These Terms will apply to every sale of Goods and provision of Services by the Supplier. Unless expressly accepted in writing by the Supplier, any qualification of these Terms contained in any document issued by the Customer shall be of no force or effect. These Terms constitute the entire agreement between the Supplier and the Customer, and no variation of or addition to these Terms will be binding unless reduced to writing and signed by the Supplier and the Customer or their duly authorised representatives.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act (as amended or replaced from time to time);
Competition and Consumer Act means the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time);
Customer means the party who enters into these Terms with the Supplier, for the supply of Goods and / or Services from the Supplier to the Customer;
Goods means goods supplied by the Supplier to the Customer pursuant to these Terms, including without limitation, fitness and related equipment and e-books;
PPSA means the Personal Property Securities Act 2009 (Cth) (as amended or replaced from time to time);
Services means services supplied by the Supplier to the Customer pursuant to these Terms, including without limitation, fitness programs, training sessions and online fitness related commentary;
Supplier means Psellos Hattotuwa Pty Ltd ACN 604 117 553 trading as Challenge Me Fitness ABN 81 604 117 553; and
Terms means these terms of trade.
- Prices quoted in the Supplier’s price lists will be in Australian dollars (AUD) and are exclusive of GST unless otherwise indicated
- The contract price of Goods and Services shall be paid at the time of purchase (and where the Customer subscribes for ongoing Goods and/or Services, at the commencement of each term of the Services).
- The Supplier reserves the right to suspend or cancel the supply of further Goods and Services if the terms of payment are not strictly adhered to by the Customer, or if the Customer is in breach of or default under any other subsisting agreement between the Supplier and the Customer.
- In the event of any outstanding monies owed to the Supplier from the Customer, all costs and expenses incurred by the Supplier in recovering any outstanding money (including, without limitation, debt collection agency fees or lawyer’s costs on a solicitor-own client basis) shall be paid by the Customer.
2. Delivery and Risk
- The supply of Goods and Services is subject to availability.
- The Supplier reserves the right to deliver part of an order to the Customer, and the Customer agrees to accept any part order so delivered. Failure by the Supplier to deliver any part of an order shall not entitle the Customer to cancel the balance of the order and in the event of the Customer defaulting on payment of any part of an order, the Supplier shall be entitled to treat the default as a breach of contract relating to the total order or any or all part orders of such order.
- Where a time for delivery is agreed, the Supplier will take all reasonable action to deliver the Goods and/or Services on time, but time shall in no circumstances be deemed of the essence, and the Supplier shall not be liable for any loss or damages suffered by the Customer arising out of, or in relation to, a delay in delivery by the Supplier.
- Unless otherwise agreed in writing between the Supplier and the Customer:
- the Supplier will arrange for delivery of physical Goods to the customer’s nominated address, at the Customer’s cost (delivery fees will be added to the purchase price of the Goods).
- where Goods are soft copy, they will be delivered electronically either by permitting online download by the Customer or by email to the Customer’s nominated email address (at the Supplier’s discretion).
- risk in all Goods will pass to the Customer upon delivery.
3. Return of Goods
- To the extent permitted by law:
- the Supplier will only accept the return of Goods and bear the cost of return freight if the Supplier is legally obliged to repair or replace those Goods or the Goods were delivered to the Customer as a result of the Supplier’s error, but not otherwise. If so required by the Supplier, the Customer will return Goods to the Supplier’s nominated representative;
- the Customer will not return Goods for repair or replacement until, following receipt of the Customer’s written notice that Goods require repair or replacement, the Supplier’s agent has inspected the Goods and advised the Customer of an authorisation number which the Customer must quote to the Supplier in all subsequent dealings relating to the relevant Goods; and
- subject to the foregoing, receipt by the Supplier or by any of its agents or representatives of Goods returned, will not constitute or be deemed to constitute the Supplier’s acceptance of the return of those Goods for any purpose, and those Goods will be returned to the Customer at the Customer’s expense.
4. Termination of Supply
- The Supplier reserves the right to terminate a Customer’s membership of the Services if the Supplier believes (acting in its sole discretion) the Customer has breached any of these Terms and Conditions or any additional terms and conditions of membership (which will be notified to the Customer) and/or the Customer has or is facilitating any unlawful activity of a third party in respect to the Services or the
- Where the Customer has subscribed for an ongoing membership to the Services, it may cancel that membership at any time by notifying [email protected] (please note a refund will not be issued when cancelling). Membership will be deactivated within 72 hours of receipt of your e cancellation email and no further payments will be deducted after that time.
