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©2019 by activelyaoife. 

1. This Agreement

   1.1. Accepting this Agreement

a) By using the Website or Services, you agree to comply with and be bound by the terms and conditions of this Agreement, together with any relevant policy applicable to your Account or your Selected Service. These terms govern your access to and use of the Website or Services. 

b) These terms are binding on any use of the Website or Services and apply from the time you first access it.

c) It is your obligation to ensure that you have read, understood and agree to the most recent set of terms available for the Website or Services.

d) We may amend this Agreement at any time by providing you with 30 days notice of the new terms and conditions, unless otherwise stated in this Agreement.  

e) If you do not agree to these terms, you cannot continue using the Website or Services.  

1.2. Contacting us

Please email us at info@activelyaoife.com if you have any questions relating to these terms.

2. Definitions 

 

   2.1. Definitions

Unless explicitly stated otherwise, expressions used in this Agreement have the following meanings:

Account means your online account with us used to manage and provide you with the Service. 

Agreement means this document and any additional policies made available on the Website.

Australia Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

Electronic Products means the electronic goods for purchase on the Website and/or the Store including but not limited to ebooks, mobile applications, video content and PDF downloads; 

Fee means any amount payable by you to access and use the Service.

Intellectual Property Right means all present and future rights conferred by statute, common law or equity (and all moral rights) in, or in relation to, business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, know how, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Non-Excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Payment Term means the method of payment nominated by you at the time of selecting your Service, being either payment in full or weekly installments, or as amended by us from time to time.

Privacy Law means:

a) the Privacy Act 1988 (Cth); and 

b) any code registered under the Privacy Act or Australian Privacy Principles.

Privacy Policy means our privacy policy, which is available on the Website as amended by us from time to time.

Service means any service we provide to you in connection with this Agreement and our business, whether that service is advertised on the Website or not.

Products means Electronic Products and Physical Products collectively;

Term means the period of time that you hold an active Account.

Store means the online store located on the Website;

You means the person using the Website or Service. 

We or Us means Actively Aoife ABN 14 300 601 515.

Website means www.activelyaoife.com

3. Services

3.1. Selecting a Service

You acknowledge that we may offer various service types, and it is your responsibility to review and evaluate your individual situation to determine which Service is appropriate for you.  

3.2. Changing your selected Service

a) You may request to change your selected Service to another available Service at any time.  

b) You acknowledge that we are under no obligation to provide you the new Service until such time as you have paid any difference in Fees between the Service.  

c) Any request for a refund of Fees as a result of you changing the Service will be subject to clause 7.2.

3.3. Providing the Service

Subject to your compliance with these terms we agree to provide you with the Services in accordance with this Agreement. 

3.4. Removal of a Service

We reserve the right to upgrade, maintain, tune, backup, amend, add to or remove items from, redesign, improve or otherwise alter the Service at our sole and absolute discretion.

3.5. Disclaimer

a) You acknowledge: 

    i) that the Service is a remote service and performed entirely at a distance.

    ii) that we are not registered dietitians or medical professionals and that the Services should not be considered medical advice or a     substitution for medical advice, nor can the Services be relied upon as medical advice in any capacity.

b) We recommend that you consult with your doctor or other health professional prior to commencing any new physical program.  

c) We do not accept any liability for any injury, loss or damage incurred by your use or reliance on the Service or information provided on the Website.

4. Accounts

4.1. Accounts

You may only register one account per individual.  Registrations of multiple account (regardless if multiple email address are used) may result in the termination of your Account.

4.2. Provision of information

You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that:

a) all of the information that you provide to us is accurate and complete in all respects; and

b) you will inform us by updating your Account details whenever any such information changes.

4.3. Declining your Account

We reserve the right to reject an Account at our absolute discretion, including but limited to you providing insufficient information to create your Account. 

4.4. Security Responsibilities

4.5. You are solely responsible for:

a) keeping any usernames and passwords associated with your Account secure; and

b) the use of your Account, irrespective of who is using it, even if it is used without your permission.

