Choose Your Wellness Marketplace Terms And Condition
1.2 By accessing and using the Wellness Platform, you warrant that you have read this agreement, and agree to be bound by this agreement. If you are using the Wellness Platform as a representative of an entity, youare agreeing to the agreement on behalf of that entity.
2. Wellness Platform
2.1 The Wellness Platform is a portal or online marketplace through which Customer Members can access and use the Wellness Services made available on, or via, the Wellness Platform by Service Members. We are a mere facility tool or conduit and not a provider of Wellness Services. The Wellness Platform and our role in providing you with access and use of the Wellness Platform should be construed strictly in this context only.
2.2 When you create an Account on the Wellness Platform, Choose Your Wellness grants you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to access and use the Wellness Platform for the Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
We reserve the right to change any provision of this agreement in any way and we may, in our absolute discretion, add or remove any Service Member, Wellness Services or any other products or services made available to you on, or via, the Wellness Platform or changing any of the fees payable under this agreement, by providing reasonable notice to you in writing or by otherwise posting it on our Site. If you do not agree to these changes, you may terminate the agreement in accordance with clause 19.1, no later than 14 days after the date you received written notice of the changes or the changes were posted on our Site.
This agreement commences on the date you create an Account with us on our Site, and continues:
4.1 for Service Members, for a period of 12 months (Initial Subscription Term), and thereafter, this agreement shall be automatically renewed for successive periods equal to the term stated at Initial Subscription Term (each a Renewal Term), unless:
(a) either party notifies the other party of termination, in writing, at least 10 Business Days before the end of the then current term, in which case this agreement shall terminate upon the expiry of the then current term; or
(b) otherwise terminated in accordance with clause 19.
4.2 for Customer Members, until terminated in accordance with clause 19.
5. User Account
5.1 If you wish to access and use the Wellness Platform (whether as a Customer Member or Service Member) you must create an account with us (Account) via the Site.
5.2 Your Account will be operated by a username or email address and/ or mobile number and password (Password) which Password you may change online at your convenience. The owner of the Account is solely responsible for the activity conducted on the Account. We may at any time request that the owner of the Account provide identification to verify their identity.
5.3 In order to open an Account or otherwise access and use the Wellness Platform and our Site, you must be over 18 years of age and legally able to enter into contractual relations. If you are not over 18 years of age (Minor), you should not access or use the Wellness Platform or Site. We reserve the right to ask for proof of age from you and your Account may be suspended until satisfactory proof of age is provided.
5.4 In relation to your Account, you undertake that you will:
(a) not disclose your Password to any third party and take reasonable measures to prevent disclosure of your Password to any third parties. You are liable for all use of the Wellness Platform using your Account or Password. Please notify us immediately if you become aware that your Account or Password is being used without authorisation or any other security breach relating to your Account or Password;
(c) not impersonate another account holder or provide false identity information to gain access to or use the Wellness Platform.
5.5 Choose Your Wellness has the right to suspend or terminate any Account or Password or your access or use of all or any part of the Wellness Platform, at any time, if, in our opinion, you have failed to comply with any of the provisions of this agreement.
6. Service Members
6.1 At the time Service Member creates an Account with us, the Service Member must also create a Service Member Profile, which will include your business information and Personal Information, such as your address, mobile number, photographic identification and your bank details for the purpose of paying you the Service Member Fees in accordance with clause 11.2.
6.2 At any time during the term of this agreement a Service Member may edit your Service Member Profile or update or change the Wellness Services offered for sale, on, or via, theWellness Platform by emailing us at email@example.com.
6.3 Choose Your Wellness will not be liable to you, any other Service Member, Customer Member or any third party in connection with, arising out of, any:
(a) failure to update or change the Wellness Services advertised for sale by you on the Wellness Platform; or
(b) any loss, damage, claim, liability, expense or cost incurred by you, any other user of the Wellness Platform or any third party as a result of, or in connection with, any content or information supplied by you which is uploaded, published or submitted by you to the Wellness Platform.
