Terms and Conditions
1.1 Amelia McKie ("us", "we" or “our”) conducts the business of providing access to Pilates classes to people of various skill levels.
1.2 You, our client (“you” or "your"), have engaged us, and may, in the future, wish to engage us from time to time to provide the Services to you.
In these terms and conditions the following words or phrases have the meanings given to them below (unless the context requires otherwise):
2.1 "Business Day" has the meaning given to that term in the Corporations Act 2001 (Cth);
2.2 “Commencement Date” means the date being the earlier of the date that you accept these Conditions, or, absent of this, from the date you are provided access to the Services which is provided on the basis that you have read, understood and have accepted the Conditions;
2.3 “Conditions” means these terms and conditions, as amended from time to time;
2.4 “Confidential Information” means information and material relating to a party which comes into the possession or knowledge of the other party, whether orally, in writing or electronically, directly or indirectly, including strategic, corporate, information about the financial and labour needs a party, and information relating to the business, clients, members, sales, know-how and operations of a party that is marked as “confidential”, the terms of these Conditions (and the negotiations leading to them), or information which the recipient knows or should reasonably know is confidential and includes, for the avoidance of doubt, any information or material that is provided or made available as part of the Services;
2.5 “Fees” means either:
(a) $39 each month; or
(b) $99 for every three months,
on and from the Commencement Date that are payable by you to us for the provision of the Services;
2.6 "GST" means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law, and the GST Law has the same meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2.7 “Insolvency Event” means in respect of a party:
(a) that party is unable to pay its debts as they fall due within the meaning of section 95A of the Corporations Act 2001 (Cth);
(b) an application for winding-up of the party is presented, which application is not dismissed within twenty (20) Business Days;
(c) the party convenes a meeting of creditors for the purpose of considering a resolution for its winding-up or for the making of an administration order;
(d) an order is made or an effective resolution is passed for winding-up the party
(e) an application for an order or application for the appointment of a receiver (including an administrative receiver or manager), administrator, liquidator, provisional liquidator, trustee or similar officer is made in respect of all or a material part of the assets of the party, which application is not dismissed within ten (10) Business Days;
(f) a receiver, administrative receiver, administrator, liquidator, provisional liquidator, or similar officer is appointed over all or any part of the assets or undertaking of the party and is not discharged with ten (10) Business Days of such appointment;
(g) the party enters into or proposes a voluntary arrangement or makes a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement (including any deed of company arrangement);
(h) the party goes into liquidation; or
(i) any other circumstance applicable to the party arises which is analogous to those set out in this definition in any jurisdiction throughout the world;
2.8 "Intellectual Property Rights" means all patents, trademarks, service marks, designs, utility models, copyright, database rights, semi-conductor topography rights, inventions, trade secrets and other confidential information, know-how, business names and all other intellectual property rights of a similar nature in any part of the world, whether registered, registerable or not and including all applications and the right to apply for any of the foregoing rights and the right to sue for past infringements of any of the foregoing rights;
2.9 "Losses" means all losses, liabilities, damages and claims (including taxes), and all related costs and expenses (including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgement, interest and penalties);
2.10 “Personal Data” has the meaning given to that term in the GDPR (Regulation (EU) 2016/679);
2.11 "Personal Information" has the meaning given to that term in the Privacy Act 1988 (Cth) (and any equivalent terms under other applicable privacy or data protection laws);
2.12 "Privacy Laws" means the Privacy Act 1988 (Cth) and any applicable data protection laws; and
2.13 “Services” means the access to the various information and video classes that are available at www.pilateswithamelia.com.
