These terms are deemed to be accepted when signing up for any service or product on the Website. These terms apply to the use of the Website, including the use of the information, services and products provided through the Website.

This website is owned and operated by The Upbeat Co Pty LTD of 204 Bondi Rd, Bondi NSW 2026 Australia (herein referred to as The Upbeat, we, us, our).

By accepting these terms, you agree to be personally bound by these terms and conditions, whether for yourself or on behalf of a minor, if you are registering on behalf of a minor. By clicking "I accept", you represent and warrant that you are at least 18 years old, and if you are registering on behalf of a minor, that you are their legal guardian.

Upon registration as a Member, you will be provided with a password and account. You must not disclose them to anyone else or allow anyone else to use your account and password. You are entirely responsible for any access to your account, and acknowledge that any access to or use of your account by means of the password associated with that account is deemed to be access or use by you. This includes any purchases made through your account. You agree to pay for our services in the manner specified on the Website.

If you, or a user on whose behalf you register (including a minor), breaches these terms and conditions, you acknowledge that we may immediately suspend or terminate your account, without refund, and may take appropriate legal action.

If you are registering on behalf of a minor, it is your responsibility to inform them of their obligations as a user of the Website and ensure compliance with these terms.

 

1. Conditions of Use

PLEASE CONSULT YOUR HEALTH CARE PROFESSIONAL

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.

No information contained in the Website is intended to be used as medical advice and the Website is not intended to be used to diagnose, treat, cure or prevent any medical condition (including any mental health conditions) or for any therapeutic purposes. Before relying on the information on the Website, you should carefully evaluate the accuracy and relevance of the information for their purposes and obtain appropriate professional medical advice.

You must consult a qualified medical professional if you have any questions concerning your medical condition or injury.

 

INFORMATION PROVIDED

All information provided by us on the Website is provided in good faith. We derive our information from sources which we believe to be accurate and up-to-date at the date of publication. We may update any information at any time but you acknowledge that the information on the Website may not be the most current knowledge. In addition, to the extent permitted by law, we do not make any representations or warranties that any information we provide is reliable, accurate or complete and we make no guarantees of any specific result from use of this Website or the information provided through it. To the extent permitted by law, we are not liable for any loss arising from any action taken or reliance by you on any information or material available on the Website.

The Upbeat team may receive requests from members about that member's specific circumstances. Our team may provide health, fitness or nutritional information for educational purposes. They do not offer or provide professional medical advice, diagnosis, treatment or rehabilitation and may refer the member to certain third party resources. Any referrals are not intended to be and should not be construed as an endorsement, promotion or recommendation by The Upbeat.

 

NUTRITIONAL INFORMATION

Nutritional information provided on the Website is taken from sources provided by third parties. Before relying on any nutritional information on the Website, you should carefully evaluate the accuracy, completeness and relevance of this information for your purposes, and consider the need to obtain appropriate expert advice relevant to your circumstances.

 

FITNESS LEVEL

You require a moderate level of fitness to follow the exercise programs and the like set out in our information service. Persons with pre-existing medical conditions, in poor health, or with any concerns as to commencement of a new fitness regime should consult with an appropriate healthcare professional before beginning any of these programs. You are responsible to make your own inquiries and seek independent advice from a healthcare professional before acting on any information or material made available to you through the Website. The information on the Website may not be suitable to your particular circumstances and is not a substitute for obtaining specific advice from a qualified health care professional. In particular, if you fall within one of the following classes of persons, then you should first consult a healthcare professional before following any exercise programs or using any of the information on the Website:

• pregnant women and women who are breastfeeding or who are trying to conceive a child;

• persons with any on going physical condition;

• persons suffering from cancer or other long term illness;

• persons with liver disease, kidney disease, or renal failure,

• persons with eating disorders;

• persons with diabetes, blood pressure or cholesterol issues;

• elderly persons;

• persons recovering from or recently recovered from illness or injury; and

• persons with a low body mass index.