6.4 By uploading, transmitting, posting or otherwise making available any Wellness Materials on, or via, the Wellness Platform, you warrant that at all times:
(a) you hold all necessary rights, licences and consents to do so;
(b) nothing in the Wellness Materials would cause you or us (or anyone else) to breach any Relevant Laws;
(c) no Wellness Materials are or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or privacy or false and misleading;
(d) the Wellness Materials do not contain, nor will they cause, any software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(e) nothing in the Wellness Materials would bring Choose Your Wellness or the Wellness Platform, into disrepute or adversely affect the reputation and goodwill of the Wellness Platform or Choose Your Wellness;
(f) the Wellness Materials do not infringe the Intellectual Property Rights or other rights of any person; and
(g) the Wellness Materials are accurate and up-to-date, including in relation to: descriptions, places, Personnel or other specific activities, dates and times, session times, addresses, qualifications and contact information.
6.5 If you are Service Member, you warrant and guarantee that:
(a) performance of the Wellness Services shall be fit for purpose and meet the description, specifications and quality standards as described on your Service Member Profile;
(b) you and all of your Personnel have all the required qualifications, expertise, skills and training necessary to competently provide the Wellness Services. You will promptly provide documentary evidence reasonably required by us to prove and demonstrate that you and your Personnel have the necessary competencies, qualifications, expertise and skills;
(c) all information you provide us in relation to the Wellness Services offered for sale on, or via, the Wellness Platform by you is true, complete and accurate. You will immediately update your Service Member Profile and Wellness Materials (as the context permits) if any of the details or information you submit or upload to the Wellness Platform is inaccurate, incomplete or out of date.
6.6 Choose Your Wellness is not responsible for monitoring or censoring the Wellness Materials, however, we may (in our absolute discretion and without notice to you) remove, modify, refuse to publish or alter Wellness Materials if we consider that such Wellness Materials do not comply with this agreement (including any of our policies or guidelines published by us from time to time).
6.7 During the term of this agreement, you (as a Service Member) will not (directly or indirectly):
(a) You must not encourage or solicit a Customer Member to pay for any Wellness Service outside of operation of the Wellness Platform with the intention of depriving Choose Your Wellness of the introductory fee.
the obligation to pay any Commission or Subscription Fees to access and use the
Wellness Platform or as otherwise contemplated herein.
7. Customer Member
7.1 You should carefully review the Service Member’s qualifications, education and experience listed on the Wellness Platform, as well as reviews from other Customer Members, before you access and use the Wellness Services. You acknowledge and agree that, to the extent permitted by Relevant Laws:
(a) Choose Your Wellness makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Wellness Platform, the Wellness Services or any other products or services made available to you on, or via, the Wellness Platform. You acknowledge that the Wellness Services or any other products or services made available to you on, or via, the Wellness Platform are provided ‘as is’;
(b) it is your responsibility to determine that the Wellness Services or any other products or services made available to you on, or via, the Wellness Platform, meets your specific needs and/or are suitable for the purposes for which they are used;
(c) you are solely responsible for supervising any person under the age of 18 who attends the Wellness Services booked by you on, or via, the Wellness Platform. Any person attending a Wellness Service must be accompanied by a responsible adult.
7.2 If the Customer Member attends any Wellness Services with a Minor, it is the Customer Member’s sole responsibility to supervise the Minor for the duration of the Wellness Services.
7.3 During the term of this agreement, you (as a Customer Member) will not (directly or indirectly):
(a) You must not encourage or solicit a Service Member to provide for any Wellness Service outside of operation of the Wellness Platform with the intention of depriving Choose Your Wellness of the introductory fee.
the obligation to pay any Booking Fees to access and use of the Wellness
Platform or as otherwise contemplated herein.
8. Your obligations
8.1 To access and use the Wellness Platform, you must:
(a) open an Account with us via the Site;
(b) if you are a Customer Member, pay the Booking Fees, or if you are a Service Member, pay the Subscription Fees and Commission to us;
(c) provide us with all necessary co-operation and information to facilitate and provide the Wellness Platform including (but not limited to) proof of identity;
(d) ensure that all information is true, accurate and not misleading;
(e) obtain and maintain all equipment, hardware and software required by you to use and/or access the Wellness Platform and the Site;
(f) comply with all reasonable directions, policies and guidelines of Choose Your Wellness as advised from time to time; and
(g) carry out all of your responsibilities set out in this agreement in a timely and efficient manner.
(h) Customer Members, please mark the order complete on the platform after the wellness session so that Service Members will be paid for their services.