In these Conditions, the following rules of interpretation apply unless the contrary intention appears:
3.1 headings are for convenience only and do not affect the interpretation of these Conditions;
3.2 the singular includes the plural and vice versa;
3.3 words that are gender neutral or gender specific include each gender;
3.4 where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
3.5 any phrase introduced by the words "including", "include", "in particular", "for example", “such as”, “particularly” or any similar expression will be construed as illustrative only and will not be construed as limiting the generality of any preceding words;
3.6 a reference to:
(a) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(b) a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
(c) a party includes its successors, executors, administrators, and permitted assigns;
(d) a document includes all amendments or supplements to that document;
(e) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to these Conditions;
(f) these Conditions includes all schedules and attachments to it;
(g) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(h) an agency or body means, if that agency or body ceases to exist, any reconstituted or renamed agency or body or, failing that, the agency or body which most closely performs the previous functions of such agency or body;
(i) an agreement other than these Conditions includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
(j) a monetary amount is in Australian dollars;
3.7 an agreement on the part of two or more persons binds them jointly and severally;
3.8 when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;
3.9 where a day on which something must be done is specified, that obligation must be done by 5:00pm on that day unless otherwise specified and if done after 5:00pm on that day, it is taken to be done on the next day;
3.10 in determining the time of day, where relevant to these Conditions, the relevant time of day is:
(a) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(b) for any other purpose under these Conditions, time is Australian Eastern Standard Time (AEST); and
3.11 no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Conditions or any part of them.
4. Scope of Conditions
4.1 These Conditions cover all terms and conditions for the supply of the Services to you.
4.2 We may update the terms of these Conditions from time to time in accordance with clause 14.1.
4.3 The purpose of these Conditions is to set out the terms and conditions that will apply to our relationship with you, including the Services that we may provide to you.
5. Acceptance and Term
5.1 You will be taken to have accepted this Conditions from the time that you from the Commencement Date.
5.2 If you have not provided us with written acceptance in accordance with clause 5.1, you will have been deemed to have accepted these Conditions as and from the Commencement Date by having access to the Services.
5.3 These Conditions will remain in force until the later of the moment in time that either we or you bring these Conditions to an end in accordance with clause 12.
6.1 We will provide the Services to you in accordance with these Conditions from the Commencement Date until the termination of these Conditions in accordance with clause 12 below.
6.2 Where we provide the Services to you, we will use our reasonable care and skill to provide the Services to you.
6.3 You acknowledge that in the provision of the Services, we do not hold ourselves out as experts and we have not made any representations or warranties as to your ability to participate with the Services.
7. Your Obligations
7.1 In return for providing the Services to you, you agree to:
(a) keep confidential the Confidential Information of us in accordance with clause 10;
(b) pay us the Fees in accordance with clause 8;
(c) comply with all applicable laws;
(d) take all necessary steps and procedures that it is obliged to take to ensure compliance with this clause 7.1; and
(e) promptly report to us any request or demand which if complied with would amount to a breach of either these Conditions.
7.2 You understand and acknowledge that:
(a) there are risks associated with the participation in the activities and programs that form part of the Services;
(b) the Services can involve intensive physical activity;
(c) you are not aware of any risks associated with participation in the activities and programs offered by us or as part of the Services and freely and voluntarily accept these risks; and
(d) you are not aware of any medical conditions that would affect your ability to participate in the activities and programs that form part of the Services and if you have any concerns about any medical conditions, that you will consult with a suitably qualified medical practitioner before participating in any activities or programs that form part of the Services.
7.3 You understand and acknowledge that the provision of the Services pursuant to these Conditions are personal to you and you must ensure that any usernames or passwords are disclosed to any other person or any part of the Services are used or enjoyed by any other person other than you.
7.4 You represent and warrant that you are at least 18 years of age or have your parent/guardian's permission to access and participate in the Services.
7.5 You understand that participation with the Services involve certain risks to your health and safety and that each and every time you participate with the Services, you warrant to us that you have created an ensured a safe environment to participate with the Services, are fit and able to participate, and are not suffering from any injury, illness or condition that may prevent you from safely participating with the Services and acknowledge that your participation with the Services is at your sole risk.
