ROSEFIT - TERMS AND CONDITIONS

• Welcome
  • Welcome to RoseFit! We offer a health professional designed, evidence based membership program to help you move your way through a healthy, confident and pain free pregnancy (Services).
  • RoseFit is operated by Rose McCaughey trading as RoseFit ABN 26 782 283 913 (we, our or us). Our Services are available through the website (Site): com.au/rosefit.
  • We set out on the Site the various ways in which you can access our Services including the membership options with different inclusions that we offer to you (Membership).
• Disclaimer
  • Our Services and the Content on our Site include educational, wellness, exercise and fitness videos and information that is general in nature and designed for women in good physical health and without any pregnancy risk factors or complications. You acknowledge and agree that we do not consider all of your personal attributes, specific needs, medical conditions, requirements or circumstances, and in some cases our Services may not be completely accurate or suitable for you.
  • We do not give medical advice, treatment or diagnoses and you acknowledge and agree that nothing on the Site or in the Services we provide may be taken to be medical advice, treatment or a diagnosis by us or our representatives, nor are they intended to be a substitute for consulting a medical or health practitioner.
  • We recommend seeking advice from a medical or health practitioner about any exercise and training plan especially if you have questions or concerns about your health and pregnancy. You acknowledge and agree that you have obtained advice from a medical or health professional and have received clearance to exercise during your pregnancy.
  • You acknowledge and agree that you will not begin any training program and seek advice from a medical or health professional if you have any absolute contraindications in relation to your pregnancy including ruptured membranes/ premature labour, persistent second or third trimester bleeding, placenta previa, pregnancy induced hypertension (high blood pressure or pre-eclampsia, incompetent cervix, evidence of intrauterine growth restriction, high order pregnancy (i.e. triplets), uncontrolled type 1 diabetes, hypertension, thyroid, other serious cardiovascular, respiratory or systemic disorder.
  • You acknowledge and agree that you will seek advice from a medical or health professional for guidance on exercising if you have any relative contraindications in relation to your pregnancy including a history of spontaneous abrogation or premature labour, mild or moderate cardiovascular disease or respiratory disease, anaemia or iron deficiency, malnutrition or eating disorder, twin pregnancy after the 28^th week of pregnancy, any other significant medical condition.
  • You acknowledge and agree that you will seek advice from a medical or health professional for guidance on exercising if you have any or develop any of the following symptoms marked fatigue, bleeding from the vagina or spotting, unexplained abdominal pain, sudden swelling of ankles, hands or face, persistent headaches, swelling, pain or redness in the calf of one leg, unable to feel your baby moving after the 6^th month of pregnancy, failure to gain weight after the fifth month of pregnancy.
• Acceptance
  • By accessing or using our Site, or clicking “I accept” (or similar), you:
    • confirm to us that you have reviewed these Terms and Conditions, including our Privacy Policy (available on the Site) (Terms);
    • confirm you have the legal capacity to enter into a legally binding agreement with us;
    • confirm you have received advice from a medical or health practitioner and have clearance to exercise; and
    • agree to use the Site in accordance with the Terms.
  • Signing up to our Site
    • To access our Services, you will need to register for an account via the Site.
    • You must be at least 18 years old and provide basic information when registering for an account including your name, username, email address and you must choose a password. You may be required to confirm that you do not have any absolute contraindications and if you have any relative contraindications or particular symptoms while pregnant that you have obtained advice from a medical or health professional for guidance on exercising to ensure you can participate in our Services.
    • You agree to provide accurate, current and complete information during the registration process and regularly update such information to keep it accurate, current and complete.
    • You are responsible for keeping your account details and your username and password confidential and you will be liable for all activity on your account, including any purchases made using your account details. You agree to immediately notify us of any unauthorised use of your account.
  • Membership
    • When you register for an account, you must also select a type of Membership. You may choose between a free Membership or premium Membership.

Free Membership

• A free Membership gives you access to a limited number of workout videos, pre-natal yoga videos, mindfulness videos, educational videos and a forum as described on the Site.

Premium Membership

• A premium Membership gives you access to our full library of workout videos, pre-natal yoga videos, mindfulness videos, educational videos, a forum, private Facebook group and live events and classes as described on the Site (Premium Membership).
• When registering for an account and selecting a Premium Membership you must enter your payment details via one of the payment methods set out on the Site.
• A Premium Membership may include a 14 day free trial period (Free Trial) that starts on the calendar day you create an account. We determine Free Trial eligibility in our sole discretion and we may limit eligibility to prevent Free Trial abuse. We reserve the right to revoke your Free Trial and suspend your Premium Membership at any time in the event we determine you are not eligible.
• If you do not cancel during your Free Trial in accordance with the cancellation clause below, we will debit your chosen payment method the fee for the Premium Membership (Fee) on the day your Free Trial ends (Payment Date). In some cases, your Payment Date may change, for example, if payment is unable to be processed or if the day your Free Trial ends is a day not contained in a given month.
• A Premium Membership will automatically continue until cancelled in accordance with the cancellation clause below.
• We may modify the Fees from time to time. Any price changes will apply to you no earlier than 30 days following notice to you. The notice may be provided at any time via email or via notification to your account. If you do not agree to the price change, you may cancel your Premium Membership in accordance with the cancellation clause below.
• If the payment of the Fee has not been made on the Payment Date, we may, in our sole discretion, suspend or terminate your Premium Membership and account in accordance with these Terms.