Further, even if you do not fall into the above classes of persons, you acknowledge that the service that we provide on the Website is an information service only, and that you are solely responsible for (at your own discretion) following (or not following) any exercise program or regime that we provide as part of the information service. Our service does not include any supervision or monitoring of your activity, and we are not responsible for any injuries that you may suffer as a result of following the exercise program or regime.

To the extent we supply any "recreational services" or "recreational activities" (within the meaning of the Competition and Consumer Act (2010) (Cth) or any State or Territory civil liability or consumer protection legislation), you acknowledge that your participation in the recreational services and activities may involve risks, including personal injury and death. Prior to participating in the recreational services and activities, you must assess all the risks involved, including risks that may be caused by your own acts or omissions, your health condition, those of other users of the Website and risks that are not known to you or are not readily foreseeable at the time of participating in the recreational services and activities.

By participating, you are doing so voluntarily and at your own risk. To the extent permitted and required by law, this is a risk warning pursuant to the various civil liability and consumer protection legislation. You assume all risks in connection with your participation in any recreational services and activities that we may provide. To the maximum extent permitted by law, we exclude all liability arising from or in connection with any recreational services or activities for: (1) death; (2) physical or mental injury (including the aggravation, acceleration or recurrence of such an injury); (3) the contraction, aggravation or acceleration of a disease; and (4) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs: (a) that is or may be harmful or disadvantageous to you or the community; or (b) that may result in harm or disadvantage to you or the community, resulting from the supply of recreational services or recreational activities, but we do not exclude our liability to significant personal injury which is caused by our reckless conduct in the supply of recreational services or activities.

 

THE WEBSITE

We do not promise that the Website will be error-free or uninterrupted. The Website and its content are delivered on an "as-is" and "as-available" basis. We cannot ensure that files you download from the Site will be free of viruses or contamination or destructive features. Receipt of emails, or other Internet based communications such as via Facebook or Twitter from us cannot be guaranteed. The delivery of video messages is dependant upon third party providers and therefore outside of our control. Low internet connection speeds may result in an inability to view high resolution videos, but we will use our best endeavours to provide an alternative wherever possible.

 

SECURITY

No data transmission over the Internet can be guaranteed as totally secure. While we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.

 

2. Limitation of liability

INDIRECT AND CONSEQUENTIAL LOSS

To the extent permitted by law, and subject to clause [7], 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 Website, any linked website, your reliance on any information obtained through the Website or your use of any services on the Website, 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.

 

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:

• 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

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

 

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.

 

3. Indemnity

You agree to indemnify us and our employees, agents and subcontractors, from and against any third party claims and all losses, expenses, damages and costs (including reasonable legal fees incurred on a solicitor/client basis) suffered or incurred by us, which arises as a result of your breach of these terms in your use of the Website.

 

4. Intellectual Property

Unless otherwise indicated and except for any functionalities provided by external websites, copyright in this Website (including its content, materials, recipes, exercise programs, text, graphics, logos, icons, sound recordings, video, software and advertisements) is owned or licensed by us. Information procured from a third party may be the subject of copyright owned by that third party. All rights are reserved by us.

All names, logos and trade marks on this Website are the property of their respective owners. Nothing on the Website should be interpreted as granting any rights to commercial use or to distribute any names, logos or trademarks, without the express written agreement of the relevant owners.

We grant you a personal, limited, revocable, non-exclusive and non-transferable licence to access, view, listen to, use and print this Website and its content solely for your personal, non-commercial purposes and only for those purposes. Otherwise, to the extent allowed by law, no part of this Website may be reproduced, reused, retransmitted, adapted, published, broadcast or distributed without our prior written permission.

