FITII USER AGREEMENT

Preamble

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Please read these terms and all Policies including the Privacy Policy carefully before using the Fitii Platform. These Policies are incorporated into this Agreement by reference. Please read this Agreement carefully. By clicking on the “I Accept” button, completing the registration process, and/or downloading or continuing to use the Fitii App or Fitii PT App, you represent that:

  

  1. you have read, understand, and agree to be bound by this Agreement;
  2. you are of legal age to form a binding contract with Fitii; and
  3. you have the authority to enter into this Agreement personally or on behalf of the company or entity you have named as the user, and to bind that company or entity to this Agreement.

  

  1. This Agreement

     


    1. This Agreement governs the contractual legally binding relationship between you, as a User, and Fitii.
    2. As a User of the Fitii Platform, as both or either a User, Trainer and/or Gym you agree to be contractually bound to your obligations and responsibilities detailed in this Agreement.
    3. This Agreement governs your access to and use of the Fitii website, including subdomains, and mobile, tablet and other smart device applications and application program interfaces and associated services (collectively the “Platform”).
    4. Additionally, this Agreement supplements and incorporates

       

      1. The Apple, Inc. Terms and Conditions including, without limitation, the licensed Application End User Licence Agreement provided therein; and
      2. The Android, Goggle Inc. Terms and Conditions, including without limitation, the Licence Agreement and Terms of Application.
    5. By accessing the Platform you agree to be bound by this Agreement.
    6. You understand and acknowledge that in the event that you do not, or no longer, agree with this Agreement you must not use or access, or must immediately cease using or accessing, the Platform.
  2. Interpretation

     

    1. Definitions
      1. “ACL” means the Australian Consumer Law.
      2. “Agreement” means the most recent or updated version of this agreement, including the preamble above, together with the schedules, annexures and Policies, from time to time between Fitii and a User.
      3. “Allocated” has the same meaning as assigned to it in clause 5.6.
      4. “Base Payment Collection Fee” means the cost charged by the Payment Collection Provider for collecting any monies payable under this Agreement.
      5. “Class/es” means public or semi-private Session/s with multiple participants.
      6. “Client” means a User that creates a profile on the Platform as an individual and engages a Trainer or Trainers for, and is a consumer of, the Services.
      7. “Consequential Loss” means any loss, damage or expense recoverable at law:

         

        1. other than a loss, damage or expense that would be suffered or incurred by any person in a similar situation to the person suffering or incurring the loss, damage or expense; or
        2. which is a loss of:
          1. opportunity or goodwill;
          2. profits, anticipated savings or business;
          3. data; or
          4. value of any equipment, and any costs or expenses incurred in connection with the foregoing.
      8. “Consumer Guarantees” means the consumer guarantees contained in Part 3-2 of the ACL.
      9. “Fees” means any and all fees payable to Fitii by Users including the Service Fee.
      10. “Fitii App” means the part of the Platform that is the Client application.
      11. “Fitii PT App” means the part of the Platform that is the Trainer and Gym application.
      12. “FitiiServices” means the service of providing the Fitii Platform.
      13. “GST” has the same definition as that term has in the GST legislation.
      14. “GST Legislation” means the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth) and any associated Commonwealth legislation, regulations and publicly-available rulings.
      15. “GST Liability” means the liability of the relevant party making a Taxable Supply (Supplier) to another party (Recipient) under or pursuant to this document to pay GST under the GST Legislation in respect of that Taxable Supply.
      16. “Gym” means the entity or person who operates a fitness facility or gymnasium orstudio where the Services are delivered or who and employee Trainers under this Agreement.
      17. “Fitii” “we” “us” “our” means Fitii International Pty Ltd ACN 642 189 320 trading as Fitii.
      18. “Fitii Address For Notices” means Fitii International Pty Ltd ACN 642 189 320 trading as Fitii C/- 114/16 Porter Street, Prahran VIC 3181.
      19. “Identify Verification Services” means the tools available to help Users verify the identity, qualifications or skills of other Users including mobile phone verification, verification of payment information, references, integration with social media, or (if applicable) badges and verification icons.
      20. “Non-excludable Condition” means any implied condition, warranty or guarantee in a contract, the exclusion of which would contravene the law or cause any part of the contract to be void.
      21. “Package/s” means two or more Unallocated Sessions offered for sale together as a package. Unallocated Sessions in a package are in the quantity and for the duration shown in the advertised package on the Platform.
      22. “Per Session Price” means the price per session for Sessions sold as a Package derived by divided the total Session Price of the Package by the number of individual sessions included in the Package;
      23. “Plan/s” means a subscription to a series of weekly or fortnightly payments to a Trainer, in exchange for the Unallocated Sessions and other inclusions and on the other terms and conditions detailed within the advertised plan on the Platform.
      24. “Payment Collection Provider” means the third party who provides the collection and procession of financial transactions services within the Fitii Platform.
      25. “Platform” “Fitii Platform” has the same meaning given to it in clause 1.3 of this Agreement and where the context permits include any other affiliated platform that may be introduced from time to time.
      26. “Policies” means the policies posted by Fitii on the Fitii Platform, including but not limited to, the Privacy Policy and other guidelines.
      27. “Review” means any feature allowing a User to post a review on the Fitii Platform endorsing or reviewing the manner in which that User advertised, described, completed, performed or delivered the Services.
      28. “Retail Price” means the full retail price advertised to a Client on the Fitii App for a Session and is the Session Price plus the Service Fee.
      29. “Services” means the personal training and or physical fitness training or coaching services or classes offered or delivered by a Trainer to Clients and includes any advice, guidance, recommendations, plans or schedules given or recommended to a Client, but excludes medical advice of any sort.
      30. “Service Fee” means the fee payable to Fitii for the delivery and use of the Platform, being the amount equal to five (5) percent of the Session Price, which is added on top of each Session Price.
      31. “Session” means each session for the physical delivery of the Services by the Trainer to a Client or Clients, for the duration, price and on the terms as advertised by the Trainer on the Platform.
      32. “Session Price” means the price or prices set by a Trainer for a Session, Plan or Package or any other service delivered via the Platform.
      33. “Site” or “website” means the website at http://www.fitii.com/ and/or http://www.fitiiPT.com/.
      34. “Third Party Services” means features or parts of the Fitii Platform provided by third parties from time to time, including the Payment Collection Provider.
      35. “Trainer” means a User that creates a profile on the Platform as an individual or entity to offer and deliver the Services.
      36. “User” means any person or persons who has signed up to use the Fitii Platform, whether as the Client, Trainer, Gym or otherwise.
      37. “Unallocated Session” means a purchased Session or item which has not be allocated to a time or place for delivery and may be sometimes referred to as a credit or session credit.
    2. Interpretation
      1. In this Agreement, except where the context otherwise requires:
        1. the singular includes the plural and vice versa, and a gender includes other genders;
        2. a reference to an obligation of a Trainer in this Agreement, where the context permits, includes the same obligation on a Gym;
        3. another grammatical form of a defined word or expression has a corresponding meaning;
        4. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
        5. a reference to A$, $A, dollar or $ is to Australian currency;
        6. a reference to time is to the time in Victoria, Australia;
        7. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
        8. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
        9. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
        10. headings are for ease of reference only and do not affect interpretation;
        11. any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and
        12. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.
  3. Scope and Relationships

     


    1. Fitii provides the Fitii Platform as an introducer only. The role of Fitii is to provide the Fitii Platform, as a marketplace, social network, booking platform and payment platform to enable Trainers and Gyms to advertise themselves and their Services and for Clients to find and engage the Trainers or Gyms to perform the Services.
    2. Both practically and legally it is the Trainers, and not Fitii, which performs the Services for the Clients. In no way does a Trainer or Gym perform the Services for or on behalf of Fitii.
    3. In performing the Services, Trainers do not do so as employees or subcontractors for Fitii, rather, they are individually contracting directly to and with the Client, or in the case of Trainers and Gyms, between themselves.
    4. In no way does this Agreement, or the performance of a Service sourced by the marketplace created by the Platform give rise to an employer/employee relationship between a Trainer and Fitii.
    5. Gyms and Trainers must ensure that they do not represent a connection, arrangement or relationship between them without such connection, arrangement or relationship existing. Users acknowledge and agree that Fitii takes limited to no steps, and is not responsible, to verify such connections, arrangements or relationships.
    6. Fitii is not, and shall not be made to be, a party to any employment dispute between a Trainer and a Gym.
  4. Profiles

