Welcome to Clubworx! Clubworx is on a mission to empower the fitness business owners of tomorrow with a technology platform that enable them to do more of what they love like teaching and coaching, rather than spending time on admin (Services), as set out in more detail on our website (Site).
In these Terms, when we say you or your, we mean you as an individual if you are accepting these Terms for yourself. If you are accepting these Terms on behalf of an entity (such as your employer) and you are authorised to do so, then you or your means that entity. When we say we, us, or our, we mean Clubworx Pty Ltd (ACN 165 885 996).
These terms and conditions (Terms) form our contract with you, and set out our obligations as a service provider and your obligations as a customer. You cannot use the Services unless you agree to these Terms.
Some capitalised words in these Terms have defined meanings, and each time that word is used in these Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of these Terms.
OUR DISCLOSURES
Please read these Terms carefully before you accept. We draw your attention to:
- our privacy policy (on the Site) which sets out how we will handle your personal information;
- clause 1.7 (Variations) which sets out how we may amend these Terms;
- clause 3 (Fees) which sets out important information about payments and recurring services, including whether you can cancel the Services and whether any of the Services auto-renew; and
- clause 13 (Liability) which sets out exclusions and limitations to our liability under these Terms.
We may receive a benefit (which may include a referral fee or a commission) should you visit certain third party websites through a link in the Services, or for featuring certain goods or services on the Services.
These Terms do not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.
2.Account
2.1
You may sign up for an Account in order to access and use the Services.
2.2
Your may invite Active Members to access and use the Services under your Account. You are responsible for ensuring that your Active Members comply with these Terms. You may change who your Active Members are at any time through your Account, and what access rights or permissions they have when using the Services. Any limitations on the number of Active Members you can have will be set out in your Account, on the Services and in clause 7.
2.3
While you have an Account with us, you agree to (and to ensure your Active Members agree to):
- keep your information up-to-date (and ensure it remains true, accurate and complete);
- keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; and
- notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account.
2.4
If you closeyour Account, you and your Active Members will lose access to the Services.
3.Add On
3.1
You may order additional products, such as access to our mobile application or SMS credit packages, on the Site or as agreed between the Parties (Add On). Any Add On ordered is an offer by you to purchase a particular product or products for the price notified on the Site, or as agreed between the Parties, (including other charges and taxes) at the time you place your order.
3.2
We may, at our absolute discretion, accept or reject an Add On order. We will endeavour to notify you of a rejection at the time of the Add On order or within a reasonable time thereafter. Once we accept an Add On order, a binding agreement is formed for the supply of products to you in accordance with these Terms.
3.3
It is your responsibility to check the Add On order details, including selected products, delivery details and pricing, before you submit your Add On order through the Site.
4.Fees
4.1
You may choose to purchase Services from us, as set out on our Site (Paid Services). Paid Services may include one-time purchases or recurring Services. You must pay all amounts due under these Terms in accordance with these Terms or as set out on our Site (as applicable).
4.2
You agree to pay us the purchase price for each Add On you order as set on the Site or agreed between the Parties, in accordance with these Terms.
4.3
You agree that any overage payments will be paid monthly in arrears on the date your Paid Services are paid.
4.4
We may offer free trials for certain Paid Services for the first 15 days from when you sign up. At the end of the free trial, you will either begin to be charged for the Paid Service or lose access to it (unless you sign up to it as a Paid Service), as specified in the trial offer you sign up to.
4.5
Details of our Paid Services, including features, limitations, fees and billing cycles (for recurring services) are set out on our Site. For recurring services, you will be billed on a regular basis, as set out on our Site, at the beginning of each billing cycle. All other Paid Services must be paid for at the time you order the Service.
4.6
Cancellation: All recurring Services continue for the agreed Service term (that you selected when purchasing the Service) (Service Term). At the end of each Service Term, provided you have paid all fees owing, your recurring Services will be automatically renewed for recurring monthly periods (each of which will be considered a Service Term). If you wish to cancel your recurring Services, you may do so through your Account. Your cancellation will take effect at the end of your current Service Terms, and the Services will not be renewed (meaning you will need to continue paying all fees due up until your current Service Term ends).
4.7
Our payment methods will be set out at the time you purchase the Services. If you choose to pay your fees using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out at the time you make payment).
4.8
You must not pay, or attempt to pay, any fees due under these Terms or as a result of your use of the Services by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your bank account, and you confirm that you are either the holder or an authorised signatory of that bank account.
4.9
If any fees due under these Terms or as a result of your use of the Services are not paid on time, we may:
- suspend your access to the Services; and
- charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.
4.10
You are responsible for paying any levies or taxes associated with your use of the Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).
