TERMS AND CONDITIONS

PARTIES & TERMS

1.1 Us

Barre Attack Pty Ltd (ACN 610 271 291) trading as Body Maestro our subsidiaries and related bodies corporate (we, us or our) provide various teacher training courses for pilates and barre attack (Course or Services) combining both online and face-to-face elements (Platform).  

By accessing the Platform and using the Services you agree to be bound by these Terms and Conditions (Terms).

If there is any disagreement or dispute as to which Related Body Corporate has the benefit of these Terms the parties acknowledge and agree that Barre Attack Pty Ltd (ACN 610 271 291) holds the benefit of these Terms for itself and on trust for each of its Related Bodies Corporate.

1.2 You

You or your refers to any person accessing the Platform, Website, using the Services and/or undertaking a Course. 

1.3 Changes to these Terms

We may at times be required to, or decide to, change these Terms.  If this is the case we will post the updated version of these Terms to our Website.  

If a change to these Terms materially affects your access to the Platform and/or use of the Services or otherwise impacts your rights we will, wherever possible, give you reasonable advance notice of such changes. 

ACCOUNT SET UP & USE OF SERVICES 

2.1 Account set up

In order to access the Platform, the Services and/or the Courses you will be required to set up an Account.  You will be required to provide certain mandatory information to establish an Account.  

You must ensure: 

1. that the information provided by you is true, accurate, complete and up to date;
2. that your Account is operated only by you; and
3. that you protect all logins, passwords or other Account access information.

2.2 Use of Platform and Services

You must not: 

1. take any action that may undermine the security or integrity of our computing systems or networks; 
2. use or access the Platform or the Services in any way that might interfere with use of the Platform or Services by other persons; 
3. introduce or upload anything to the Platform that does or may include viruses or other malicious code. 

You acknowledge and agree that it is your responsibility to ensure that all information that is provided to us is true, accurate, complete and up to date.  If it is determined that this is not the case, or that any information is misleading or deceptive (whether by inclusion or omission), we reserve the right to suspend or permanently delete your Account and access to the Platform.  

2.3 Medical waiver

You acknowledge and agree: 

1. that participation in a Course involves physical exercise and exertion; 
2. you understand that participation in a Course may involve risk of injury;
3. if you have any pre-existing condition that may limit or otherwise impact your ability to participate in a Course you have sought the advice of a medical practitioner to confirm that you are physically capable of safely undertaking a Course; 
4. you are responsible for monitoring your own physical wellbeing and ceasing any activity or exercise if you feel unwell; and
5. that you waive all rights that you may have, arising in contract, tort, pursuant to any statute or otherwise, to bring a Claim or action against us or our Related Entities, for any injury, physical harm or Loss that you may suffer, other than where your injury or Loss is due to our negligence or willful misconduct

2.4 Consent to filming and use of image

From time to time we may film or take photographs during in person or live classes via zoom (or any other similar service) (Recordings).  These Recordings allow us to improve the Services that we offer. 

By setting up an Account and paying the Course Fee you are consenting to us taking Recordings of you during your engagement with the Services.  Wherever possible we will take steps to ensure that the Recordings are de-identified such that the persons shown in the Recordings remain anonymous.

We confirm that the Recordings will be used internally in order to improve the quality of the Services that we provide or to assist us in furthering your training as part of your Course.  Recordings that identify you will not be used for publication, commercial or promotional purposes or otherwise shared with third parties without your further prior written consent.

COURSE FEES

3.1 Course Fees

As part of establishing an Account you will be required to pay the Course Fee.  The Course Fee will differ depending on the Services you select.  More detail in relation to the Course Fees will be provided during the establishment of your Account. 

3.2 Processing of Course Fees 

In order to keep your credit card details secure we process all payments through Kajabi Payments.  

SUBSCRIPTION TERM

4.1 Grant of Licence

Once you establish an Account and pay the Course Fee you will be granted a 12-month non-transferable, non-exclusive, non-sublicensable licence to access and use the Course materials, consisting of videos, instruction manuals, lesson plans, questionnaires and quizzes (Materials) that are provided as part of the Service (Licence).  