     


    1. Trainers may create a profile on the Platform to advertise themselves, their Services, Sessions and their availability.
    2. Gyms may create a profile on the Platform for their facility and may create multiple profiles for Trainers who are employed by their facility, to advertise collectively or separately themselves, their Services, Sessions and their availability.
    3. Clients may create a profile on the Platform to seek out and engage the Services.
    4. Trainers and Gyms must set out all relevant information in their profile.
    5. Clients must be a natural person. Fitii only permits individuals over 18 years of age to become Clients or to access the Fitii Platform as Client or if younger than eighteen (18) years the User’s parent or guardian has provided consent and accepted and agreed to this Agreement.
    6. Fitii permits individuals over 18 years of age and incorporated bodies to become Trainers or Gyms or to access the Fitii Platform as a Trainer or Gym.
    7. A person or an incorporated body is prohibited from creating a profile, advertising the Services, or providing the Services where the natural person who does, or is intended to, deliver the Services does not hold the requisite qualifications, experience, skill or otherwise fails to meet a mandatory requirement to legally perform or deliver the Services
    8. Trainers and Gyms can specify within their profile or account description that they represent a business entity. Arrangements between the natural person who physically uses the Platform and any business entity, which they purport to represent, are entirely a matter between that person and that entity.
    9. At its absolute discretion, Fitii may refuse to allow any person or entity to register or create an account with Fitii or cancel or suspend any existing account, with or without notice.
    10. A person who is in any way restricted or prohibited by law or order of any Court from contacting or interacting with children is strictly prohibited from utilizing the Fitii Platform as a User or in any capacity.
    11. Registering and creating an account with Fitii is free.
    12. There is no charge for a Trainer or Gym to advertise themselves or their Services, or for other Users to review content on the Fitii Platform, including the Services.
    13. Information on your profile must be true and accurate and must not be misleading or attempt to mislead.
    14. Fitii accepts no liability for any aspect of the Trainer, Gym and Client interaction, including but not limited to the description, performance or delivery of Services.
    15. Fitii has no responsibility and makes no warranty as to the truth or accuracy of any aspect of any information provided by Users, including, but not limited to, the ability of Trainer or Gym to perform tasks, or the honesty or accuracy of any information provided by User or meets the requirements of this Agreement.
    16. Fitii is not obligated to either manually, or by automated feature, review to ensure profiles created on the Platform meet the obligations on User profiles set by this Agreement.
  5. Sessions, Classes, Plans and Packages

     


    1. Trainers are responsible for setting the prices, duration, locations, format, times and content of the Sessions, Plans, Packages and Classes. Sessions vary in length and cover a range of Services. Advertised Session durations are indicative only and may reasonably vary at time of delivery.
    2. Fitii has no involvement in the delivery of the Sessions and is not responsible for any content, activity, advice or direction given or performed at or as part of a Session
    3. Trainers may accept to deliver the Sessions or propose Sessions. Clients may accept to receive the Sessions or propose Sessions
    4. Sessions, Services and acceptance details containing User information may be made publicly available on the Platform, including to Internet users who are not Users.
    5. Sessions may be private, semi-private or public, as may be indicated in the Session request or display within the Platform.
    6. Sessions may be booked and immediately allocated to an assigned time, date and location (Allocated Session), or may be part of a Package or Plan that includes Unallocated Sessions, meaning it is/they are yet to be allocated to a time, date and location.
    7. Unallocated Sessions are not in-app credits for the purposes of any App Store but purchased and paid-for services to be physically delivered outside of the Platform, notwithstanding that they may from time to time be referred to as credits. Unallocated Sessions are not redeemable for cash, except as provided for in clause 13.
    8. Unallocated Sessions are specific to the duration, session type and Trainer as detailed when purchased and can be allocated using the Platform to a time for physical delivery, in accordance with and subject to the terms of this Agreement.
    9. Application and Expiry of Unallocated Sessions.
      1. Unallocated Sessions associated with a Package must be allocated to a specific time/booking within ninety (90) days from the original date of purchase. Sessions which remain unallocated, after ninety (90) days from the original date of purchase, will be forfeited, expire or otherwise become unredeemable for the Services immediately on the ninetieth (90th) day from the original date of purchase
      2. Unallocated Sessions arising from a Session cancelled within the permitted Cancellation Policy, or cancelled by a Trainer in a way that issues an Unallocated Session credit (save for those relating to Plans), must be allocated to a specific time/booking within ninety (90) days from the cancellation date, after which they will be forfeited, expire or otherwise become unredeemable for the Services.
      3. Unallocated Sessions for one-to-one sessions associated with Plans must be allocated to a specific time/booking within two (2) weeks of their issue, after which they will be forfeited, expire or otherwise become unredeemable. Where allocated to at time/booking to occur in advance of two (2) weeks and subsequently cancelled by either the Client or Trainer, no further credit for that session will be issued and the session/credit will be forfeited.
      4. Unallocated Sessions for Classes or private groups associated with Plans must be allocated to a specific time/booking within the week of issue for weekly plans, or within the fortnight of issue for fortnightly plans, after which they will be forfeited, expire or otherwise become unredeemable.
      5. Plans with ‘Unlimited Classes’ allow the Client to book an unlimited number of Classes advertised within the Platform by the Trainer who has issued the Plan, within the week of issue for weekly plans, or within the fortnight of issue for fortnightly plans only. Unlimited classes do not permit the Client to book classes outside of the week or fortnight of issue, cannot be gifted, transferred, attended or consumed by a person other than the Client who purchased the relevant Plan, and are subject to fair use rules as determined in the discretion of the Trainer, and/or Fitii from time to time. The Trainer has the right to cancel any booking made in contravention of these terms.

    1. When both the Client and the Trainer have accepted a request for a Session, Class, Plan or Package, a legally binding agreement is created between them for the purchase, payment and delivery of the Session, Class, Plan or Package on the terms and conditions shown on the Platform.
    2. When a Client and Trainer books or accepts a Session, Class, Plan or Package, they accept the terms and conditions of each and every Session, Class, Plan or Package and each component therein as:
      1. Set out in any terms and conditions of service as provided, previously provided or given by the Trainer to the Client at, or prior to, commencement of the Session;
      2. Set out in any terms, conditions or notes within the Platform as relating specifically to the Sessions, Class, Plan or Package;
      3. Expressed or implied by this Agreement as the relate to the obligations of Trainers, Clients and Gyms to one another;
      4. Detailed on the Trainer and/or Gym profile;
      5. Supplemented by agreement between the Trainer and Client;

      provided always that to the extent of any inconsistency than the provisions of this Agreement shall prevail.

