Terms and Conditions
1. General
These T&C’s together with the Schedule and the Privacy Policy constitute the entire agreement between HPF and the Member in respect of Membership and the supply and use of Services and govern your right to any Member Benefits that HPF may make available to you during the Term of your Membership. No other terms and conditions will apply unless stipulated and agreed in writing by HPF.
2. Definitions
2.1
Applicable Laws means all legislation, orders, by-laws, regulations and codes made thereunder in any way governing or affecting the Services.
2.2
Australian Consumer Law means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding:
(a) provisions of state or territory fair trading legislation or the Australian Securities and Investments Commission Act 2001 (Cth); or
(b) applicable laws and regulations in connection with the supply of Products and/or Services in the jurisdiction in which such Products and/or Services are supplied.
2.3
Booking means a booking for the provisions of Services submitted by a Member via the Website or any other means.
2.4
Coach means any coach/consultant engaged by HPF to provide the Services to you on behalf of HPF.
2.5
Commencement Date means the date on which we approve your Membership application and we have received your first payment of Membership Fees.
2.6
Confidential Information of a party means all information (in any form):
(a) relating to or arising from the Membership (this is deemed to be our Confidential Information)
(b) that concerns a party’s business operations and which any reasonable person would consider to be of a confidential nature;
(c) which constitutes Personal Information;
(d) that a party claims as confidential and marks as confidential at the time of disclosure; and
(e) includes these T&C’s; but does not include information that:
(f) is or becomes independently developed or known by the other party through no breach of these T&C’s by that party; or
(g) becomes publicly available without breach of these T&C’s; or
(h) is disclosed under a statutory duty of disclosure or otherwise by law.
2.7
Force Majeure means:
(a) war, hostilities, blockade, insurrection, invasion, act of foreign enemies;
(b) rebellion, terrorism, sabotage, strikes, revolution, insurrection, military or usurped power, or civil disturbance; and
(c) breakdown of machinery, flood, bushfire, washout, earthquake, landslide, cyclone, hurricane, epidemic or pandemic (including pandemic of a disease), typhoon, tidal wave or volcanic activity,
or any other cause whether similar or dissimilar to any of the clauses or categories described above and which is beyond the reasonable control of the party experiencing the event.
2.8
GST has the meaning given to that term by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2.9
HPF means High Performance Father Pty Ltd (ABN 83 660 822 444) and its successors, transferees or related companies.
2.10
Insolvency Event means any circumstance in which the Member is unable to pay any amounts that have become due and payable as and when they become due and payable and includes, without limitation, liquidation, official management, administration, compromise arrangements, mergers, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, schemes, compositions or arrangements with creditors, insolvency, bankruptcy, or a similar procedure, or changes to the constitution of any partnership or person, or death.
2.11
Intellectual Property Rights means all current and future intellectual, industrial, statutory and other proprietary rights (including moral rights) throughout the world (whether registered or unregistered or capable of registration) including copyright, trade marks, designs, patents, inventions, plant breeder’s rights, circuit layout rights, trade or business or company names, domain names, confidential information, trade secrets, know how and any rights to registration of such rights whether created before or after the commencement of this Agreement.
2.12
Liability means any Loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).
2.13
Loss means any loss, Liability, cost (including legal costs on a solicitor own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
2.14
Member means any person who purchases a Membership and/or Services from HPF, including any person who uses the Website or Services or makes a Booking.
2.15
Membership means a Member’s membership with HPF.
2.16
Membership Benefits means those benefits granted to Members in accordance with these T&C’s and such other benefits granted by HPF to a Member in writing including any Services agreed to be provided by HPF to a particular Member.
2.17
Membership Fees means those fees payable by a Member to HPF for their Membership and any other Services (including in respect of a Retreat) in accordance with clause 8 and otherwise as specified in the Schedule or agreed in writing between HPF and a Member from time to time.
2.18
Membership Materials means any materials provided by HPF or a third party under or in further of this Agreement or otherwise in respect of providing the Services, including but not limited to designs, specifications, processes, methods of working, technology, guides, manuals, reports, text, code, data, documents, images, photographs, graphics, logos, icons, audio, videos, webcasts, digital downloads, data compilations or other materials or information in or relating to the Services.
2.19
Non-Excludable Rights means rights under the Australian Consumer Law or other rights the Member may have in relation to the supply of the Products that cannot lawfully be excluded by HPF.
2.20
Participants means other Members and individuals who attend group sessions of Services or a Retreat.
2.21
Performance Goals means the performance plan, goals, targets and outcomes in respect of the Member’s use and receipt of the Services as published on the Website from time to time or agreed in writing between the Member and HPF.
2.22
Personal Information means any information or opinion about an identifiable individual, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not. Personal Information includes information collected with the provision of the Services.
2.23
Privacy Policy means HPF’s privacy policy, as amended from time to time in HPF’s sole and absolute discretion, which is accessible via the Website or otherwise as notified by HPF to the Member.
