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TERMS AND CONDITIONS
1.1 These Terms and Conditions (Terms) are between Balance Point Consulting ABN 11965065260, its employees, agents and contractors, and successors and assignees (referred to as “we”, “us” or “our”) and you, the person, organisation or entity who registers for the Services, (referred to as “you” or “your”), and collectively the Parties. These Terms apply to all Services provided by us to you. These Terms are also available on our Website, www.myhealthchallenge.com (Site).
1.2 You accept the Terms by either:
(a) registering as a member of the Services on the Site;
(b) registering for the Services by email;
(c) instructing us to proceed with the Services; or
(d) making part or full payment for the Services.
1.3 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details on the Site. Purchasing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older. You must not order or use the Services if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to these Terms, you must not use or purchase our Services from us.
2.1 We provide health services on the Site that allow you to access an online health challenge platform for either a four (4), eight (8) or twelve (12) week period via which you can participate in various online health challenges hosted on the Site and compete with third parties all around the world (Services).
2.2 We agree to perform the Services with due care and skill.
2.3 We reserve the right to refuse any request for Services that we deem inappropriate, unreasonable or illegal.
2.4 You can request the Services set out in these Terms by registering and paying for the Services on the Site.
2.5 The fee for the Services is the fee indicated on the Site or as advised by use from time to time (Service Fee).
2.6 We will provide the Services for the period set out on the Site (Service Period).
2.7 We may provide the Services to you using our employees, contractors and third party providers, and they are included in these Terms.
2.8 Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties.
2.9 Our Site may contain links to other websites of interest. We do not have any control over those websites. We are not responsible for or liable for the protection and privacy of any information which you provide whilst visiting such websites, and such websites are not governed by these Terms.
3. USER CONTENT
3.1 Use of the Services will allow you to post user content on the Site. Because we are not able to guarantee that the implementation of the access controls are error free, you should take particular care before deciding to upload any user content. In particular, you should be aware that your user content is able to be downloaded by other users of the Site (whether authorised or not). Neither we or you may be able to control the further disclosure or publication of that user content. You warrant that you will not use the interactive facilities of the Site:
(a) to engage in predatory behaviour, intimidate or otherwise bully other users of the Site;
(b) post, transmit or promote content which may reasonably be regarded as illegal, discriminatory, harassing, abusive, offensive or otherwise indecent;
(c) collect email addresses, photographs, personal information or identifying information of other users of the Site;
(d) to engage in misleading or deceptive behaviour;
(e) to distribute viruses or other harmful computer code
(f) for commercial gain; and/or
(g) for any illegal purposes whatsoever.
3.2 We reserve the right but not obligation to monitor and review user content from time to time and we may at our sole discretion and without prior notice to you remove or edit any of your user content for any reason (or for no reason at all).
4. PRICE, INVOICING, PAYMENT AND REFUND
4.1 You agree to pay us the Service Fee for the Services that you have requested, as set out on the Site or as advised by us. Subject to clause 5.6 the Service Fee is non-refundable. All amounts are stated in Australian dollars. All amounts include Australian GST (where applicable).
4.2 The Service Fee comprises of a one (1) off payment and is payable at the time of the Service Request.
4.3 The Service Fee is payable by credit card, PayPal or another merchant method advised and/or approved by us in writing from time to time.
4.4 You acknowledge that in order to access the Services you must register on the Site, become a member of the Site and create an account on the Site by way of a username and password (Account).
4.5 You must not provide your Account details to anyone else or allow anyone else to use and/or access your Account. You are entirely responsible for the management of your Account, and you acknowledge that any access to or use of your account by means of the password associated with your Account is deemed to be access or use by you, this includes any purchases made through the account (except in instances of fraud).
4.6 We will not commence performing the Services until you have paid the Service Fee and created an Account.
4.7 Our pricing and subscription structure, payment methods and these Terms may be amended from time to time at our discretion. Changes will apply to you for Services provided to you after we have notified you of the changes.
5. YOUR OBLIGATIONS AND WARRANTIES
5.1 You acknowledge that the Services provided constitute recreational games services and are not to be treated as professional, medical, allied health or psychological advice.
5.2 You acknowledge that any information, insights, guidance, techniques, exercises or programs contained on our Site or Services do not constitute an attempt to provide medical, allied health or other professional advice. The Services are not to be used or relied on for any diagnostic, treatment, nutrition or prevention purposes. Use of our Site or Services does not establish a doctor-patient relationship, nor a trainer-trainee relationship. The Services should not be used as a substitute for professional diagnosis and/or treatment. Any health information on our Site or Services, is provided simply for your convenience. The Site and our Services are intended for general information only. They are not intended to be advice, they are not intended to be relied upon and they are not a substitute for professional medical, allied health or other professional advice based on your personal circumstances.
5.3 You acknowledge that you should seek your own medical advice in the event that you experience unanticipated changes to your physical condition or if you have any questions relating to your health condition while receiving the Services.
5.4 You acknowledge that you are solely responsible for determining the suitability of any of the Services, and your reliance on any information that is provided to you through our Site and/or Services are at your own risk.
5.5 You acknowledge that the Services provided do not guarantee a particular outcome or change to your physical and/or mental wellbeing.
