Fernwood Fitness Website Terms and Conditions (Terms)
- access and use the Fernwood Fitness website (www.fernwoodfitness.com.au) and subdomains (including 12weekchallenge.fernwoodfitness.com.au, kickstart.fernwoodfitness.com.au, militarymiss.fernwoodfitness.com.au, summersculpt.fernwoodfitness.com.au, 28daybreakthru.fernwoodfitness.com.au) and other domains related to Fernwood's online programs) (Website) including using the services and functionality made available through the Website;
- communicate with Fernwood Fitness;
- review information about our products and services, register for our online programs, join a Fernwood Fitness gym or both through the Website;
- view and interact with any content, information, communications, advice, text or other material provided by Fernwood Fitness (Fernwood Fitness Content) or any User Content (defined in clause 11.1); and
- upload User Content to the Website and communicate with Fernwood Fitness.
- conduct transactions through this Website, such as registering for our online programs, joining a Fernwood Fitness gym or both; or
- use, browse or access any part of the Website, including parts which can only be accessed by logging into your Account (as defined in clause 2.1(d)).
1.3 Fernwood Fitness may from time to time review and update these Terms including to take account of new laws, regulations, products or technology. Your use of the Website will be governed by the most recent Terms posted on the Website. By continuing to use the Website, you agree to be bound by the most recent Terms. It is your responsibility to check the Website regularly for updated versions of the Terms. If you access this Website by logging into your Account, we will notify you of the updated Terms the next time you log in.
1.4 Each time you purchase a Fernwood Fitness online program or register to access our additional content you will be asked to read and accept these Terms before completing the purchase.
Registering an account
- access our online programs;
- join a Fernwood Fitness gym;
- interact with some parts of the Website, with us and with other registered users, including to upload User Content (as defined in clause 11); or
- access other particular areas of the Website (Account).
2.2 When registering your Account to access our online programs, you may be asked to provide your personal details, or connect your Account with your existing Fernwood Fitness Account, or your Facebook, Twitter or Google accounts. You will also be asked to provide your gender, date of birth, height and weight. This information will assist us in providing the services associated with our online programs to you.
2.3 You warrant that all information and data provided by you in the registration is accurate, complete and up to date. You will promptly inform us if there is any change to this information or data.
2.4 By registering an Account, you warrant to us that you are at least 18 years of age and possess the legal authority to enter into, and use the Website in accordance with, these Terms. You agree to be financially responsible for all of your use of the Website (as well as for use of your Account by others, including without limitation minors (under 18 years old) living with you or in your care).
3.1 You agree that you will not disclose, or permit disclosure of, the Account password selected by you when registering your Account on the Website (Password) to any person. You will be fully responsible for all acts and omissions of any person who enters into a transaction using your Password, as if they were your own acts and omissions. Fernwood Fitness will not in any event be liable for any loss, damage, claims, costs or expenses arising out of the use or misuse of the Password, and you will indemnify Fernwood Fitness against all loss, damage, claims, costs or demands in this regard.
3.2 You may elect to change the Password at any time using the facility provided on the Website. You must immediately notify Fernwood Fitness of any Password which is lost, inoperable or used in an unauthorised manner.
Making a Registration Request through the Website
4.1 By entering your payment details on the Website when registering for an online program or joining a Fernwood Fitness gym you are making an offer and commitment to purchase these products or services in accordance with these Terms (Registration Request). A Registration Request is subject to acceptance or rejection by Fernwood Fitness in its discretion after receipt of the Registration Request. Where possible, Fernwood Fitness may in its discretion permit a Registration Request to be cancelled, but cancellations cannot be guaranteed once any applicable payment is received for the Registration Request.
4.2 Notwithstanding anything to the contrary, we may at any time following receipt of your Registration Request accept, decline, or limit your Registration Request for any reason whatsoever, whether or not your credit card has been charged or we have otherwise received payment from you. We will issue you with a refund if your credit card has been charged or we have received payment from you, and your Registration Request is cancelled by us.
4.3 When Fernwood Fitness accepts your Registration Request, you will have entered into a legally binding contract with Fernwood Fitness, the terms of which will be set out in your membership agreement (Membership Agreement) in the case of a gym membership. When this happens, these Terms will be subject to the terms of your Membership Agreement which will prevail over these terms in relation to all matters involving your membership with a gym.