2.24
Retreat means any retreat, camp or offsite organized, arranged or co-ordinated by HPF for Members.
2.25
Schedule means the schedule applicable to your Membership in which you insert your name, contact details, address, Membership plan and any credit card or direct debit bank account details for payment of Membership Fees.
2.26
Services shall mean all services offered or supplied by HPF to the Member and includes such services offered by HPF to Members as set out on the Website, or as agreed in writing between HPF and a Member, from time to time, such services (and any related products) which may include but are not limited to:
(a) access to Membership portal;
(b) access to the HPF community and resources;
(c) HPF training application and customised program;
(d) habit consultation, implementation and support;
(e) HPF App (HPF private community);
(f) access to HPF’s team of personal Coaches for strategy, support, accountability and follow through;
(g) access to coaching sessions with Coaches in health, mindset, relationships and actions;
(h) access to exclusive events and special guest speakers together with Coaches exclusive to HPF;
(i) access to attending Retreats and participating in activities whilst attending a Retreat; and
(j) any advice or recommendations provided to a Member by HPF or a Coach.
2.27
T&Cs means these terms and conditions.
2.28
Term means the term of this Agreement as it applies to a Member as determined in accordance with clause 4.2.
2.29
You, your or yourself means a Member.
2.30
We, our or us means HPF.
2.31
Website means HPF’s website accessible at highperformancefather.com as updated from time to time and includes each and any mobile application, website and social media account owned or controlled by HPF with respect to which Services may be provided by HPF or accessed by a Member.
3. Acceptance
By submitting a Membership application to us, making a Booking, or registering for, accessing or using the Services or the Website, you indicate and acknowledgement your assent, acceptance and agreement to have understood, and be bound by, these T&C’s. No other terms and conditions will apply unless agreed in writing by us.
4. Membership
4.1
Applying for Membership
(a) Membership is only available to, and may only be used by, individuals who can form legally binding contracts under Applicable Law. If you do not qualify, please do not submit a Membership application to us, use the Membership or apply for any Services.
(b) You may register to become a Member by submitting an application form and following the registration process as found on the Website or as made known to you by us.
(c) As part of the registration process we will validate your Personal Information. You consent to the use, collection and disclosure of your Personal Information in accordance with our Privacy Policy.
(d) Once your application has been approved by us and upon receipt of your first payment of the Membership Fees, you will be granted Membership.
(e) We reserve the right to accept or decline any Membership application in our sole discretion.
(f) You are required to keep your Personal Information provided to us current and accurate at all times.
4.2
Duration of Membership – Term
(a) Unless agreed in writing between HPF and you to the contrary, your Membership commences on the Commencement Date and will continue for a 12 month period unless and until it is terminated earlier in accordance with its terms.
(b) Following the 12 month period, your Membership will automatically renew each year on the anniversary of the Commencement Date for a further 12 month period unless we receive written notice that you do not wish to renew at least 30 days before the expiry of the current Term. Unless you cancel your Membership before this period, you authorise us to continue to charge you the Membership Fee.
5. Services
5.1
In consideration of your payment of the Membership Fee and your compliance with these T&C’s, HPF agrees to provide the Services to you and to provide you with access to the Membership Benefits as specified on the Website from time to time or as otherwise agreed in writing between us and you.
5.2
We will provide the Services to you subject to:
(a) availability of sessions in respect of the applicable Services;
(b) declaration by you of all relevant details, including but not limited to any major or relevant health issues. We may rely on the accuracy of any information provided by you;
(c) these T&Cs; and
(d) your compliance with any conditions outlined in these T&Cs or as communicated by us, including but not limited to payment of the Membership Fees in accordance with these T&Cs.
5.3
If we consider that any information provided by you cannot enable us to effectively provide the Services, we reserve the right to terminate the Services at any time.
5.4
Member Benefits may be provided by us or by third parties unrelated to us. We take reasonable care to ensure that Member Benefits provided by third parties meet certain standards however we are unable to guarantee so and accept no Liability for:
(a) any use of your Personal Information by a third party;
(b) any failure of a third party to provide Member Benefits; and
(c) a failure by a third party to comply with the terms of any transaction entered into between you and that third party.
5.5
We are not a party to any transaction entered into between you and a third party that provides Member Benefits, and are not responsible for any such transactions.
5.6
All Member Benefits are subject to availability and other terms and conditions which may be imposed by us or third parties.
5.7
Membership Benefits are available to Members only and cannot be sold, transferred, assigned or otherwise dealt with except with our written consent.
5.8
We may suspend, vary or withdraw any of the Membership Benefits without notice.
5.9
Supplemental, specialist and customised Services may also be made available either as part of a Member’s Membership Fee and/or on a fee for service basis, at agreed rates.
5.10
We may terminate this Agreement, and our obligation to provide the Services, prior to first commencing provision of the Services with no Liability other than to repay any Membership Fees paid in respect of those Services.
