PARTIES

Virtfit Pty Ltd (ABN 89 640 771 795)(Virtfit).

The person or entity that accepts these terms by entering its particulars on the Website and clicking “I ACCEPT” (Subscriber).

BACKGROUND

1. Virtfit hosts the VIRTFIT cloud-based technology platform that supports semi-private personal training and self-service virtual coaching.

2. Virtfit provides managed, hosted services to its subscribers by enabling on-line access to the VIRTFIT technology platform.

3. By clicking I ACCEPT on the Website, Subscriber has requested Virtfit to provide these services in accordance with the terms of this Agreement.

OPERATIVE PROVISIONS

In consideration of the promises and obligations given and assumed herein, and intending to be legally bound, the parties intend and agree as follows:

1. Definitions and Interpretation

1. The words and phrases listed in Part A of the Schedule shall, for the purposes of this Agreement, have the meanings defined therein.
2. This Agreement shall be interpreted in accordance with the principles specified in Part B of the Schedule.

2. Term

Subject to any earlier termination in accordance with this Agreement, this Agreement remains in force for an Initial Term of (1) month. On the expiration of the Initial Term, this Agreement shall automatically renew each (1) month unless otherwise terminated in accordance with clause 12 of this Agreement.

3. Performance of Services

Virtfit agrees to supply the Services to the Subscriber on a non-exclusive basis during the Term in accordance with all of the provisions of this Agreement. The Services (including service levels) are described in the Documentation and on the Website.

4. Excluded Services

4.2 In the event that any additional services are requested by Subscriber that are:

1. not referred to in clause 3; or
2. excluded pursuant to clause 4.1;

then Virtfit shall use reasonable commercial efforts to provide those additional services. Subscriber shall pay the Charges for those additional services calculated in accordance with Virtfit’s usual rates for time and materials, including for any expenses incurred, in providing such services.

5. Subscriber’s Responsibilities

5.1 Subscriber shall and must not use directly or indirectly the Technology for improper or unlawful purposes or to receive or send messages of any kind that are offensive, indecent, obscene, menacing or defamatory or which infringe the intellectual property rights of any other person.

5.2 Subscriber shall consult with Virtfit, cooperate in all reasonable respects, supply to Virtfit all information reasonably required by Virtfit and make available such personnel as Virtfit may reasonably require in a timely manner to ensure that Virtfit may comply with its obligations under this Agreement.

5.3 Subscriber shall designate a single senior officer to represent it for the purposes of this Agreement and to act as Subscriber’s point of contact for Virtfit in respect of the provision of the Services.

5.4 Subscriber will ensure that each of its personnel who are given access to the Services will be suitably trained, skilled and experienced in the use and operation of the Technology.

5.5 Subscriber shall be solely responsible for all data and other inputs required in order to render the Technology useful or useable, and all outputs derived from the Technology.

5.6 Subscriber will comply, at its own expense, with any recommendations and guidelines issued by Virtfit with respect to the Services, including any adjustments or replacements required in respect of related equipment, hardware and/or software.

5.7 Subscriber acknowledges and agrees that Virtfit is not responsible for data loss or errors occurring in the execution of any of Virtfit’s obligations under this Agreement.

6. Payment

6.1 The Charges for the performance of the Services by Virtfit shall be paid in accordance with this clause 6 and as specified on the Website.

6.2 In consideration of the performance of the Services by Virtfit, Subscriber shall pay Virtfit the Charges in accordance with the Plan chosen by the Subscriber and as specified on the Website.

6.3 Virtfit may amend the Charges on giving Subscriber no less than three (3) months prior notice in writing.

6.4 Unless otherwise agreed between the parties, the Charges are:

1. exclusive of any Tax, which shall be charged and paid in addition to the Charges in accordance with the relevant laws in force from time to time; and
2. exclusive of all out-of-pocket expenses that may be incurred by Virtfit or its Personnel in connection with providing the Services, including any travel and subsistence expenses.

6.5 All overdue Charges shall bear interest from the due date for payment at the rate of two per cent (2.0%) per month until payment in full of the overdue amount.