    3. When a Client purchases a Plan, the Client agrees and consents to charging their payment method the weekly or fortnightly Session Price displayed, each and every week or fortnight, as the case may be, for the duration of the Plan or until the Plan is cancelled or terminated in accordance with this Agreement and the notice periods detailed within the Plan.
    4. Notwithstanding clause 5.11, Fitii is not a party to the agreement detailed in clause 5.10 between the Trainer and the Client, and the Trainer and the Client expressly agree and declare that nothing in the agreement between them constitutes an actionable or enforceable right against Fitii.
    5. The Trainer agrees and warrants to deliver the Session using care and skill and in accordance with the implied and expressed terms of this Agreement so far as they relate to the obligations and relationship between the Trainer, Gym and the Client.
    6. Once the Session is agreed, the Trainer or Client may vary the Session on the Fitii Platform, provided they do so in the manner and within the times permitted by this Agreement.
    7. Once the Session is complete, the Trainer and Client must provide notice of that on the Fitii Platform. The marking of the Session as completed by the Trainer or Client is prima facie evidence that the physical service was delivered.
    8. After a Session is completed, the parties are encouraged to review and provide feedback of the Services on the Fitii Platform.
  6. Client Obligations

     


    1. For the purposes of this clause a reference to you or your, is a reference to a Client under this Agreement.
    2. You agree that you will at all times:
      1. comply with this Agreement and the Policies and all applicable laws and regulations;
      2. only post information on the Fitii Platform which is true and accurate;
      3. promptly and efficiently perform your obligations to another User in accordance with this Agreement;
      4. ensure that your profile content is true, accurate and up to date;
      5. comply with the Fair Use Policy;
      6. ensure that you are aware of any laws that apply to you in receiving the Services, orotherwise in relation to using the Fitii Platform.
    3. You must not use the Fitii Platform for any illegal or immoral purpose or in any way, which in the opinion of Fitii (either reasonably or unreasonably) damages the reputation or standing of Fitii.
    4. At all material times you remain responsible for your Fitii account and must maintain control of it. You must not, sell, lease, transfer or otherwise convey your account to any other person and you must not allow others to use your account.
    5. You irrevocably grant Fitii a non-exclusive, unrestricted, worldwide, royalty-free, perpetual transferable licence to use, reproduce, modify, sublicense, adapt and otherwise exploit and adapt any content and information posted on the Fitii Platform for the purpose of publishing material on the Fitii Platform and as otherwise may be required to provide the Fitii Service, for the general promotion of the Fitii Service, or for any other purpose whether or not expressly permitted by this Agreement.
    6. You consent to Fitii providing your personal information to others as described in our Privacy Policy and this Agreement.
    7. You agree that any information posted on the Fitii Platform must not, in any way whatsoever, be potentially or actually, harmful to any person or to Fitii. Harm includes, but is not limited to, economic loss that is, will or may be suffered by a party.
    8. Without limiting any provision of this Agreement, any information you supply to Fitii or publish in your profile, or represent to another User must be up to date and kept up to date and must not:
      1. be false, inaccurate or misleading or deceptive;
      2. infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or intellectual property rights, rights of publicity, confidentiality or privacy;
      3. violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing consumer protection, unfair competition, criminal law, antidiscrimination and trade practices/fair trading laws);
      4. be defamatory, libellous, threatening or harassing;
      5. be obscene or contain any material that, in Fitii’s sole and absolute discretion, is in any way inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images; or
      6. contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or disrupts the intended function of any part of the Platform.
    9. You must comply with tax and regulatory obligations in relation to any payment made via the Fitii Platform and must not use the Fitii Platform to illegally or unlawfully transfer funds.
    10. You warrant that:
      1. Prior to engaging the Services, you have sought the advice of guidance of a qualified medical practitioner to verify that you are medically fit and able to engage and undertake the Services;
      2. You have informed the Trainer and Gym of any medical conditions or issues which could in anyway limit, effect or prohibit you from engaging, undertaking or continuing to engage or undertake the Services;
      3. You have and will comply and continue to comply with the directions and guidance of a medical practitioner as they relate to the Services;
      4. You are medically fit, able and willing to undertake the fitness activities which form part of the Services; and
      5. Where you provide a means of payment, including payment by credit card, that the information provided by you is true, accurate and complete that that you are authorised to use the payment type or credit card to make the payment, that the payment will be honoured by the financial institution or issuer of the card and that you will maintain sufficient funds in the account to cover the purchase price and in the premises you agree to pay any additional fee or charge for the failure of any payment in accordance with the terms of the Payment Collection Provider.
    11. You acknowledge and agree that:
      1. No advice, guidance or recommendation made by a Trainer or Gym consists of medical, dietary or nutritional advice, and that you must only rely on the advice, guidance or recommendations of qualified medical professionals before undertaking any health, fitness, dietary or nutritional plan;
      2. The activity you undertake in or connected with any Session are dangerous activities and that by participating in it you are exposed to certain risks;
      3. You understand that whilst participating in such activities:
        1. You may be injured, physically or mentally, or may die;
        2. Your personal property may be lost or damaged;
        3. Other persons participating in such activity may cause you injury or may damage your property; and
        4. You may cause injury to other persons or damage their property;
      4. The conditions in which the activities are conducted may vary without warning;
      5. You may be injured or die or suffer damage to your property as a result of the negligence or breach of contract of the Trainer or Gym;
      6. There may be no or inadequate facilities for your treatment or transport if you are injured;
      7. You assume the risk of and responsibility for any injury, death or property damage resulting from your participation in the activity;
      8. There is no guarantee that a Trainer will agree to provide you the Services or any Sessions;
      9. There is no guarantee that any Session will be accepted by a Trainer at all, or within any particular time frame;
      10. There is no guarantee that any Session will be completed by a Trainer at all, or within any particular time frame;
      11. You have read, understand and accept your legal obligations and responsibilities under this agreement to Fitii, and to any Trainer or Gym or other User;
      12. Any display within the Fitii Platform which may include global positioning system tracking may from time to time be unavailable, be inaccurate, lag behind or misrepresent an actual location or cease to function properly;
      13. No warranty is provided by Fitii that the Platform will be continuously available or fault free;
      14. Utilising any feature within the Fitii Platform to contact a Trainer or Gym by calling or by SMS will attract ordinary call, SMS and data charge with your carrier;
      15. To the maximum extent permitted by law you indemnify and hold indemnified Fitii from any and all actions, suits, demands or claims made against it arising from or in connection with any action, conduct, comment or thing done or caused by you, whether intentional, unintentional, negligent or wilful.
    12. If Fitii determines at its sole discretion that you have breached any obligation under this clause 6, it reserves the rights to remove any content, Session requests you have submitted to the Fitii Platform or cancel or suspend your account and/or any Sessions.
  7. Trainer Obligations

     


