Training Program - The Big 8 - Page 2

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Terms and Conditions

Agreement

These Terms and Conditions and/or the content of our website at https://big8challenge.com.au/ where that platform is being patronised or used by a purchaser or visitor (together, the Agreement) form a legal agreement between you and J.G PT Corporation Pty Ltd as trustee for J.G PT Corporation Discretionary Trust trading as The Big 8 Challenge (John Gannon Training, we, our, us).

This Agreement may be accepted by doing either one or more of the following:

registering for an account on our Website;
making a purchase on our Website;
accepting a clickthrough agreement on our Website; or
otherwise accessing or using our Website.

If you do not agree with these terms and conditions, or do not understand any part of this Agreement, then you should not access or otherwise use the Website or accept any Services provided by John Gannon Training.

2. Meaning of words

In this Agreement and unless the context requires otherwise, the following words have the following meanings:

ACL means the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth).

Business Day carries the same meaning as is given to that term in the Banking Act 1959 (Cth), as amended from time to time.

Commencement Date means the date of acceptance in accordance with clause 1 above.

Confidential Information means the content of this Agreement, any information of a party which is marked confidential and any information which is by its nature confidential.

Fees means the fees payable by you to John Gannon Training for the Services as listed on our Website.

Intellectual Property Rights means all intellectual property rights at any time protected by statute or common law, including patents, copyright and any registered intellectual property rights, registered designs, trademarks, source code and goodwill; and any application or right to apply for registration of any of these rights.

Services means any fitness and nutrition services provided to you by John Gannon Training via the Website.

Term means the period commencing on the Commencement Date and ending on the Termination Date.

Termination Date means the date this Agreement is terminated in accordance with the terms of this Agreement.Term and Termination

This Agreement will commence on the Commencement Date and will end on the Termination Date.

Either party may terminate this Agreement immediately by giving the other party notice if the other party breaches any provision this Agreement and fails to remedy the breach within 30 days of receiving written notice of the breach.

John Gannon Training may also terminate this Agreement immediately by giving you written notice if you attempt to assign any of the rights arising out of this Agreement to a third party or if in John Gannon Training’s opinion you are or may be subject to any form of insolvency administration, proceedings, or other external administrator, liquidator, receiver or manager is appointed.

3. Services

In consideration for payment of the Fees, John Gannon Training will deliver the Services with due care and skill.

5. Fees

You must pay the Fees via our Website at the time of purchase using the credit card payment facility on the Website.

The Fees are non-refundable.

The Fees are inclusive of GST.

John Gannon Training may increase the Fees in its absolute discretion from time to time. John Gannon Training will give you [3] months’ notice of any price increase.

6. Risk Warnings and Disclaimers

You are responsible for determining whether the Services are suitable for your own use or purpose.

You acknowledge and agree that:

there are patent and obvious risks in undertaking fitness and exercise routines and programs and that through delivery of the Services you may be at risk of death or personal injury (including aggravating a pre-existing injury) due to:
1. known or unknown health problems or previous injuries;
2. pregnancy;
3. engaging in activity which is too strenuous for your level of fitness and health;
4. failure by you to follow and implement instruction on how to safely undertake an activity;
5. attempting an activity which is beyond your physical or exercise capability;
the Services are generic and are not tailored to individual exercise, fitness or nutrition requirements unless specifically stated;
the Services do not take into consideration your medical conditions, whether you are pregnant or breastfeeding or any other health or medical issues you may have; and
you must seek professional medical advice prior to partaking in the delivery of any of the Services.

You release us from any and all liability to you, and indemnify us against any liability to a third party, for any claim, loss, damage, expense, death or injury arising from or in connection with you undertaking any fitness or physical exercise plan developed by us, or following any nutritional advice or meal plans provided by us.

7. Customer Warranties

You represent and warrant to John Gannon Training that:

you are 18 years old or over;
you have sought and obtained advice from your medical practitioner before commencing any fitness program or following any meal plan or nutrition guide supplied by us;
you will exercise in a place which is safe and suitable and will wear and use appropriate clothing and equipment;
you will be responsible for the management of any food allergies or intolerances;
all information and documentation provided by you to us from time to time is true and accurate and not misleading in any respect; and
you will abide by the terms of this Agreement at all times.

8. Limitation of Liability

The ACL provides certain guarantees (Consumer Guarantees) which generally require that the products and services supplied to you:

are rendered with due care and skill;
are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier and might reasonably be expected to achieve any result you have made known to the supplier; and
are supplied within a reasonable time (when no time is set).