5.Licence
5.1
During the Term, we grant you and your Active Members a right to use our basic Services in accordance with these Terms. This right cannot be passed on or transferred to any other person.
5.2
When you purchase our Paid Services, your access rights will vary based on the type of service. For one-time purchases, we grant you and your Active Members the right to access the purchased Service until the earlier of the specified duration of access, the termination of these Terms or your cancellation of the specific Service. For recurring services, we grant you and your Active Members a right to access the relevant Services only for the duration that you continue to pay for the Service, subject to these Terms. These rights cannot be passed on or transferred to any other person.
5.3
You must not (and you must ensure that your Active Members do not):
- access or use the Services in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;
- interfere with or interrupt the supply of the Services, or any other person’s access to or use of the Services;
- introduce any viruses or other malicious software code into the Services;
- use any unauthorised or modified version of the Services, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services;
- attempt to access any data or log into any server or account that you are not expressly authorised to access;
- use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;
- circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
- access or use the Services to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
6.Code of Conduct
6.1
You, your Personnel and Active Members as well as us and our Personnel (including any online staff of ours) have the right to be treated with courtesy and respect. To ensure the safety and comfort of all of our staff and clients, you agree to and are required to comply with this Code of Conduct. This Code of Conduct applies to all interactions that you have with us when receiving the Services.
6.2
You agree that you (and your Personnel) will, at all times when receiving our Services:
- behave in a lawful manner;
- treat us, our property, and our Personnel with courtesy and respect at all times;
- not engage in any conduct which is offensive, discriminatory, abusive, threatening or inappropriate towards another person;
- not make threats (in any way and in any form) to the safety or wellbeing of any person;
- not engage in any actions or use any words (whether oral or written) that are verbally, physically, sexually or psychologically abusive; and
- not comment on the physical, cultural, political, religious or sexual inclinations of another person or display to any person any images or videos which are of an inappropriate or sexual nature (including pornography), violent or which incite discrimination, violence or hatred towards another person.
7.Active Members
7.1
You agree that the Licence permits you to access and use the Services in accordance with the number of Active Members, as set out in your Account (if applicable).
7.2
If the number of Active Members exceeds your Account limit, by either:
- a request from you to increase the number of Active Members in your Account; or
- an increase in the number of Active Members using your Account,
- your Paid Services will be increased to the appropriately tiered Paid Services on the Site (Services Variation) and on the next billing date, the new fee for Paid Services for will apply on each billing date from then on.
7.3
In relation to an increase under clause 7.2(a), you agree that the number of Active Members will increase from the date the Services Variation is accepted by us.
8.Availability, Disruption and Downtime
8.1
While we strive to always make the Services available to you, we do not make any promises that these will be available 100% of the time. The Services may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance.
8.2
The Services may interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.
8.3
We will try to provide you with reasonable notice, where possible, of any disruptions to your access to the Services.
9.Intellectual Property and Data
9.1
We own all intellectual property rights in the Services. This includes how the Services look and function, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on the Services.
9.2
We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.
Your Data
9.3
We do not own any of Your Data, but when you enter or upload any of Your Data into the Services, you grant us the right to access, analyse, backup, copy, store, transmit, and otherwise use Your Data for the duration of your use of the Services (and for a reasonable period of time afterwards). We may use Your Data (or disclose it to third party service providers) to:
- supply the Services to you and your Active Members (for example, to enable you and your Active Members to access and use the Services), and otherwise perform our obligations under these Terms;
- diagnose problems with the Services;
- improve, develop and protect the Services;
- send you information we think may be of interest to you based on your marketing preferences;
- perform analytics for the purpose of remedying bugs or issues with the Services; or
- perform our obligations under these Terms (as reasonably required).
9.4
You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur over various networks.
9.5
You are responsible for (meaning we are not liable for):
- the integrity of Your Data on your systems, networks or any device controlled by you or your Active Members; and
- backing up Your Data.
9.6
When you use the Services, we may create anonymised statistical data from Your Data and usage of the Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
9.7
If you do not provide Your Data to us, it may impact your ability to receive the Services.
9.8
This clause 9 will survive the termination or expiry of these Terms.
10.Confidential Information and Personal Information
10.1
While using the Services, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any Active Members, employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a ‘need-to-know basis’ (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.
10.2
However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.
10.3
We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available on the Site, and applicable privacy laws.
10.4
You must only disclose Personal Information to us if you have the right to do so (such as having the individual’s express consent).
10.5
You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to Your Data.
10.6
We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).
10.7
Where we are required by law to report on our activities, you acknowledge that from time to time we may request certain information from you in order to meet our requirements, and you agree to provide us with such information within the timeframes reasonably requested by us.
10.8
This clause 10 will survive the termination or expiry of these Terms.
12.Consumer Law Rights
12.1
In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms.
