Qualified Trainers Pty Ltd (ABN 36 642 983 257) (Qualified Trainers) provides a platform that facilitates professional interactions between health or fitness venues (Venues) and health and fitness service providers (Instructors) (Platform). The Platform is accessible via web interfaces. These Terms of Use (Terms) apply to any person that accesses or uses the Platform (you).
1.1. These Terms form a binding legal agreement between Qualified Trainers and you. By accessing and using the Platform, you acknowledge and agree to comply with and be bound by these Terms as at the date of such access and use.
1.2. If you agree to these Terms on behalf of another person you:
1.3. Qualified Trainers at its discretion may make changes to its Platform or these Terms. Such changes will become effective once posted on the Qualified Trainers website and will not be retroactive. Qualified Trainers will give you at least 7 days' notice prior to the change. It is your obligation to ensure you have read, understood, and agreed to the current version of these Terms.
2.1. Subject to payment of the applicable Fee, Qualified Trainers grants you a non-exclusive, non- transferable, non-sublicensable and revocable, licence to access and use the Platform in accordance with these Terms (Licence).
2.2. The Licence begins on the earlier of the date that you:
3.1. The applicable Fee must be paid in accordance with these Terms and the Fee Terms.
3.2. Except as otherwise provided in these Terms, the Fee is non-refundable.
3.3. Unless otherwise stated, the Fee is in Australian currency and excludes GST.
4.1. Qualified Trainers may suspend your License immediately upon notice, without Liability to you (except for any Liability for performance of these Terms prior to the suspension date):
5.1. Qualified Trainers or you may, with 30 days' notice prior to the end of a billing cycle, terminate the License effective at the end of the billing cycle in which the termination notice was received.
5.2. Qualified Trainers may terminate the License immediately upon notice to you if any of the circumstances in subclauses 4.1(b) to 4.1(g) apply.
5.3. Qualified Trainers or you may terminate the License immediately upon notice if:
5.4. Termination does not affect the rights and obligations of Qualified Trainers and you that:
5.5. On termination of the License, Qualified Trainers may retain your data as required by law. You authorise Qualified Trainers to retain or destroy your data on termination of these Terms, subject to legal requirements.
6.1. You must:
7.1. You must not:
8.1. You represent and warrant that all data you transfer via the Platform (Your Data) is your exclusive or authorised property.
8.2. All rights and title (including Intellectual Property) Your Data remains the property of its legal owner. However, your access to Your Data and your continued use of the Platform is contingent on payment of the applicable Fee.
8.3. You grant Qualified Trainers a non-exclusive, worldwide, perpetual, irrevocable, transferable licence for no fee to exploit Your Data in any way to:
8.4. We may permit you to make Your Data available to other users of the Platform. By making Your Data openly available to other users of the Platform, you grant Qualified Trainers a non- exclusive, worldwide, perpetual, irrevocable, transferable licence for no fee, to exploit in any manner such data without further notice to or consent from you.
8.5. You must not transmit data that:
8.6. Qualified Trainers may at its discretion remove Your Data, including due to an actual or suspected violation of these Terms.
8.7. You are solely responsible for complying with all laws regarding Your Data including but not limited to the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).
8.8. Where your privacy policy governs how you handle data that is also personal information, you must not cause your privacy policy to restrict Qualified Trainers' right to use your data in accordance with these Terms, unless such restriction is required by law, you must promptly notify Qualified Trainers where such restrictions apply.
8.9. Qualified Trainers will take reasonable steps and use industry standard procedures to ensure that Your Data Qualified Trainers is kept secure and confidential. However, Qualified Trainers does not guarantee the security of Your Data. Qualified Trainers is not responsible for any corruption or loss of Your Data due to a third-party you permit to access or use the Platform.
8.10. The Platform may contain features that relay Aggregated Data to:
9.1. All Intellectual Property in:
9.2. Except as otherwise expressly provided in these Terms, these Terms do not give you any right to Intellectual Property that is not your Intellectual Property.
10.1. The relationship between Qualified Trainers and you is that of a service provider and a customer respectively, and not that of any other nature such as employment or joint venture. Nothing in or arising from these Terms does or will be deemed to create a relationship between Qualified Trainers and you, other than that of a service provider and a customer respectively.
10.2. While the Platform facilitates the creation of business relationships between you and third- parties, Qualified Trainers is not a party to, or in any way liable for, such relationships or any matter arising therefrom.
11.1. You and other third-parties are exclusively responsible for your respective actions facilitated by the Platform (Interactions).
11.2. Qualified Trainers does not control you or third parties and will have no Liability to you in connection with your Interactions.
11.3. Your engage in Interactions is at your own risk and subject to any additional terms, conditions and policies applicable to them.
11.4. The availability of third-party Interactions via the Platform does not imply Qualified Trainers' endorsement of or affiliation with the third-party or their Interactions.
11.5. Qualified Trainers has no obligation to monitor or maintain the availability of third-parties or their Interactions via the Platform and may disable or restrict your access to them at any time.
11.6. By engaging in Interactions, you are expressly permitting Qualified Trainers to disclose information to the extent required to facilitate such.
12.1. Nothing in these Terms excludes applicable law such as Australian Consumer Law.
12.2. Qualified Trainers warrants that the Platform will perform the functions as generally described on Qualified Trainers' website. Your sole and exclusive remedy for a breach of this warranty is that Qualified Trainers will use its commercially reasonable endeavours to achieve the functionality described and if Qualified Trainers is unable to restore such functionality, you may terminate the License upon notice to Qualified Trainers and will be entitled to a pro-rata refund of any prepaid Fees corresponding with the period in which Qualified Trainers breached this warranty.