    1. For the purposes of this clause a reference to you or your, is a reference to a Trainer, and where the context permits, a Gym, under this Agreement.
    2. You agree that you will at all times:
      1. comply with this Agreement, the Policies and all applicable laws and regulations;
      2. only post information on the Fitii Platform which is true and accurate and up to date;
      3. ensure that your profile content is true, accurate and up to date;
      4. hold the requisite qualifications or accreditation and maintain the requisite or recommended amount of continuing professional development or learning, to safely, diligently, legally and responsibly deliver the Sessions in Australia;
      5. hold and maintain the Insurances;
      6. promptly and efficiently perform your obligations to the other Users under this Agreement;
      7. ensure that you conduct yourself in a manner that is prudent, professional and in accordance with best industry practice and codes of ethics;
      8. comply with the Fair Use Policy;
      9. you have the right to work and provide the Services in Australia;
      10. ensure that you are aware of any laws that apply to you as Trainer or in accepting orproviding the Services, or otherwise in relation to using the Fitii Platform.
    3. You must not use the Fitii Platform for any illegal or immoral purpose or in any way, which in the opinion of Fitii (either reasonably or unreasonably) damages the reputation or standing of Fitii.
    4. At all material times you remain responsible for your Fitii account and must maintain control of it. You must not, sell, lease, transfer or otherwise convey your account to any other person and you must not allow others to use your account.
    5. You irrevocably grant Fitii a non-exclusive, unrestricted, worldwide, royalty-free, perpetual transferable licence to use, reproduce, modify, sublicense, adapt and otherwise exploit and adapt any content and information posted on the Fitii Platform for the purpose of publishing material on the Fitii Platform and as otherwise may be required to provide the Platform, for the general promotion of the Platform, or for any other purpose whether or not expressly permitted by this Agreement.
    6. You consent to us providing your personal information to others as described in our Privacy Policy.
    7. You agree that any information posted on the Fitii Platform must not, in any way whatsoever, be potentially or actually, harmful any person or to Fitii. Harm includes, but is not limited to, economic loss that is, will or may be suffered by a party.
    8. Where you deliver the Services from:
      1. A gym or fitness studio, or private location you must ensure that you have the permission and authority to deliver the services from that location; and
      2. A park, public places or outdoor location, you must comply with all local government planning, licencing and permitting obligations.
    9. Without limiting any provision of this Agreement, any information you supply to Fitii or provide to another User must be up to date and kept up to date and must not:
      1. be false, inaccurate or misleading or deceptive;
      2. be fraudulent;
      3. infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or intellectual property rights, rights of publicity, confidentiality or privacy;
      4. violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing health and safety legislation, consumer protection, unfair competition, criminal law, antidiscrimination and trade practices/fair trading laws);
      5. be discriminatory, defamatory, libellous, threatening or harassing;
      6. be or amount to medical advice;
      7. suggest that you are an agent, contractor or employee of Fitii;
      8. be obscene or contain any material that, in Fitii’s sole and absolute discretion, is in any way inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images; or
      9. contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or disrupts the intended function of any part of the Platform.
    10. You must have the right to provide Services and to work in Australia. You must comply with tax and regulatory obligations in relation to any payment received under this Agreement.
    11. You understand that you will be working for yourself, and not as an employee of or subcontractor to Fitii. As such, you are free to accept Sessions as you please, or not at all.
    12. You must not, when supplying Services, charge a Client fees or charges on top of the Session Price.
    13. You must not request payments outside of the Fitii Platform from the Client, unless for services delivered to the Client that are separate and apart from the Services offered via the Platform, provided always that they are not payments that are inconsistent with the Fair Use Policy.
    14. You acknowledge and agree:
      1. You assume the risk of and responsibility for any injury, death or property damage resulting from your participation in the activity;
      2. There is no guarantee that a Client will seek for you to provide the Services or any Sessions;
      3. There is no guarantee that any Session will be accepted by a Client at all, or within any particular time frame;
      4. There is no guarantee that any Session will be completed by a Client at all, or within any particular time frame;
      5. You have read, understand and accept your legal obligations and responsibilities under this agreement to Fitii, and to any Client or other User;
      6. No warranty is provided by Fitii that the Platform will be continuously available or fault free;
      7. Any display within the Fitii Platform which may include global positioning system tracking may from time to time be unavailable, be inaccurate, lag behind or misrepresent an actual location or cease to function properly;
      8. Utilising any feature within the Fitii Platform to contact another User by calling or by SMS will attract ordinary call, SMS and data charge with your carrier; and
      9. To the maximum extent permitted by law, you indemnify and hold indemnified Fitii from any and all actions, suits, demands or claims made against it arising from or in connection with any action, conduct, comment or thing done or caused by you, whether intentional, unintentional, negligent or willful;
    15. If Fitii determines at its sole discretion that you have breached any obligation under this clause, it reserves the rights to remove any content you have submitted to the Fitii Platform or cancel or suspend your account.
  8. Fair Use Policy

     


    1. This clause contains our Fair Use Policy that applies to all Fitii Services.
    2. The purpose of our Fair Use Policy is to protect Fitii from being used in a manner that we consider unreasonable, unacceptable or which defeats, or is intended to defeat, Fitii’s financial or commercial interests.
    3. In addition, the Fair Use Policy sets out your responsibilities when you use the Platform. It also confirms steps we may take to ensure and monitor compliance with this policy.
    4. Unreasonable or Unacceptable Conduct
      1. We consider your use of the Platform unreasonable or unacceptable if you use it in a manner that is other than which it was intended for.
      2. Here are some examples of uses that we consider unreasonable or unacceptable. This is not intended to be an exhaustive list:
        1. Using the Platform in a way which could not be reasonably regarded as ordinary use;
        2. Colluding or conspiring with others to defraud or exploit any vulnerability in the Platform;
        3. Misusing the Platform in a manner which allows access to the features and services on the Platform in a way which limits or avoids payment of the Service Fee for Sessions;
        4. Misrepresenting to Fitii that a Session was validly cancelled, missed or rescheduled to limit or avoid payment of the Service Fee for Sessions;
        5. Attempting to reverse engineer or copy the Platform or any part of it; or
        6. Otherwise using the Platform in a manner that is unfair, unreasonable, unethical or to the financial or commercial detriment of Fitii.
    5. Monitoring Compliance
      1. We are under no obligation to monitor use of the Platform. However, we may from time to time elect to do so to protect the Platform, our interests, other Users and to ensure you are complying with the Agreement and this policy. We may, and reserve the right to, disclose any findings as required to regulatory authorities.
      2. Fitii reserves the right to take any action it deems reasonable and/or appropriate to protect its interests.
    6. Breach of this Fair Use Policy
      1. If you breach any part of this Fair Use Policy we will, generally speaking, contact you and, if appropriate, ask you to modify your use of the Platform. If you do not modify your use of the Platform we may suspend or cancel your account without notice to you.
      2. However, in certain circumstances such as illegality, or non-ordinary use, we reserve the right to suspend or cancel your account immediately and without notice to you.
      3. Upon cancellation of an account, we are authorised to delete any files, programs, data and other information with the account.
      4. Where Fitii cancels the account of a Trainer or Gym, the relevant Trainer or Gym profile owner is responsible for any refunds to Clients who have any unused Sessions with the Trainer or Gym in accordance with clause 13.
      5. The determination of what action is fair and reasonable in any circumstance under this clause is at the sole discretion of Fitii.
  9. Cancellation Policy

     


    1. Client Initiated Cancellations
      1. A Session booked with a Trainer via the Platform can be cancelled by the Client without cause as follows:
        1. In the case of a Trainer who has set their cancellation policy as “Strict”, at any time up to twenty-four (24) hours before the scheduled Session time; or
        2. In the case of a Trainer who has set their cancellation policy as “Normal”, at any time up to two (2) hours before the scheduled Session time.
      2. This clause, together with the setting notification of “Strict” or “Normal” in the Trainer profile, constitutes notice of the Trainer’s cancellation policy terms.
      3. Where a Client cancels a Session within the time permitted in clause 9.1.1, the Session will become an Unallocated Session, to be used to book an alternative Session at any time up to ninety (90) days from the date of original purchase.
      4. Where a Client cancels a Session later than the time permitted in clause 9.1.1, or by failing to attend, or attending more than fifteen (15) minutes after the allocated Session time, then the Session is deemed forfeited and the Trainer is not obligated to perform any of the Session.
      5. Where a Client attends a Session less than fifteen (15) minutes late, then the Trainer and Client may agree to conduct a shorter Session, concluding at the scheduled completion time.
    2. Trainer Initiated Cancellations
      1. Where a Trainer cancels a Session or fails to attend the Session, the Session will become an Unallocated Session, to be used by the Client to book an alternative Session at any time up to ninety (90) days from the date of original purchase.
    3. Fitii Initiated Cancellations
      1. Fitii may cancel Sessions because a User has breached this Agreement and has been removed or suspended from the Platform. Where such action is taken and the Client is not at fault, then the relevant Trainer or Gym profile owner is responsible for any refunds to the Client for the value of any Session cancelled. Where the Client is the User that has been removed or suspended then any Session, whether allocated or unallocated, will be forfeited.
    4. Plan Cancellations.
      1. Plan which is for a fixed duration and displays “No early termination” under the Termination Notice Requirement heading:
        1. cannot be terminated or cancelled early by a Client. In purchasing this Plan, the Client has contracted with the Trainer to pay the weekly/fortnightly Session Price for the entire duration of the Plan. Where a client fails or refuses to complete the Contract in accordance with those terms, the Trainer and/or Gym will have the right to seek recovery of any outstanding payments from the Client outside the Platform.
        2. May be terminated or cancelled by a Trainer and/or Gym at any time without cause and with immediate effect in the absolute discretion of the Trainer and/or Gym.
      2. Plan which is for a fixed duration and displays a notice period under the Termination Notice Requirement heading:
        1. May be terminated or cancelled by a Client upon the giving the nominated notice displayed in the Plan. Where the Client proceeds to cancel or terminate the Plan via the Platform, they will continue to be charged the weekly/fortnightly Session Price and will continue to be able to access the benefits of the Plan for the notice period.
        2. May be terminated or cancelled by a Trainer and/or Gym at any time without cause and with immediate effect in the absolute discretion of the Trainer and/or Gym.
      3. Plan which is an ongoing Plan:
        1. May be terminated or cancelled by a Client upon the giving the nominated notice displayed in the Plan. Where the Client proceeds to cancel or terminate the Plan via the Platform, they will continue to be charged the weekly/fortnightly Session Price and will continue to be able to access the benefits of the Plan for the notice period.
        2. May be terminated or cancelled by a Trainer and/or Gym at any time without cause and with immediate effect in the absolute discretion of the Trainer and/or Gym.
      4. A Plan which displays the words “Cancel Anytime Without Penalty” under the Termination Notice Requirement heading may be terminated by either party at any time without cause.
      5. Termination of a Plan by a Trainer and/or Gym.
        1. Where a Trainer and/or Gym cancels, terminates or pauses a Plan, subject to the circumstances of the cancellation, termination or pause may be liable to the Client for any paid for, but undelivered benefits of that Plan. The Users agree that such liability is a matter strictly between the Users, does not involve Fitii in any way. The Users agree to release and hold Fitii harmless for such liability.
    5. Paused Plans.
      1. A Trainer and/or Gym may pause the sale or delivery of a Plan at any time without cause and with immediate effect in the absolute discretion of the Trainer and/or Gym.
      2. Once paused, delivery of the Plan is suspended, no further weekly/fortnightly Session Price payments will be collected, and no further Unallocated Session credits issued until the Plan is manually resumed by the Trainer and/or Gym.
      3. A paused Plan may be resumed at anytime by the Trainer and/or Gym. Where resumed, the Plan will resume delivery and the next payment taken on the same day of the week which the Plan was previously charged.
      4. For Plans with a fixed duration, the duration of the Plan will be calculated as the period by which the Plan is delivered, excluding the period for which the Plan was Paused.
    6. Cancellations General
      1. The Fitii cancellation policy contained in this clause applies to all Session bookings made via the Platform regardless of any alternative cancelation policies or agreements between the parties.
      2. The Fitii cancellation policy is enforced via an automated process within the Platform.
      3. Where a Session is deemed forfeited under this clause, the Client is not entitled to any refund, credit or replacement Session.
      4. Where the circumstances of a cancellation or missed Session invoke a right under the ACL or by a Consumer Guarantee to a refund, replacement or other protection for the Client, than the Client should contact Fitii by sending an email, with full particulars and relevant information, to report@fitii.com.
  10. Permissions

