The platform provided by [Qualified Trainer Pty Ltd] ABN  of [904/6 Aqua Street, Southport, Queensland, 4215] (“Qualified Trainers”, “we” or “us”) facilitates the interaction between a health or fitness venue (a “Venue”) allowing a Venue to request, manage, timetable and book a broad range of on demand casual and ad hoc health and fitness related services from individuals (an “Instructor”) who participate in the platform provided by Qualified Trainers (the “Qualified Trainers Platform”). The Qualified Trainers Platform is made available on its website [www.qualifiedtrainer.com] [and its mobile application].
- Relationship between the parties
Qualified Trainers does not engage or employ Instructors – it is only a platform for facilitating the booking of their services. Use of the Qualified Trainers Platform shall not be deemed to create any relationship of employment between Qualified Trainers and an Instructor. The Venue and the Instructor are responsible for concluding a separate agreement governing the terms of their relationship. Qualified Trainers is not responsible to the Venue for the services to be provided by the Instructor. Similarly Qualified Trainers is not responsible to the Instructor for payment of the Instructor or the safety of the Instructor or the Instructor’s property.
- Third Party Offerings.
Qualified Trainers is not responsible for any third party products that are integrated with available through or used in connection with the Qualified Trainers Platform. The availability of any third party offerings through the Qualified Trainers Platform does not imply Qualified Trainers’ endorsement of or affiliation with the provider. Qualified Trainers does not control third party offerings and will have no liability to you in connection with any third party offerings. Qualified Trainers has no obligation to monitor or maintain third party offerings, and may disable or restrict access to any third party offerings at any time. By using or enabling any third party offering, you are expressly permitting Qualified Trainers to disclose your details or other information to the extent necessary to utilise the third party offering. Your use of third party offerings is at your own risk and is subject to any additional terms, conditions and policies applicable to such third party offerings.
- The Instructor indemnifies Qualified Trainers from and against all losses, damages, liabilities, claims, costs and expenses (including legal costs) which are incurred or suffered by Qualified Trainers out of or in connection with:
- any inaccuracy, falsity or misleading information provided by the Instructor through the Qualified Trainers Platform;
- the Instructor’s performance or failure to perform the services required by a Venue;
- all taxes, and benefits (including income taxes, payroll tax, sick leave, long service leave and superannuation) payable by reference to the services to be provided by the Instructor.
- The Venue indemnifies Qualified Trainers from and against all losses, damages, liabilities, claims, costs and expenses (including legal costs) which are incurred or suffered by Qualified Trainers out of or in connection with:
- any representations made by the Venue to the Instructor;
- all payments and benefits due to the Instructor;
- all taxes, and benefits (including income taxes, payroll tax, sick leave, long service leave and superannuation) payable by reference to the services to be provided by the Instructor;
- all damage incurred or suffered by the Instructor or the Instructor’s property while performing services for the Venue.
- Additional terms referable to Instructors
- By using the Qualified Trainers Platform the instructor represents and warrants to Qualified Trainers that the Instructor is:
- over the age of 18 years;
- entitled to work in Australia;
- does not have any criminal convictions;
- holds valid and appropriate qualifications;
- holds public liability insurance;
- [working with children permits if required].
- The Instructor acknowledges and agrees that
- by using the Qualified Trainers Platform, Venues will be able to view the Instructors public liability insurance details;
- to facilitate invoicing, details of the Instructors bank account (or other payment method) nominated by the Instructor will be made available to Venues to which the Instructor provides services;
- Venues will be asked to provide a rating of the Instructor’s services which will be capable of being viewed by other Venues using the Qualified Trainers Platform.
- Changes to and suspension of services
- Qualified Trainers at its discretion may make changes to its services or these terms from time to time. Such changes will be come effective when a modified version is posted to the Qualified Trainers website but changes will not be retroactive. Continued use of the Qualified Trainers Platform will is deemed to be acceptance of those revised services or terms. If you do not agree to the changes, you must stop using the services provided by Qualified Trainers.
- Qualified Trainers reserves the right to suspend access to the Qualified Trainers Platform:
- during periods of planned downtime;
- in connection with events beyond its control including but not limited to Acts of god, acts of government, flood, fire civil unrests, acts of terror, pandemics, strikes or other labour disputes, compute attacks or malicious acts, and the failure of any internet service provider, telecommunications provider or hosting facility);
- if Qualified Trainers believes that malicious software is being used in connection with the use of the Qualified Trainers Platform.