The following are examples of conduct that are not authorised by these terms:

• sharing the content of this Website or your account with other persons;

• publishing or posting any of the content (such as recipes or exercise programs) on any other website, including on social media pages or websites;

• using the logo or trade marks of this Website;

We may, from time to time, monitor your use of the Website to determine if you are in breach of these terms. Such monitoring may include:

• The frequency and nature of any downloads; and

• The time of access and IP addresses used to access the Website.

We may suspend, limit or terminate your access to the Website (at our discretion) if we reasonably suspect, based on the results of such monitoring, that you are in breach of these terms.

 

5. User Generated Content

This Website may allow you to post information, photos, content, user submissions and/or upload materials to the Website (including features such as live chat and forums), whether through external websites or otherwise (User Content) and may also allow you to see User Content submitted by other persons.

The Website may include functionalities that allow you to control whether or not the public or other users of the Website are able to view your User Content (Access Controls). We will use our best endeavours to ensure that the Website properly implements the Access Controls that you select, but we do not warrant or guarantee that the implementation is error free. If you discover any improper implementation of your selected Access Controls, please inform us immediately so that we can investigate and, where appropriate, correct the error. To the extent permitted by law, we are not liable to you for any loss or damage arising as a result of or in connection with any incorrect implementation of the Access Controls that you select (including any resulting disclosure of your User Content that you did not intend to disclose).

Because we are not able to guarantee that the implementation of the Access Controls is error free, you should take particular care before deciding whether to upload any User Content. In particular, you should be aware that, if your User Content is downloaded by any other person (including other users of the Website) (whether authorised or not), then neither The Upbeat nor you may be able to control the further disclosure and publication of that User Content.

By posting, submitting, updating, modifying, transmitting or otherwise making available any User Content on this Website:

• you warrant that you independently created or otherwise have all the necessary rights and permissions needed to submit User Content to the Website;

• you grant to us a royalty-free, non-exclusive irrevocable, perpetual and world-wide licence of the intellectual property rights in the User Content to use, modify, copy, sub-licence, distribute, reproduce, adapt, transmit, publish and/or broadcast, publicly perform, communicate and display in any manner and by any means which we may determine (subject to us using reasonable endeavours to implement the Access Controls that you have selected);

• you must ensure, and warrant, that your User Content, and the licence that you grant to us under paragraph (2), do not infringe the rights (including intellectual property rights, privacy and reputation) of any other person, and you agree to indemnify us against any third party claims arising from your use of the Website in breach of this paragraph (3); and

• to the full extent permitted by law (and subject to us using reasonable endeavours to implement the Access Controls that you have selected), you consent to us (and all persons authorised by us) doing anything in relation to your User Content which would otherwise constitute an infringement of your moral rights that you may have in the User Content. To the extent that a waiver, rather than a consent, is required in any jurisdiction, then you waive any moral rights you may have.

We have the right, but not the 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).

Notwithstanding our right to monitor, review and edit any User Content, we are not obliged to do so. We accept no responsibility or liability for any User Content. In particular, you acknowledge and agree that we do not authorise, condone or endorse any User Content of any other user, and are not responsible for the accuracy, legality or decency of such content. You are solely responsible for verifying the veracity of any claims or statements made in any User Content.

You acknowledge that, subject to us using reasonable endeavours to implement the Access Controls that you have selected, your User Content will be displayed on the Website, and other users may use, view and download your User Content. We are not responsible for how other users will use your User Content. You should take care before posting anything sensitive or personal about yourself to any part of the Website that is accessible to the public or other users of the Website.

Some User Content may refer to events or activities that are organised by other users of the Website. We are not responsible for organising these events and activities, and do not authorise or endorse them. You are solely responsible for determining whether to participate in these events and activities, at your own risk.

If you believe that your rights have been infringed by any other User Content, or wish to report any User Content that does not comply with these terms, please contact us.

