Thursday, 23 February 2012

Terms & Conditions

mY FIT PROJECT...TERMS AND CONDITIONS 

 

The my fit project website is a subscription-based website where you have access to monthly projects. my fit project ABN 67300274847 is owned and operated by Donna Cooper.

my fit project details and terms of membership are provided below and form an agreement (the "Member Agreement"), so please review them before you sign up.  By clicking the “Terms” upon sign up, you agree to be personally bound by these terms and conditions. By clicking the “Terms”, you represent and warrant that you are at least 18 years old.

my fit project ("my fit project", "me", "I", “we”, “us”) maintains this Internet site as a service to you and the Internet community. Unless otherwise noted, the content (images and text) ("Content") is the property of my fit project and is protected by Australian and international intellectual property laws. As a user of the Site, you agree that you shall download and/or use Content solely for your personal, non-commercial use. You agree to all of the terms and conditions set forth herein and will not use the Site until and unless you have agreed to these terms and conditions. You may not use the Content in any matter inconsistent with this Member Agreement ("Agreement") or applicable law, and you may not copy, modify or alter the Content without my fit project’s express prior written consent.

Upon registration as a member, you will be provided with a password and an account. You agree to pay for the services in the manner specified on the Site. For a monthly fee, you'll gain full access to the my fit project website for as long as you remain a paid registered member. Your access to the Site will automatically terminate after you cancel your payment option. You can cancel your subscription at any time, however you will not be refunded the subscription if you cancel after your subscription date has begun.  There is no minimum or mandatory membership period and your first (a one only offer) trial period/project is free until the next monthly subscription dates (the date that you registered of each month eg. If you completed payment registration on the 4th of July, your payment will come out on the 4th day of each month).

If you, or a user on whose behalf you register, breaches these terms and conditions, you acknowledge that my fit project may immediately terminate your account, without refund, and take appropriate legal action (if we choose) against you alone.

CONDITIONS OF USE


1. MEDICAL INFORMATION

THE CONTENT AND OTHER INFORMATION PRESENTED ON THE SITE ARE FOR EDUCATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED AS A SUBSTITUTE FOR MEDICAL COUNSELLING. PRIOR TO COMMENCING THIS OR ANY TRAINING OR FITNESS PROGRAM, CONSULT YOUR HEALTH PROFESSIONAL TO DETERMINE IF ONE OR MORE OF THE TRAINING AND/OR FITNESS PROGRAMS ARE RIGHT FOR YOUR NEEDS. DO NOT START A TRAINING OR FITNESS PROGRAM WITH my fit project IF YOUR HEALTH PROFESSIONAL ADVISES AGAINST IT. my fit project RESERVES THE RIGHT TO REFUSE OR CANCEL YOUR MEMBERSHIP OR USE OF THE SITE IF my fit project DETERMINES THAT YOU HAVE OR IF YOU INFORM my fit project THAT YOU HAVE CERTAIN MEDICAL CONDITIONS. my fit project RESERVES THE RIGHT TO CANCEL YOUR MEMBERSHIP SHOULD YOU VIOLATE THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY OTHER POSTED POLICY ON THE SITE.

The process of becoming a member of the Site (a "Member") requires entry of certain personal information, including medical and exercise history, and, among other conditions of membership, agreement with these Terms and Conditions in order to gain access to the “Member’s” part of the Site.

In becoming a Member with the intent of using the Site, you affirm that either (A) all of the following statements are true: (i) no health professional has ever informed you that you have a heart condition or that you should only do physical activities recommended by a health professional; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your health professional is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your health professional has specifically approved of your use of the Site.

And in becoming a Member with the intent of using the Site, you further affirm that either (A) you have not been medically diagnosed as suffering from diabetes, hypoglycemia, heart disease, high cholesterol or high blood pressure; or (B) your health professional has specifically approved your use of the Site.

And if you are a woman, in becoming a Member with the intent of using the Site, you further affirm that either (A) you are not pregnant or (B) your health professional has specifically approved your use of the Site.

2. INFORMATION PROVIDED ON SITE

All information provided on this Site is provided in good faith.  Information is derived from sources which my fit project and its owner believe to be accurate and up to date as at the date of publication. You are advised that health, diet, training and fitness advice is often subject to updating and refining due to medical research and developments. No assurance can be given that the Content will reflect the most recent findings or developments with respect to the particular material. my fit project does not make any representations or warranties that any information provided is reliable, accurate or complete and make no guarantees of any specific result from use of this Site or the information service provided through it. my fit project is not liable for any loss arising from any action or advice taken or reliance by you on any information or material posted by my fit project and its owner. You are encouraged to consult with your health professional with any questions or concerns you may have regarding any health condition.

3.   OFFER, PAYMENT AND BILLING TERMS AND CONDITIONS

A. MEMBERSHIP TERM: Your membership term runs from the date you register for the Site and authorise your payment of your selected “Project Plan”.  It is ongoing until you cancel your payment with my fit project.  Upon cancellation of your payment, your member’s access to the Site will be terminated.  There are no minimum membership requirements, however, you WILL NOT receive a refund or partial refund for any portion of a month, but you will have access to the Site until the end of the then current subscription period.

B. CANCELLATION POLICY: You may cancel your subscription after your initial registration. To cancel, you must email enquiries@myfitproject.com a minimum of 48 hours prior to your next subscription day of the next month when your initial payment would commence. Upon cancellation, your account will be terminated effective at the end of the current monthly period and my fit project in sole discretion shall have the right, but not the responsibility to delete all of the account information provided by you.  If you wish to subscribe at a later date, please notify us and your information will be retained.

  C. THIRD PARTY CONTENT: Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties on the Site or on sites that are linked to the Site, including information providers, are those of the respective third parties, and not my fit project. my fit project does not guarantee the accuracy, completeness, or usefulness of any third party content. Furthermore, my fit project neither endorses nor is responsible for the accuracy and reliability of any opinion, advice, or statement made on the Site or on any site that might be linked to the Site. my fit project will not accept liability for loss or damage arising from your reliance upon any information obtained through this service. It remains your responsibility to evaluate the accuracy, completeness and usefulness of any such information.


4.  MINIMUM AGE REQUIREMENTS

You must be 18 years of age or older to sign up for this project.

5.  PERSONALLY IDENTIFIABLE INFORMATION

Upon joining and at certain times, you will be asked to provide information to my fit project. The personally identifiable information that my fit project collects may include but is not limited to, your first and last names, your street address (including the city, state and post code) and your mobile telephone number. Non-personally identifiable information includes, but is not limited to, your email address, medical history and training and fitness preferences. For information regarding my fit project’s privacy policy, see the privacy policy. You agree that you have read and understand this privacy policy and that you shall be bound by its terms and conditions as part of this Agreement.

You agree that as part of the service provided on the Site, you shall receive periodic email communications from my fit project.  


6.  ACCOUNTS, PASSWORDS and SECURITY

my fit project requires you to open an account, so you must complete the registration process by providing my fit project with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to my fit project that is untrue, inaccurate, not current or incomplete, my fit project reserves the right to terminate this Agreement and your continued access and use of the Site.

As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify my fit project immediately of any unauthorized use of your account or any other breach of security. my fit project will not be liable for any loss or damages of any kind that may arise as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by my fit project or another party due to someone else using your account or password.

7.  PROMOTIONS

my fit project occasionally provides/promotes contests, competitions, games and other my fit project or third party promotions on its Site. The rules, regulations and procedures governing any of the foregoing promotions shall be accessible through a hyperlink displayed on the web page where the applicable promotion is located. By entering or participating in any of them, you agree to be subject to those rules, regulations and procedures. Please remember to read the rules carefully before participating.

8.  LIMITED LICENSE

my fit project grants to you a limited personal, non-exclusive and non-transferable right and license to access the Site and use the Services thereon. Unless otherwise specified in writing, the Services are for your personal and non-commercial use.