5.11
Notwithstanding anything to the contrary in these T&Cs, your Coach may from time to time or at any time require you to seek medical care or attention and, in this event, the Services may be terminated or suspended until such medical attention is sought and/or a relevant medical certificate is supplied by you to our satisfaction.
6. Delivery of Services
6.1
The Services may be delivered online via the internet, mobile application, in person at an agreed venue or by other means.
6.2
Throughout delivery of the Services, your Coach will engage with you in direct and personal conversations. The Coach seeks to be honest and straightforward in asking questions and making requests. You acknowledge that the Coach’s ability to effectively provide the Services is dependent on you engaging in an honest, truthful and positive relationship with the Coach in respect of the provision of the Services. If you believe that the coaching is not working as desired, you will communicate that belief to your Coach.
6.3
You acknowledge and agree that neither HPF nor any Coach diagnoses nor treats any medical issues, conditions or problems of any kind.
6.4
You agree to give the Coach at least 48 hours’ notice if you need to reschedule a coaching session. You must reschedule your sessions within your Membership Term, otherwise they will expire at the end of the Term. HPF will attempt in good faith to reschedule a missed session before the end of your Membership Term but cannot guarantee that a Coach will be available.
6.5
You agree:
(a) that it is your responsibility to schedule Coaching sessions;
(b) that coaching is a partnership and that you are responsible for your own progress and results;
(c) to actively participate in the coaching process, complete assigned tasks, and provide necessary information to facilitate the coaching session;
(d) that you are responsible for your own physical, mental and emotional wellbeing when using the Services or the Website, and that you understand that you can choose to discontinue using the Services at any time but that will not entitle you to a refund; and
(e) that if you are currently under the care of a medical, physical or mental health professional, you must inform them of your decision to use the Services and check with them if, in their opinion, you have the required capacity to participate fully in the applicable Services.
6.6
HPF will endeavour to deliver the Services by any the scheduled date, but it does not accept any Liability for failure to deliver for reasons beyond its control nor does it accept any Liability for delays in delivery.
6.7
HPF shall not be liable for any Loss or damage whatever due to any failure by HPF to deliver the Services (or any part of them) promptly or at all.
7. Performance Goals
7.1
The Member acknowledges and agrees that their ability to, and the extent to which they may, achieve their Performance Goals is subject to the Member’s applicable commitment to receiving the Services as offered by HPF and complying with their Performance Goals plan, including but not limited to you:
(a) attending all scheduled Coaching sessions;
(b) communicating with HPF and Coaches openly and frequently;
(c) using any resources provided by HPF to you in respect of the Services and the Performance Goals;
(d) on a daily basis, following the guidance provided to you by Coaches in respect of the Performance Goals;
(e) at all times having and maintaining a positive attitude toward the Services, the Performance Goals and in general; and
(f) at all times complying with your representations, commitments, obligations and undertakings contained in these T&C’s.
7.2
Although HPF, subject to you complying with clause 7.1 and your other obligations and commitments under these T&C’s, has a reasonable expectation that you will achieve some or all of your Performance Goals, and will use its reasonable best endeavours to make this occur, HPF makes no representation, guarantee or warranty:
(a) that you will achieve any or all of your Performance Goals; or
(b) that the Services will result in you achieving the Performance Goals or any particular part thereof,
and, to the maximum extent permitted by law, any and all such representations, guarantees and warranties in respect of a Member achieving any or all Performance Goals are expressly excluded and waived by you.
8. Fees, Payment and Refunds
8.1
Membership Fee
(a) In consideration of your Membership, you agree to pay the Membership Fee plus GST either:
i. annually in advance on the Commencement Date in cleared funds; or
ii. if we agree, by way of an upfront fee made prior to the Commencement Date with the balance paid as agreed by us,
by the payment methods we make available on the Website or as otherwise made known to you, including by direct debit or credit card.
(b) The Membership Fee will be the then current fee as stated on the Website at the time you apply for Membership or upon renewal of a further Term or as otherwise agreed between us and you in writing.
(c) Membership Fees are not refundable unless provided under these T&Cs. You must not withhold, deduct from, or set-off, payment of any money owed to us.
(d) We reserve the right to suspend or terminate the Services if payment of any money owing to us by you is not paid when due.
(e) You agree to pay any additional fees applicable to any supplemental, specialist and customised Services which we agree to provide to you on a fee for service basis, at agreed rates.
(f) The annual Membership Fee does not include the cost of, and any amount payable to HPF or any third party, in respect of a Member’s attendance at a Retreat, including the cost of transport, accommodation, meals and the provision of any applicable Retreat facilities and services. A Member attending a Retreat shall:
i. make payment of all fees payable to HPF for the Retreat in advance of the Retreat and within the time frames specified by HPF in respect of the Retreat;
ii. be solely responsible for payment of all third party fees and costs in respect of the Retreat; and
iii. shall otherwise bear, and be solely responsible for, their own costs of and associated with attending a Retreat.