5. The Website

5.1. Inaccessibility

From time to time, without notice, access to all or part of the Website (including the Service) may be disrupted or limited. During such an interruption, we will use reasonable endeavours to restore access as soon as practicable.

5.2. Errors

You acknowledge that there may be technical or administrative errors on the Website, including but not limited to errors with respect to description or functionality.  We reserve the right to at our absolute discretion, without notice correct any errors or update to the Website.

5.3. Security responsibilities

We will take reasonable steps to ensure that the Website is secure from unauthorised access consistent with generally accepted industry standards in our industry.

5.4. Third party links

The Website may contain hyperlinks and other links to websites operated by third parties. We do not control these third party websites and are therefore not responsible for the content of any third party website or any hyperlink contained in a third party website. We provide the hyperlinks for your convenience only and this does not indicate, expressly or implicitly, any endorsement, sponsorship or approval by us of a third party website or the products or services offered at a third party website. Your visit to a third party website is entirely at your own risk.

6. General obligations

6.1. Your obligations

You agree:

a) to only use the Website and Service for lawful purposes and as it is designed to be used;

b) to keep Accounts and records up-to-date with true, accurate and complete information; 

c) take all necessary safeguards to ensure that no unauthorised person accesses the Website and Service; 

d) not to disable or circumvent any protection or disabling mechanism related to the Website;

e) not use the Website in a way which could interfere with or damage our network, any other operator’s network;

f) not to install or store any software applications, code, scripts or viruses on or through the Website.

6.2. Our right to suspend

We reserve the right to limit or suspend your access to the Service if in our reasonable opinion, you are in breach of any of the obligations or undertakings in this Agreement.

7. Payment and Refund

7.1. Fees

You agree to pay the Fee in accordance with your nominated Payment Terms.  

7.2. Refund

a) You will be entitled to a refund if we cancel your Services prior to commencing the Service.

b) You will not be entitled to a refund for a change of mind or if you elect not to complete or use all or part of the Services.  

c) All other refund requests should be made to [insert email address] and will be considered on a case by case basis. 

8. Privacy 

a) You acknowledge that we are required and permitted to collect personal information from you and any third parties in order for you to be provided with the Service.

(b) We will comply with all legal requirements of the Privacy Act 1988 (Cth) that are applicable to us, including the Australian Privacy Principles (if applicable), Notifiable Data Breaches (if applicable), as well as the European Union’s General Data Protection Regulation (if applicable).   

 

8.1. Privacy obligations

a) You acknowledge that your Personal Information will be held in such a manner that will not breach:

   i) our Privacy Policy; or

   ii) the Privacy Act 

b) We may amend our privacy policy in our sole discretion.  If we amend our Privacy Policy, we will notify you by email and post the new privacy policy on the Website. 

8.2. The Privacy Act

For the purposes of this clause, the terms disclose and hold are to have the same meaning as defined in the Privacy Act.

9. Intellectual Property

9.1. Intellectual Property

Nothing in this Agreement will transfer the ownership of any Intellectual Property Rights in the Website or Service to you. 

9.2. Undertakings regarding Intellectual Property

You warrant that you will not do any of the following, or permit any person over whom you have effective control to do so:

a) copy or reproduce, or create an adaptation or translation of, all or part of the Website or Service in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Website or Service in accordance with the Agreement;

b) incorporate all or part of the Website or Service in any other webpage, site, application or other digital or non-digital format;

c) sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Service on any medium; or

d) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Website or Service  or any documentation associated with them.

10. Warranties

10.1. Exclusion of express warranties

We make no warranties or guarantees:

a) that the Website or Service will be accessible at all times, uninterrupted or error free;

b) that the Website  is without bugs or viruses;

c) that any documentation created by us is without error or inaccuracy; and

d) that Website is immune to unauthorised access or security breach.

11. Limitation of Liability

11.1. Implied Conditions

We exclude all implied guarantees, conditions and warranties from this Agreement except any Non-Excludable Condition.