9.  PROHIBITED ACTIVITIES

In connection with your use of the Site, you acknowledge and agree that you will not:

 i. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained through the Site; ii. access the Site by any means other than through the standard industry-accepted or my fit project -provided or authorized interfaces; iii. transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another's right of privacy or publicity; iv. impersonate any person or entity, including without limitation, the my fit project coordinator/owner, or falsely state or otherwise misrepresent your affiliation with such a person or entity; v. post or transmit any material that contains a virus or corrupted data; vi. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature; vii. use any of the Site’s communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text); viii. post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam," "chain letters," "pyramid schemes" or any other form of solicitation information such as opinions or notices, commercial or otherwise; ix. violate any applicable local, state, national or international law; x. upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; xi. delete or revise any material posted by any other person or entity; xii. manipulate or otherwise display the Site by using framing or similar navigational technology; xiii. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any my fit project product or service if you are not expressly authorized by such party to do so; or xiv. use the Site for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Site in any manner that could damage, disable, overburden or impair my fit project’s servers or networks, or interfere with any other user's use and enjoyment of the Site. Furthermore, you may not attempt to gain unauthorized access to any of the Site, services, accounts, computer systems or networks connected to my fit project through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site.

10.  DISCLAIMER OF WARRANTIES

THE SITE, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, my fit project SUPPLIERS AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITE AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, (iv) THAT THE SITE SHALL BE AVAILABLE WITHOUT DELAY, FAILURE, INTERRUPTION OR CORRUPTION DUE TO LOCAL EXCHANGES, INTER-EXCHANGES, CARRIER LINES, ROUTES, SWITCHES AND OTHER EQUIPMENT OWNED BY THIRD-PARTIES or (v) THAT ANY SOFTWARE, SERVICES, SITES OR SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITES IS ENTIRELY AT YOUR OWN RISK.


LIMITATION OF LIABILITY

11.  Indirect and Consequential Loss

To the extent permitted by law, in no event will we (or our employees, agents and subcontractors) be liable to you for indirect, special or incidental, punitive, exemplary or consequential loss, costs, expenses and damages (or any loss of revenue, loss of data, loss of profits or loss of opportunity whether the losses be direct or indirect), suffered or incurred by you and arising out of or in connection with your access to or use of the Site, any linked website, or your reliance on any information obtained through the Site, regardless of whether liability is based on any breach of contract, tort (including negligence) or warranty, arises under statute, or any other basis of liability.

12.  Terms Implied by Law

To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms is excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to, at our option:

a.       if the breach relates to goods, replacing, repairing or supplying goods equivalent to, those goods or paying the cost of replacing or repairing them or acquiring equivalent goods; or

b.      if the breach relates to services, re-supplying, or paying the cost of re-supplying, those services.

13.  Total Liability

To the extent permitted by law, our total liability in respect of all claims in connection with this agreement (whether based in negligence or any other tort, contract, statutory liability or otherwise) will be the total sum of all fees paid or payable by you under this agreement up until and including the date the cause of action accrued.

The limitation of liability set out in these terms and conditions does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.

 14.  INDEMNITY

You agree to indemnify us and our employees, agents and subcontractors, from and against any third party claims, and must pay on demand all losses, expenses, damages and costs (including reasonable legal fees incurred on a solicitor/client basis) suffered or incurred by us, which arises out of your use of the Site, including your use of the Site to provide a link to another site or to upload content or other information to the Site.


15.  TERMINATION

This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that my fit project, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Site, and remove and discard any content within the Site, at any time and for any reason. You agree that any actions taken under this Paragraph may be effective without prior notice to you. In the event of termination, however, those portions of this Agreement that provide for continuing obligations on your part shall survive indefinitely.

16.  ASSIGNMENT

You may not assign or transfer your rights or the license granted to you under this Agreement without my fit project's express, prior written consent. Any attempt to assign or transfer your rights or license shall immediately terminate this Agreement and, notwithstanding anything to the contrary herein, you shall forfeit any amounts paid, without a right to a refund. 

my fit project may assign its rights and interest in this Agreement or otherwise at any time and without notice to you or your consent.


17.  USER-GENERATED CONTENT

You warrant that you have all the necessary rights and permissions needed to submit content to the Site, whether that content be articles, images (moving and still), text, graphics, sound, stories, software or other copyrightable material (User Content). Where you are the owner of the intellectual property rights in User Content, you assign to my fit project all right, title and interest in and attached to the intellectual property in the User Content with effect from the date you submit it to the Site. Where you are a licensee of the intellectual property rights in the User Content, you grant to my fit project  a royalty-free, non-exclusive world-wide licence of the intellectual property rights in the User Content to use, copy, sub-licence, re-distribute, adapt, transmit, publish and/or broadcast, publicly perform and display on any media platform and by any means.