8.2
Late Payment
If you fail to pay any amount when due under these T&C’s, you acknowledge that we may in our discretion:
(a) suspend your Membership and access to any Membership Benefits, and we will not be responsible for any Loss suffered by you because of this;
(b) charge you interest calculated at the rate of 2% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic) on any amount which you have not paid, which shall accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed; and
(c) charge a dishonour fee of $50 for each failed direct debit payment attempt. You must also reimburse us for any legal, debt recovery or other expenses incurred by us associated with any action to recover money from you.
8.3
Direct Debit Authorisation
If we permit you to pay any fees to us via a direct debit arrangement, then you irrevocably authorise us to debit the fees during the term from your nominated bank account/credit card/debit card (Nominated Account), on or about the due date for payment without notice. You must ensure that the Nominated Account details are up to date at all times and you must notify us in the event that the details are no longer current, and provide replacement details. You also irrevocably authorise us to deduct all other fees and charges payable by you to us under this Agreement from your Nominated Account. You warrant that you are the owner or have the right to use any Nominated Account details provided to us.
8.4
Refund Policy
(a) A Membership purchased by a Member is subject to a 2 day cooling off period from date of purchase, (2 day cooling off period includes weekends and public holidays) and is subject to any applicable administration fee outlined in the Schedule (Admin Fee).
(b) A full refund, less any Admin Fee, will be given to candidates who cancel/withdraw their Membership application in writing within 5 days of submitting the Membership application (Valid Cancellation). Upon a Valid Cancellation, the candidate must return any and all Membership Materials before any refunds will be processed.
(c) If a candidate’s refund request in respect of Valid Cancellation is valid and approved by HPF, a refund of any Membership fee paid less any Admin Fee will be issued by HPF to the candidate within 14 days.
(d) Membership Fees are otherwise non-refundable.
8.5
General
(a) If we permit you to pay by a payment method that causes us to incur any merchant or transaction fees, we reserve the right to pass these fees on to you. You must pay all fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Membership. You must pay us immediately on demand payment of all costs incurred by us in collecting any outstanding amounts, including legal fees on a solicitor own client basis.
(b) To the extent permitted by law, subject to these T&C’s all Membership Fees are non-refundable under any circumstances.
(c) As the Services do not constitute medical consultation or treatment, health insurance generally is not available. However the Membership Fees may be a deductible business expense – check with your accountant or tax advisor.
8.6
GST
All prices or charges referred to in this Agreement and/or on the Website are exclusive of GST unless stated otherwise. The total price payable by the Member for Membership Fees and Services is subject to GST.
9. Member Obligations
9.1
You must meet your responsibilities, including payment on time of Membership Fees during the Term of your Membership. You must tell us about anything that may affect this.
9.2
Your use of the Membership, and information you provide to us or submit to the Website must not:
(a) be false, inaccurate or misleading;
(b) be fraudulent or deceptive;
(c) infringe any third party’s Intellectual Property Rights or other proprietary rights or rights of publicity or privacy;
(d) violate any Applicable Laws (including those governing consumer protection, unfair competition, criminal law, anti-discrimination or trade practices law);
(e) be defamatory, libellous, unlawfully discriminatory, threatening or harassing;
(f) create Liability for us or cause us to lose (in whole or in part) the ability to provide Membership of the Membership Benefits we offer;
(g) damage the credibility or integrity of the Membership or us, or dilute, tarnish, or otherwise harm our brand in any way; breach or violate any of our policies;
(h) abuse or misuse the Membership, any Member Benefits, Services or arrangements;
(i) be for any purposes that are not permitted by these T&C’s or in any way that is inconsistent with the purpose of the Membership, or in a manner that falsely
(j) implies endorsement, partnership or otherwise misleads others as to your affiliation with us;
(k) act in a way which, in our reasonable opinion breaches or is likely to breach these T&C’s;
(l) sell, assign, transfer or attempt to deal in any way with Membership Benefits that is in contravention of these T&C’s;
(m) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
(n) stalk or harass any other Participant or Member or collect or store any personally identifiable information about any other Member;
(o) be for unlawful or dangerous activities or purposes; or
(p) be in a manner that directly or indirectly attempts to circumvent payment of any Membership Fees.
10. Member’s Disclaimer
10.1
To the maximum extent permitted by law, the Member hereby disclaims any right to rescind, or cancel this Agreement or to sue for damages or to claim restitution arising out of any misrepresentation made to the Member by any officer, employee, contractor or agent of HPF and the Member acknowledges that the Member purchases the Services relying solely upon the Member’s own skill and judgement and that HPF shall not be bound by nor responsible for any term, condition, representation or warranty other than the express warranties given by HPF in this Agreement.
10.2
HPF provides the Membership and any Membership Benefits on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause 10, HPF excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Membership and any Membership Benefits that are not expressly set out in these T&C’s to the maximum extent permitted by law.