Cancellation

• You may cancel your Premium Membership at any time in the account page/ manage Membership (or similar) section of your account settings.
• The cancellation will apply to the next week if you cancel your Premium Membership before the next Payment Date.

• General payment terms
  • All payments must be made via one of the payment methods set out on the Site including our payment processor, currently Stripe (please note the payment processor may change from time to time). You authorise us to debit your payment method on each relevant Payment Date for the Fee. Payment of any amounts using a payment processor may be subject to the payment processor’s terms and conditions.
  • It is your responsibility to check the Membership you have chosen, including Fees, description, inclusions and other details. We do not accept refunds for any Services for change of mind or other circumstances. To the extent permitted by law, once paid, Fees are non refundable.
  • Unless otherwise stated on the Site, all Fees are stated in Australian dollars and are inclusive of GST.
  • You acknowledge and agree that you must have sufficient funds in your selected payment account in order to pay the Fees and any other amounts due and payable. You are responsible for paying any fees, such as bank fees, for any payments that are dishonoured.
  • You must not pay, or attempt to pay, any fees by fraudulent or unlawful means.
  • It is your responsibility to provide valid payment details and ensure that your payment details are up to date. You may update these at any time by contacting us at the details provided below.
• Promotions
  • We may from time to time issue promotional discount codes for certain products on the Site. To claim the discount, you must enter the promotional discount code at the time of selecting your Membership and entering your payment details through the Site. The conditions of use relating to promotional discount codes will be specified on the Site at the time they are issued.
• Forum and Facebook group
  • When you select a Premium Membership, you will be invited to a private Facebook group, of which you may remain a member for the duration of your Premium Membership. Upon cancellation of your Premium Membership, you will be removed from the Facebook group. You must not post, share or publish any material in the Facebook group which is indecent, offensive, in breach of any laws, or in breach of any intellectual property rights. We reserve the right to, at any time, remove any content you share in the Facebook group, and remove your access to the Facebook group. Your access to the Facebook group will be subject to Facebook’s terms and conditions and we are not liable (including for any refund of the Fee) if Facebook restricts your access to the Facebook group. Information and User Content shared by other members of the Facebook group or any forum is private and confidential. You must keep confidential any information you receive via the Facebook group or forum, including the names of other members.
  • Both Free and Premium Memberships give you access to a forum on the Site through which you can communicate and ask questions to our team and other users. You may be permitted to post, create, upload, publicise or otherwise submit content (Submit), such as comments, questions, pictures, testimonials and videos on the forum (User Content). You must Submit User Content in accordance with these Terms.
  • We ask you to limit your discussions to topics which are relevant to the Site. We have the right but not the obligation to appoint moderators of the forum and Facebook group from time to time to ensure that all voices are heard and no inappropriate thread or topic is discussed in the forum and Facebook group.
  • We reserve the right to remove any posts which we, in our sole discretion, deem to be in breach of these Terms including the ‘Exclusions’ clause and deem to be inappropriate including posts that:
    • defame, harass, threaten, stalk, menace, track, monitor, mistreat, offend or otherwise hurt any person;
    • use obscene or foul language;
    • include link(s) to inappropriate, offensive or illegal material in the forum and Facebook group;
    • could be considered intolerant of a person’s race, culture, appearance, gender, sexual preference, religion or age; and
    • interfere with another user.
  • We are not responsible for the conduct of any user of our Site. You agree and acknowledge that you participate in the forum and Facebook group including by Submitting User Content at your own risk.
  • By making available any User Content on or through the forum and Facebook, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through or by means of our Site.
  • You agree that you are solely responsible for all User Content that you make available in or through the forum and Facebook group. You represent and warrant that:
    • you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content (as contemplated by these Terms); and
    • neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Site will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
  • This clause will survive termination of these Terms.
• Intellectual property
  • All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel, including but not limited to our resources including our video content, social media content, blogs, e-books, checklists, podcasts, tools, tips and email communication with us or other materials (including in connection with the Terms, the Site and our Services) will at all times vest, or remain vested, in us. Our intellectual property described in this clause and the User Content is referred to in these Terms as Content.
  • We give you a limited, revocable, non-transferable licence to use, for your personal use, the Content we provide to you as part of our Site or our Services.
  • This clause will survive termination of these Terms.
• Exclusions
  • You must not access or use the Site, the Content or our Services except as permitted by these Terms and you must not do, omit to do, or authorise any act that would or might invalidate or be inconsistent with our intellectual property rights on the Site. Without limiting the foregoing provisions, you must not and must not permit any other person to:
    • reveal your account password to others or allow others to use your account;
    • resell, assign, transfer, distribute or provide others with access to the Site or any Content from the Site (including publishing or posting our Content on any other website or on social media pages);
    • “frame”, “mirror” or serve any of the Site on any web server or other computer server over the Internet or any other network;
    • copy, alter, modify, create derivative works from, reproduce to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Site or any resources from the Site;
    • alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Site or any resources from the Site;
    • use the Site or any resources from the Site in any way which is in breach of any applicable local, state, federal and international laws and regulations or which infringes any person's rights, including intellectual property rights;
    • use the Site to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
    • use the Site in any way that damages, interferes with or interrupts the supply of the Site;
    • introduce malicious programs into our hardware and software or our hardware, software and services which are integrated and operate together, including our networks, including viruses, worms, trojan horses and e-mail bombs;
    • use the Site to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
    • use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Site or any resources from the Site;
    • send any unsolicited email messages through or to users of the Site in breach of the Spam Act 2003(Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the Site in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
    • use the Site to circumvent user authentication or security of any of your networks, accounts or hosts.
  • This clause will survive termination of these Terms.
• Limitations
  • Despite anything to the contrary, to the maximum extent permitted by law:
    • our maximum aggregate liability arising from or in connection with the Terms will be limited to, and must not exceed, the Fees paid by you to us or where there are no fees paid, $100; and
    • we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,

whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

• Despite anything to the contrary, to the maximum extent permitted by law, and without excluding your Statutory Rights, we will not be liable for, and you waive and release us from and against any Liability caused or contributed to by, arising from or connected with:
  • your acts or omissions;
  • any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
  • any works, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
  • any third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by;
  • unavailability or errors in the Site, or any delay in us providing the Services to you, for whatever reason;
  • any event outside of our reasonable control; or
  • any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to our Services or the Content.
• This clause will survive termination of these Terms.

• Australian Consumer Law
  • Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010(Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
  • Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
    • to cancel your service contract with us; and
    • to a refund for the unused portion, or to compensation for its reduced value.
  • You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
  • If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
  • Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.
  • This clause will survive termination of these Terms.
• Termination
  • We may monitor your use of the Site to determine if you are in breach of these Terms (including by checking the time of access and IP addresses used to access the Site).
  • We may immediately suspend, terminate or limit (at our discretion) your access to and use of the Site if we reasonably suspect, including as a result of our monitoring of your use of the Site, that you are in breach of these Terms and the breach cannot be remedied or is not remedied within 5 Victorian business days of us notifying you of the breach or suspected breach.
• Collection Notice
  • We collect personal information about you in order to provide you with our Services (i.e your name, email address, state of pregnancy, whether you have any absolute or relative contraindications or symptoms and other information to enable you to access and use our Site), to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.
  • We may disclose that information to third party service providers who help us deliver our Site including information technology service providers, data storage, web hosting and server providers, professional advisors, payment systems operators (such as Kajabi, Hubspot, DocuSign and Stripe) and our business partners or as required or authorised by law . If you do not provide this information we may not be able to provide our Services to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
  • Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process.
  • By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.
• General
  • This clause will survive termination of these Terms.
  • Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with an authorised representative the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause).
  • No commercial use: Our Site is for your personal, non-commercial use only. You must not use our Site, or any of the Content, for commercial purposes, including any advertising or advertising revenue generation activity on your own website, without obtaining a licence to do so from us.
  • Competitors: You are prohibited from using our Site, including the Content, in any way that competes with our business. If you breach this term, we will hold you responsible for Liability we suffer, and hold you accountable for any profits that you may make from non-permitted use.
  • Variation: We may modify these Terms from time to time by notifying you by email or via notification to your account. By continuing to use the Site after such modification, you agree to the amended terms. If you do not agree to the modifications, you must cancel your Premium Membership and stop using the Site.
  • Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your account. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 4 Victorian business days in the case of post, or at the time of transmission in the case of email.
  • Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
  • Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
  • Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.
  • Governing law: These Terms are governed by the laws of Victoria, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Site may be accessed in Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Site.

For any questions and notices, please contact us at:

Rose McCaughey trading as RoseFit ABN 26 782 283 913

Email: [email protected]

Last update: 19 August 2020

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