     


    1. In order to operate properly, Fitii may request access to services within your device, including but not limited to location services (including on the ‘always’ setting), contacts, full calendar access, camera access, microphone access, photo access as well as the ability to send you notifications.
    2. You can control, limit or restrict our access to the device services in your device settings.
    3. You acknowledge and agree that the Platform may fail to operate, or fail to operate effectively if access is limited, or restricted.
    4. Fitii Platform may from time to time engage location-based or map-based functionality. The Fitii Platform will display the location of Trainers and Gyms and in some instances, Clients to persons browsing the Fitii Platform.
  11. Payment Collection Provider

     


    1. Fitii may use a Payment Collection Provider to collect and process payments payable pursuant to this Agreement.
    2. In so far as it is relevant to the collection of monies pursuant to this Agreement, the Australian terms and conditions at https://stripe.com are incorporated into this Agreement and will prevail over this Agreement to the extent of any inconsistency in relation to the collection of monies pursuant to this Agreement.
  12. Payments, Payouts, Service and Other Fees

     


    1. Fitii automatically adds the Service Fee on top of the Session Price set by the Trainers or Gyms on the Fitii PT App. Retail Prices advertised on the Fitii App are inclusive of the Service Fee payable to Fitii.
    2. The Service Fee is not claimable by a Trainer or Gym and belongs to Fitii.
    3. Fitii will pay the Base Payment Collection Fee from the Service Fee. To remove any doubt the Base Payment Collection Fee is not payable by a Gym or Trainer.
    4. Upon the booking of a Session or Sessions, the Service Fee becomes immediately due and payable by the Client to Fitii. The Payment Collection Provider will collect the Service Fee at the time of purchase and account to Fitii for the balance Service Fee, less the Base Payment Collection Fee.
    5. The Session Price, and in the case of a Plan the weekly/fortnightly Session Price, will be collected by the Payment Collection Provider:
      1. For one-to-one sessions, upon the last of the Trainer or Client accepting the session and confirming payment via the Platform;
      2. For Classes, private groups and Packages immediately on the Client confirming payment via the Platform;
      3. For the first weekly/fortnightly Session Price for a Plan commencing immediately on purchase, immediately upon the Client confirming payment via the Platform;
      4. For the first weekly/fortnightly Session Price for a Plan commencing on a designated day of the week, at 0500h (5am) in Melbourne Australia, on the day of the week nominated in the Plan next occurring following the Client confirming payment via the Platform;
      5. For the second and subsequent weekly/fortnightly Session Price for all Plans, at 0500h (5am) in Melbourne Australia on the same day of the week matching the first payment each week or fortnight as is the case for the relevant Plan until such time as the Plan concludes, expires or is validly cancelled.
    6. Amounts collected via the Platform will be eligible to be batched for distribution in accordance with clauses 12.7 and 12.8 as follows:
      1. For the Session Price of a one-to-one Session, Class or private group, immediately upon cleared collection;
      2. For the weekly/fortnightly Session Price of a Plan, immediately upon cleared collection; and
      3. For Packages, in full as a lump sum immediately upon cleared collection.
    7. Amounts collected and eligible for payout to a Gym and/or Trainer will be batched for payment as follows:
      1. If the Trainer has signed up to the Platform as a Gym Employee, to the gym;
      2. If the Trainer has signed up to the Platform as an Independent, to the Trainer; or
      3. If the Trainer has signed up to the Platform as an Contractor, then:
        1. The Commission Amount to the Gym; and
        2. The balance between the Session Price and the Commission Amount to the Trainer;
          provided alwaysthat total amount distributed to a Gym and/or Trainer for each Session shall not exceed the Session Price paid by the Client for the Session and collected for distribution by the Payment Collection Provider.
    8. Notwithstanding the preceding, payments to Gyms or Trainers will be batched into weekly payments made on Wednesday of each week incorporating those payments to which the Gym or Trainer became eligible to receive under this clause 12 in the seven (7) day of the Sunday to Saturday immediately preceding.
    9. Notwithstanding clause 12.7, Fitii cannot guarantee that all payments for a Trainer profile will be batched between the Trainer and Gym in the manner those parties anticipate. In the event a payment is made to a Trainer or a Gym and the other believes they have a claim in total or in part to that payment, those parties expressly agree that it is there obligation to resolve that matter between themselves, and that the party who has received the excess funds hold same on constructive trust for the eligible party.
    10. Fitii reserves its right to change the amount or percentage of the Service Fee from time to time, on either a temporary or permanent basis, and the terms applying to their payment. Changes made by Fitii will take effect from the day nominated by Fitii, or failing such nomination, are effective fourteen (14) days after Fitii notifies you of that change by sending a message to your Fitii account, by email, or by notifying you when you next time login to the Fitii Platform.
    11. All Fees and charges payable to Fitii, including but not limited to the Service Fee, are non-refundable in any circumstance subject only to the absolute discretion of Fitii on a case by case basis, even where the Session Price has become refundable under these terms, subject only to your rights under any Non-Excludable Conditions. The parties acknowledged and agree that Service fee liability is incurred at the moment any transaction is processed and relates to platform and payment processing services delivered by Fitii, not the Services provided by the Trainers.
    12. Where 1.1 a Fee is incurred by Fitii due to a specific request or action of a User, including but not limited to, a request for a refund, trace or payment dishonour, or arising out of a breach of this Agreement by a User, then Fitii reserves the right to recover from the User the Fee incurred by Fitii. Such Fees may be collected directly from the User by the Payment Collection Provider or may be debited from a Session Price yet to be distributed.
    13. Notwithstanding anything contained in these terms, Fitii accepts no liability for client payment failures or an inability to collect any sum due and owning by a User under this agreement to another User, even in circumstances where the User has contracted with another User within the Platform.
  13. Refunds and Recoverable Costs

     


    1. Generally, any purchase of a Service via the Platform is final and not subject to any refunds, credits and transfers unless permitted by this Agreement or required by the ACL, and even in such instances is subject to this clause in relation to any part of the ACL which may be contracted out of.
    2. Where:
      1. A Trainer fails, refuses or is unable or incapable of delivering the paid for Session or Sessions in compliance with the obligations under this Agreement;
      2. A Trainer deletes its profile or account, or is terminated or removed from the Platform by Fitii with Session or Sessions yet to be delivered;
      3. Under clause 9 of this Agreement the Client is entitled to a refund; or
      4. Fitii is otherwise satisfied in its absolute discretion that the Retail Price or Session Price for a Session or Sessions should be returned to the Client,

      then the relevant Trainer or Gym profile owner is responsible for any refunds of the Session Price, for the relevant Session or Sessions to the relevant Client or Clients. Where possible, Fitii may direct the Payment Collection Provider to pay any relevant refund to the relevant Client or Clients. Any such direction or payment will be deemed payments made by Fitii to the Client on behalf of the Trainer or Gym. Trainer’s and Gyms authorise Fitii, as limited payment collection agent, to process any refund in accordance with this clause.