4.2 Term of Licence 

The term of your Licence will commence from the date that you pay the Course Fee and terminate on the 12-month anniversary of that date (Term).  Accordingly, you will be required to complete the relevant Course within the Term.  We may, in exceptional circumstances, grant an extension to the Term or otherwise “pause” the Term.  Any such extension or pause will be considered on a case-by-case basis and will be at out our discretion. 

4.3 Restriction on use

The grant of the Licence is personal to you.  You are not permitted to share or sublicence the Licence or to share your Account details with any other person or organisation. 

The Materials that are provided pursuant to the Licence are provided for your personal use only.  You may download and/or print one copy of any downloadable Materials for use during the Course.  You must not share with, or distribute to, any other person the Materials.  You must not copy the Materials other than as described above. 

TERMINATION

5.1 Termination for breach

In addition to the above, we may terminate your Licence where you: 

1. fail to pay the Course Fee; 
2. infringe our Intellectual Property Rights; 
3. make false, misleading or otherwise damaging comments about us, the Platform, Website, Services, Courses or Materials on any social media or other online forum or website;
4. are subject to an Insolvency Event; 
5. breach the terms of the Licence (which breach, if capable of remedy remains unremedied 10 Business Days after notification of the breach); 
6. breach these Terms (which breach, if capable of remedy remains unremedied 10 Business Days after notification of the breach); or
7. you are Engaged with a business that is in competition with ours, whether directly or indirectly. 

5.2 Suspension of Account

We may, in our sole discretion, suspend your Licence where we believe that there has been improper use of the Platform, Services and/or Materials or where we otherwise deem it necessary to protect the Platform, Services and/or Materials or where we have concerns about your ability to safely complete the Course without physical harm or injury to yourself or others.  Where we suspend your Licence we will give you an opportunity to dispute such suspension and engage with you in relation to the same.

5.3 Result of termination

If your Licence is terminated for breach in accordance with clause 5.1: 

1. you will no longer have a Licence; 
2. your access to your Account will be terminated; 
3. you must pay any outstanding Course Fee; and
4. you must, at our election, return to us, or destroy, any hard or backup copy of the Materials.

To the extent permitted by law, if your Licence is terminated for breach prior to the finalisation of the Course you will not be entitled to any refund of the Course Fee. 

The exercise by us of our right of termination is without prejudice to any other rights that we may have under these Terms or at law.

INTELLECTUAL PROPERTY RIGHTS

6.1 Our Intellectual Property Rights

We, and our Related Bodies Corporate, are the sole owner of all Intellectual Property Rights in the Platform, Website, Services, Courses or Materials. 

We do not grant you any rights whatsoever in relation to our Intellectual Property Rights other than as expressly provided in these Terms.

Nothing you do on or in relation to the Platform, Website, Services, Courses or Materials will transfer any right title or interest in any of our Intellectual Property Rights to you.  You assign to us any Intellectual Property Rights in suggestions, ideas, enhancement requests or other feedback you provide to us relating to the Platform, Website, Services, Courses or Materials.

You must not: 

1. copy, distribute, modify or make derivative works of any of the Platform, Website, Services, Courses or Materials or use any of our Intellectual Property Rights in a way not expressly permitted by these Terms or by us in writing;
2. upload, transmit, distribute, or advertise any content that infringes the Intellectual Property Rights or privacy of any other person, or is false, misleading, defamatory, abusive, harmful or illegal; 
3. decompile, reverse engineer, reverse assemble, reverse compile, disassemble, sublicense, sell, rent, lease, lend, duplicate, broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Platform, Website, Services, Courses or Materials; or
4. copy, distribute, modify or make derivative works of the Platform, Website, Services, Courses or Materials or use any of our Intellectual Property Rights without our prior written consent.

CONFIDENTIAL INFORMATION

The parties agree that all Confidential Information is confidential and may not be disclosed to any other person except:

1. if required by law or a stock exchange;
2. to employees, professional advisers, agents and contractors to the extent that they need to know the information for purposes related to these Terms and on condition that they agree to be bound by the terms of this clause 7;
3. with the consent of the party who supplied the information;
4. if the information is in the public domain, or comes into the public domain after the disclosure, other than as a result of a breach of these Terms or other breach of confidence;
5. if the information is already known or is in the possession of the recipient without restrictions relating to disclosure before the date of receipt; or
6. if the information is obtained from a source other than the party who supplied the information, provided that the source was not subject to any prohibition against disclosure.