11.2 Limitation of Liability 

(a) To the extent permitted by law, particularly, under the Australian Consumer Law we shall not be liable, and do not assume any liability or responsibility for, any loss or damage suffered by you or any third party, whether directly or indirectly as a result of: 

      (i) your use of our Website or Service; or 

      (ii) your purchase, consumption or use of any of our Products. 

(b) Actively Aoife, or any of our respective officers, directors, employees, agents, affiliates or assigns, or any party involved in the creation, production or transmission of our Website or Service, or sale of our Products be liable to you or any third party, for any direct, indirect, special, punitive, incidental or consequential damages arising out of the use, inability to use, or the results of use of our Website or Store, or purchase, consumption or use of our Products, or any websites linked to our Website or Store (including the materials, information or services contained on such sites) whether in contract or tort or regardless of being advised of the possibility of such damages. 

(c) Without limited the generality of Clause 11(c), to the maximum extent permitted by law, Actively Aoife is not liable to you or any third party, for any direct, indirect, special, punitive, incidental or consequential damages or any injury or death suffered by you as a direct or indirect result of your or any third party’s engagement in any physical activity, exercise or alteration to diet that is suggested, recommend or advised on the Website, Service, or in the Products. 

(d) We do not guarantee, represent or warrant that your use of the Website or Service will be secure, error free and uninterrupted. 

(e) If there is any problem with our Website or Service or any content, you agree that your sole remedy is to cease using our Website or Service.

(f) If there is any defect with the Product(s) that you have purchased on or through our Website or Store: 

     (i) your remedies are as prescribed by Australian Consumer Law; and  

     (ii) to the extent permitted by law, our liability is limited to:

            (a) the replacement of the Product; or 

            (b) refund to the value of that Product; or 

           (c) as otherwise prescribed by Australian Consumer Law. 

(g) If the Products are goods not ordinarily acquired for personal, domestic or household use or consumption as defined in the Australian Consumer Law, our liability is limited to the re-supply of the Products or a refund of the cost of the Products. 

(h) We are not liable to you or any third party for any loss suffered as a result of any changes to the Website, Service and Store content in accordance with Clause 5.  

 

(i) To the maximum extent permitted by law, Actively Aoife is not responsible for any information that is available on the Website or Store that is not accurate, complete or current.   

(j) We are not liable for any loss, damage or harm suffered to you as a result of your access by any third party website, material, product or service. You are responsible to review any third party website material, product or service policies and practices before you engage in any transaction.  

11.3. Limitation of all other Liability

We exclude all other liability for any costs, including consequential loss, suffered or incurred directly or indirectly by you in connection with this Agreement, including in connection with:

a) the Website or Service being inaccessible for any reason;

b) any liability under privacy law;

c) computer virus, trojan and other malware in connection with the Website;

d) security vulnerabilities in the Website or any breach of security that results in unauthorised access to, or corruption of data;

e) any unauthorised activity in relation to the Website or Service; or

f) your breach or any act or omission by you of this Agreement.

11.4. Non-Excludable Condition

Where a Non-Excludable Condition is deemed to apply, to the fullest extent possible under the law, we limit our liability for any breach to:

a) in the case of goods: 

           i) the re-supply of the goods or payment of the cost of the re-supply of the goods; or

           ii) the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and

b) in the case of services:

           i) the resupply of the services; or

          ii) the payment of the cost of having the services resupplied.

12. Indemnity

12.1. Indemnity

You indemnify and will keep us and our representatives indemnified against all liability arising from claims for:

a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive conduct;

b) any breach of this Agreement;

c) infringement of Intellectual Property Rights;

d) piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation; 

e) invasion of the right of privacy or breach of privacy law; and

f) arising out of any activity, advertising or publicity carried out or authorised by you, or any use of the Website or Service, that is:

      i) not in accordance with our directions, policies or advice;

      ii) in breach of this Agreement; or

      iii) not approved by us.

12.2. General indemnity

You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your use of the Website or Service.