4.4 Fernwood Fitness does not accept Registration Requests via the Website originating from outside Australia.
5.1 All currency references and transactions are processed in Australian Dollars.
5.2 Prices are inclusive of goods and services tax. In all other respects prices are exclusive of taxes, duties and charges imposed or levied in Australia in connection with the supply of goods or services.
- online through the Website if you elect to make your payment using this method (Online Payment);
- in person if you elect to make your payment in person at one of our gyms (Gym Payment).
6.2 All of our fees and charges include GST unless otherwise specified.
6.3 We accept Online and Gym Payments using VISA and MasterCard credit cards or direct debit. You may also make Gym Payments in cash.
6.4 We only accept credit cards issued in Australia. The credit card holder must be the billing recipient.
6.5 If you choose to pay by credit card, you authorise us to debit the amount that is payable for an accepted Registration Request from your nominated credit card account.
6.6 If we are unable to successfully process your credit card for your Registration Request that is accepted by us, then we may cancel your Registration Request.
6.7 You must not pay, or attempt to pay, for Registration Requests through any fraudulent or unlawful means.
Using our services
You understand that the availability of our various services and online programs on the Website and in our gyms may change from time to time. Pricing and program format may change and is at the discretion of each club.
Changes to the Website
The Website is subject to change at any time without notice and may contain errors.
9.1 When you use the Website, you may upload pictures, photographs, graphics, information, comment, content, communication, text or other material to the Website (User Content).
- may be accessed and viewed by the public; and
- can be used by us in accordance with the licence terms set out in clause 11.4 including to promote the Website.
9.3 You agree to be solely responsible for any User Content that you upload to the Website. You warrant and represent that any User Content you upload to the Website will not violate these Terms.
9.4 You retain all intellectual property rights in the User Content you upload to the Website. By uploading the User Content, you grant us a perpetual, non-exclusive, royalty free, irrevocable, transferable and worldwide licence (including the right to sub-license) to use, adapt, copy, communicate, reproduce, modify, display, exploit, publish, re-distribute, broadcast, transmit, create derivative works from and incorporate in other works, at any time in the future in any form and for any purpose (including but not limited to promotion or advertising use in the future).
9.5 You consent to your User Content being altered, edited or adapted by us for any reason including to ensure your User Content does not infringe these Terms. To the extent that you have any moral rights (pursuant to the Copyright Act 1968 (Cth)) in the User Content, by agreeing to these Terms, you provide an irrevocable and unconditional consent in favour of us, our successors, assignees, licensees and any other person authorised by any of them to use, modify or deal with your User Content (whether or not currently in existence) to:
- perform, exhibit, reproduce, adapt and communicate any part of your User Content in any medium and anywhere in the world without attributing you or any other person as an author of or contributor to that User Content;
- do any act or omission that would constitute a derogatory treatment of your User Content;
- make any use of your User Content that may falsely attribute authorship of the User Content to another person;
- delete or adapt or change any of your User Content in any way, including by addition to or subtraction from your User Content; or
- combine or juxtapose your User Content with anything else.
9.6 Where the User Content uploaded by you to the Website contains material from third parties, you warrant that you have obtained the moral rights consents described in clause 11.5 from such third parties.
9.7 You are not permitted to advertise or promote your products or services, or the products of services of others, in any part of the User Content that you upload to the Website, without our written consent.
9.8 We may access or examine any User Content and at our discretion monitor, move, remove, block, modify, edit, refuse to upload or disable access to User Content which we consider, in our sole discretion, to breach any law or these Terms or to be otherwise unacceptable.
- have no responsibility or liability for the deletion or failure to store any User Content uploaded by you or any other user on the Website; and
- are not responsible for any User Content uploaded to the Website by you or any user nor under any obligation to monitor, move, remove, block, modify, edit, refuse to upload or disable access to it.
- you own the User Content or have the necessary licences, rights, consents and permissions to publish the User Content you upload on the Website;
- you have the right and power to grant the licence contained in clause 11.4 to us;
- the User Content uploaded by you will not infringe the intellectual property rights of any third party; and
- you will not upload User Content that will cause you to breach these Terms, in particular clause 13.
9.11 You understand that we do not guarantee any confidentiality with respect to any User Content you upload to the Website. You are able to personalise and change the privacy settings of your Account to limit who can view or access the User Content you upload on the Website.
9.12 You acknowledge and agree that we are under no obligation to take legal action in relation to commencing, defending, enforcing, settling or compromising (as appropriate) any infringement, claim or action relating to your intellectual property rights in User Content or Fernwood Fitness Content.