On termination of these Terms, each party must immediately return to the other party (or if that party requests, destroy) all materials containing any of the other party’s Confidential Information in their possession or control, or the possession or control of their employees and agents.

This clause continues to bind the parties after each party’s other obligations under these Terms terminate or expire.

WARRANTIES

All express and implied terms, guarantees, conditions and warranties which otherwise might apply to, or arise out of, these Terms (including implied warranties of non-infringement, merchantability and fitness for a particular purpose) are excluded other than the terms, conditions and warranties which by law cannot be excluded or modified by agreement including those under schedule 2 of the Competition and Consumer Act 2010 (Cth).  These Terms do not seek to exclude, modify or limit your rights under the Competition and Consumer Act 2010 (Cth).  Our liability for breach of a non-excludable warranty is limited to (at our option) either replacing or paying the cost of replacing the relevant service (unless the law requires otherwise). 

INDEMNITIES

9.1 Your indemnity in favour of us

You indemnify us, our directors, officers, employees and Related Bodies Corporate (Indemnified Parties) and must keep the Indemnified Parties harmless against any and all Claims, liabilities, Losses, costs or expenses of any kind arising in connection with:

1. any breach by you of these Terms; or
2. any third party Claim against us relating to your use of the Services, Courses or Materials, 

except to the extent that the Claim arises or the Loss is increased by our negligent or wilful misconduct. 

9.2 Our indemnity in favour of you

We indemnify you and will keep you harmless against any and all Claims, liabilities, Losses, costs or expenses of any kind arising in connection with any claim by any third party that your use of the Platform, Website, Services, Courses or Materials infringes that third party’s Intellectual Property Rights provided that you notify us promptly of any such Claim, give us sole control over the defence or settlement of the claim and provide us with reasonable assistance in respect of the defence of the Claim.  We are not liable for, and will not indemnify you where, the Claim arises as a result of your use of the Platform, Website, Services, Courses or Materials contrary to these Terms. 

LIMITATION OF LIABILITY

10.1 General limitation

To the extent permitted by law, our liability for any Claim or Loss that you suffer, whether arising in contract, tort, pursuant to any statute or otherwise, in connection with your use of the Platform, Website, Services, Courses, Materials or otherwise is limited to the amount payable under any policy of insurance carried by us (less any deductible).  

In the absence of such insurance our liability for any Claim or Loss that you suffer, whether arising in contract, tort, pursuant to any statute or otherwise, in connection with your use of the Platform, Website, Services, Courses, Materials or otherwise is limited to any Course Fee paid by you in the 12 months preceding the incident giving rise to such Claim or Loss. 

10.2 Exclusion of consequential loss

To the maximum extent permitted by law, the liability of either party is excluded for indirect, incidental, special, exemplary, punitive or consequential damages including damages for loss of profits or savings (actual or anticipated), loss of goodwill, loss of market, loss of use, loss of reputation or loss of data regardless of the form of action and whether the other party had been informed about or might have anticipated the possibility, probability or magnitude of the relevant Claim or Loss suffered. 

GST

11.1 GST

In this clause:

1. expressions which are not defined, but which have a defined meaning in the GST Law, have the same meaning; 
2. “GST Law” has the meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
3. GST has the meaning given to it in the GST Law and in addition includes amounts payable by way of interest and penalties on the primary GST liability.

11.2 Consideration is exclusive of GST

Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided in accordance with these Terms are exclusive of GST.

11.3 Reimbursement

If these Terms require a party to pay for, reimburse or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the amount of the Reimbursable Expense net of input tax credits (if any) to which the other party is entitled in respect of the Reimbursable Expense plus any GST payable by the other party.

GENERAL

12.1 Jurisdiction and governing law

These Terms are governed by the laws of the State of New South Wales whose courts shall be the forum for any dispute.  You and we submit to the non-exclusive jurisdiction of the courts of New South Wales and courts able to hear appeals from such courts and waive any right to object to proceedings being brought in those courts.