10.3
HPF does not make any representations in relation to the continuing availability of the Membership and Membership Benefits and will not be liable for them being unavailable or discontinued. We do not promise that the Membership or any Membership Benefits will be uninterrupted, or that the use of the Membership will provide any specific results.
10.4
This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of your Membership, the Services generally or these T&C’s.
11. Exclusions & Limitation Of Liability
11.1
With the exception of Non Excludable Rights and any express written warranty provided by HPF, and notwithstanding any other provision of these T&C’s, the Liability of HPF to the Member, whether arising under or in connection with these T&C’s or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such Liability), in tort (for negligence or otherwise), or on any other basis in law or equity is hereby limited and excluded as follows:
(a) HPF shall not have any Liability whatsoever to the Member for any Loss, claim, injury or damage (including but not limited to Loss of revenue, Loss of production, Loss of product, Loss of contract, Loss of profit or any other kind of consequential Loss) of any kind howsoever arising in connection (indirectly or directly) with these T&C’s, a Member’s Membership and/or the Services (including any errors); and
(b) the total aggregate Liability of HPF is at all times limited to the amount equal to the Membership Fees actually paid by the Member to HPF.
11.2
If any Non-Excludable Rights apply, then to the extent to which HPF is entitled to do so, its Liability under those Non-Excludable Rights will be limited at its option to:
(a) the supply of equivalent Services; or
(b) the repair of the Services; or
(c) the payment of the cost of acquiring equivalent Services.
11.3
Subject to clause 11.1 and any express written warranty provided by HPF, HPF does not make any guarantee, condition or warranty as to the suitability of the Services or that the Membership will produce or provide any particular outcome or result.
11.4
Any advice, recommendation, information or representation provided by HPF as to the quality or performance of the Services or their suitability for a particular use, purpose or otherwise in relation to the Services is given in good faith but without any Liability or responsibility on the part of HPF. The Member acknowledges that it has not relied upon or been induced by any representation by HPF.
11.5
Nothing in this Agreement is intended to exclude, restrict or modify or have the affect of excluding, restricting or modifying any applicable provisions of the Australian Consumer Laws in relation to the supply of Services by HPF, which cannot be lawfully excluded, restricted or modified.
12. Health, Safety & Retreats
The Member acknowledges and agrees that:
12.1
The Member has received adequate information regarding the Services, including in respect of attending any Retreat, to determine the level of risk in receiving and participating in the Services and attending any Retreat;
12.2
There is an inherent level of risk in attending a Retreat and participating in activities as part of the Retreat, including the possibility of personal injury or death. All Members who engage in Retreat activities do so at their own risk and understand that no amount of care, caution, instruction, or expertise provided by HPF, Coaches or HPF’s representatives can eliminate this inherent danger completely;
12.3
While every attempt is made by HPF to ensure the facilities and Services that HPF provides to you, or arranges on your behalf, in connection with the Services or attending a Retreat are safe, Members acknowledge that there may be physical risks involved with undertaking exercise and physical activities and Members agree to accept those risks in attending and participating in Services and a Retreat;
12.4
HPF does not accept any Liability in connection with any food or beverage brought to a Retreat by a Member;
12.5
Members attending a Retreat must comply with these T&C’s, any additional applicable Retreat conditions of entry, and any directions of HPF staff or representatives when attending a Retreat. If a Member fails to comply with these T&C’s, conditions and directions in respect of attending a Retreat and engaging in Retreat activities, HPF may in its absolute discretion, exclude, suspend or expel the Member from participation in the Retreat;
12.6
HPF may publish additional or bespoke rules and conditions about Retreat attendance and entry and use of any facilities and services at the Retreat (Retreat Rules). These Retreat Rules form part of these T&C’s and you agree to follow those Retreat Rules at all times when attending a Retreat, engaging in activities at a Retreat and using those facilities or services. You also agree to follow any reasonable direction of HPF staff or representatives on any health, safety, security or related matters related to the Services or a Retreat;
12.7
Members must wear appropriate attire, including appropriate sportswear, swimwear and footwear (as relevant), when using our Services and attending a Retreat;
12.8
To respect HPF staff, Coaches and others at all times and not to behave in an inappropriate, disruptive, harassing, threatening or offensive manner or in any manner that may cause harm or injury. You agree that we may suspend or terminate your Membership at any time for such behaviour, including ejecting you from a Retreat;
12.9
You are responsible for keeping your property secure and must not leave your valuables unattended;
12.10
You must not attend a Retreat or use our Services under the influence of alcohol, illicit drugs or any performance enhancing drugs and/or medications that state strenuous activity is to be avoided on its warning label;
12.11
You will provide prior notification to HPF of any medical conditions that may impact your safety in respect of receiving the Services or attending any Retreat, and you agree that in the event of urgent accident, illness, injury or trauma to you that you authorise HPF staff and representatives to administer to you first aid and/or treatment under direction of emergency services to that Attendee (including administration of an EpiPen and/or Ventolin), and/or seek emergency medical treatment for you from a registered medical practitioner, hospital, or ambulance, and further agree to indemnify HPF and its staff and representatives against any costs, fees or Liability incurred by HPF in administering or seeking such emergency medical treatment;
12.12
All Services must be properly used in accordance with all Applicable Laws and instructions provided by HPF, on the Website or by a Coach;
12.13
The purchase and/or use of all Services provided by HPF places the responsibility of use on the recipient of the Services and HPF accepts no responsibility for inappropriate use; and
12.14
All Services are received, and Retreats attended, entirely at the Member’s own risk and, to the maximum extent permitted by law, HPF accepts no Liability for any injury, Loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, Loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict Liability or otherwise, arising from any person’s receipt, use (or misuse) of any of the Services.