To the full extent permitted by law, you consent to my fit project (and all persons authorised by us) infringing any of the moral rights (as that term is defined in the Copyright Act 1968 (Cth) and includes the same or similar moral rights that may exist in jurisdictions other than Australia) that you may have in the Works. To the extent that consent is not effective in any jurisdiction, then you waive any moral rights you may have.

my fit project has the right, but not the obligation to monitor User Content and may remove or refuse User Content which w my fit project considers, in our sole discretion, to be:

  • infringing third party rights (including copyright);
  • offensive;
  • misleading or inaccurate;
  • without basis or sound reasoning; or
  • in breach of the Permitted Uses for the Site (below).

Notwithstanding the right to supervise, my fit project accepts no responsibility or liability for User Content. You must ensure that the content you upload does not infringe the copyright, moral or other rights of third parties (such as privacy or publicity rights), and you agree to indemnify us against any third party claims arising from your use of the Site in breach of this clause.

Visitors to the Site who believe their intellectual property rights (including, but not limited to, copyright) are being infringed can issue a Take Down Notice. Please contact enquiries@myfitproject.com  

18.  PERMITTED USE

my fit project explicitly prohibits use of the material on this Site in any manner other than as expressly allowed by us in these terms. With respect to your use of or participation in any interactive facility on the Site, you acknowledge and agree that:

  • you are legally responsible for all content you submit;
  • under no circumstances will you post any material, or engage in any behaviour, that is, or could reasonably be taken to be, predatory or intimidating, or in any way designed to solicit identifying information from anyone under the age of 18 years;
  • we may notify and/or cooperate with any authorities and law enforcement agencies in relation to any of your activities in connection with the Site, including providing any and all information about you held by us (whether of a personal nature or otherwise), to those entities;
  • you will not:

a.       post or transmit any illegal, threatening, discriminatory, harassing, abusive, offensive, defamatory, racially or sexually vilifying, obscene, pornographic or indecent material of any kind (including Restricted or Prohibited Content in accordance with the National Classification Code), or any material in contempt of any court or parliament, or encourage any other person to do so;

b.      post or transmit false or misleading material or make any form of misleading or deceptive representation;

c.       knowingly post or transmit or permit the posting or transmission of any material, which contains a computer virus or other corruptible material;

d.      exploit the activity for your own commercial or unlawful purposes or the commercial or unlawful purposes of any other person (including the posting of advertisements or “spam” or any other means that are contrary to our commercial or lawful interests);

e.      provide access or links to any computer files that contain material which may infringe the intellectual property rights of another person; or

f.        delete or alter or attempt to delete or alter attributions, legal notices, trademarks or copyright marks on any material contained in the Website; and

  • at our request you agree to do all things necessary and desirable, either to give effect to these terms or to help us comply with all regulatory directions and obligations.

19.  PAYMENT AND REFUNDS

Orders are subject to acceptance by us.  Acceptance (or rejection) of an order will be notified to you as part of the ordering procedure.  Acceptance and continued access to our service is always subject to payment first being made by you. For the removal of doubt, by placing an order, you make an offer to purchase the relevant subscription that is the subject of your order.  We reserve the right to terminate your access to our service if you are not up to date with any payment plan that may be offered.

We expect that we will use PayPal payment gateway or a similar service for most financial transactions. We are not able to access your credit card or other financial details and you agree that we will not be held liable for any loss you incur arising from your use of this payment method unless caused by our fraud.

Our subscription fee and other charges are GST inclusive.  The receipt of payment that we issue to you will be a tax invoice in accordance with applicable legislative requirements relating to GST.

All fees are non-refundable, unless:

a.       the Site is not available (due to an operational issue by my fit project and its server/host) for a period lasting more than 3 days. In this circumstance, a pro rata refund may be granted upon written request by email at enquiries@myfitproject.com  however you acknowledge that we may refuse a request where we are able to provide the information service to you through alternative means (such as email, twitter etc); or

b.      we agree to issue you with a refund in accordance with the clause (variation) below.