9.1 You must not:
(a) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Wellness Platform available to any third party;
(b) violate Choose Your Wellness’ Intellectual Property Rights;
(c) impersonate or pose as any other person, or misrepresent your true legal identity in your dealings with us;
(d) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Wellness Platform, the Site or your Account, including any images contained on the Wellness Platform which belong to other advertisers or us;
(e) access all or any part of the Wellness Platform or Site in order to build a product, service or code which competes with the Wellness Platform or Site; and
(f) not data mine the Wellness Platform nor access, store, distribute or transmit any viruses, worms, trojans or other malicious code, or any material when using the Wellness Platform that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party or corrupts, damages, degrades or disrupts the operation of the Wellness Platform.
reserve the right to limit your use of the Wellness Platform, the Wellness Services and/or any
other products or services made available to you on, or via, the Wellness
Platform, including the right to
restrict, suspend or terminate your Account (or in the case of a Service
Member, suspend, deactivate or terminate your Service Member Profile) if we
believe you are in breach of this agreement or are misusing the Wellness Platform, the Wellness Services and/or any other products or
services we provide.
10. Our obligations
10.1 Choose Your Wellness shall use reasonable endeavours to provide you with:
(a) access and use of the Wellness Platform as described on the Site; and
(b) customer support services will respond to your query within 48 business hours of receiving an email from you requesting support services.
10.2 In the event that Choose Your Wellness fails to provide you with access and use of the Wellness Platform in accordance with clause 10.1, we will use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 10.1.
11. Booking Fees
11.2 When a Customer Member books Wellness Services offered on, or via, the Wellness Platform, we will charge the Customer Member the price for the Wellness Services as displayed on the Wellness Platform (Booking Fees).
11.3 The Booking Fees displayed on the Wellness Platform are current at the time of issue. The Booking Fees and availability of Wellness Services and any other products or services made available to you on, or via, the Wellness Platform, are subject to change effective immediately upon posting to the Wellness Platform. You agree to pay the price current at the time of payment.
11.4 Booking Fees for Wellness Servicesdisplayed on third party websites which are linked to the Wellness Platform may not be correct and Choose Your Wellness are not bound by them.
12. Subscription Fees and Commission
12.1 To access, use and advertise on, or via, the Wellness Platform, Service Members must:
(a) create Account and Service Member Profile; and
(b) must pay a Subscription Fee (either on a monthly or annual basis) in advance as further described on the Site.
12.2 In addition to the Subscription Fees, you agree to pay Commission each time a Customer Member books Wellness Services from you on, or via, the Wellness Platform. Choose Your Wellness will collect the Booking Fee from the Customer Member and will pay you Booking Fee (after deducting the Commission from the Booking Fee) (Service Member Fee), within 2 to 5 Business Days of Customer Member marking the order complete. Please make sure Customer Member marks the order complete after the Wellness Service. If Customer Member fails to mark the order complete, Service member fee will be paid 90 days after the payment has been made.
12.3 Choose Your Wellness is under no obligation to pay you the Service Member Fee if:
(a) Customer Members do not pay us for the Wellness Services provided by you for whatever reason;
(b) you fail to provide the Wellness Services to Service Members; or
(c) we receive complaints from Customer Members that the Wellness Services provided by you were not performed to the Customer Members reasonable satisfaction. We may, at out absolute discretion, with or without notice, remove your Wellness Services and Service Member Profile from the Wellness Platform.
13.1 All fees shown on the Wellness Platform are in Australian Dollars (AUD) and are inclusive of GST.
13.2 In addition to the Booking Fees, Subscription Fees and/or Commission (as the context permits) you agree to pay:
(a) any other taxes and government charges, levies or fines in relation to the purchase of the Wellness Services;
surcharges for payments made by credit card; and
13.3 To the extent permitted by Relevant Laws and unless otherwise stipulated in this agreement, you agree that all fees payable to Choose Your Wellness under the agreementare non-refundable.
13.4 If you fail to pay the Booking Fees, Subscription Fees and Commission (as the context permits) or any other amounts owing to us under the agreement by the due date, without limiting any other remedies available to us under this agreement or under any Relevant Law, Choose Your Wellness, may, in our absolute discretion, do all or any of the following:
(a) charge interest on all outstanding amounts that are due Choose Your Wellness under this agreement, charged at an interest rate of 1.25% per month (15% per annum); or
(b) suspend access to the Wellness Platform until all outstanding amounts (including interest) that are due to Choose Your Wellness under this agreement are paid in full; or
(c) terminate in the agreement in accordance with clause 19.