Fernwood Fitness Content
10.1 The Website is owned and operated by or on behalf of Fernwood Fitness.
10.2 The Fernwood Fitness Content on the Website is for general information and promotional purposes only. Fernwood Fitness does not warrant or make any representations as to any third party products or services described or referred to on the Website. Any use of the Fernwood Fitness Content by another person or organisation is at your own risk.
10.3 The Fernwood Fitness Content on the Website is obtained and developed from a variety of sources including but not limited to collaborations with third parties and information provided by third parties under licence. Inclusion of Fernwood Fitness Content on the Website is not an endorsement of any organisation, product, service or advice.
10.4 All intellectual property rights, including copyright, in the Website and Fernwood Fitness Content are owned or licensed by Fernwood Fitness or any of its related entities. You must not copy, modify or transmit any part of the Website or Fernwood Fitness Content.
10.5 The Website contains trade marks, logos and trade names of Fernwood Fitness or third parties which may be registered or otherwise protected by law. You are not permitted to use any trade marks, logos or trade names appearing on the Website.
10.6 Fernwood Fitness grants you a non-exclusive and non-transferable licence to use the Website for your own personal use, subject to the restrictions specified in clause 13 and elsewhere in these Terms. It is not to be otherwise used for commercial exploitation.
10.7 If you have a complaint regarding any Fernwood Fitness Content and User Content, Fernwood Fitness's sole obligation will be to review any written complaint notified to it and, if it sees fit, in its sole discretion, to modify or remove the particular Fernwood Fitness Content or User Content.
No provision of medical advice
11.1 Although you don't need a high level of fitness to participate in the online programs or attend our gyms, to make the most of your time with us you should first seek medical advice prior to commencing any physical activity to understand your current health and to be aware of any restrictions you might have. You should also seek medical advice if there are any unplanned changes in your health during your involvement with Fernwood Fitness.
11.2 If you are pregnant, have an ongoing physical condition, suffering from long term illnesses such as cancer, renal failure or liver or kidney disease, have an eating disorder, diabetes, blood pressure or cholesterol issues, recovering from or recently recovered from illness or injury, elderly or have a very low or very high body mass index, please seek professional medical advice prior to commencing an online program or attending one of our gyms.
11.3 The Website, Fernwood Fitness Content and services made available through the Website offer health, fitness and nutritional information, but are designed for educational purposes only. This information is not a substitute or replacement for professional medical advice, diagnosis or treatment, and you should not rely on this information as such. You should always consult a health-care professional if you have any concerns or questions about your health, and you should consider whether the information is suitable for your personal needs and circumstances. You should not disregard, avoid or delay obtaining medical or health-related advice from your health-care professional because of something you may have read on the Website.
11.4 The nutritional information available on the Website may be obtained or compiled from various third party sources including the Calorie King Australia database and is not a substitute or replacement for professional medical advice. Fernwood Fitness, Calorie King or any other provider of information does not warrant that the information is accurate.
11.5 Nothing contained in the Website, Fernwood Fitness Content or services made available through the Website is intended to be, and must not be taken to be, the practice of medical or counselling care.
11.6 Whilst advancements and developments in medical research may affect the health, fitness and nutritional information contained in the Website, Fernwood Fitness Content or services made available through the Website, we do not guarantee that such information will always include the latest or most recent findings or developments.
11.7 Food manufacturers constantly change their products, and you should refer to their current nutritional information for more reliable nutritional information. You should not use the information on the Website for any medical purposes, such as matching insulin dosage to carbohydrate intake. Please independently check food labels or contact the food manufacturer for the latest nutritional information.
11.8 Your access or use of the Website, Fernwood Fitness Content or services made available through the Website does not in any way create between you and Fernwood Fitness, a confidential or privileged relationship, a relationship of practitioner and patient, or any other relationship that would give rise to any duties on our part.
11.9 Our online programs do not include any supervision or monitoring of your activity, and Fernwood Fitness is not responsible for any injuries or damage that you may suffer as a result of following the program. You participate in the online programs voluntarily and solely at your own risk.
11.10 Any reliance or use of any information provided by or contained in the Website, Fernwood Fitness Content or services made available through the Website is solely at your own risk.
11.11 Experiences shared by members and participants in Fernwood programs as testimonials on the Website are the thoughts and feelings of these individuals and your individual experiences or results may vary depending on unique circumstances.
