PRODUCT AGREEMENT AND WAIVER
These terms, including any annexures or schedules, set out the agreement (this ‘Agreement’) under which Frances Kathleen Brown, ABN 46 142 956 591 (FKB Physio) provides and you (the Client) purchase the Program (defined in clause 2(a)). By proceeding with the purchase on the website (at [fkbphysio.podia.com] the Client agrees to be bound by the terms of this Agreement.
1 THIS AGREEMENT
(a) These terms will apply to all the Client’s dealings with FKB Physio, including being incorporated in all agreements, quotations or orders under which FKB Physio is to provide and products or services to the Client (each a Client Form) together with any additional terms included in such Client Form (provided such additional terms are recorded in writing).
(b) The Client will be taken to have accepted this Agreement, including the terms of the Risk Warning and Waiver of Liability set out in Schedule 1, if the Client accepts a Client Form, or if the Client orders, accepts or pays for any products or services provided by FKB Physio after receiving or becoming aware of this Agreement.
(c) In the event of any inconsistency between these terms and any Client Form, the clauses of these terms will prevail to the extent of such inconsistency.
2 Program
(a) In consideration for the payment of the fees set out in the Client Form (Fees), FKB Physio will provide the Client a non-exclusive, non-transferable licence to use, access and view the online physiotherapy course prepared by FKB Physio (Program).
(b) Unless otherwise agreed, FKB Physio may, in its discretion withhold delivery of the Program until the Client has paid the Fees in respect of such Program.
3 CLIENT OBLIGATIONS and acknowledgement
3.1 obligations
(a) The Client agrees to use the Program strictly in accordance with the instructions as set out in the Program (Instructions). The Client acknowledges that failure to use the Program in accordance with the Instructions may result in injury, loss, damage or other consequence. The Client agrees FKB Physio will not be liable for any injury, loss or damage arising out of the Client’s failure to use the Program in accordance with the Instructions and will indemnify FKB Physio for such loss or damage.
(b) The Client is responsible for complying with all applicable Laws, where ‘Laws’ means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Client receives the Program and/or FKB Physio provides the Program.
3.2 acknowledgements
The Client acknowledges and agrees:
(a) the Client is at least 18 years of age;
(b) it will not use the Program where the Client:
(i) suffers from uncontrolled heart conditions (including unstable angina, uncontrolled arrhythmias, recent heart attack, cardiac surgery, stroke within the last 12 months, uncontrolled high blood pressure);
(ii) has been diagnosed with or suffers from:
(A) severe respiratory conditions that limit exercise tolerance;
(B) neurological conditions or any other condition affecting balance;
(C) recurrent concussions with ongoing symptoms;
(D) seizure disorders not well controlled by medication;
(E) any condition causing fainting, dizziness or loss of consciousness;
(F) unexplained falls in the last 6 months;
(G) recent fracture or surgery (within the last 6 months);
(H) unstable joints or recurrent dislocations;
(I) severe or worsening pain of any cause;
(J) any injury currently undergoing treatment or investigation;
(K) severe osteoporosis;
(L) any fracture as a result of low bone density;
(M) vertebral fractures;
(N) bone conditions where resistance or impact exercise has been restricted;
(O) that requires surgery for any reason;
(P) any cancer or is in treatment for any cancer; and
(Q) recent major illness or hospitalisation;
(iii) suffers from any condition where exercise has been advised against by a medical professional; or
(iv) is unsure whether the Program is appropriate for the Client, or requires medical clearance or supervision to exercise;
(c) it has read, understood and agreed to the Risk Warning and Waiver of Liability set out in Schedule 1;
(d) the Program is supplied on the basis the Client will use it for personal purposes only, and that the Client will not use the Program for commercial, business or resale purposes;
(e) the Client accepts the risk of defects or deficiencies in the Program;
(f) FKB Physio makes no representations or warranties that the Program:
(i) is fit for a particular purpose;
(ii) will have any medical or other result or objective or that such will be achieved or attained by the Client;
(iii) has been tailored to the Client in any way;
(iv) is error or defect free and compatible with the device, network or service on which the Client obtains the Program; and
(g) FKB Physio has not, and will not be responsible for, assessing or investigating the suitability, quality or fitness for purpose of the Program for the Client; and
(h) it is responsible for assessing health and fitness levels and whether the Program is suitable for the Client.