13.5 You will pay Choose Your Wellness all costs and expenses incurred in recovering any outstanding amounts (including interest) that are due to Choose Your Wellness under this agreement, including legal costs or other expenses incurred by Choose Your Wellness in relation to enforcement steps or mercantile or collections agents.
13.6 Customer Members must pay the Booking Fees and Service Members the Subscription Fee by credit card (Visa or Mastercard). We use a Third Party Payment Processor to process payments made to us. By making payment of our fees under this agreement, you agree to provide Choose Your Wellness with accurate and complete billing information, and you authorise us to your share billing information with our Third Party Payment Processor for the purpose of processing your payment.
13.7 We may, at our absolute discretion and without notice to you, change the payment methods that can be used to access and use the Wellness Platform, at any time.
14.1 Service Members should have their own cancellation and refund policy and Customer Member should read it. We encourage both parties to communicate and work through any potential scheduling issues or cancellations directly and immediately.
14.2 If a Service Member wishes to cancel any scheduled Wellness Services, the Service Member must use the Wellness Platform to contact the Customer Members who booked the Wellness Services and the Service Member must contact us by email firstname.lastname@example.org.
14.3 If a Service Member cancels any scheduled Wellness Services for any reason, Choose Your Wellness is not liable to Service Member, Customer Member or anyone else, and we are entitled to charge the Service Member (inclusive of Third Party Payment Processor fees) a cancellation fee of 10% of the Booking Fee, by way of liquidated damages (Cancellation Fee).
14.4 If the Customer Member cancels any scheduled Wellness Services, the Customer Member is entitled to a refund of the Booking Fee in accordance with the Service Member’s cancellation and refund policy (less the Third Party Payment Processor fees).If the Service Member has no cancellation and refund policy and the Customer Member cancels any scheduled Wellness Services:
(a) at least 30 days before the scheduled Wellness Services, the Customer Member will receive a refund of the Booking Fee (less a Cancellation Fee); or
(b) 7 days before the scheduled Wellness Services, the Customer Member will receive a refund of 50% of the Booking Fee (less a Cancellation Fee); or
(c) Within 48 hours of the scheduled Wellness Services, the Customer Member will not be entitled to any refund of the relevant Booking Fee and the full Booking Fee for the Wellness Services will, by way of liquidated damages, be immediately payable.
14.5 To cancel any scheduled Wellness Services, the Customer Member must email us at email@example.com and contact the Service Member on, or via, the Wellness Platform.
14.6 Customer Member will not be entitled to any refund of the booking fee after Wellness Service has been completed and the full Booking Fee will be immediately payable.
15. Intellectual Property Rights
15.1 You acknowledge that, notwithstanding anything else, Choose Your Wellness and/or its licensors own all Intellectual Property Rights in the Wellness Platform and the Site (and anything arising or generated therefrom) (collectively, the Wellness IP). Accessing and using the Wellness Platform and the Site does not give you (or anyone else) ownership of, or any right, title or interest in any of the foregoing (or any Wellness IP contained therein), or any information, content or technology that may be provided to, or accessed by, you in connection with their use, all of which is, and will remain, owned by Choose Your Wellness or its licensors.
15.2 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Wellness Platform or the Site will automatically vest in, and are assigned to, Choose Your Wellness.
15.3 By creating an Account on, or via, the Wellness Platform, you grant Choose Your Wellness for the Term a royalty-free, non-exclusive, transferable and worldwide licence to use your registration information and Personal Information for the purpose of providing you with access to, and use of the Wellness Platform, the Site any related goods or services made available on, or via, the Wellness Platform.
16.1 To the maximum extent permitted by Relevant Laws, Choose Your Wellness excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision of the Wellness Platform or the Site.
16.2 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.
16.3 You acknowledge and agree that, to the extent permitted by Relevant Laws, Choose Your Wellness makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Wellness Platform, the Wellness Services or any other products or services made available to you on, or via, the Wellness Platform. You acknowledge that the Wellness Services or any other products or services made available to you on, or via, the Wellness Platform are provided ‘as is’ and Choose Your Wellness will not be liable if the Wellness Platform, the Wellness Services or any other products or services made available to you on, or via, the Wellness Platform, are unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including Choose Your Wellness’ third party service providers);
(c) maintenance (scheduled or unscheduled) carried out by Choose Your Wellness or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Wellness Platform;
(d) services provided by third parties (including internet service providers and Service Members) ceasing or becoming unavailable; or
(e) a Force Majeure Event.