To the maximum extent permitted by law, you acknowledge and agree that John Gannon Training excludes all liability to you for death or injury resulting from a failure by us to comply with any Consumer Guarantee. The exclusion of liability does not apply if you have suffered any significant personal injury that is caused by our reckless conduct (within the meaning given to those terms by the ACL).

Otherwise, and except as expressly included in this Agreement, all implied terms, conditions, warranties, rights or other additional obligations that can be lawfully excluded are excluded from this Agreement.

John Gannon Training will not be liable for any loss or injury attributable to:

your negligence, fault or breach of this Agreement;
the suitability of the Services;
a third party unconnected with the provision of the Services provided by us; or
the unavailability of the Website.

To the extent permitted by law, John Gannon Training’s aggregate liability for any claims made under or in connection with this Agreement will be limited to the Fee paid by you to John Gannon Training for the performance of the Services during the Term of the Agreement.

John Gannon Training will not be liable for an indirect, incidental or consequential damage including loss of profits, personal injury, death or property damage in connection with or referable to use of the Website or the delivery of the Services.

You agree to indemnify John Gannon Training and its officers, directors, employees and agents harmless from any and all claims arising out of or in connection with:

your use of the Website or the Services; and
your breach of this Agreement.

9. Insurance

John Gannon Training will be insured in respect of potential liability, loss or damage arising at common law or under any statute in respect of claims for property damage, personal injury or public liability relevant to the performance of John Gannon Training’ obligations pursuant to this Agreement.

[As a minimum, John Gannon Training shall hold public liability insurance of at least $20,000,000 for any one occurrence or series of occurrences arising out of one event.]

10. Intellectual Property Rights

John Gannon Training owns the Intellectual Property Rights in the Website and Services which will at all times remain the property of John Gannon Training.

You must not copy, publish or reproduce in whole or in part, any John Gannon Training Intellectual Property except as expressly permitted by this Agreement.

11. Social Media

You acknowledge that John Gannon Training may post photographs and videos of you on the Website or its social media accounts from time to time.

If you do not wish to have photographs or videos of you posted on the Website or social media, you must provide written notice to John Gannon Training to opt out of such publication.

12. Privacy

John Gannon Training will use reasonable endeavours to comply with its obligations under the Privacy Act and will otherwise treat any personal information in its control in accordance with its privacy policy, which can be found at https://big8challenge.com.au/privacy-policy.

13. Confidential Information

A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.

A party will not be in breach of this clause in circumstances where it is legally compelled to disclose the other party’s Confidential Information.

Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.

Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

14. Force Majeure

A Force Majeure event means anything outside reasonable control of a party, including but not limited to:

power, data or communication outages;
acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
a transportation embargo;
industrial action (including a picket); and
any legislation or regulation and any action or inaction of any government or government agency.

If any party is wholly or partially unable to perform its obligations because of a Force Majeure event except for its obligation to pay money then:

as soon as reasonably practicable after the Force Majeure event arises, the party must notify the other party of the extent to which the notifying party is unable to perform its obligations, the date of commencement of non-performance and the means proposed to be adopted to remedy or abate; and
that party’s obligation to perform will be excused for the duration and to the extent of the delay arising directly out of the Force Majeure event of which notice is given under this clause

15. Dispute Resolution

In any dispute arising out of or in connection with this Agreement, both parties agree to first negotiate in good faith with the other party to resolve it.

If the dispute is not resolved by those negotiations within thirty (30) days, you agree that the matter may be referred to the Resolution Institute for resolution by mediation and if necessary by arbitration in accordance with the relevant rules of the Resolution Institute.

16. Notices

All notices which are required to be given under this Agreement will be in writing and will be sent to the address of the recipient as may be set out in a Proposal or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand, by pre-paid letter, facsimile or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or on transmission by the sender (if sent by facsimile) or upon receipt of delivery confirmation or “read receipt” by the sender (if sent by email).

17. Survival

Clauses 6, 7, 8, 10, 12, 13, 15, 18 and this clause will survive the termination or expiry of the other provisions of this Agreement.

18. General

This Agreement is governed by and construed in accordance with the laws of New South Wales, Australia.

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter. No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of both parties.

John Gannon Training reserves the right to modify this Agreement from time to time on at least 21 days’ notice to you. If you do not provide notice to terminate before the date the modifications to Agreement become effective, your continued access to the Website or use of the Services will constitute acceptance of the revised Agreement.

You must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of John Gannon Training.

John Gannon Training may assign any rights or benefits under this Agreement without your prior written consent. You must do all things and sign all documents to give effect to any assignment by John Gannon Training.

No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

Should any part of this Agreement be or become invalid, that part will be severed from this Agreement. Such invalidity will not affect the validity of the remaining provisions of the Agreement.