, INJURIES AND OBLIGATIONS
62. You acknowledge and understand that whilst participating in or using any of the Information or Services offered on this site, including but not limited to the Program, the Sessions or the Online Content:
63.1 you may be injured, physically or mentally, or may die.
63.2 your personal property may be lost or damaged.
63.3 you may cause injury to other persons or damage their property.
64. You assume the risk of and responsibility for any injury, death or property damage resulting from your participation in the Program or the Services.
RELEASE AND INDEMNITY
65. You agree to release and indemnify me and YouCan Fitness as follows:
65.1 You participate in the Program and the Sessions at your sole risk and responsibility.
65.2 You release, indemnify and hold harmless YouCan Fitness and me, or my agents, from and against all and any actions or claims which may be made by you or on your behalf or by other parties for or in respect of or arising out of any injury, loss, damage or death caused to you or your property whether by negligence, breach of contract or in any way whatsoever. You also agree that in the event that you are injured or your property is damaged, you will bring no claim, legal or otherwise, against me or YouCan Fitness in respect of that injury or damage.
INTELLECTUAL PROPERTY (SITE)
66. © YouCan Fitness 2018. All rights reserved.
67. You acknowledge and agree that all content, coding, graphics, and Information available on this Site is protected by copyright, trade mark or other intellectual property rights and laws and remains the property of YouCan Fitness or third party suppliers as the case may be.
69. All trade marks and trade names which appear on this Site are proprietary to YouCan Fitness and/or its affiliates. Use of these trade marks without the owner’s consent will infringe the owner’s intellectual property rights. Nothing in this Site should be interpreted as granting any rights to use or distribute any names, logos or trade marks except with the express written consent of the respective owner.
70. The publication of YouCan Fitness’s email addresses, phone number and / or social media account details on this Site is to facilitate communications relating to the Services supplied by YouCan Fitness. It must not be inferred as consent by YouCan Fitness to receive unsolicited commercial electronic messages.
71. From time to time, you may be able to post reviews and/or comments regarding the features of this Site, your experience of your Membership or the content of the Program or Sessions (Member Submissions). You irrevocably grant to YouCan Fitness a non-exclusive, royalty free, perpetual right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such reviews and comments throughout the world in any media. You expressly waive in favour of YouCan Fitness all moral rights in any jurisdiction.
72. You agree not to post any review or comment that contains any unlawful, threatening, abusive, defamatory, obscene, or infringing material. If you do, you agree to indemnify YouCan Fitness for any losses, costs, expenses or damages that YouCan Fitness may suffer or incur as a result.
73. YouCan Fitness reserves the right, but not the obligation, to review, edit or delete any Member Submissions that YouCan Fitness deems to be illegal, offensive or otherwise inappropriate.
DISCLAIMER (USE OF ONLINE CONTENT)
74. YouCan Fitness does not warrant, guarantee or make any representation regarding the accuracy, adequacy, reliability, completeness or timeliness of Online Content or that it is suitable for your intended use. The use of the Online Content is at your own risk.
75. YouCan Fitness does not warrant or represent that the Online Content is free from human or mechanical error, technical inaccuracies or other typographical errors or defects.
76. The Online Content may include material from third party authors or suppliers.
77. You agree that YouCan Fitness is not responsible for examining or evaluating the content or accuracy of the third party material and YouCan Fitness does not warrant and, to the fullest extent permitted by law, will not have any liability or responsibility for any third party material.
78. YouCan Fitness, its authors or its suppliers may make changes to the Online Content at any time in their sole discretion without notice or liability.
79. YouCan Fitness reserves the right to suspend, remove, or disable access to the Online Content at any time without notice or liability.
TERMINATION OF ACCESS
80. Access to this Site may be terminated at any time by us without notice. Our disclaimer in clauses 16 through 20 inclusive will nevertheless survive any such termination.
81. You warrant that the information you have given is true and correct and acknowledge that any discrepancy shall be deemed to constitute a breach of these terms and shall entitle YouCan Fitness to terminate the Membership and take any action which may be necessary in order to protect its interest. You warrant that you are physically and mentally sound to proceed with a normal course of exercise.
82. By accessing and using this Site, you agree to submit to the exclusive jurisdiction of the Courts of Victoria. If you access this Site from other jurisdictions, you are additionally responsible for compliance with local laws.
83. YouCan Fitness’s failure to enforce any of these Site Terms shall not be construed as a waiver of any of YouCan Fitness’s rights.
84. If any term is unenforceable it shall be read down so as to be enforceable or, if it cannot be read down, the term shall be severed from the Site Terms without affecting the enforceability of the remaining terms.
85. A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.