13. Health, Safety & Retreats
The Member acknowledges and agrees that:
13.1
The Member has received adequate information regarding the Services, including in respect of attending any Retreat, to determine the level of risk in receiving and participating in the Services and attending any Retreat;
13.2
Recording devices are not permitted in changing rooms.
13.3
While every attempt is made by HPF to ensure the facilities and Services that HPF provides to you, or arranges on your behalf, in connection with the Services or attending a Retreat are safe, Members acknowledge that there may be physical risks involved with undertaking exercise and physical activities and Members agree to accept those risks in attending and participating in Services and a Retreat;
13.4
Where your prior consent is obtained, HPF may take photographs and videos of Participants for the primary purpose of HPF’s marketing, including dissemination of such photographs and videos on its social media channels and Website. It is the responsibility of each Participant to notify HPF staff prior to commencement of a Retreat should that Participant not consent to:
(a) HPF’s photography and/or videography of them; or
(b) such photographs or videos being used and disseminated for the purpose of HPF’s marketing or on the Website.
14. Intellectual Property
14.1
All Intellectual Property Rights in the Services, including but not limited to all material displayed or available on the Website, shall vest for all time in, and belongs solely to, HPF including all Intellectual Property Rights in any Membership Materials.
14.2
Where HPF has designed or provided any bespoke Services for the Member, then the Intellectual Property Rights in those designs and Services shall remain solely vested in HPF, and shall only be used by the Member at HPF’s discretion.
14.3
The Member may not copy, adapt, display, communicate to the public or otherwise use any Membership Materials except as required to use the Services and as permitted by this Agreement from time to time. The Member agrees that nothing in this Agreement transfers any of HPF’s Intellectual Property Rights to the Member and that no transfer of HPF’s or any third party’s licensed Intellectual Property Rights occurs at any time by the Member’s access or use of any Service.
14.4
The Member agrees it will not, without HPF’s prior written consent, seek to claim ownership or any rights in or apply to register any: (a) trade or service mark in the Member’s own or any other name which is the same as or similar to any trade or service mark owned or used by HPF; or (b) Intellectual Property Rights which are based on or use any part of the Services.
15. Website/Online Platforms
15.1
HPF takes no responsibility nor bears any Liability for any Loss a Member may suffer or incur as a consequence of, or relating directly or indirectly to, any action or inaction you take based on the content of the Website.
15.2
Whilst we endeavour to keep all information on the Website up to date, we do not guarantee the accuracy of the information on the Website. The contents on the Website are an outline only of information in relation to the Services and is not intended to provide a comprehensive view or instructions.
15.3
We will not be responsible for any software virus, error, defects or omissions on the Website. It is your responsibility to protect your data.
15.4
If the Website allows a Member to submit reviews, comments, and other communications, photos, videos, or any other content (User Content) through or to the Website, such User Content shall only be submitted by a Member in compliance with these T&C’s, including but not limited to clause 9.2 and this clause 15.
15.5
The Member agrees that any User Content that the Member submits:
(a) will be accurate;
(b) will not violate or facilitate the violation of any law or regulation;
(c) will not violate any right of a third party, including copyright, trademark, privacy, or publicity rights;
(d) will not cause injury to any person or entity; and
(e) will not contain, or provide links to, obscene, profane, or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam”, or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive, or degrading.
15.6
The Member is solely responsible for any User Content the Member submits, and HPF assumes no liability for any User Content submitted by the Member.
15.7
The Member acknowledges and agrees that HPF reserves the right (but has no obligation) to do any or all of the following, in its sole discretion:
(a) monitor User Content;
(b) alter, remove, or refuse to post or allow to be posted any User Content; and/or
(c) disclose any User Content, and the circumstances surrounding its transmission, to any third party.