12.2
Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.
12.3
If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
12.4
This clause 12 will survive the termination or expiry of these Terms.
13.Liability
13.1
To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:
- your computing environment (for example, your hardware, software, information technology and telecommunications services and systems); or
- any use of the Services by a person or entity other than you or your Active Members.
13.2
Regardless of whatever else is stated in these Terms, to the maximum extent permitted by law:
- neither we or you are liable for any Consequential Loss;
- a party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss;
- (where the Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and
- our aggregate liability to you for any Liability arising from or in connection with these Terms will be limited to the amount of any fees paid by you to us during the 12 months immediately preceding the event giving rise to the Liability, or if you have not paid for the Service, to AU$1,000.
13.3
Except to the extent that the Liability arose from our (or our Personnel’s) negligent acts or omissions, you indemnify us and our Personnel against all Liability that we may sustain or incur as a result, whether directly or indirectly, of:
- your or your Personnel’s breach of clauses 1.6, 5, 9, 10, and 11; and
- your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.
13.4
This clause 13 will survive the termination or expiry of these Terms.
14.Suspension and Termination
Suspension
14.1
We may suspend your access to the Services where we reasonably believe there has been any unauthorised access to or use of the Services (such as the unauthorised sharing of login details for the Services). If we suspend your access to the Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate these Terms and your access to the Services will end.
Termination
14.2
14.2 We may terminate these Terms (meaning you will lose access to the Services, and any recurring Services will be cancelled) if:
- you (your Personnel or Active Members) are in breach of the Code of Conduct at clause 6;
- you fail to pay your fees when they are due;
- you or your Active Members breach these Terms and do not remedy that breach within 14 days of us notifying you of that breach;
- you or your Active Members breach these Terms and that breach cannot be remedied; or
- we decide to discontinue the Services, in which case we will provide you with at least 90 days’ written notice and if you have paid upfront for ongoing access to any of the Services (excluding one-time purchases) we will issue you a pro-rata refund for such Services; or
- you experience an insolvency event (including but not limited to bankruptcy, receivership, voluntary administration, liquidation, or entering into creditors’ schemes of arrangement).
14.3
You may terminate these Terms if:
- we breach these Terms and do not remedy that breach within 14 days of you notifying us of that breach; or
- we breach these Terms and that breach cannot be remedied, and if you have paid fees for recurring Services upfront, you will be issued a pro-rata refund of any unused part of those fees based on the portion of the then-current Services period remaining.
14.4
You may also terminate these Terms at any time by notifying us through your Account or to our email for notices (as set out in clause 15.8), and if you have purchased any recurring services, termination will take effect at the end of your current Services period.
14.5
Upon termination of these Terms, we will retain Your Data (including copies) as required by law or regulatory requirements. We will be entitled to permanently delete all Your Data within 1 month from expiry or termination of these Terms.
14.6
Termination of these Terms will not affect any other rights or liabilities that we or you may have.
14.7
This clause 14 will survive the termination or expiry of these Terms.
15.General
15.1
Assignment: You may not transfer or assign these Terms (including any benefits or obligations you have under these Terms) to any third party without our prior written consent. We may assign or transfer these Terms to a third party, or transfer any debt owed by you to us to a debt collector or other third party.
15.2
Disputes: Neither we or you may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
If the Dispute is not resolved at that initial meeting:
- where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation; or
- where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Brisbane, Queensland, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.
15.3
Events Outside Our Control: We will not be liable for any delay or failure to perform our obligations (including the Services), if such delay or failure is caused or contributed to by an event or circumstance beyond our reasonable control.
15.4
Governing law: These Terms are governed by the laws of Queensland, and any matter relating to these Terms is to be determined exclusively by the courts in Queensland and any courts entitled to hear appeals from those courts.
15.5
Illegal Requests: We reserve the right to refuse any request for or in relation to the Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with these Terms.
15.6
Marketing: You agree that we may send you electronic communications about our products and services. You may opt-out at any time by using the unsubscribe function in our electronic communications. We may contact you via the platform for the Services, using in-Account notifications or via-off platform communication channels, such as text messages or email with functional notifications.
15.7
Nature of Legal Relationship: These Terms do not create, and should not be interpreted so as to create, a partnership, joint venture, employment or agency relationship between us and you.
15.8
Notices: Any notice you send to us must be sent to the email set out at the beginning of these Terms. Any notice we send to you will be sent to the email address registered against your Account.
15.9
Professional Services Disclaimer: The Services do not constitute, and are not a substitute for, financial, legal or risk management advice.
15.10
Publicity: You agree that we may, with your written consent, advertise or publicise the fact you are a customer of ours, for example on the Site or in our promotional material, and you grant us a right to display and use your logo and branding solely for that purpose.