4 PAYMENT
4.1 FEES
The Client must pay to FKB Physio fees in the amounts and at the times set out in the Client Form.
4.2 INVOICES
Unless otherwise agreed in the Client Form, payment must be made in advance of access to the Program and are non-refundable.
4.3 PAYMENT METHOD
The Client must pay Fees using the fee payment method specified in the Client Form.
4.4 GST
Unless otherwise indicated, amounts stated in a Client Form do not include GST. In relation to any GST payable for a taxable supply by FKB Physio, the Client must pay the GST subject to FKB Physio providing a tax invoice.
4.5 Online payment partner
FKB Physio uses third-party providers (Payment Providers) to collect the Fees. The processing of payments by Payment Providers will be, in addition to these terms, subject to the terms, conditions and privacy provisions of the Payment Providers and FKB Physio is not liable for the security or performance of the Payment Providers. FKB Physio reserves the right to correct, or to instruct its Payment Providers to correct, any error or mistakes in collecting payments.
4.6 CARD SURCHARGES
FKB Physio reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
5 ACCREDITATIONS
Unless otherwise agreed in writing:
(a) all displays or publications of any deliverables provided to the Client as part of the Program (Deliverables) must, if requested by FKB Physio, bear an accreditation and/or a copyright notice including FKB Physio’s name in the form, size and location as directed by FKB Physio; and
(b) FKB Physio retains the right to describe the Program and reproduce, publish and display the Deliverables in FKB Physio’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Program and Deliverables in connection with such uses.
6 THIRD PARTY Platform
(a) The Client acknowledges and agrees that the platform and/or website on which the Program is made available for purchase is owned, administered and maintained by a third party and subject to that third party’s terms and conditions (‘Third Party Terms’).
(b) The Client agrees to any Third Party Terms applicable to any goods or services supplied by the third party that are used by FKB Physio to provide access to the Program and FKB Physio will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
7 CONFIDENTIALITY
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause 7 does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by FKB Physio to its subcontractors, employees or agents for the purposes of performing its obligations under this Agreement.
(c) For the purposes of this Agreement, “Confidential Information” means information of or provided by a party to the other party under or in connection with this Agreement that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
8 INTELLECTUAL PROPERTY
8.1 FKB PHYSIO IP
(a) FKB Physio retains ownership of all materials provided to the Client under this Agreement (including text graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) and reserves all Intellectual Property Rights owned or licensed to FKB Physio in connection with the Program.
(b) FKB Physio grants to the Client a non-exclusive, royalty free, non-transferable licence to use Service Provider IP to the extent required for the Client to use and enjoy the benefit of the Program.
(c) Unless otherwise agreed in writing by FKB Physio or in this clause 8.1, the Client will not acquire Intellectual Property Rights in any Service Provider IP under this Agreement or as part of receiving the Program.
8.2 DEFINITIONS
For the purposes of this clause 8:
(a) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this Agreement.
(b) “Service Provider IP” means all Material owned or licensed by FKB Physio and any Intellectual Property Rights attaching to that Material.
(c) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
9 WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
10 LIABILITY
10.1 liability
(a) To the maximum extent permitted by law, subject to clause 10.1(b) and where Schedule 1 does not apply, the total liability of FKB Physio in respect of all loss or damage sustained by the Client in connection with this Agreement or the Program is limited to the amount paid by the Client to FKB Physio under this Agreement.
(b) Clause 10.1(a) does not exclude or limit FKB Physio’s liability for any death or personal injury caused by FKB Physio’s negligence, fraud or fraudulent misrepresentation or wilful misconduct.
10.2 Consequential Loss
To the fullest extent permitted by applicable law, neither FKB Physio nor the Client will be liable for any indirect, special, punitive, incidental, or consequential damages of any kind or loss of profits, loss of revenue loss of data, loss of goodwill, arising out of or related to the ordering process, the Program purchased, or use (or non-use) thereof, regardless of the form of action whether in contract, tort (including negligence) or otherwise, even if the party had been advised of the possibility of such damages.
11 NOTICES
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Client Form and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
12 FORCE MAJEURE
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 12(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
13 GENERAL
13.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
13.2 WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
13.3 SEVERANCE
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
13.4 Complaints
If the Client is unhappy with the Program, please contact FKB Physio at [frances@fkbphysio.com].