You agree that in accessing and using the Website, you will not engage or attempt to engage in any activities that:
- download (other than page caching) or modify the Website or any portion of the Website;
- impersonate or falsely claim to represent a person or organisation;
- are commercial, including selling, marketing, advertising or promoting goods or services;
- frame the Website without Fernwood Fitness's express written permission;
- bypass (or attempt to bypass) any security mechanisms imposed by the Website;
- post, link to, or otherwise communicate or distribute any inappropriate, profane, defamatory, infringing, obscene, threatening, discriminatory, harassing, abusive, offensive, racially or sexually vilifying, indecent or unlawful material or information of any kind, or otherwise use the Website in a manner which is unlawful or would infringe the rights of another person including any intellectual property rights;
- exploits the Website for your own commercial or unlawful purposes or the commercial or unlawful purposes of any other person (including the posting of advertisements, solicitors, promotional materials, spam or any other materials that are contrary to our commercial or lawful interests);
- provides access or links to any material (including links to peer to peer network trackers/beacons) which may infringe the intellectual property rights of another person;
- deletes or alters or attempts to delete or alter attributions, legal notices, trademarks or copyright marks on any material contained in the Website
- knowingly posts or transmits or permits the posting or transmission of any material, which contains a computer virus or other harmful data, code or material; or
- post, link to, or otherwise communicate or distribute any material or information that we deem inappropriate.
Links and advertisements
13.1 The Website may contain links to other websites. We have not reviewed all of the third party websites linked on the Website and are not responsible for and will not be liable in respect of their content or accuracy (including websites linked through advertisements). Fernwood Fitness provides those links as a ready reference for searching for third party goods and services on the internet and not as an endorsement, support or sponsorship of those web sites, their operators, the goods, services or content that they describe.
Access and communication
14.1 Subject to the consumer guarantees provided for in the ACL (as defined in clause 19.2), Fernwood Fitness does not warrant that you will have continuous access to the Website.
14.2 Fernwood Fitness will not be liable if the Website is unavailable to you due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities, interruption in telecommunications supply or otherwise.
14.3 Fernwood Fitness does not guarantee the delivery or security of communications over the internet as such communications rely on third party service providers, and electronic communication (including electronic mail) is vulnerable to interception by third parties.
14.4 Whilst Fernwood Fitness takes reasonable precautions to protect information transmitted via the Website, Fernwood Fitness cannot and does not guarantee the security or confidentiality of these communications or the security of the Website.
14.5 Fernwood Fitness does not provide, and has no control over, communications, networks or services, the internet or other technology required or used across the Website and accepts no responsibility for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
You will fully indemnify Fernwood Fitness in respect of all loss, damage, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands and proceedings howsoever arising, whether at common law (including negligence) or under statute, in connection with any of the following:
- any breach of these Terms by you;
- your use of the Website; or
- User Content you post on the Website;
- your communications with Fernwood Fitness.
Warranties, consumer guarantees and limitation of liability
17.1 Subject to clause 19.2, any representation, warranty, condition, guarantee or undertaking that would be implied in these Terms by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
17.2 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) or any other applicable law that cannot be excluded, restricted or modified by agreement.
17.3 Except as required by the ACL, the liability of Fernwood Fitness for a breach of a non-excludable guarantee referred to in clause 19.2 is limited, at Fernwood Fitness's option, to:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
17.4 Subject to your rights under the ACL, Fernwood Fitness will not be liable to you for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breach of contract, tort (including negligence), statute or otherwise) arising in connection with the Website, the Fernwood Fitness Content, all links to or from the Website or the goods and services advertised or referred to on the Website.
17.5 Subject to this clause 19 and your rights under the ACL, the maximum aggregate liability of Fernwood Fitness for all proven losses, damages and claims arising out of or in connection with these Terms or a supply under these Terms, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of $100.
Termination of your access to the Website
Fernwood Fitness may at any time immediately suspend or terminate your access (including restricting access) to the Website or any feature of the Website for any reason (including due to your breach or alleged breach of these Terms) in its sole discretion and without prior notice and without refund. Any indemnities given by you and any limitations of our liability survive such termination.
Jurisdiction and law
These Terms are governed by and must be construed in accordance with the laws of the State of Victoria, Australia. You submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, their performance and subject matter.
20.1 We make no representation or warranty that any competition, offering or content accessible through the Website is appropriate or available for use in locations outside Australia. If you choose to access the Website from other locations, you do so at your own risk and are responsible for compliance with all applicable laws. You are not authorised to access the Website from any location where doing so would be illegal.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
Last updated: 10 June 2014