12.2 Assignment

1. You may not assign, transfer, subcontract or sub-licence any or all of your rights under these Terms without our prior written consent.
2. We may assign any or all of our rights under these Terms. 

12.3 Entire Agreement

Other than where expressly stated otherwise, these Terms contain the entire agreement between you and us with respect to the subject matter and supersede all prior agreements and understandings. 

DEFINITIONS & INTERPRETATION

13.1 Construction

In the interpretation and application of these Terms, unless inconsistent or repugnant to the context, the following shall apply:

1. words referring to persons shall include companies, corporations and bodies corporate;
2. ‘includes’ means includes without limitation;
3. if a word or phrase is defined its other grammatical forms have corresponding meanings;
4. words importing the singular shall include the plural;
5. words importing one gender shall mean and include other genders; 
6. an obligation includes a covenant, warranty, representation or indemnity and reference to a failure to comply with an obligation includes a breach of a covenant, warranty, representation or indemnity; 
7. time is to local time in Sydney; 
8. $ or ‘dollars’ is a reference to Australian currency;
9. any reference to a covenant, obligation, promise, representation, warranty or liability of any nature whatsoever for more than one person shall be binding on all relevant persons on a joint and several basis; and
10. if the date on or by which something must be done is not a Business Day, the act must be done on or by the next Business Day. 

13.2 Definitions

Account means an account on the Platform to facilitate the provision of the Services and Courses. 

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Sydney, New South Wales.

Claim includes any claim, demand, proceeding, suit, litigation, action or cause of action under contract, tort, statute or otherwise. 

Confidential Information in relation to a party means all information relating to that party in whatever form (including verbal, or recorded on paper or by electronic means) including all financial, operational and technical information or any other information that a party knows, or ought to know, is confidential. 

Course has the meaning given in clause 1.1. 

Course Fee means the fee quoted to you as being payable when you established your Account for the Services and Courses. 

Engaged means to participate, assist or otherwise be directly or indirectly involved in any manner including, but not limited to, as an employer, member, shareholder, unitholder, consultant, advisor, contractor, principal, agent, director, beneficiary, partner, associate, trustee or financer. 

Insolvency Event means any of the following:

1. a person is or states that the person is unable to pay from the person’s own money all the person’s debts as and when they become due and payable;
2. a person is taken or must be presumed to be insolvent or unable to pay the person’s debts under any applicable legislation;
3. an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;
4. an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 7 days;
5. a controller is appointed in respect of any property of a corporation; 
6. a corporation is deregistered under the Corporations Act 2001 (Cth) or notice of its proposed deregistration is given to the corporation;
7. a distress, attachment or execution is levied or becomes enforceable against any property of a person;
8. a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person’s creditors or members or a moratorium involving any of them;
9. a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within 7 days or a person presents a petition against himself or herself; 
10. a person presents a declaration of intention under section 54A of the Bankruptcy Act 1966 (Cth); or
11. anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.

Intellectual Property Rights means:

1. patents, designs, trademarks and service marks (whether registered or unregistered) and any application for, or rights to apply for registration of any patent, design, trademark or service mark;
2. copyright (including copyright in software, websites, databases and advertising and other promotional materials);
3. all rights to have information (including trade secrets, know-how, operating procedures and technical information) kept confidential; and
4. all other rights or protections having similar effect anywhere in the world. 

Kajabi Payments means the service operated by Kajabi, LLC, Kajabi Financial, LLC and its related bodies corporate. 

Licence has the meaning given to that term in clause 4.1.

Loss includes any loss, damage, liability (whether actual, prospective or contingent), cost, expense, diminution in value or deficiency of any kind or character which a party pays, sustains, incurs or suffers or for which it is liable, including reasonably incurred legal fees.

Materials has the meaning given to that term in clause 4.1.

Platform means the Website and related features that facilitate online access to the Courses, Services and Materials.

Recordings has the meaning given to that term in clause 6.2.

Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).  

Related Entity has the meaning given to that term in the Corporations Act 2001 (Cth).

Services has the meaning given in clause 1.1.

Terms means these terms and conditions. 

Website means www.bodymaestro.com.