    3. A Client is not entitled to a refund of any type where:
      1. A Client requests a refund for any reason not protected by the ACL;
      2. A Client elects to not receive the Session or Sessions;
      3. Client elects to terminate their Fitii account or profile;
      4. A Session or Session are deemed forfeited under clause 11;
      5. An Unallocated Session or Sessions expire in accordance with this Agreement;
      6. It is determined by Fitii that a refund would result in a defeat, or breach of the Fair Use Policy; or
      7. One is not permitted by any expressed or implied provision of this Agreement.
    4. Nothing in this clause 13 prohibits a Trainer or Gym from offering more favourable refund terms to a Client, provided always that such arrangements:
      1. Are exclusively between the Trainer, Gym and Client;
      2. Apply only to direct refunds from the Trainer or Gym to a Client;
      3. Do not involve or bind Fitii;
      4. Place any obligation on Fitii; and
      5. Do not apply to the Service Fee.
    5. Without limiting any other part of this clause 13, the Parties acknowledge and accept that in the case of Packages, the Trainer and/or Gym are paid for their entitlement to the entire Package in a lump sum, and that they are responsible to the relevant Client for any refunds arising from that prepayment.
    6. Notwithstanding the above, the Service Fee is non-refundable as the service provided which gives rise to the fee is consumed in the moment that the Service Fee is collected.
    7. A refund under this clause must be claimed by sending an email, with full particulars and relevant information, to report@fitii.com.
  14. Taxes and Tax Invoices

     


    1. At all material times the collection of funds on behalf of a Gym or Trainer by the Payment Collection Provider or by extension Fitii, constitutes the collection of funds as a limited payment collection agent for the Gym or Trainer for the purposes of the GST Law.
    2. At no time are any monies collected via the Fitii Platform or via the Payment Collection Provider to be consider or constitute the collection of monies as Principle of the Gym or Trainer, rather, payments are considered to be made directly by the Client to the Gym or Trainer.
    3. As a Gym or Trainer, you are solely responsible for determining your obligations to report, collect, remit or account to your Session Price any applicable GST or other indirect sales taxes, income taxes or other applicable taxes.
    4. Fitii is responsible for its obligations relating to GST solely in relation to the Service Fee paid to it pursuant to this Agreement, being the only taxable supply made by Fitii pursuant to this Agreement.
    5. Service Fees collected by Fitii are subject to GST and are inclusive of GST.
    6. A Tax Invoice for the Service Fee will be issued to the Client electronically by an automated process of the Payment Collection Provider on behalf of Fitii. Tax Invoices will be issued once, any requests for further copies of any Tax Invoice may be subject to an administration charge or fee as determined in the absolute discretion of Fitii.
    7. A Client may request a Tax Invoice for a Session Price paid by contacting the Gym and/or Trainer directly and requesting a Tax Invoice. For the purposes of any Tax Invoice to be issued by a Gym and/or Trainer, the parties agree and acknowledge that notwithstanding the date of payment by a Client, the Session Price remains held in escrow until the physical delivery of the Session or the Unallocated Sessions expiry and as such the taxable supply by the Gym and/or Trainer is taken to be made upon the physical delivery of the Session or the Unallocated Sessions expiry.
    8. A Gym or Trainer cannot request a Tax Invoice from Fitii for the Service Fee and are not entitled to claim any input tax credits for the Service Fee.
    9. A Gym and/or Trainer is obligated to respond to any properly made request for a Tax Invoice made within a reasonable time or as required by the GST Law by either providing a Tax Invoice, by advising the Client that the Gym and/or Trainer is not registered for GST (if applicable) or otherwise as required or permitted by law.
    10. Fitii accepts no responsibility for any failure or refusal by a Gym and/or Trainer to provide a Tax Invoice, provide a valid tax invoice to a Client or to any other failure of a Gym and/or Trainer to comply with their tax obligations.
    11. Notwithstanding Fitii͛s appointment as a limited payment collection agent for a Gym or Trainer, Fitii explicitly disclaims all liability for any acts or omissions of the Gym or Trainer or any other third parties.
  15. Third Party Services

     


    1. Fitii may from time to time include Third Party Services on the Fitii Platform. To remove any doubt, Fitii does not provide the Third Party Services.
    2. Third Party Services are offered to Users pursuant to the third party’s terms and conditions and you may be required to accept additional terms.
    3. Fitii makes no representation or warranty as to the Third Party Services. Notwithstanding, Fitii may at its sole discretion, facilitate or assist in resolving issues to improve its user experience. Users may inform Fitii of their Third Party Service experience by emailing full details of the dispute to report@fitii.com.
    4. Any link or access to a Third Party Services is provided solely as a convenience to you and we do not endorse any Third Party Services and have not, and are not required to, examine or evaluate the content, accuracy, completeness, validity, legality, decency, quality, or any other aspect of any Third Party Services.
    5. Your use of any Third Party Services is at your sole risk and, to the extent permitted by law, we will have no liability to you in connection with any Third Party Services or its use.
  16. Certificates, Qualifications and Verification

     


    1. Fitii may use Identity Verification Services, but is not obligated to.
    2. You agree that Fitii Identity Verification Services may not be fully accurate as all Fitii Services are dependent on User-supplied information and/or information or verification services provided by third parties.
    3. Fitii does not, and is not obligated to, review or verify any of the User-supplied information even if it relates to an essential obligation or forms part of the Identity Verification Services.
    4. You are solely responsible for identity verification and qualification verification when interacting with or engaging the Services of other Users and Fitii accepts no responsibility for any use that is made of a Fitii Identity Verification Service.
    5. Fitii Identity Verification Services may be modified at any time.
    6. The Fitii Platform may also include a User-initiated feedback system to help evaluate Users.
  17. Ratings and Reviews

     


    1. Ratings and Reviews by Clients and Trainers must be fair, truthful and factual and must not contain any offensive or defamatory language.
    2. Users are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about another User.
    3. You agree that Fitii has no obligation to edit, remove and otherwise deal with any review or rating made by anther User on the Fitii Platform, notwithstanding that the rating or review may be in breach of this Agreement, or may give rise to an actionable right. Users agree to not join Fitii as a party to any action regarding any rating or review and further agree that this clause may be pleaded as a bar to proceedings against Fitii.
    4. You indemnify and release Fitii from any and all liability arising out of the ratings or reviews which you may make, or may me be made about you as a User of the Fitii Platform and further agree that Fitii is not liable as publisher, to any material on the Fitii Platform.
  18. Insurances

     