16.4 You warrant, acknowledge and agree that:
(a) your use of the Wellness Platform has not been made on the basis of any representations made by Choose Your Wellness regarding future features or functionality of the Wellness Platform;
(b) you (as a Service Member) have the right to post, publish and reproduce the Wellness Materials (and all Intellectual Property Rights contained therein), and to grant us the right to post, publish and reproduce the foregoing on the Wellness Platform, the Site or any of our social media pages;
(c) you have the full power and authority to enter into this agreement and perform your obligations contemplated by this agreement, and in doing so, you will not breach any third party rights; and
(d) Choose Your Wellness makes no representations, warranties or guarantees to you (as a Service Member) about the Commission or the number of bookings that you (as a Service Member) will receive by accessing, using and advertising on, or via, the Wellness Platform.
16.5 You (whether as a Customer Member or Service Member) acknowledge and agree that providing, using or participating in Wellness Services involves risk and as a consequence you may suffer personal injury or death and that you provide, access and use the Wellness Platform (as the context permits), and your participation in, or use of, the Wellness Services booked or requested on, or via, the Wellness Platform, at your own risk.
17. Limitation of Liability
17.1 To the fullest extent permitted by Relevant Laws, Choose Your Wellness will not be liable to you or any third party for:
(a) indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or
(b) loss of income, loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, downtime costs, loss of use, failure to realise anticipated savings, loss of opportunity or expectation loss; or
(c) loss of or damage to any property or any personal injury or death to you or any third person,
arising out of, relating to or connected to the provision or use of the Wellness Platform, the Site and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
17.2 Choose Your Wellness is not responsible for loss of or damage to any property or any personal injury or death to you or any third person else arising out of, or in connection with the use of, and travel to and from, the Service Member’s venue or any private premises supplied by the Customer Member for use by the Service Member in connection with the Wellness Services. You attend Service Member’s venue or any private premises supplied by the Customer Member at your own risk.
17.3 Under no circumstances will Choose Your Wellness’ aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the fees paid by you to Choose Your Wellness under this agreement in the preceding 2 months of the claim.
17.4 You agree to defend, indemnify and hold Choose Your Wellness, its Related Bodies Corporate and its Personnel (the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out of:
(a) the access and use by you or any third party of the Choose Your Wellness or the Site; or
(b) any breach by you of this agreement.
18. Confidentiality and privacy
18.1 Save as required by law, all information and material supplied by us in relation to the Wellness Platform, the Site, the fees payable under this agreement and the terms of this agreement are confidential and must not be disclosed by you to a third party (except your professional advisors) without our written consent. This includes, without limitation, information provided to you in any form (including written and electronic) and by any means (including during any conversations with you). Upon the expiry or termination of this agreement, such confidential information must either be destroyed or returned to us, as directed by us.
19.1 Either party may terminate this agreement at any time by giving the other party at least 10 Business Days written notice. If you terminate this agreement in accordance with this clause 19.1, to the maximum extent permitted by Relevant Laws, if you pay the Subscription Fees (whether on a monthly or annual basis), we will provide you with a pro rata refund of the Subscription Fees for any unused portion of the Initial Subscription Term or the current Renewal Term (as context permits) (excluding the month in which the agreement was terminated). No refund will be payable if the Service Member received a discount on our standard Subscription Fees.
19.2 Either party may terminate this agreement by giving notice with immediate effect if the other party:
(a) breaches any material term of this agreement and such breach is not remedied within 5 Business Days after receiving notice of the breach;
(b) breaches any material term of this agreement and such breach is not capable of remedy; or
(c) suffers an Insolvency Event.
19.3 Choose Your Wellness may immediately terminate this agreement (without liability to you and without notice to you) if you are under 18 years of age or you fail to pay any fees owing under this agreement.
19.4 On termination or expiration of this agreement:
(a) all licences and rights of access granted under this agreement will immediately terminate;
(b) you must pay all outstanding Booking Fees, Subscription Fees and/or Commission (as the context permits) and any other outstanding monies owing to Choose Your Wellness under this agreement within 7 days; and
(c) Choose Your Wellness will delete your Account.
20. Third party websites
20.1 The Wellness Platform or any third party content or Service Member content may link to other websites, services, products or resources on the Internet, and other websites, services, products or resources may contain links to the Wellness Platform. These websites are not under our control and are not maintained by us. We are not responsible for the content of those websites, resources, products or services, and accept no responsibility for them or for any loss or damage that may arise from your use of them (notwithstanding anything else contained herein). We only provide links to third party websites for your information and convenience.