- Restrictions on Use
You must not and must ensure that people who access the Qualified Trainers Platform through your participation in it must not:
- submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Qualified Trainers Platform, including material that violates privacy rights;
- interfere with or disrupt the integrity or performance of the Qualified Trainers Platform or the data contained therein;
- attempt to gain access to the Qualified Trainers Platform or related systems or networks in a manner not permitted by these Terms;
- post, transmit or otherwise make available through or in connection with the Qualified Trainers Platform any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs;
- restrict or inhibit any other person or entity from using the Qualified Trainers Platform;
- remove any copyright, trademark or other proprietary rights notice from the Qualified Trainers Platform;
- frame or mirror any portion of the Qualified Trainers Platform, or otherwise incorporate any portion of the Qualified Trainers Platform into any or service;
- systematically download and store Qualified Trainers Platform content; or
- use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Qualified Trainers Platform content, or reproduce or circumvent the navigational structure or presentation of the Qualified Trainers platform. You, and not Qualified Trainers are responsible for any use or misuse of user names or passwords associated with your account.
- Warranties, limitations and exclusions
- Qualified Trainers warrants that the Qualified Trainers Platform will perform the functions as generally described on its website. Subject to the following provisions of this clause, a user’s sole and exclusive remedy for a breach of this warranty is that Qualified Trainers will use its commercially reasonable endeavours to modify its services to achieve the functionality described. If Qualified Trainers is unable to restore such functionality, a user will be entitled to terminate its use of the Qualified Trainers Platform and will be entitled to a pro-rata refund of any prepaid fees.
- The Australian Consumer Law may imply terms which may not be lawfully excluded. Nothing in these terms has the effect of excluding such terms. To the extent permitted by the Australian Consumer Law, the liability of Qualified Trainers for terms which may not be lawfully excluded is limited at its option to:
- performance of the services again;
- paying the cost of paying the services again.
- Subject to the foregoing, conditions, warranties obligations or other terms which may otherwise be implied into these terms or the relationship between Qualified Trainers and users of the Qualified Trainers Platform by statute common law or otherwise and all liabilities arising from them are expressly excluded and Qualified Trainers is not liable for loss of profit, anticipated savings or indirect economic loss.
- Intellectual Property Rights
You acknowledge that all present and future copyright and other intellectual property rights subsisting in, or used in connection with, the Qualified Trainers Platform (the “Intellectual Property”), including the manner in which the Qualified Trainers website [or app] is presented or appears and all information and documentation relating to both the Qualified Trainers website and app, is the property of Qualified Trainers (or that of its licensors) and remains vested in Qualified Trainers at all times and nothing in these Terms shall be taken to transfer any Intellectual Property to any Venue or Instructor or any other person using the Qualified Trainers Platform.
Qualified Trainers may terminate its agreement with you and your access to the Qualified Trainers Platform by notice to you if you are in breach of these terms or any other agreement with Qualified Trainers. Termination does not affect your obligation to pay any fees or other monies owing before termination.
[right to terminate by notice without cause – to be discussed]
Any notice to be given under these Terms must be in writing and either sent by email, delivered by hand or sent by recorded delivery to:
- in the case of Qualified Trainers its registered address; and
- in the case of a Venue, or an Instructor to the primary correspondence address (including email address) given to Qualified Trainers.
- Entire Agreement
These Terms constitute the entire agreement between Qualified Trainers and Venues and Instructors and replaces any previous agreement or understanding (whether oral or written, express or implied) between us in respect of matters contained or referred to in these Terms. Each of us agrees that, in entering into these Terms, we have not relied on, and have no remedy in respect of, any representation warranty or other provision (whether oral or written, express or implied) of any person, which is not expressly set out in these Terms. The only remedy available in respect of any misrepresentation or untrue statement shall be a claim for breach of contract under these Terms, such claim to be subject to the limitation of liability section above. This paragraph does not operate to limit or exclude any liability arising from any fraudulent or dishonest statement, act or omission.
If any of these Terms are held to be illegal or unenforceable for any reasons, such provisions shall be severed and the rest of the Terms shall remain in full force and effect.
You may not assign, transfer or sub-contract any of your rights under these Terms without our prior written consent. We may assign, transfer or sub-contract all or any of our rights at any time without consent.
No waiver shall be effective unless in writing and no waiver shall constitute a continuing waiver so as to prevent us or you from acting upon any continuing or subsequent breach or default.
- Governing Law and Jurisdiction
These Terms shall be subject to the laws of New South Wales and the parties shall submit to the non-exclusive jurisdiction of the courts of New South Wales and all courts which may hear appeals therefrom.