Terms and Conditions
Flush Fitness Website Terms and Conditions (Terms)
1. Your acceptance
1.1 These are the terms on which Flush Fitness Pty Ltd ACN 119 435 504 (referred to as Flush Fitness, we, our or us) permits users (referred to as you or your) to:
(a) access and use the Flush Fitness website (http://www.flushfitness.com.au/) (Website) including using the services and functionality made available through the Website;
(b) view and interact with any content, information, communications, advice, text or other material provided by Flush Fitness (Flush Fitness Content) or any User Content (defined in clause 3.1); and
(c) upload User Content to the Website and communicate with Flush Fitness.
1.2 You agree to be bound by these Terms when you use, browse or access any part of the Website.
1.3 Flush 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.
2. Changes to the Website
The Website is subject to change at any time without notice and may contain errors.
3. User Content
3.1 When you use the Website, you may upload pictures, photographs, graphics, information, comment, content, communication, text or other material to the Website (User Content).
3.2 Any User Content you upload to the Website:
(a) may be accessed and viewed by the public; and
(b) can be used by us in accordance with the licence terms set out in clause 3.4 including to promote the Website.
3.3 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.
3.4 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).
3.5 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:
(a) 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;
(b) do any act or omission that would constitute a derogatory treatment of your User Content;
(c) make any use of your User Content that may falsely attribute authorship of the User Content to another person;
(d) delete or adapt or change any of your User Content in any way, including by addition to or subtraction from your User Content; or
(e) combine or juxtapose your User Content with anything else.
3.6 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 3.5 from such third parties.
3.7 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.
3.8 You acknowledge that we:
(a) 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
(b) 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.
3.9 You represent and warrant that:
(a) you own the User Content or have the necessary licences, rights, consents and permissions to publish the User Content you upload on the Website;
(b) you have the right and power to grant the licence contained in clause 3.4 to us;
(c) the User Content uploaded by you will not infringe the intellectual property rights of any third party; and
(d) you will not upload User Content that will cause you to breach these Terms, in particular clause 5.
3.10 You understand that we do not guarantee any confidentiality with respect to any User Content you upload to the Website.
3.11 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 Flush Fitness Content.
4. Flush Fitness Content
4.1 The Website is owned and operated by or on behalf of Flush Fitness.
4.2 The Flush Fitness Content on the Website is for general information and promotional purposes only. Flush 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 Flush Fitness Content by another person or organisation is at your own risk.
4.3 The Flush 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 Flush Fitness Content on the Website is not an endorsement of any organisation, product, service or advice.
4.4 All intellectual property rights, including copyright, in the Website and Flush Fitness Content are owned or licensed by Flush Fitness or any of its related entities. You must not copy, modify or transmit any part of the Website or Flush Fitness Content.
4.5 The Website contains trade marks, logos and trade names of Flush 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.
4.6 Flush 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 5 and elsewhere in these Terms. It is not to be otherwise used for commercial exploitation.
4.7 If you have a complaint regarding any Flush Fitness Content and User Content, Flush 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 Flush Fitness Content or User Content.
5. No provision of medical advice
5.1 The Website, Flush 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 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.
5.2 Nothing contained in the Website, Flush 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.
5.3 Whilst advancements and developments in medical research may affect the health, fitness and nutritional information contained in the Website, Flush 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.
5.4 Your access or use of the Website, Flush Fitness Content or services made available through the Website does not in any way create between you and Flush 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.
5.5 Any reliance or use of any information provided by or contained in the Website, Flush Fitness Content or services made available through the Website is solely at your own risk.
6. Prohibited uses
You agree that in accessing and using the Website, you will not engage or attempt to engage in any activities that:
(a) download (other than page caching) or modify the Website or any portion of the Website;
(b) impersonate or falsely claim to represent a person or organisation;
(c) are commercial, including selling, marketing, advertising or promoting goods or services;
(d) frame the Website without Flush Fitness's express written permission;
(e) post, link to, or otherwise communicate or distribute any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information, or otherwise use the Website in a manner which is unlawful or would infringe the rights of another person including any intellectual property rights; or
(f) post, link to, or otherwise communicate or distribute any material or information that we deem inappropriate.
7. Links and advertisements
7.1 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). Flush 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.
8. Access and communication
8.1 Subject to the consumer guarantees provided for in the ACL (as defined in clause 11.2), Flush Fitness does not warrant that you will have continuous access to the Website.
8.2 Flush 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.
8.3 Flush 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.
8.4 Whilst Flush Fitness takes reasonable precautions to protect information transmitted via the Website, Flush Fitness cannot and does not guarantee the security or confidentiality of these communications or the security of the Website.
8.5 Flush 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 Flush 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:
(a) any breach of these Terms by you;
(b) your use of the Website; or
(c) User Content you post on the Website;
(d) your communications with Flush Fitness.
11. Warranties, consumer guarantees and limitation of liability
11.1 Subject to clause 11.2, 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.
11.2 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.
11.3 To the fullest extent permitted by law, the liability of Flush Fitness for a breach of a non-excludable guarantee referred to in clause 11.2 is limited, at Flush Fitness's option, to:
(a) in the case of goods supplied or offered by us, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services supplied or offered by us:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11.4 Flush 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 Flush Fitness Content, all links to or from the Website or the goods and services advertised or referred to on the Website.
11.5 Subject to this clause 11, the maximum aggregate liability of Flush 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.
12. Termination of your access to the Website
Flush Fitness may at any time immediately 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. Any indemnities given by you and any limitations of our liability survive such termination.
13. 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.
14. International Use
14.1 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.
14.2 You understand that some countries have import restrictions on certain goods or materials. If you are outside Australia, you will be responsible for checking whether such restrictions apply before uploading User Content. If you are outside Australia you will become the importer and will be liable to pay local taxes or duties, and you will assume all liability under any customs or import laws and regulations.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
16. Contacting us
Last updated: 31/03/2014