15.8
For any User Content the Member submits, the Member grants to HPF a non-exclusive, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell and distribute such User Content and to incorporate the User Content into any form, medium, or technology, now known or hereafter developed, throughout the world, all without compensation to the Member. For this reason, a Member should not send to HPF, or submit to the Website, any User Content that the Member does not wish to license to HPF, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork. In addition, the Member grants to HPF the right, without any obligation, to include the name provided along with the User Content submitted by the Member. HPF is not responsible for the use or disclosure of any personal information that the Member voluntarily discloses in connection with any User Content the Member submits. The Member represents and warrants that the Member has all rights necessary for the Member to grant the licenses granted in this clause. The Member further irrevocably waives any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that the Member may have under any applicable law or under any legal theory.
16. Default, Suspension and Termination
16.1
If the Member defaults in payment to HPF of any amount when due, the Member shall indemnify HPF from and against all HPF’s costs and disbursements including on a solicitor and own client basis and, in addition, all of HPF’s nominees’ costs of collection.
16.2
Without prejudice to any other remedies HPF may have, if:
(a) at any time the Member is in breach of any obligation to HPF (including those relating to payment); and
(b) in HPF’s sole opinion, it is reasonably necessary to suspend or terminate the supply of Services to the Member and any of HPF’s other obligations under this Agreement in order to protect the legitimate interests of HPF,
HPF may suspend or terminate the supply of Services to the Member and any of its other obligations under this Agreement. HPF will not be HPF may suspend or terminate the supply of Services to the Member and any of its other obligations under this Agreement. HPF will not be liable to the Member for any Loss or damage the Member suffers because HPF exercises its rights under this clause.
16.3
In the event that:
(a) any money payable to HPF becomes overdue, or in HPF’s opinion the Member will be unable to meet its payments as they fall due; or
(b) the Member suffers an Insolvency Event, then without prejudice to HPF’s other remedies at law:
(c) HPF shall be entitled to cancel the Member’s Membership in addition to and without prejudice to any other remedies; and
(d) all amounts owing to HPF shall, whether or not due for payment, become immediately due and payable.
16.4
You may terminate your Membership:
(a) if we have committed a material breach of these T&C’s and have failed to remedy the breach within 30 days written notice by you;
(b) on written notice to us in accordance with clause 16.4(b) – termination will be effective at the end of the current Term; or
(c) if we consent to such termination (in our sole discretion), subject to your fulfillment of any pre-conditions to such consent (e.g. payment of agreed fees).
17. Indemnity & Release
17.1
The Member indemnifies and releases HPF and its agents and assigns, regardless of any negligence on the part HPF, on a full indemnity basis, from and against any costs, Liability, damage, Loss, expense or demand arising directly or indirectly from:
(a) a breach of this Agreement by the Member;
(b) the accuracy of all information provided by you to us;
(c) any false, misleading or deceptive representation or statement made by the Member in respect of the Services to any person;
(d) the negligence or willful misconduct by you;
(e) us or any member of our personnel providing the Services under or in accordance with your instructions;
(f) you purporting to cancel the Services other than in accordance with the terms of these T&C’s;
(g) any proceedings, claim, Liability and demands in relation to the Services; and
(h) any claims, or Losses incurred, by third parties (including employees, associates, agents or contractors of the Member) in relation to the Services.
17.2
The indemnities and releases in this clause 17 shall survive and continue beyond termination or expiration of this Agreement and after any delivery of Services to the Member.
18. Cancellation
18.1
If, in HPF’s sole opinion, it is reasonably necessary to cancel this Agreement or provision of Services to protect the legitimate interests of HPF, HPF may cancel this Agreement or provision of Services at any time before the Services are provided by giving written notice to the Member.
18.2
To the maximum extent permitted by law, HPF shall not be liable for any Loss or damage whatever arising from such cancellation.
19. Privacy
19.1
The privacy and security of the Member is important to HPF. HPF’s Privacy Policy is incorporated into these T&C’s and also governs the use of the Website. To the extent there is a conflict between the terms of the Privacy Policy and these T&C’s, these T&C’s apply to the extent of that inconsistency.
19.2
The Privacy Policy describes the data that HPF gathers about or from the Member and how it processes, uses and shares that data. By becoming a Member, the Member consents to all actions that HPF may take with respect to the Member’s data consistent with the Privacy Policy.
19.3
The Member agrees for HPF to obtain from a credit-reporting agency a credit report containing personal credit information about the Member in relation to any credit provided by HPF.
19.4
The Member consents to HPF being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988 (Cth)).
19.5
HPF may give, information about the Member to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Member; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Member.
20. Third Party Services
20.1
HPF may in its sole and absolute discretion engage and utilise third party services, in the course of, or in connection with the provision of the Services to the Member (Third Party Service).
20.2
The Member acknowledges and agrees that a Third Party Service may be subject to its own terms and conditions (Third Party Terms) and HPF is not responsible, or in any way liable, for a Third Party Service in any respect and the Member is solely responsible for accessing, assessing, accepting and complying with those Third Party Terms.
20.3
Without prejudice to clause 20.1, the Member shall indemnify, and keep indemnified, HPF with respect to all Loss, costs, expense, damage and liabilities incurred by HPF arising as a result of the Member’s use of any Third Party Service in connection with the Services.