Links, references or other connections to these websites,
resources, products or services do not imply any endorsement of them or any
association with their owners, operators or advertising material (as the
Your linking to or from these sites, or use of, or reliance on,
such websites, resources, products or services is at your own risk. You should
carefully review the terms and conditions and privacy policies of all off-site
pages and other websites or third party suppliers that you visit or transact
21. User guidelines
21.1 The Wellness Platform allows you to communicate with other Service Members of Customer Members without disclosing Personal Information. It is your responsibility to use good judgment in the information you provide to other users of the Wellness Platform. You may use the Wellness Platform only to list or Book Wellness Services, communicate with us or other users, resolve disputes, or use other functionality we provide to you through the Wellness Platform.
21.2 When using the Wellness Platform, you must not post, list, transmit, publish, send or distribute any of the following:
(a) messages that are unwanted or unrelated to the Wellness Services listed, including attempting to market other services to users or send spam;
(b) any material, content or information that is misleading, unlawful or fraudulent;
(c) any material, content or information intended to harm someone in any way or that is libellous, defamatory, obscene, vulgar, offensive, pornographic, indecent, harassing, threatening, seditious, blasphemous, invasive of privacy or publicity rights, abusive, inflammatory, discriminatory, fraudulent or otherwise objectionable
(d) any material, content or information that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; and
(e) any material, content or information that may infringe our, or the Intellectual Property Rights or other rights of any third party
21.3 We strongly recommend that you use the Wellness Platform to communicate with other users of the Wellness Platform. If you use other means of communication, you acknowledge and agree that you may be putting your Personal Information at risk of misuse. You also understand that any communications made outside of the Wellness Platform may impair your ability to recover all or some amounts owed to you in the event of a dispute between you and another user of the Wellness Platform.
21.4 We are not responsible for, and disclaim all liability resulting from, any losses, damages, costs, expenses or harm to you resulting from sharing Personal Information with other users of the Wellness Platform, or communicating or engaging with users outside of the Wellness Platform.
21.5 Choose Your Wellness, at our absolute discretion and with or without notice, may from time to time remove communications among users of the Wellness Platform which contain or share Personal Information or contravene this agreement, or suspend or terminate the Account of users that share Personal Information or otherwise breach this agreement.
22. Dispute Resolution
The parties may, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute between the parties under or relating to this Agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.
23. Force Majeure
Choose Your Wellness will have no liability to you (or anyone else) under this agreement if it is prevented from or delayed in performing its obligations under this agreement or otherwise, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disasters, pandemics, epidemics, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of hosting or data centre providers or other suppliers or sub-contractors, shortage of suppliers, equipment and materials, (Force Majeure Event).
24.1 By accessing and using the Wellness Platform or the Site, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Site.
24.2 You acknowledge that all contracts, notices, information and other communication (notices) we may provide electronically comply with any legal requirements that such documents be in writing.
24.3 Notice will be deemed received and properly served immediately when posted on the Wellness Platform or 24 hours after an email is sent to you. As proof of service, it is sufficient thatthe email was sent to the email address specified by you in the Registration Portal.
25.1 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
25.2 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
25.3 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
25.4 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangements, understandings or agreements between them relating to the subject matter they cover.
25.5 Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement, except that Choose Your Wellness may assign, sell or transfer its rights or obligations under this agreement to a Related Bodies Corporate or bona fide third party purchaser of Choose Your Wellness’ business.
25.6 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
25.7 The laws of the state of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the courts of Victoria.
26. User Content
26.1 We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content.
26.2 By making available any User Content on or through the Wellness Platform, you hereby grant to Choose Your Wellness a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Wellness Platform or Wellness Services or for purposes of providing the services to you or for any other purpose in our sole discretion, except that the contents of private messaging through the Platform will not be used by Choose Your Wellness in public advertising
26.3 In the interest of clarity, the license granted to Choose Your Wellness shall survive termination of the Wellness Platform or your Account. Choose Your Wellness does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you.
26.4 You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all submitted Content.
26.5 Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to “Choose Your Wellness” the rights in such User Content, as contemplated under these Terms
26.6 and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Choose Your Wellness use of your User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
26.7 While it has no obligation to do so, you agree that Choose Your Wellness may review, summarise or otherwise edit and/or withdraw your User Content, and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms.