5.6 You acknowledge that we do not accept responsibility for any disruptions, disturbances, faults or malfunctions of the Site and other sites we may use to provide the Services from time to time, including not limited to errors in function, virus and other malicious software, video time delays or the stability of the Site, which may affect your access to and use of the Services, the quality and age of your hardware and internet connection, and you cannot make a claim in respect of any such disruptions, disturbances or malfunctions, unless the Site is unavailable for more than twenty four (24) hours, in which case you will be entitled to a full refund or complimentary membership to another challenge, whichever you prefer.
5.7 You warrant that from time to time while these Terms are on foot that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Services;
(e) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
6. OUR INTELLECTUAL PROPERTY
6.1 The work and materials that we provide to you in carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
6.2 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.
6.3 Your use of our Materials does not grant you a licence, or act as a right to use any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
6.4 You must not breach our Intellectual Property rights by, including but not limited to:
(a) altering or modifying any of the Materials;
(b) creating derivative works from the Materials; or
(c) using our Materials for commercial purposes such as onsale to third parties. Our material licensed to you
6.5 We grant you a personal, limited, revocable, non-exclusive and non-transferable license to access, view, listen to, use and print contents made available to you on the Site for your personal, non-commercial use only. No part of the Site may be reproduced, reused, retransmitted, adapted, published, broadcast or distributed without our prior written consent.
6.6 We may, from time to time, monitor your use of the Site to determine if you are in breach of these Terms. Such monitoring may include:
(a) The frequency and nature of any downloads; and
(b) The time of access and IP addresses used to access the Site.
6.7 We may suspend, limit or terminate your access to the Site if we reasonably suspect, based on the results of monitoring per this clause, that you are in breach of these Terms.
7. CONFIDENTIAL INFORMATION
7.1 We collect your Confidential Information for the purpose of providing the Services to you.
7.2 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary), to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure, only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you, and not for any other purpose.
7.3 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
7.4 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
7.5 The obligations under this clause will survive termination of these Terms.
8. FEEDBACK AND DISPUTE RESOLUTION
8.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
8.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
8.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
9. TERM AND TERMINATION
9.1 These Terms terminate automatically at the end of the Service Period.
9.2 You may terminate these Terms without cause by providing us with notice in writing, however subject to clause 5.5 you will not be entitled to any refund.
9.3 We may terminate your Account or these Terms at any time by providing you with notice in writing, subject to providing you with a pro-rata refund of the Service Fee.
9.4 We may suspend your Account or terminate these Terms immediately, at our sole discretion, if:
(a) we consider that a request for the Service is inappropriate, improper or unlawful;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) you post inappropriate comments in the comments section on our Site;
(d) you fail to keep your Account details secure or allow others to use your Account; or
(e) for any other reason outside our control which has the effect of compromising our ability to provide the Services within the required timeframe.
9.5 On termination of these Terms you agree that any Service Fee paid by you is not refundable to you.
9.6 On termination of these Terms you will no longer have access to the pages of the Site which require membership.
9.7 On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
9.8 On termination of these Terms we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information, and/or documents containing or relating to your Confidential Information.
9.9 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
9.10 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
10. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
10.1 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms.
10.2 Services: If you are a consumer as defined in the ACL, the following applies to you: You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the services remedied if they are not rendered with due care and skill or they are not fit for purpose and the failure does not amount to a major failure. To the extent we are able to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
10.3 Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services where it is affected by your delay in response, or supply of incomplete or incorrect information.
10.4 Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
10.5 Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
10.6 Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those expressly set out in these Terms, including but not limited to:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
(b) the Services being unavailable or lacking functionality or operating in error; and
(c) any loss, damage, injury, or costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your use of the Services, in particular activities undertaken by you as suggested by the Services or on the Site, inability to access or use the Services, the late supply of Services, and/or your interactions with third party users of the Site and/or third party sponsors or advertisers on the Site, even if we were expressly advised of the likelihood of such loss or damage.
10.7 Limitation: To the extent permitted by law our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
10.8 This clause 10 will survive termination of these Terms.
11.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that you provide that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any breach of these Terms;
(c) any user content that you may post on the Site; and
(d) any misuse of the Services from or by you, your employees, contractors or agents.
11.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arises as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
11.3 The obligations under this clause will survive termination of these Terms.
12.2 Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.
12.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
12.4 GST: If and when applicable, GST payable in connection with the supply of the Services will be set out on our Invoices. You agree to pay us an amount equivalent to the GST payable on the supply at the same time that you pay our Invoices.
12.5 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
12.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
12.7 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
12.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 Business Days' notice in writing.
12.9 Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to you at the address you have provided to us. Our address is set out at the end of these Terms. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
12.10 Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
12.11 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
13.1 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia.
13.2 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement or otherwise.
13.3 Confidential Information includes confidential information about you, your credit card or payment details, the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".
13.4 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
13.5 Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs (whether or not registered or registrable), any corresponding property rights under the laws of any jurisdiction, discovery, circuit layouts, trade names, trade secrets, secret process, know-how, concept, idea, information, process, data or formula, business names, company names or internet domain names.
13.6 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
Balance Point Consulting, ABN 11965065260
PO box 58, Lindfield, NSW 2070
Last update: 22 September 2020