    1. Fitii does not offer, nor hold, any insurances in relation to the Services provided via the Fitii Platform, for any act or for any loss, damage, theft, fraud, injury, death to person or property arising out of, or in connection with the Services, the delivery of the Services or in any other way in connection with the Fitii Platform.
    2. It is a mandatory and essential obligation under this Agreement for Trainers and or Gyms to ensure that they hold current, relevant and valid policies of insurance to cover them and their Clients for the delivery of the Services and Sessions, including but not limited to, for any loss, damage, theft, fraud, injury, death to person or property arising out of, or in connection with the Services or Sessions.
    3. It is recommended that Trainers and or Gyms take business protection and or cyber risk insurance or any other insurance they consider appropriate or prudent to protect their business interests in the event of any hack, failure or inaccessibility (being malicious, unintentional or intentional in accordance with the terms of this Agreement) of the Fitii Platform.
    4. Gyms must ensure that their facilities hold public liability insurance of at least $10 million per event and any other insurances required at law given the nature of their business or to the extent that they so require and to protect their own interests.
    5. It is recommended that Clients insure their person and property to the extent that they so require and to protect their own interests.
    6. Notwithstanding this clause 18, Clients accept and acknowledge that Fitii does not and is not obligated to verify that Trainers and or Gyms hold current, relevant and valid policies of insurance, but that it relies on the warranties and obligations of each Trainer and Gym under this Agreement in this regard. To remove any doubt, Users expressly agree that a failure of a Trainer or Gym to comply with this clause 18 does not enliven any right against Fitii.
    7. Users agree to not join Fitii as a party to any action, claim, proceeding or application regarding any actionable right against another User or another User’s insurer arising out of the delivery of the Services or in any other way in connection with the Fitii Platform and further agree that this clause may be pleaded as a bar to proceedings against Fitii.
    8. Insurances required or recommended under this clause 18 shall be taken with reference to clause 20 of this Agreement, or any other clause of this Agreement which has defined, expressed or implied with whom liability rests, or does not rest, for an insurable risk.
  19. Complaints and Reports

     


    1. You may make a complaint about:
      1. any comment made on the Fitii Platform;
      2. any comment made by a User to another User during or in connection with the delivery of Session or Service booked via the Fitii Platform;
      3. any conduct or actions of a User during or in connection with the delivery of Session or Service booked via the Fitii Platform; by sending an email containing all relevant details and information to report@fitii.com.
    2. Fitii is entitled to suspend or terminate a User’s account at any time if Fitii, in its sole and absolute discretion, is concerned by any feedback about the User, or considers a User’s feedback rating to be problematic for other Fitii Users.
    3. Nothing in this clause obligates or compels Fitii to address or resolve every issue reported via this clause. A failure or refusal by Fitii to action, address or resolve a complaint does not amount to an acceptance by Fitii that the conduct, comment or action of the User is appropriate or acceptable, nor does transfer any liability arising from or in connection with the conduct, comment or action to Fitii.
  20. Limitation of Liability, Indemnity and Disclaimers

     


    1. Limitation of Liability
      1. Except for liability in relation to breach of Non-excludable Condition, to the extent permitted by law Fitii specifically disclaims all liability for any loss or damage (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including, without limitation, loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of any goods or service supplied), arising out of or in any way connected with any transaction between Clients and Trainers.
      2. Except for liability in relation to a breach of any Non-excludable Condition, to the extent permitted by law, Fitii specifically disclaims all liability for any loss or damage (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including, without limitation, loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of any goods or service supplied), arising out of or in any way connected with any transaction between the User and any Third Party Service Provider who may be included from time to time on the Fitii Platform.
      3. Except for liability in relation to breach of Non-excludable Condition, to the extent permitted by law Fitii specifically disclaims any liability to a User for any loss, damage, cost or expense (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including, without limitation, lost profits, loss of data, loss of goodwill, service interruption, computer damage, device damage, system failure, the cost of substitute products or services, damages for personal, bodily or emotional injury or distress, loss of revenue, production, opportunity, access to markets, reputation, use of any indirect, remote, abnormal, or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs, loss of notes or record keeping loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of any goods or service supplied), arising out of or in any way connected with the Platform, inability to use or continue to use the Platform or any temporary or permeant failure of the Platform, even where Fitii was expressly advised, aware or reasonably likely to be aware of the likelihood of such loss or damage or where such loss or damage was avoidable.
      4. Except for liability in relation to a breach of any Non-excludable Condition, and to the extent permitted by law, Fitii is not liable for any Consequential Loss arising out of or in any way connected with the Platform or Services.
      5. Except for liability in relation to any Non-excludable Condition, the Fitii Service is provided on an “as is” basis, and without any warranty, guarantee or condition, representations, express or implied, which is not stated in this Agreement. To the extent permitted by law, we and our suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement to extent allowed by law.
      6. Fitii’s liability to you for a breach of any Non-excludable Condition (other than a Non-excludable Condition that by law cannot be limited) is limited, at our option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, services in respect of which the breach occurred.
      7. Except for liability in relation to a breach of any Non-excludable Condition, Fitii’s liability to any User of the Fitii Service is limited to the total amount of the Service Fees paid by that User to Fitii during the twelve-month period prior to any incident causing liability of Fitii, or $50, whichever is greater.
      8. These limitations of liability reflect the allocation of risk between the parties. The limitations of liability provided in this Agreement inure to the benefit of Fitii whether detailed in this clause, or elsewhere in this Agreement.
    2. Indemnity
      1. Each User agrees to defend and indemnify and hold Fitii (and Fitii’s parent and related bodies corporate, its officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, liabilities, costs or expenses (including legal costs and expenses on a solicitor own client basis), including in tort, contract or negligence, arising out of or connected to their use of or access to the Platform, the Services or the Sessions, any breach by them of this Agreement, any wilful, unlawful or negligent act or omission by them, and any violation by them of any applicable laws or the rights of any third party.
      2. Fitii reserves the right to assume the exclusive defence and control of any matter otherwise subject to any indemnity contained in this Agreement, in which event the Use will cooperate in asserting any available defences.
      3. These indemnities reflect the allocation of risk between the parties. The indemnities provided in this Agreement inure to the benefit of Fitii whether detailed in this clause, or elsewhere in this Agreement.
    3. Disclaimers
      1. Fitii does not endorse any User on the Platform or their services, skills or profiles, even in circumstances where that User or profile is shown on any marketing material used by Fitii.
      2. Fitii does not warrant that it has or will:
        1. carry out or perform any sort of background or criminal history checks on Users;
        2. verify or confirm any Users’ identity, skills, services, profiles, qualification, insurance, suitability or the truth, accuracy, reliability or completeness of the information contained on the Platform;
        3. verify or confirm any Users’ ability, suitability, health or fitness to receive the Services;
        4. control the content contained on a User’s profile;
        5. control the content or suitability of the Services and Sessions; or
        6. keep the Platform operational, error, bug, virus, malware or defect free or free from any scheduled or unscheduled downtime, or that any error, bug, virus, malware or defect will be rectified or removed.
      3. Nothing in clause 20.3.2 prohibits Fitii from doing any of the things detailed in that clause should it so elect to.
      4. These disclaimers reflect the allocation of risk between the parties. disclaimers provided in this Agreement inure to the benefit of Fitii whether detailed in this clause, or elsewhere in this Agreement.
    4. General
      1. Fitii has no obligation to any User to assist or involve itself in any dispute between Users although may do at its discretion so to improve User experience.
      2. Each User:
        1. Accesses the Platform and the Services at their own risk;
        2. Is solely responsible to take their own precautions for all of its communications and interactions with other Users, including when meeting or agreeing to meet another User; and
        3. Agrees that any legal remedy or liability that it seeks to obtain for actions or omissions of a Trainer, a Gym, Client, other User or third party will be limited to a claim against that person or entity which caused the harm, and will not name Fitii as a party.
      3. Any limitation of liability, indemnity or disclaimer otherwise contained in this Agreement need not be repeated in this clause 20 to achieve its purposes.
  21. Privacy Policy

     


    1. Fitii’s Privacy Policy applies to all Users and forms part of this Agreement. Use of the Fitii Platform confirms that you consent to and authorise the collection, use and disclosure of your Personal Information in accordance with Fitii’s Privacy Policy
    2. Third Party Service providers will provide their service pursuant to their own privacy policies. Prior to acceptance of any service from a third party, you must review and agree to their terms of service including their privacy policy.
  22. Modifications to the Agreement