Upon receipt of a refund, your agreement with my fit project is at an end and we will cancel your account. You agree that this is your sole remedy in these circumstances.

All fees are non-cancellable and non-refundable except as expressly set out in these terms and conditions. You will not be able to terminate your subscription prior to the end of the subscribed term, you will not be granted a refund.

20.  VARIATION

my fit project may vary, amend or add to these terms at any time. Without limiting our right to give notice by any other means, you will be deemed to have:

a.       received notice of such changes when we place a notice on the Site setting out the changes; and

b.      agreed to the terms and conditions as varied the next time you access your account after we publish the notice on the Site.

If you do not agree with the changes, then prior to you accessing your account you may notify us by emailing enquiries@myfitproject.com and requesting a refund. Where the proposed changes have a more than a minor detrimental effect on your circumstances (in our reasonable opinion), my fit project will refund a percentage of your subscription fee calculated by reference to the amount of time remaining on your subscription.  

21.  INTERNET SAFETY

This Site seeks to adhere to the “Internet Industry Code of Practice” (“IICP”) available at www.acma.gov.au. In accordance with the obligations on Content Hosts described within the IICP, my fit project:

  • encourage those users who upload content to use appropriate warnings and/or labelling systems in respect of material which is likely to be considered unsuitable for minors according to the Classification (Publications, Films and Computer Games) Act 1995 and relevant Classification Guidelines, even though such material may not be Prohibited or Potential Prohibited Content;
  • notify you that you must not place on the Website content that is in contravention of any Australian State, Territory or Commonwealth law, or international law;
  • warn you to be aware of the risks of using social media websites such as forums and chat rooms and encourage you to read further information on how you can minimise the risks for you and your children, by visiting www.cybersmart.gov.au, or following the link in the bullet point below;
  • encourage you to read the Internet Industry Association’s (IIA) Guide for Internet Users for information about methods of supervising and managing your children’s access to internet content and obtaining an IIA Family Friendly Filter at: http://www.iia.net.au/index.php?option=com_content&task=view&id=416&Itemid=9#what_must_i_do;
  • notify you that you have a right to make complaints to the Australian Communications and Media Authority about content which you believe may be Prohibited Content or Potential Prohibited Content in accordance with the Classification (Publications, Films and Computer Games) Act 1995 and relevant Classification Guidelines, by visiting www.acma.gov.au; and
  • encourage you to email enquiries@myfitproject.com  if you would like to make a complaint about any of the content shown on the Site, or have any queries regarding unsolicited commercial emails (SPAM) received from us, or seek further information regarding the above obligations.

 

22.  PRIVACY POLICY

You consent to your personal information being used and/or disclosed for any reasons given to you by my fit project in relation to the collection, use and disclosure of your personal information. Personal information relating to you which my fit project collects, uses and discloses may include sensitive information, such as information about your participation in the projects. For example, you consent to my fit project using and disclosing information about your activities and completion of projects for the purposes of publicly profiling you on the Site, displaying the results of competitions/projects, promoting the service and encouraging other members as well as to financial service providers to allow processing of payments. Unless you ask us not to, we may also use your personal information to send updated information and other promotional material to you.

We undertake to comply with the terms of our Privacy Policy which can be viewed in full here

23.  SEVERANCE

If a provision of these terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other terms.

24.  SURVIVAL

The terms underneath the following headings survive the termination and expiry of this agreement: “disclaimer”, “limitation of liability”, “indemnity”, “intellectual property” and “user-generated content”.

25.  GOVERNING LAW

These terms are governed by the laws in force in Australia. You agree to submit to the non-exclusive jurisdiction of the courts of that jurisdiction, and courts hearing appeals from those courts.

It is important that before beginning any diet or fitness regime, you consult with your health care professional to ensure that you are mindful of your current health and any restrictions that are appropriate for you. You should immediately seek medical attention if there are any unanticipated changes to your physical condition at any time. Please refer to our these terms and conditions where the terms of this service are more completely detailed.

 

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my fit project... 2010