13.5 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
13.6 ENTIRE AGREEMENT
This Agreement embodies the entire Agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or Agreement, express or implied, in relation to the subject matter of this Agreement.
13.7 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) 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;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.
Schedule 1 Risk Warning & Waiver of Liability
FKB Physio (or “us”)
Frances Kathleen Brown, ABN 46 142 956 591
The Participant (or “you”)
the Client
Activities
Unsupervised home based exercise program using dumbbells and exercise bands
Please read these carefully and proceed with the purchase only if you fully understand its contents.
Risk Warning & Waiver
1. You have requested to participate in the Activities as provided in the Program. By accepting this waiver or participating in the Activities, you agree to the following.
This waiver is governed by the laws applying in Queensland. Each party submits to the exclusive jurisdiction of the courts of Queensland in respect of any proceedings arising out of or in connection with this waiver.
2. You understand and acknowledge that the Activities as well as training, programs, and events recommended, suggested or proposed by FKB Physio may expose you to obvious, inherent and significant risk, including accidents, injury, illness or even death. You assume all risk of injuries associated with participation in the Activities, including but not limited to falls, risks inherent in acrobatic, gymnastics, or circus activities, such as high impact injuries, fall injuries, physical risks inherent in exercise, and exclude FKB Physio from any liability.
3. You understand and acknowledge that participating in the Activities can be inherently dangerous and can occasion a range of minor and major injuries, including but not limited to, bumps, bruises, scrapes and scratches, sprains, twists, cramps, fractured bones, broken bones, torn ligaments, and even death. If you are participating in any Activities provided by FKB Physio, you assume all risk of injuries and/or death associated with your participation and exclude FKB Physio from liability.
4. The Activities may involve strenuous physical exercise which may subject you to risk of serious injury or even death. FKB Physio urges you to obtain a physical examination from a doctor before participating in any Activities. You agree that when you engage in the Activities, you do so entirely at your own risk.
5. You warrant and represent that you have no injuries, physical restrictions, disabilities or predispositions to sickness or injury (Conditions) that may affect your participation in the Activities or that if you are aware of such Conditions, you participate in any activities provided by FKB Physio entirely at your own risk.
6. You agree that before participating in any Activity, you must evaluate whether your current skills and physical condition allow you to participate in the exercise in a safe manner. If you believe an exercise or Activity will not be safe, you must not participate in such exercise or Activity.
7. You agree that you will abide by all instructions provided FKB Physio while you are participating in the Activities and if you do not understand any instructions provided, you must cease participation in the Activities.
8. You acknowledge and agree that you must not participate in any Activities while under the influence of drugs, alcohol or illicit substances as those substances impair your ability to participate in any Activities safely and may result in significant injury or death to you or others.
9. Section 139A of the Competition and Consumer Act 2010 (Cth) (CCA) permits a term of a contact for the supply to a consumer of recreational services, to exclude liability of the supplier for death and personal injury arising from the failure to comply with a guarantee provided in sections 60 to 62 of the Australian Consumer Law (ACL). To the extent permitted by s139A of the CCA, you acknowledge and agree that FKB Physio excludes all liability in connection with the supply of recreational services for:
(a) death;
(b) physical or mental injury;
(c) the aggravation, acceleration or recurrence of a physical or mental injury;
(d) the contraction, aggravation or acceleration of a disease; and
(e) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual, that is or may be harmful or disadvantageous to the individual, or that may result in harm or disadvantage to the individual, resulting from a failure of FKB Physio to comply with a guarantee in sections 60-62 of the ACL.
10. The exclusion of liability in paragraph 9 does not apply where significant personal injury is caused by the reckless conduct of FKB Physio in accordance with s139A of the ACL.
11. You agree to indemnify FKB Physio in relation to any demand, claim or proceeding that may be brought in connection with your participation in the Activities where circumstances giving rise to such a demand, claim, or proceeding were caused or contributed to by you or your breach of this waiver or any other agreement between you and FKB Physio.
12. You agree that should any part of this waiver be found by a court of law to be against public policy, in violation of any state statute or case precedence, or otherwise unenforceable, then only that wording is removed, and the remainder of this waiver will remain in full force.