7. Intellectual Property Rights

7.1 Subscriber acknowledges and agrees that:

1. Virtfit is the sole and exclusive owner of the IPRs and Virtfit’s Confidential Information;
2. this Agreement does not convey and that it derives no right, title or interest in or to either the IPRs and/or Virtfit’s Confidential Information except only in its authorised use of the Technology and strictly in accordance with this Agreement; and
3. in further consideration of the supply of the Services, it hereby assigns and conveys unconditionally to Virtfit all IPRs that, but for this clause, it may or would otherwise own or have an interest in (legal or equitable) that relates to, concerns or is embodied in an Adaptation.

7.2 Subscriber further acknowledges and agrees that all present and future reputation and goodwill arising from or in relation to the use of the Trade Marks, or otherwise attaching to or vesting in the Trade Marks, shall accrue exclusively to the benefit and ownership of Virtfit.

7.3 Subscriber shall and must not edit, obscure or remove either the Trade Marks or any notice or other proprietary statement concerning the ownership or registration of the IPRs that Virtfit may use, embed or incorporate upon or in relation in the Technology and/or the Services and/or the Documentation.

8. Representations and Warranties

8.1 Subject to this Agreement, Virtfit represents and warrants to Subscriber that:

1. the Services provided will comply substantially with their description on the Website in all material matters; and
2. the Services shall be performed by suitably qualified personnel who will exercise due skill and care.

8.2 Subscriber acknowledges and agrees that Virtfit does not and cannot control or influence either the transmission or the integrity of data and information across telecommunication networks and/or the internet and that such matters depend entirely on the acts or omissions of other persons and entities.

8.3 Nothing in this Agreement may be construed as a representation or warranty that the operation, functionality or performance of the Technology and/or the Services will be uninterrupted or error free. Subscriber acknowledges and agrees that the Technology and the Services (as with information technology products and services generally), may have errors (or “bugs”) and may encounter unexpected technical problems. Accordingly, from time-to-time, Subscriber may experience downtime and errors in the operation, functionality or performance of the Technology and/or the supply of the Services. Accordingly, Subscriber must put in place reasonable internal procedures and processes to enable it to minimise any inconvenience and any adverse impact of any such downtime or error.

8.4 Subscriber must obtain, and represents and warrants to Virtfit that it has obtained, from the relevant persons (including its clients/customers) all authorisations, consents, waivers and approvals that are necessary or required in order for Virtfit to perform, and in order for it to authorise and procure Virtfit to perform, the Services.

8.5 Subscriber acknowledges and agrees that the Technology interoperates with other technical infrastructure and devices and that the Technology cannot be accessed and the Services cannot be performed without the Subscriber and/or its clients/customers having sourced or procured the relevant infrastructure and devices.

8.6 In the course of marketing or describing the Technology and/or the Services to its clients/customers (or to any third person), Subscriber shall at all times fairly and accurately represent all aspects of the Technology and the Services and any such representations in relation to the operation, functionality and/or performance of the Technology and/or the benefits of the Services must be absolutely consistent with their description on the Website.

8.7 Subject only to clause 9.1, all terms, conditions, warranties, representations, indemnities and guarantees with respect to the Technology, the Services and/or the Documentation (or any other goods or services that may be supplied or provided by Virtfit), that would otherwise be implied or imposed by statute, law, equity, trade custom, prior dealings between the parties or otherwise (including any implied warranty of merchantability, suitability, fitness for purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.

8.8 Each party acknowledges that neither the other party nor any person acting on the other party’s behalf has made any representation, statement or other inducement to it to enter into this Agreement, except for representations, statements or inducements expressly set out in this Agreement.

8.9 Each party acknowledges and confirms that it does not enter into this Agreement in reliance on any representation, statement or other inducement by or on behalf of any other party, except for representations, statements or inducements expressly set out in this Agreement.

9. Exclusion and Limitation of Liability

9.1 Nothing contained in this Agreement excludes, restricts, limits or modifies any:

1. implied or imposed condition, warranty, guarantee or other term of this Agreement where pursuant to applicable law to do so is unlawful or void; or
2. liability in respect of a breach of this Agreement where pursuant to applicable law to do so is unlawful or void; or
3. liability for fraud or deceit; or
4. liability for death or personal injury caused by the negligence of either party.