     


    1. Fitii may modify this Agreement and any of its Policies, procedures and guidelines from time to time. Fitii will update and publish the current version of this Agreement on its website www.fitii.com and it may, but is not obligated to, send notification of such modifications to your Fitii account, by email or advise you the next time you log in.
    2. When you actively agree to the terms (including for example, by touching or clicking a button saying or including the words, “Accept” or “Agree”) or using the Fitii Platform in any manner with or without notice, the modified and or additional terms will be effective immediately. In all other cases, the amended terms will automatically be effective 7 days after they are initially published, or deemed notified, to you.
    3. Should you not agree with any changes to this Agreement, or any of our Policies, you must notify Fitii who will terminate your Fitii account, or you must immediately delete your Fitii account and stop using the Fitii Services. Except as specifically described in or authorised by this Agreement, the terms of this Agreement and any Fitii Policy cannot be amended unilaterally by a User, but may be amended unilaterally by Fitii.
    4. You acknowledge and agree that it is your obligation to review the User Agreement before use and continued use of the Planform.
  23. Dispute Resolution

     


    1. Fitii encourages Users to try and resolve disputes (including claims for returns or refunds) between Clients and Trainers and/or Gyms directly. Accordingly, you acknowledge and agree that Fitii may, in its absolute discretion, provide your information as it decides is suitable to other parties involved in the dispute.
    2. Fitii may provide dispute reporting capabilities. The provision of these capabilities do not create an obligation on Fitii to resolve, or facilitate the resolution of the dispute.
    3. Disputes with any Third Party Service provider must proceed pursuant to any dispute resolution process set out in the terms of service of the Third Party Service provider.
    4. Fitii has the right to direct the Payment Collection Provider to hold any Session Price the subject of a dispute, until the dispute has been resolved.
    5. If Fitii provides information of other Fitii Users to you, either directly for the purposes of resolving disputes under this clause or by display on the Fitii Platform, you agree to only use such information for the purpose of resolving the dispute and no other purpose. You indemnify Fitii against any claims relating to your use of information in a manner not permitted by this Agreement.
  24. Termination

     


    1. At any time, and for any reason, either you or Fitii may deactivate your account or profile and terminate this Agreement
    2. Fitii reserves the right to refuse supply of the Fitii Services, terminate any User’s account or profile, terminate this Agreement with the User, and remove or edit content on the Platform at its sole discretion, without incurring any liability to the User.
    3. If Fitii decides to terminate a User’s account or profile, any of the following may occur, with or without notice to the User:
      1. The User’s account or profile will be deactivated, its password will be disabled and the User will not be able to access the Platform, their account or profile or their content;
      2. The User’s profile may no longer be visible on the Platform to other Users;
      3. Any Sessions, Allocated or Unallocated, not yet delivered will be cancelled;
      4. Other Users effected by the termination may be notified;
      5. Payments for delivered Sessions will be processed in the usual course;
      6. Undelivered Sessions will be dealt with in accordance with clause 13; and
      7. The User will not in any way be entitled to any compensation whatsoever arising from or in connection with the suspension, deactivation or termination of the Users account or profile.
    4. Third Party Services may only be terminated in accordance with their terms and conditions, notwithstanding valid termination of this Agreement.
    5. Upon termination of this Agreement or your account on the Fitii Platform for any reason, you must not create any further accounts with Fitii without the prior consent of Fitii, which may be arbitrarily withheld.
    6. Clauses 12, 13, 14, 20, 23 and any other terms which by their nature should continue to apply, shall continue to apply and do not merge with completion, expiration or termination of this Agreement.
  25. No Agency

     


    1. No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular you have no authority to bind Fitii, its related entities or affiliates in any way whatsoever.
    2. Fitii confirms that all Third Party Services that may be promoted on the Fitii service are provided solely by such Third Party Service providers. To the extent permitted by law, Fitii specifically disclaims all liability for any loss or damage incurred by you in any manner due to the performance or non-performance of such Third Party Service.
    3. This clause does not affect or limit the limited payment collection agency arrangement detailed in clause 14 as it applies for the purposes of the GST Law.
  26. Copyrights, Trademarks and Intellectual Property

     


    1. The word ‘Fitii’ is a registered trademark in Australia and select other countries. Fitii claims an unregistered trademark of the word ‘Fitii’ in all other countries.
    2. The Platform contains material which is owned by or licenced to Fitii and is protected by Australian and international laws, including but not limited to the trademarks, trade names, copyright, software, content, design, images, graphics, form, appearance or layout of all or any part of the Platform.
    3. Fitii claims copyright over all intellectual property produced, published or issued by Fitii. Intellectual property includes but is not limited to, all and any part of our codes, algorithms, copyright, fees, pricing, logos, slogans, business names, trade names, domain names, designs, information, original images, original photographs, knowhow, trade secrets, systems, ideas, methods, diagrams, drawings, database, notes, documents, articles, stories, content, marketing material, confidential information and any other proprietary or industrial right relating to Fitii whether registered, unregistered or capable of registration and whether made, create, or published before or after the date of this Agreement.
    4. The Platform may contain third party intellectual property, Fitii makes no warranties or representations that third party intellectual property on the Platform or linked sites, does not infringe the intellectual property rights of any person anywhere in the world.
    5. Nothing in this Agreement constitutes a transfer of any intellectual property right to a User or authorises a User to copy, imitate, or use, in whole or in part, any of Fitii’s or a third party’s intellectual property, which is expressly prohibited
    6. Users of the Platform do not obtain any interest or licence in any intellectual property unless permission is expressly given in writing by the intellectual property owner.
  27. User Licence

     


    1. Subject to this Agreement, Fitii grants the User a temporary, personal, non-exclusive, non-transferable, limited and revocable licence to use the Platform for its own personal use, or its commercial use insofar as such commercial use is strictly limited to the delivery of the Services by a Trainer or Gym within the Platform only (and specifically and without limitation excludes commercial use in competition with Fitii), on a computer or mobile device owned or controlled by the User as permitted in accordance with this Agreement, and not to use the Platform or any part of it, in any other way or for any other purpose, apart from as permitted by the ACL or any Non-excludable Condition.
    2. The licence created by the clause to use the Platform is licenced to the User and not capable of being sold, transferred, leased or otherwise conveyed. A User has no right in the Platform, other than to use it in accordance with this Agreement.
    3. The User has no enforceable right to use or continue to use the Platform.
    4. This Agreement and the User licence created under this clause governs and applies to any updates, supplements or replacements to the Platform.
  28. Notices

     


    1. Except as stated otherwise, any notices to Fitii must be given by registered post, to the Fitii Address For Notices or by email to legal@fitii.com. Any notice shall be deemed given
      1. if sent by email, 24 hours after the email is sent, unless the User is notified that the email address is invalid or the email is undeliverable; and
      2. if sent by registered post, on the day the Notice is signed for and designated as Delivered.
    2. You consent that, except as stated otherwise, any notices to you as a User may be given electronically, either via the Fitii Platform, or by email or post.
    3. Notices related to performance of any Third Party Service must be delivered to such Third Party as set out in Third Party Service Provider terms and conditions.
  29. General

     


    1. This Agreement is governed by the laws of Victoria, Australia. You and Fitii submit to the exclusive jurisdiction of the courts of Victoria, Australia.
    2. The provisions of this Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforceable.
    3. Any failure by Fitii to insist upon strict performance by a User or Users of any provision of this Agreement will not be taken to be a waiver of any existing or future right in relation to the provision. No waiver by Fitii of any term of this Agreement, whether expressed or implied, will be effective unless expressly stated to be a waiver and communicated by Fitii, in writing.
    4. Fitii will not be liable for any delay or failure to perform its obligations under this Agreement if such delay is due to any circumstance beyond its reasonable control.
    5. This Agreement may be assigned or novated by Fitii to a third party without your consent. In the event of an assignment or novation the User will remain bound by this Agreement.
    6. This Agreement sets out the entire understanding and agreement between User and Fitii with respect to its subject matter.

 

Version 2.6 4 October 2020