7.6 You agree to cease accessing and participating with the Services should you experience any faintness, shortness of breath, pain or dizziness or become aware of any injury, illness or condition that prevents you from safely participating with the Services.
7.7 You indemnify us and continue at all times to hold us harmless against any liability, Loss, costs expenses (including legal and other professional fees and expenses on an indemnity basis) or damage whatsoever suffered or incurred by us in respect of any claims, actions or demands which are brought or made against us and arise out of or in connection with the use of the Services by you, including but not limited to any risk or injury howsoever occurring, save to the extent any such cost, expense, Loss, damage or other liability is caused or contributed to directly by our negligence.
8. Fees and Payment Terms
8.1 You agree to pay the Fees for the provision of the Services in accordance with this clause 8 on and from the Commencement Date.
8.2 Fees for the Services will be invoiced either monthly or quarterly, depending on which of the Fees options you select. Unless otherwise agreed with us in writing, the Fees are payable in advance on and from the Commencement Date and either each month or each quarter following Commencement Date depending on which of the Fees options you select.
8.3 Overdue payments are subject to interest on the amount unpaid from the due date to the date of payment at a daily rate of being 3% per annum higher than the rate fixed by the Penalty Interest Rates Act 1983 (Vic).
8.4 A dispute will not affect payment of non-disputed fees on the same invoice or the payment of any other invoices due by you, and you have no right of set off (except where expressly specified in these Conditions).
8.5 Any costs incurred by us in recovering amounts overdue (including all legal fees and expenses on a solicitor-client basis) are payable by you.
8.6 We have arrangements with a third party provider for the payment of the Fees, which will be paid by way of direct debits.
8.7 By nominating a credit or debit bank card, you are authorising us to deduct from that account all fees and other charges for which you may be responsible for under these Conditions.
8.8 You are responsible for making sure that there is enough money in your nominated account on the usual payment day or the next working day if that falls on a day when banks do not process payments. Any bank fees charged to us because of a rejection when we attempt to collect payments from you may be charged directly to you by us (or by our third party provider).
8.9 If a payment remains outstanding, you agree that, unless we are in breach of our obligations under these Conditions, we (or the third party provider) may continue to debit the nominated account for the total amount due without notice to you.
8.10 If any of the Fees are outstanding, the Services may be immediately suspended without notice to you until such time that you pay us such outstanding Fees.
9.1 We confirm that we will:
(a) comply with the Privacy Laws;
(b) take all reasonable steps (from time to time) to implement practices, procedures and systems that ensure compliance with the Privacy Laws;
(c) use any Personal Information disclosed by you only for the purposes of fulfilling our obligations under these Conditions;
(d) unless required under any applicable laws, not cause or allow Personal Information to be disclosed or transferred to or handled by a third party provider (including any overseas recipient) without your prior written approval;
(e) comply with the terms of this clause 9; and
(f) maintain a record of all activities involving the management of Personal Information under or in connection with these Conditions and of your compliance with the provisions of this clause 9.
9.2 If you become aware of any actual or alleged breach of the Privacy Laws concerning information disclosed by you to us (or by us to you), then you must notify us immediately and comply with our reasonable directions in respect of such breach.
9.3 If either party becomes subject to a requirement that any Personal Data that is transferred or processed between the parties will be subject to GDPR (Regulation (EU) 2016/679), the parties agree to include any additional clauses required to address the requirements of GDPR (Regulation (EU) 2016/679), and if they are unable to agree such clauses, then these Conditions will terminate immediately at the option of either party.
(a) will not use any Confidential Information for any purpose other than the performance of your obligations under these Conditions;
(b) will not disclose any Confidential Information to any person except with the prior written consent of us or in accordance with this clause;
(c) must make every effort to prevent the use or disclosure of the Confidential Information.
10.2 The provisions of clause 10.1 do not prohibit the disclosure of Confidential Information by you:
(a) to your auditors and professional advisers but only where you first ensure that your auditors and professional advisers are made aware of and comply with your obligations under these Conditions as if they were a party to these Conditions; and
(b) as may be required by law.
10.3 The obligations on a party set out in this clause 10 do not apply to any Confidential Information to the extent that such information:
(a) is publicly available or becomes publicly available through no act or omission of that party; and
(b) is required to be disclosed by law or by order of a court of competent jurisdiction or other competent authority.
10.4 The provisions of this clause 10 survive any termination of these Conditions.
11. Intellectual Property Rights
11.1 All Intellectual Property Rights in any documents, data or other material provided by us during the term of these Conditions vest in and remain vested in us.
11.2 All Intellectual Property Rights in and to any reports, data, materials, information, software, databases, designs, drafts and any other work that arise from or in connection with the Services or otherwise developed or generated during the provision of the Services, or otherwise pursuant to these Conditions ("New IPR") vests absolutely and exclusively in us (in the case of future Intellectual Property Rights, immediately on creation) and you must transfer (and must procure the transfer) by way of present and, where appropriate, future assignment with full title guarantee and free from encumbrances and third party rights, all New IPR, including all goodwill and rights under applicable laws that attach to the New IPR.
11.3 We grant you a personal, non-exclusive, non-transferable, non-sublicensable licence to use the Services.
11.4 To the extent permissible by law, you waive and agree to procure that any personnel, agents, and/or affiliates waive all moral rights and other non-transferable rights that they have or may have in the New IPR.
12.1 These Conditions may be terminated at any time and for convenience by either party by giving the other party at least 7calendar days’ prior written notice.
12.2 For the avoidance of doubt, termination of these Conditions for any reason whatsoever, will not provide you with the rights or entitlements to any refund of the whole or any part of the Fees that have been paid by you to us.
12.3 Either party ("Notifying Party") may terminate these Conditions if the other party ("Breaching Party") commits any material breach of these Conditions that is not capable of being rectified, or, is capable of being rectified but has not been rectified by the Breaching Party within 10 Business Days after receiving written notice from the Notifying Party requiring it to do so.
12.4 We may terminate these Conditions effective immediately if you fail to pay any sum due to us within 7 calendar days of us notifying you that such sum is overdue for payment.
12.5 We may terminate these Conditions immediately by serving notice on you if at any time an Insolvency Event occurs in respect of you.
12.6 On or immediately following termination of these Conditions, you must:
(a) immediately deliver up to us all of our Confidential Information (unless we direct you to destroy the same) and immediately cease to use any of our Confidential Information; and
(b) irretrievably delete any information relating to us stored using any cloud service or on any magnetic or optical disk or memory and all matter derived from such sources which is in your possession or under your control.
12.7 Termination of these Conditions does not relieve you of any obligation to pay us any outstanding amount required pursuant to these Conditions.
13. Limitation of Liability, Exclusion and Indemnity
13.1 To the full extent permitted by law, we will not be liable to the other under or in connection with these Conditions for any indirect or consequential loss, loss of profits or loss of revenue. Nothing in these Conditions limits any warranty or right imposed by statute or regulation to the extent that it cannot be lawfully limited or limits our liability for fraud (including fraudulent misrepresentation).
13.2 Our aggregate liability (inclusive of interest and legal and other costs) to you in respect of all claims, actions or demands under or in connection with these Conditions (whether arising by reason of any negligence by us, employees or agents, any non-fraudulent misrepresentation, any breach of contract, any breach of statutory duty, or otherwise) will not exceed an amount equal to the total Fees actually received by us under these Conditions during the course of the then preceding 3 months.
13.3 You indemnify us in respect of all Losses arising from or related to:
(a) any breach of these Conditions by you, and any other claim arising out of, or in connection with, the operation of these Conditions, caused by any negligent act or omission or wilful misconduct by you or your personnel, except where such Losses arise, or are caused by, the acts or omissions of us; and
(b) any omission, inaccuracy or conduct by you in relation to the Services.