21. Force Majeure
21.1
HPF will not be in default in the performance of its obligations, or be liable to the Member, for any failure or delay in the performance of its obligations, to the extent that such failure or delay is caused by an event of Force Majeure, provided that HPF advises the Member of the circumstances constituting the Force Majeure.
21.2
In the event of a delay arising from an event of Force Majeure, the time of the performance of the obligation shall be extended by a period of time reasonably necessary to overcome the effect of the delay.
21.3
If a Force Majeure event continues for 60 consecutive days, the Member or HPF may terminate the Services by giving written notice to the other party, without incurring any Liability to the other party by reason of such termination.
22. Notices
If no method of notice or communication is stipulated under this Agreement then notices or communications must be made by email or by certified or registered mail with postage prepaid, by hand delivery, or such other address or person as a party may specify by notice in writing to the other. All such notices or communications shall be deemed to have been duly given or made:
22.1
if sent by email, when sent to the addressee; or
22.2
when delivered by hand; and
22.3
in the normal course of post, after being deposited in the mail with postage prepaid.
23. Member Warranties
In addition to any other warranties or representations provided by the Member under this Agreement or otherwise at Law, the Member represents and warrants to HPF that:
23.1
Capacity and power: it has full legal capacity and corporate authority or statutory power (as the case may be) to execute and properly perform its obligations arising under this Agreement;
23.2
Authority: it has taken all corporate and other action necessary to authorise the acceptance and proper performance of its obligations arising under this Agreement; and
23.3
Binding Obligations: this Agreement constitute valid and binding legal obligations upon it, which are enforceable in accordance with the terms and conditions of this Agreement.
24. General
24.1
If any provision of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2
These T&C’s are governed by and construed in accordance with the laws of the state of Victoria, Australia. All Services supplied by HPF are subject to the laws of Victoria, Australia and HPF takes no responsibility for changes in the law which affect the Services supplied.
24.3
To the maximum extent permitted by law, HPF shall be under no Liability whatever to the Member for any indirect or consequential Loss and/or expense (including Loss of profit) suffered by the Member arising out of a breach by HPF of this Agreement.
24.4
To the maximum extent permitted by law, in the event of any breach of this Agreement by HPF the remedies of the Member shall be limited to damages and under no circumstances shall the Liability of HPF exceed the amount paid by the Member for its Membership and any Services provided.
24.5
HPF reserves the right to set-off any amounts payable by the Member against any amounts payable by the Member. The Member shall not set off against any amounts payable by the Member to HPF any amounts due from HPF.
24.6
HPF may license or sub-contract all or any part of its rights and obligations without the Member’s consent.
24.7
HPF may assign, novate or transfer any of its rights, interests or obligations under this Agreement without notice to the Member.
24.8
The Member is not permitted to, and shall not, assign, novate or transfer any of its rights, interests or obligations under this Agreement without the prior written consent of HPF, which may be withheld by HPF in its sole and absolute discretion.
24.9
HPF reserves the right to review this Agreement at any time and from time to time. If, following any such review, in HPF’s sole opinion, it is reasonably necessary to change this Agreement in order to protect the legitimate interests of HPF, that change will automatically take effect from the date on which the seller notifies the Member of such change or posts the amended T&C’s on the Website.
24.10
Additional terms and conditions to these T&C’s may apply to some Memberships and will be specified on the Website and/or in writing to such particular Member or Members.
24.11
This Agreement applies to the performance of the Services regardless of whether this Agreement, or any preceding agreement between HPF and the Member, was in force at the time the Services were performed.
24.12
Except as expressly set out in this Agreement, the Member acknowledges and agrees that it has not accepted or entered into this Agreement on the basis of any representations made by HPF or its representatives which are not expressly included in this Agreement.
24.13
The terms and conditions of this Agreement and all communications between HPF and the Member relating to the subject matter of this Agreement are and shall remain confidential.
24.14
Nothing in this Agreement constitutes a relationship of employer and employee, principal and agent, or partnership between HPF and the Member.
25. Interpretation
In the interpretation of this Agreement unless there is something in the subject or context inconsistent therewith:
(a) Words importing the singular shall be deemed to include the plural and vice versa;
(b) Words importing any gender shall be deemed to include all other genders;
(c) Words importing persons shall be deemed to include all bodies and associations, corporate or unincorporate and vice versa;
(d) All references to a clause or party is a reference to a clause of, or a party to, this Agreement unless expressly set out to the contrary;
(e) expressions cognate with expressions defined in clause 2 shall be construed accordingly;
(f) all reference to dates and times are to Melbourne, Victoria, Australia time;
(g) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(h) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;
(i) a reference to a party to a document includes that party’s successors and permitted assigns;
(j) headings are inserted for convenience and do not affect the interpretation of this Agreement; and
(k) a reference in this Agreement to ‘includes’ means includes without limitation.