9.2 Subject only to clause 9.1, Virtfit hereby excludes, and the Subscriber agrees to the exclusion of, all of Virtfit’s liability to Subscriber that would otherwise arise howsoever under or in connection with this Agreement in respect of:

1. malfunctions, failures, errors, defects, events, consequences or outcomes, including any loss, damage, cost or expense of any nature, caused directly or indirectly by:
1. any third party (including Subscriber’s clients/customers);
2. any breach of Subscriber’s obligations or responsibilities set out in this Agreement;
3. actions of Subscriber that were not expressly authorised by Virtfit;
4. accident, misuse or abuse by anyone other than Virtfit;
5. alteration or modification, including any movement or relocation, of Subscriber’s technology infrastructure by anyone other than Virtfit;
6. products and equipment (including any hardware or software) not licensed or supplied by Virtfit;
7. Subscriber’s failure to provide a proper operating and working environment to receive or access the Service;
8. power surge or failure;
9. events of Force Majeure or events outside Virtfit’s reasonable control (which always includes matters associated with or relating to the internet and/or telecommunications facilities); or
10. any other condition not arising under normal conditions;
2. any loss of profit, business interruption, loss of or damage to goodwill, and/or any loss of an expectation benefit;
3. Subscriber’s liability to any third party (including to its clients/customers); or
4. any incidental, indirect, consequential, special, exemplary or punitive damages of any nature,

whether such liability is asserted or arises on the basis of any common or civil law, in equity, pursuant to any statute, under any contract, in tort (including negligence or strict liability) or otherwise (and notwithstanding that Virtfit has been advised of the possibility of any particular liability, loss or damage).

9.3 In respect of any Default or other breach of this Agreement by Virtfit (but subject always to the exclusion and/or limitation of Virtfit’s liability set out elsewhere in this Agreement), Virtfit’s maximum financial liability shall not exceed the total amount of all Charges paid by Subscriber preceding the date of the Default. As a condition precedent to such liability, Subscriber shall notify Virtfit promptly of deficiencies in any Services or the Documentation and in any event within twenty-four (24) hours of the occurrence of the Default, and will give Virtfit an opportunity to correct the Default.

10. Confidentiality

10.1 Except to the extent permitted by law, neither party may disclose any Confidential Information that it receives from or relates to the other party without the other party’s prior written consent.

10.2 The receiving party shall deliver up any Confidential Information belonging to the disclosing party, including all copies, immediately upon the termination of this Agreement (or at any earlier time on demand).

10.3 The receiving party shall immediately inform the disclosing party if it becomes aware of the possession, use or knowledge of any of the Confidential Information by any unauthorised person, whether during or after the Term of this Agreement and shall provide such reasonable assistance as is required by the disclosing party to deal with such event.

11. Personal Information and Privacy

11.1 Without limiting any other provision of this Agreement, the Subscriber must, in respect of all Personal Information concerning its customers:

1. comply at all times with the Privacy Laws;
2. obtain all necessary consents and approvals in the appropriate form from its customers so as to enable Virtfit lawfully to provide the Services in accordance with the Privacy Laws;
3. provide immediately to Virtfit the details of any complaint received by the Subscriber regarding its or Virtfit’s collection, storage, handling or processing of Personal Information;
4. co-operate with any reasonable request by Virtfit to enable Virtfit to:
1. comply, or to assist it in complying, with its obligations under the Privacy Laws and/or to comply with or satisfy any requests or directions from or rulings by the Information Commissioner under the Privacy Act, in relation to Personal Information;
2. resolve any complaint alleging a breach of the Privacy Laws or a privacy policy in relation to the Personal Information; and
3. provide access to any record of the Personal Information following a request from an individual in accordance with the lawful rights of that individual; and
5. notify Virtfit immediately if it becomes aware of any breach of this clause 11 or any treatment of the Personal Information by any person which is inconsistent with the Privacy Laws or which would cause Virtfit to breach the Privacy Laws.

12. Termination

12.1 Either party may terminate this Agreement by giving notice in writing 14 days before the end of the Initial Term, or 14 days prior to the end of any subsequent Term.

12.2 Either party may at any time by notice in writing terminate this Agreement forthwith if the other party is in Default and either:

1. the Default is capable of remedy and the party fails to remedy the Default within ten (10) Business Days of receiving written notice from the other party specifying the Default and requiring it to be remedied; or
2. the Default is not capable of remedy.