13.4 The indemnity in clause 13.3 will survive termination of these Conditions.
13.5 Nothing in these Conditions operates to limit or exclude our liability to you for any death or personal injury caused by our negligence (including our employees and agents) or for any other matter in which liability cannot lawfully be limited or excluded.
14.1 Updated Terms and Conditions:
(a) Subject in all respects to clause 14.1(b) below, you acknowledge, understand, accept, agree and confirm in all respects that we may, from time to time, amend these Conditions with 30 calendar days notice to you.
(b) For the purposes of notice under clause 14.1(a) above, notice will be deemed to have been given on the earlier of:
(i) the date that the amended Conditions are published at the website address, [www.pilateswithamelia.com/pages/terms-and-conditions]; or
(ii) the sending by us to you of an email, to the email address we have on record for you, notifying you of the amendment to the Conditions,
(c) Notwithstanding any provision to the contrary, any amendments to these Conditions will come into effect 30 calendar days from the date notice of the amendments is deemed to have been given in accordance with clause 14.1(b), above.
(d) You understand, acknowledge, accept, agree and confirm in all respects that by not exercising your rights to terminate these Conditions under clause 12.1 and by continuing to use our Services after those revisions become effective, you agree to be bound by those amended Conditions.
14.2 No Exclusivity: Nothing in these Conditions obliges us to provide any services to you (other than the Services) or prevents us from providing any services to a third party or from being engaged, concerned or having any financial interest in any capacity in any other business, trade or profession during the term of these Conditions provided that:
(a) such activities do not cause a breach of our obligations under these Conditions; and
(b) It does not impinge upon the ability of us to provide the Services.
14.3 Force Majeure: Neither party will be in breach of these Conditions nor liable for any delay or failure to perform its obligations under these Conditions which is caused by circumstances, events or causes beyond its reasonable control including acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire explosion, flood, epidemic, pandemic, (but excluding strikes or labour disputes involving the staff of you) ("Force Majeure Event") provided that the parties use all reasonable endeavours to mitigate the effect of any such Force Majeure Event on the performance of their obligations. For the avoidance of doubt, any Force Majeure Event that may subsist at the Commencement Date will not affect it being classified as a Force Majeure Event during the term of these Conditions.
14.4 Entire Agreement and Variations: These Conditions represents the entire agreement between the parties on the subject matters detailed within it. Any variations to these Conditions will not be effective until it is in writing and signed in accordance with section 127 of the Corporations Act 2001 (Cth).
14.5 Assignment: You must not assign, novate, subcontract, transfer or otherwise dispose of or deal with these Conditions (in whole or in part) or any or all of your rights or obligations under these Conditions without our prior written consent. We may at any time assign, novate, subcontract, transfer or otherwise dispose of or deal with these Conditions (in whole or in part) or any or all of our rights or obligations under these Conditions by providing you written notice which will take effect immediately on the date of the written notice.
14.6 Relationship of the Parties: Nothing in these Conditions, or any circumstances associated with it or its performance, gives rise to any agency or partnership between the parties. Nothing in these Conditions, or any circumstances associated with it or its performance, gives rise to an employment relationship between us and you.
14.7 Severability: Unenforceability of a provision of these Conditions does not affect the enforceability of any other provision. If any provision is void, voidable or unenforceable, it will be severed from these Conditions to the extent of the inconsistency.
14.8 Waiver: The failure, delay or omission by a party to exercise any power or right conferred upon that party by these Conditions will not operate as a waiver of that power or right, nor will any single exercise of any power or right preclude any other future exercise of the power, or the exercise of any other power or right under these Conditions. A waiver of any provision of these Conditions, or consent to any departure by a party from any provision of these Conditions, must be in writing and signed by all parties and is effective only to the extent for which it is given.
14.9 Governing Law: These Conditions and any dispute or claim arising under or in connection to it (including any claim of a non-contractual nature) is governed by the laws of Victoria, Australia.