13. Complaints and Disputes

a) Complaints should be submitted to us at [insert email] . 

b) In accordance with this section, and to the fullest extent available under the law, you agree not to bring any court or tribunal proceedings against us in respect of any complaint unless you comply with the requirements of this clause (but subject always to any rights you may have under the Competition and Consumer Act 2010 (Cth) or any equivalent legislation).

14. Termination

14.1. Termination by us

a) We may terminate this Agreement at any time if you are in breach of this Agreement.  Should we terminate this Agreement, we will notify you by email that your Account has been terminated. 

b) You acknowledge and agree that should this Agreement be terminated for breach, you will not be eligible for a refund

 

14.2. Termination by you or us

Subject to clause 7.2, either party may terminate this Agreement for any reason at any time.

15. General

15.1. Assignment

a) You cannot assign, novate or otherwise transfer any of your rights or obligations under this Agreement without our prior written consent.

b) We may assign, novate or otherwise transfer any of our rights or obligations under any Agreement to a third party without notice to or the prior consent of you, but if we require, you will sign any documents to give effect to an assignment, novation or transfer by us under this clause.

15.2. Giving effect to this document

Each party must do anything (including execute any document), and must ensure that it’s employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.

15.3. Waiver of rights

A right may only be waived in writing, signed by the party giving the waiver, and:

a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;

b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and

c) the exercise of a right does not prevent any further exercise of that right or of any other right.

15.4. Inconsistency with other documents

If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.

15.5. Severance

Any unenforceable or invalid term of this Agreement will be severed to the extent of the unenforceability or invalidity without affecting any other term in this Agreement.

15.6. Reliance

Neither party has entered into any contract under this Agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.

15.7. Events Beyond Control

A party is not responsible for any loss arising out of any occurrences or condition beyond its control (other than an obligation to pay money), including but not limited to acts of terrorism, act of God, defects in vehicles, war, strikes, theft, delay, cancellation, civil disorder, disaster, Government regulations.

15.8. Governing law

The laws of Queensland, Australia govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

15.9. Interpretation

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:

a) a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;

b) any reference to a trustee includes any substituted or additional trustee;

c) unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;

d) "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;

e) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;

f) headings are for convenience and will not affect interpretation;

g) words in the singular will be taken to include the plural and also the opposite;

h) a reference to a document will be to that document as updated, varied or amended;

i) a document referenced by the Agreement will not take precedence over the referencing document;

j) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body in any way;

k) where a "URL" is mentioned, the non-operation of the "URL" will not render the rights and obligations associated with it invalid;

l) any referenced digital resource may be replaced with another digital resource that is a "copy" of the original resource;

m) a reference to a party's conduct includes omissions as well as acts;

n) if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and

o) where a party is required to do "anything necessary", this includes executing agreements and other legal instruments.

16. Waiver, Release and Indemnity 

(a) You agree to indemnify and hold Actively Aoife, its agents and employees harmless from and against any actions, claims, demands, losses, damages, proceedings, compensation, costs, charges and expenses (including solicitor fees) incurred by or made against us (including by a third party) due to or arising out of or in connection with your use of our Website or Store, or purchase or use of any of the Products.   

(b) Without limiting the generality of Clause 16(a) you further acknowledge: 

    (i) that physical exercise including the exercises outlined in our Products or provided on our Website may cause you injury, serious injury or death and you have elected to engage in such activity regardless of such risks; and 

    (ii) that varying diet and reducing or increasing calorie intake may cause illness, injury or death and you have elected to engage in such activity regardless of such risks; and  

    (iii) that any supplementation recommendations by us may cause illness, injury or death and you have elected to engage in such activity regardless of such risks,  

and you agree, indemnify and release Actively Aoife, from and against any actions, claims, demands, losses, damages, proceedings, compensation, costs, charges and expenses (including solicitor fees) incurred by or made against us (including by a third party) due to or arising out of or in connection with your use of the Products and your engagement in any physical activity or variation to your diet, or any other activity suggested or contemplated through the Products or on the Website.  

17. Questions 

If you require any further information in respect of these Terms of Use, please contact Actively Aoife Team:  info@activelyaoife.com

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