12.3 In addition to any other rights of Virtfit whether under this Agreement or otherwise, in the event of Default by Subscriber, and whether Virtfit exercises its right of termination or not, Virtfit has the right to exercise any one or more of the following additional remedies:

1. declare all unpaid Charges howsoever arising to be immediately due and payable; and/or
2. suspend Subscriber’s access to and use of the Technology; and/or
3. suspend Virtfit’s provision of the Services.

12.4 Either party may at any time by notice in writing terminate this Agreement forthwith if the other party suffers an Insolvency Event.

12.5 Except as otherwise expressly provided in this Agreement, all remedies available to Virtfit under this Agreement or otherwise at law or equity are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not exclude the exercise of any other remedy.

12.6 The expiry or any earlier termination of this Agreement shall not prejudice or affect any right of action or remedy that shall have accrued or shall thereafter accrue to either party.

13. General

13.1 The parties intend and agree that they are independent contracting parties. Nothing in this Agreement shall be construed to constitute or appoint either party as the principal, agent, fiduciary, employee, partner or legal representative of the other party for any purpose. Accordingly, except as expressly provided in this Agreement, neither party has any actual or implied authority or permission to:

1. create, assume or incur obligations, debt, encumbrances or other liability; or
2. make representations,

on behalf of the other party in any manner whatsoever.

13.2 The parties intend and agree that any failure to exercise or enforce, or that any delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or equity or under this Agreement by a party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or equity or under this Agreement.

13.3 A waiver or consent given by a party under this Agreement is only effective and binding on that party if it is given or confirmed in writing by that party.

13.4 No waiver of a Default or other breach of this Agreement operates as a waiver of another Default or another breach of this Agreement.

13.5 Virtfit may assign, novate or otherwise transfer or dispose of any or all of its rights and obligations under this Agreement on giving Subscriber no less than twenty (20) Business Days notice in writing.

13.6 Subscriber may not assign, novate or otherwise transfer or dispose of its rights or obligations under this Agreement without the prior written consent of Virtfit.

13.7 All communications (including notices, consents, approvals, requests and demands) under or in connection with this Agreement must be in writing, addressed to the respective party’s address as set out at the beginning of this Agreement (or as otherwise notified in writing by either party to the other party from time to time).

13.8 The clauses of this Agreement may only be varied or amended by a written document signed by or on behalf of each party.

13.9 If any clause, or part of a clause, is found by any court to be illegal, invalid, void or unenforceable, that clause (or the applicable part thereof) shall be deemed to be deleted and this Agreement shall be deemed to be amended accordingly, while the legality, validity and enforceability of the remainder of this Agreement shall not be affected.

13.10 To the extent permitted by law, in relation to its subject matter, this Agreement:

1. embodies and constitutes the entire legal and contractual relationship of the parties, including the entire terms agreed by the parties; and
2. supersedes, replaces and terminates by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the parties.

13.11 This Agreement is governed by and shall be construed and interpreted according to the law applying in Western Australia.

13.12 Each party irrevocably submits to the jurisdiction of the courts of Western Australia with respect to any proceedings which may be brought at any time relating to this Agreement.

13.13 Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within Perth.

13.14 Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.

SCHEDULE

Part A Definitions

In this Agreement, the parties intend and agree that the following words and phrases mean as follows:

Adaptation means any adaptation, modification, enhancement, amendment, improvement or other change to the Technology, the Documentation, the Website and/or the Proprietary Data.

Charges means the Fees, charges and any other monies (exclusive of any Taxes) payable under this Agreement by Subscriber to Virtfit.

Confidential Information includes: (a) the Proprietary Data, (b) all information designated as such by either party, (c) all information that relates to or concerns the business, affairs, marketing plans, finances, employees, agents, contractors, products, services, customers, suppliers, trade secrets and know-how, of either party, and (d) all other information that should reasonably be regarded as the confidential information of the disclosing party.

Customer Data means all data (including Personal Information) that each of Subscriber’s clients/customers provides to Subscriber or Virtfit in connection with, or which relates to, the Services or the performance of the Services by Virtfit.

Default means any breach of an obligation of either party (including but not limited to fundamental breach or breach of a fundamental term) or any default, act, omission, negligence or statement of either party, its employees, agents or sub-contractors in connection with or in relation to the subject matter of this Agreement and in respect of which such party is liable to the other.