26.8 We also reserve the right to review, modify, delete without notice comments and reviews posted on this platform.
You may never post any Content that is defamatory,
obscene, profane, or pornographic; is abusive, harassing, or disrespectful of
other users; violates applicable Laws, including those prohibiting
discrimination, false advertising, privacy, or unlawful marketing; is intended
to deceive or mislead, is false or inaccurate, or misrepresents the nature or
condition of your Wellness Services; contains marketing or promotional content
unrelated to the details of your Wellness Service; or includes sensitive personal
information, including payment, contact information, or personal account
27. Contact Us
If you have any questions about this agreement, please contact us via firstname.lastname@example.org
28.1 In this agreement, the following words shall have the following meanings:
(a) Account has the meaning in clause 5.1.
(b) Booking Fees has the meaning in clause 11.2.
(c) Business Days means each day excluding Saturdays, Sundays and public holidays in Victoria.
(d) Business Hours means 9:00am to 5:00pm on Business Days.
(e) Cancellation Fee has the meaning in clause 14.3.
(f) Commission means the greater of 10% of the Booking Fee or the transaction fee paid to the Third Party Payment Processor.
(g) Customer Member means a user of the Wellness Platform who wish to access and use the Wellness Services made available on, or via, the Wellness Platform.
(h) Force Majeure Event has the meaning in clause 23
(i) GST has the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Insolvency Event means any of the following:
(i) a receiver, receiver and manager, liquidator, provisional liquidator, controller or any form of external administrator has appointed over a party or any property belonging to the party;
(ii) the party enters into a scheme, arrangement, agreement or compromise with its creditors or calls a meeting of creditors;
(iii)the party becomes bankrupt or insolvent; or
(iv)the party has a winding-up or bankruptcy petition presented against it.
(k) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software orsystems, trade names and domain names, rights in goodwill, rights in confidential information, databases or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in the future in any part of the world.
(l) Third Party Payment Processor means PayPal, Stripe and any other a third party payment processor permitted by Choose Your Wellness from time to time.
(m) Password has the meaning in clause 5.2.
(n) Personal Information has the meaning set out in section 6 of the Privacy Act 1988 (Cth).
(o) Personnel means any officer, employee, agent, contractor, sub-contractor or consultant of a party.
(p) Privacy Act means the Privacy Act 1988 (Cth).
(r) Registration Portal means the registration portal on the Site used by you to subscribe to the Wellness Platform.
(s) Related Bodies Corporate has the meaning in the Corporations Act 2001 (Cth).
(t) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements anywhere in the world.
(u) Term has the meaning in clause 4.
(v) Service Member means pilates, yoga, sound healing, meditation, alternative and holistic therapy practitioners or studios that offer their services for sale on, or via, the Wellness Platform.
(w) Service Member Fee has the meaning in clause 12.2.
(x) Service Member Profile means the profile displayed on the Wellness Platform which contains the Services Member’s business and contact details, the Wellness Services offered by the Service Member, the Service Member’s availability, schedules and service locations and photographs or branding promoting the Service Member’s services and business.
(y) Site means the Choose Your Wellness website located at www.chooseyourwellness.com.au and social media linked pages or any other internet site notified by Choose Your Wellness from time to time.
(z) Subscription Fee means the fee payable by the Service Member to Choose Your Wellness to subscribe to the Wellness Platform as displayed on the Site.
(aa) Wellness IP has the meaning in clause 15.1.
(bb) Wellness Materials means any content, text, graphics, images, photographs, and footage uploaded, transmitted or posted by a Service Member on or via, the Wellness Platform.
(cc) Wellness Platform means the Choose Your Wellness’ marketplace platform (including all Intellectual Property Rights contained therein) provided by us to connect Customer Members with Service Members who offer, list and advertise their Wellness Services on, or via, the Site.
(dd) Wellness Services means:
(i) the pilates, yoga, meditation, sound healing and other alternative and holistic therapy workshops, events, retreats, sessions and classes that is offered for sale and made to Customer Members on, or via, the Wellness Platform; and/or
(ii) the rental of pilates, yoga, meditation sound healing premises or studios by Service Members to other Service Members or Customer Members on, or via, the Wellness Platform.
(ee) you or your has the meaning in clause 1.1, and where the context permits, includes a Customer Member or Service Member.