5. Limitation of Liability
- The Customer acknowledges, agrees, represents and warrants that:
- the use of the Goods is outside the control of the Supplier, and the Supplier is not liable for any damage caused by the use of the Goods;
- no information provided by the Supplier, either paid or otherwise, or any information provided by any associate or affiliate of the Supplier, should be taken or understood as medical advice or assistance nor should it be interpreted in substitution for any medical advice or assistance or used or referred to instead of seeking appropriate medical advice or assistance from qualified practitioners for the Customer’s particular circumstances and needs;
- the Customer is solely responsible for evaluating and assessing their own health and wellbeing and whether they should access and use the Goods and Services and/or participate in the Services or use any associated products and services. The Supplier encourages the Customer to seek appropriate medical advice or assistance before embarking on any use of its Goods or Services or any information provided by the Supplier;
- the Supplier makes no representations regarding the accuracy of any information and materials associated with the Goods and Services including (without limitation) information found on the Supplier’s website and social media accounts;
- the Customer has or will in a timely manner conduct all mandatory or prudent tests and apply all mandatory or prudent quality control checks and procedures to ensure the Goods and any product that is purchased from the Supplier will be without defect and suitable or fit for any purpose required for them; and
- it has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by the Supplier or anyone on its behalf, or apparently on its behalf, in respect of the Goods, other than those that are expressly contained in these Terms.
- Subject to the remainder of this clause 5, the Supplier offers no guarantee or warranty in respect of the Goods or Services it supplies to the Customer, and all representations, conditions and warranties of any nature made in relation to the Goods and Services are expressly excluded from these Terms and shall not bind the Supplier.
- To the extent permitted by law, where the Supplier becomes liable to the Customer in any manner for any breach of any condition or warranty expressed or implied in relation to the supply of Goods or Services to the Customer, the Supplier’s liability will be limited, at the Supplier’s sole discretion to either:
- in relation to the supply of Goods:
- the replacement of the Goods or the supply of equivalent Goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
- the payment of the cost of having the Goods repaired; and
- in relation to the supply of Services:
- the supplying of the Services again; or
- the payment of the cost of having the Services supplied again.
- If any action is brought by the Customer against the Supplier, pursuant to Part 5.4 Division 1 of the Australian Consumer Law, the Supplier’s liability will be as prescribed in Part 5.4 Division 1 of the Australian Consumer Law.
- To the extent permitted by law, the Customer releases and indemnifies the Supplier and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Customer and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of or in relation to any breach by the Customer of any warranty provided by it under clause 1.
- To the extent permitted by law, the Supplier will have no liability to the Customer however arising, including, without limitation, under any cause of action or theory of liability, in respect of special indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity, arising out of or in connection with these Terms.
- The Customer shall keep the Supplier indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without limitation, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Customer or which the Customer may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods or use of the Services unless such costs, claim, demand, expense or liability shall be directly and solely attributable to any breach of contract or guarantee by, or negligence of, the Supplier or its duly authorised employee or agent.
7. Cost Recovery
- Any expenses, costs or disbursements incurred by the Supplier in recovering any outstanding monies owing by the Customer, including, without limitation, debt collection fees and solicitors costs (on a full indemnity basis), shall be paid by the Customer.
8. Intellectual Property
- The Customer acknowledges that all information developed by the Supplier is solely owned by the Supplier and is not to be distributed to any third
- The Customer acknowledges that all information provided to the Customer via any means is for the sole use of the Customer only. Any distribution of the Supplier’s material is a breach of membership and may result in termination of a Customer’s membership.
- Any password or right given to the Customer to obtain access to the “members only” email subscription, website and forum, and the contents or use of either the email subscription, website or forum, is not transferrable to any third party.
- The Customer acknowledges that the sale and purchase of the Goods and/or Services does not confer on the Customer any licence or rights under any patent, trade mark, design or copyright which is the property of the Supplier. The Customer shall not alter, remove or otherwise tamper with any of the trade or other marks or numbers attached to or placed upon the Goods by the Supplier.
- The Customer warrants to the Supplier that all documents provided by the Customer are accurate and that the Supplier is entitled to use all such documents for the purposes of the Contract and that such use does not infringe any third party’s intellectual property rights. The Customer indemnifies the Supplier against all claims and all losses and damages incurred by the Supplier as a result of documents provided by the Customer to the Supplier for the purposes of or in the course of the supply of the Goods or Services breaching a third party’s intellectual property rights.
- If the Customer receives any confidential information from the Supplier, the Customer may not use or disclose such information unless it receives the prior written consent of the Supplier, such information enters the public domain (other than as a result of a breach of this clause) or the use or disclosure is required by law.
- Neither the Supplier nor the Customer will disclose any information of the kind referred to in section 275(1) of the PPSA.
- The Customer will not authorise the disclosure of any information of the kind referred to in section 275(1) of the PPSA at any time.
- The whole or any part of a clause of these Terms shall be capable of severance without affecting the rest of these Terms.
11. Governing Law
- These Terms shall be governed by the laws of the State of New South Wales (excluding its conflict of laws provisions) and the Customer must submit to the non-exclusive jurisdiction of the courts of or exercising jurisdiction of that State and the Customer waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
- If the Supplier elects not to exercise any of its rights arising as a result of a breach of these Terms, that will not constitute a waiver of any rights of the Supplier relating to any subsequent or other breach.
13. Force Majeure
- The Supplier will not be in breach of any contract with the Customer where it results from any act, matter or thing beyond the reasonable control of the Supplier.