Documentation means the technical, design, functional and performance specifications relating to the Technology and/or the Services and/or any user documentation or training materials provided to assist in the use of the Technology.

Force Majeure means any cause affecting the performance by a party of its obligations under this Agreement arising from acts, events, omissions or other circumstances that are beyond its reasonable control.

Insolvency Event means the happening of any of these events in relation to a person:

1. the person is, or states that the person is, unable to pay from his or her or its own money all his or her or its debts as and when they become due and payable; or
2. the person is taken or must be presumed to be insolvent or unable to pay his or her or its debts under any applicable legislation; or
3. an application or order is made for the winding up or dissolution of the person or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution; or
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 the person or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven days; or
5. a controller is appointed in respect of any property of the person; or
6. a distress, attachment or execution is levied or becomes enforceable against any property of the person; or
7. except to reconstruct or amalgamate while solvent:
1. a person resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so; or
   
2. a person enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them; or
   
8. as a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth), a person is taken to have failed to comply with a statutory demand; or
9. a person is, or makes a statement from which it may be reasonably deduced that the person is, the subject of an event described in section 459C(2) or section 585 of the Corporations Act 2001 (Cth); or
10. a person takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation; or
11. a person becomes an “insolvent under administration” as defined in section 9 of the Corporations Act 2001 (Cth) or action is taken which could result in that event; or
12. a petition for the making of a sequestration order against the estate of the person is presented and the petition is not stayed, withdrawn or dismissed within seven days or the person presents a petition against itself; or
13. the person presents a declaration of intention under section 54A of the Bankruptcy Act 1966; or
14. anything analogous to or having a substantially similar effect to any of the events specified above happens to a person under the law of any applicable jurisdiction.

Intellectual Property has the same meaning as is defined in Article 1.2 of the TRIPS Agreement and Intellectual Property Rights (or IPRs), means all the Intellectual Property rights attaching to or subsisting in either:

1. the Technology;
2. the Website;
3. the Documentation;
4. the Proprietary Data;
5. an Adaptation; and/or
6. the Trade Marks.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion or about the affairs or personal particulars of a legal entity such as a company or business (and includes “personal information” as defined in the Privacy Act).

Personnel means Virtfit’s personnel, including its employees, agents, contractors or sub-contractors, who are engaged in providing the Services.

Plan means the particular plan offered by Virtfit and selected by Subscriber when entering into this Agreement.

Privacy Act means the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs), including any guidelines issued by the Office of the Australian Information Commissioner in relation to that Act and/or the APPs.

Privacy Laws means:

1. the Privacy Act, the Telecommunications Act 1997 (Cth), and the Telecommunications (Interception) Act 1979 (Cth); and
2. any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access to Personal Information.

Proprietary Data means all information and data, including as comprised in the Documentation, which relates to or is embodied in the Technology.

Services means the services provided by Virtfit pursuant to this Agreement but expressly excluding the services and obligations set out in clause 4.1.

Fees means the fees specified on the Website (excluding any Tax).

Tax means any and all taxes, duties, levies or other statutory, governmental or regulatory fiscal charges.

Technology means Virtfit’s technology platform as further described on the Website and in the Documentation.

Term means the Initial Term and any renewal thereof pursuant to clause 2.

Trade Marks means the word VIRTFIT together with any other sign, word, brand, device or logo that Virtfit may use upon or in relation to the Technology and/or the Services.

Website means the website published by Virtfit at www.virtfit.net (and/or at any other website published by Virtfit).

Part B Interpretation

In this Agreement and on the Website, the parties intend and agree that:

1. headings are for convenience only and do not affect its interpretation;and unless the context indicates a contrary intention:
2. a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
3. a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;
4. a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
5. a reference to a document, material, information or data includes that document, material, information and data:
1. howsoever stored, recorded or embodied, including in any electronic or digital media or otherwise; and
2. howsoever published, disclosed or supplied, including in writing, orally, visually, electronically or by any other means;
6. a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
7. a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
8. a reference to a party, clause, Schedule, Exhibit, Attachment or Annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all clauses, Schedules, Exhibits, Attachments and Annexures to it;
9. if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
10. the word includes in any form is not a word of limitation; and
11. all references to dollars or $ are to Australian dollars.