 

6. Permitted Use

We prohibit the use of this Website and any of its functionalities, features and content 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 Website, you acknowledge and agree that:

• you are legally responsible for all User 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 Website, including providing any and all information about you held by us (whether of a personal nature or otherwise), to those entities;

you will not:

• 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;

• bypass (or attempt to bypass) any security mechanisms imposed by the Website;

• harvest or collect email addresses, photographs or personal information of other users;

• impersonate any person or entity;

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

• knowingly post or transmit or permit the posting or transmission of any material, which contains a computer virus or other harmful data, code or material;

• exploit the Website for your own commercial or unlawful purposes or the commercial or unlawful purposes of any other person (including the posting of advertisements, solicitors, promotional materials, "spam" or any other materials that are contrary to our commercial or lawful interests);

• provide access or links to any material (including links to peer to peer network "trackers") which may infringe the intellectual property rights of another person; or

• 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.

   

7. Linked Websites

The Website (or User Content) may reference or link to third party sites on the internet. We have no control over these sites or the content within them. We cannot, and do not, guarantee, represent or warrant that the content contained in the sites is accurate, legal and/or inoffensive. We do not endorse the content of any third party site, nor do we warrant that they will not contain viruses or otherwise impact your computer. By using the Website to search for or link to another site, you agree and understand that you will not make any claim against us for any damages or losses, however arising, which results from your use of the link to access another site.

 

8. 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 use the Ezidebit payment gateway 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 or the fraud of our employees.

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.

If you are unhappy with our services or programs we will happily refund your money provided it is a reasonable request and you can produce a receipt.

 

9. Variation

You are bound by the latest version of the applicable Terms and Conditions. We may vary, amend or add to these terms at any time. Where there are material changes to these Terms and Conditions that could adversely affect our members or you we will provide you additional notice to you by way of the email address you have provided to us. Without limiting our right to give notice by any other means, you will be deemed to have:

• received notice of such changes when we place a notice on the Website setting out the changes; and

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

If you do not agree with the changes, then prior to you accessing your account you may notify us by contacting us.

 

10. Internet Safety

This Website 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, we:

(1) 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; (2) notify you that you must not place on the Website content that is in contravention of any Australian State, Territory or Commonwealth law; (3) 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; (4) 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: https://www.iia.net.au/index.php?option=com_content&task=view&id=416&Itemid=9#what_must_i_do; (5) 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 (6) encourage you to contact us if you would like to make a complaint about any of the content shown on the Website, or have any queries regarding unsolicited commercial emails (SPAM) received from us, or seek further information regarding the above obligations.

We request the Australian Communications and Media Authority contact us to send any takedown notices.

 

11. Personal Information Collection Notice

In registering for access or using this Website, you may be required to give us certain personal information in which you have certain rights. Personal information relating to you which we collect, use and disclose may include sensitive information, such as information about your health, your details related to how you pay for our services, your age, height and weight. If you do not provide all of the personal information that we request, then you may not be able to complete the registration process, or we may not be able to provide all or some our services to you.

In addition to any reasons that we may separately notify to you at the time of collection, we collect, use and disclose your personal information for the reasons set out in our Privacy Policy. We usually disclose personal information that we collect on a confidential basis to our contractors and service providers (including financial service providers) so that they can provide services to us (so that we may provide services to you). Unless you ask us not to, we may also use your personal information to send updated information and other promotional material to you.

While we store the majority of the personal information that we collect from you in Australia, we may from time to time store some of the information in a computer server located in the United States of America.

You consent to your personal information being used and/or disclosed for any reasons given to you by us (at the time of collection) in relation to the use and disclosure of your personal information, including the reasons set out in our Privacy Policy. You also consent to us using and disclosing information about your age, name, height and weight for the purposes of displaying your User Content, publicly profiling your fitness on the Website, displaying the results of competitions, promoting the service and encouraging other members as well as to financial service providers to allow processing of your payments.

 

12. Termination

The Upbeat may in its sole and absolute discretion refuse registration, or suspend or terminate membership at any time and for any reason. If a provision of these terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other terms.

 

13. 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".

 

14. Governing Law

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