12.3. To the maximum extent permitted by law, except as otherwise expressly provided in these Terms:
13.1. You must defend, indemnify and hold harmless, Qualified Trainers (its officers, directors, employees, contractors, and agents) from and against all Claims and Liabilities arising out of or in connection with:
13.2. Your Liability under this clause shall be reduced to the extent that the Liability is a result of a breach of these Terms by Qualified Trainers.
13.3. You must:
13.4. This clause survives the termination of these Terms.
14.1. Qualified Trainers' Privacy Policy, available on Qualified Trainers' website, forms part of these Terms.
15.1. If there is a dispute between Qualified Trainers and you:
15.2. Any attempts by Qualified Trainers or you to resolve a dispute in accordance with this clause do not affect any rights or entitlements of Qualified Trainers and you.
16.1. You represent, warrant, and agree that:
16.2. You acknowledge that any grant of the License by Qualified Trainers to you is in reliance on the representations and warranties in this clause.
17.1. (Notice) A notice pursuant to these Terms must be in written English and:
17.2. (Inconsistency) If a provision of these Terms is invalid or unenforceable in a particular jurisdiction, it is to be read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability, and this does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
17.3. (Waiver) A waiver of a provision of or right under these Terms must be in writing, signed by the Party giving the waiver, and is effective only to the extent set out in the written waiver. A single or partial exercise of a right does not preclude a further exercise of that right or the exercise of another right. Failure by a Party to exercise a right or delay in exercising that right does not prevent its exercise or operate as a waiver of it.
17.4. (Assignment) You may not assign, transfer, or sub-contract any of your rights under these Terms without Qualified Trainers' prior written consent. Qualified Trainers may assign, transfer, or sub-contract any of Qualified Trainers' rights under these Terms without your prior written consent.
17.5. (Non-Parties) Any person who is not a Party to these Terms has no right or benefit under or to enforce them.
17.6. (Entire agreement) These Terms constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior discussions, negotiations, or arrangements or agreements.
17.7. (No reliance) In entering these terms, neither Party has relied on, and have no remedy in respect of, any representation, warranty, or other provision of any person which is not expressly set out in these terms. This subclause does not limit any liability arising from any fraudulent or dishonest statement, act, or omission.
17.8. (Attorney) An attorney or representative who executes these Terms on behalf of a Party declares it has no notice of the revocation or suspension by the grantor or in any manner of the power of attorney or permitting language or document under the authority of which the attorney or representative executes these Terms.
17.9. (Governing law) These Terms is governed by the laws in force in the State. The parties submit to the exclusive jurisdiction of the courts of the State and any courts that may hear appeals from those courts about any proceedings in connection with these Terms.
18.1. In these Terms:
Aggregated Data means data that has been stripped of personal information.
Business means the business of the Company, which at the time of these Terms is the business of supplying legal services and law practice management services.
Business Day means a day that is not a Saturday, Sunday, or public holiday in the State.
Claim means any claim, cause of action, legal proceeding, suit or demand.
Confidential Information means Qualified Trainers' information that is identified as confidential or of a nature which should reasonably be regarded as confidential but does not include information in the public domain (unless in the public domain due to a breach of confidentiality by any person).
Fee means the fee payable for the License pursuant to License's duration and associated payment arrangement.
Fee Terms means terms associated with the Fee as presented to you at the time, and accepted by you by way, of your first payment of the Fee, and includes the amount, payment method, payment frequency, and may include additional terms relating to termination.
Force Majeure Event means an Act of God, war, government regulation, pandemic, disaster, civil disorder, curtailment of transportation facilities, or any other emergency of a comparable nature beyond a Party's control.
GST has the meaning given by GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all intellectual property including associated rights (whether or not registered, including all applications and the right to apply for registration) such as:
Insolvency Event means, in respect of a company:
Liability means any liability whether present, future, fixed or unascertained, actual or contingent, and includes legal fees.
Party means a party to these Terms.
State means New South Wales, Australia.
Tax Invoice means a valid tax invoice in a form that complies with the GST Law.
In these Terms, unless context otherwise requires:
19.1. Headings do not affect interpretation.
19.2. A reference to a:
19.3. An agreement, representation, warranty, or indemnity:
19.4. Words:
19.5. Days refer to calendar days and are inclusive of the numbered day.
19.6. If something is to be or may be done on a day that is not a Business Day, then it must be done on the next Business Day.
19.7. When counting a period of days before or after a given day or the day of a particular act or event, the given day or day of the particular act or event, as applicable, is excluded and the last day of the period is included.
The following terms apply if you are an Instructor.
I1.1 You represents and warrant to Qualified Trainers that you:
I1.2 You acknowledge and agree that:
I2.1 You must defend, indemnify and hold harmless, Qualified Trainers (its officers, directors, employees, contractors, and agents) from and against all Claims and Liabilities arising out of or in connection with:
The following terms may apply if you are a Venue.
V1.1. Qualified Trainers may issue you a Tax Invoice for the Fee.
V1.2 If a Tax Invoice is issued, you must pay the Tax Invoice in accordance with the terms, including the Fee Terms, on the Tax Invoice.
I2.1 You must defend, indemnify and hold harmless, Qualified Trainers (its officers, directors, employees, contractors, and agents) from and against all Claims and Liabilities arising out of or in connection with: