STAY SHARPE FITNESS APP
Terms and Conditions
STAY SHARPE FITNESS
APP TERMS & CONDITIONS
Last updated on 16 December 2021.
Welcome to the Stay Sharpe Fitness application!
When we talk about “Stay Sharpe Fitness”, “we,” “our,” or “us” in these Terms, we are referring to the sole trader, Christopher Stephen Sharpe, an Australian business with ABN 34 589 682 996.
When we talk about the “Services” in these Terms, we are referring to our mobile application available on the Apple iOS Store and the Google Play Store, our website and any associated services we offer, including the fitness and strength training exercises, videos and other content on our mobile application.
We’ve also used a few other capitalised words and phrases as shorthand to refer to recurring concepts. Each of these are defined in bold and in brackets after the concepts are first mentioned.
These Terms set out the terms and conditions that apply when you use the Services.
By using the Services, ordering any goods or services through the Services, or otherwise engaging with the fitness coaching content on the Services, you represent and warrant that you:
(a) are at least 18 years old, have the legal capacity to enter into a binding legal agreement with us and you agree to be bound by these Terms; or
(b) are the parent or legal guardian of a person under the age of 18 who intends to use the Services, and you agree to be bound by these Terms on that person’s behalf.
Please have a careful read through these Terms before using the Services. If you don’t agree to these Terms, please don’t use the Services.
We may modify our Terms from time to time. If we do, we will post a note on this page or email you. If you continue to use the Services after we modify our Terms, you’ll be taken to have agreed to the Terms as modified.
2 ACCOUNT REGISTRATION
In order to use the Services, you will be required to sign up for an account (Stay Sharpe Account).
When you register for a Stay Sharpe Account, you must provide true, accurate and complete information as requested and keep this information up to date after registration.
You agree that you’re solely responsible for:
(a) maintaining the confidentiality and security of your Stay Sharpe Account information and your password; and
(b) any activities that occur through your Stay Sharpe Account, whether those activities have been authorised by you or not.
You also agree to let us know if you detect any unusual activity on your account as soon as you become aware of it.
We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your Stay Sharpe Account information or your password.
3 PROGRAMS & DISCLAIMERS
When using the Services, you will have access to various fitness and strength training courses, consisting of multiple exercise tutorials and other content (Programs).
Our Programs are designed to run for a set period of time. Once that time has expired, we may remove that Program and you won’t be able to access it, regardless of whether or not you have completed the Program.
Our Programs include a set of pre-determined exercises. However, you may have the option of adding other exercises to customise your Program yourself. Any customisations you make to a Program are done so at your own risk.
If you participate in any competitions, group challenges or other games of skill using your Stay Sharpe Account, we may offer various rewards and prizes. If we do offer a reward or prize, the judging and allocation of those rewards or prizes will be awarded in our sole discretion and without liability to you. We will rely on Your Data (discussed in clause 7) and all other user data for the purposes of any rewards or prizes.
You acknowledge and agree that:
(a) unless otherwise agreed between us, we have not undertaken any assessment or verification of the suitability of any Program for your personal fitness and strength levels;
(b) nothing contained in any of our Programs is to be considered as medical advice;
(c) you must consult all relevant medical professionals to determine the suitability of a Program for you, including a physiotherapist and a general practitioner;
(d) regardless of whether or not we have undertaken an individualised assessment with you, you must assess each individual exercise and not undertake that exercise if you have a relevant pre-existing injury or health condition that may be exacerbated by an exercise;
(e) you must take all necessary precautions while undertaking any exercises or other activities associated with a Program, including ensuring a safe environment free of hazards, engaging in proper warm-up and warm-down exercises, remaining properly hydrated, and wearing and using appropriate clothing and equipment;
(f) if at any time during an exercise you feel uncomfortable or as though the exercise is not suitable for you, you must immediately cease engaging in the exercise; and
(g) our liability to you is limited in accordance with clause 16.
The Fees are payable in the amount agreed to at the time of registering for your Stay Sharpe Account.
The Fees are payable monthly in advance. The account you nominate for payment of the Fees will be direct debited for the Fee amount on the monthly anniversary of the date you register your Stay Sharpe Account.
4.2 FAILURE OF DIRECT DEBIT
If a payment of the Fees fails to debit from your nominated account due to insufficient funds being available (or for any other reason), we will attempt again in 3 days to deduct the Fees from your nominated account.
If, after the second attempt to debit the Fees we are unable to debit the Fees from your nominated account, we may revoke your Stay Sharpe Account and require payment for you to continue accessing those Services.
4.3 PAYMENT METHODS
We may use third-party payment providers (Payment Providers) to collect Fees. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.
There will be no change of mind refunds. If you decide to no longer continue with the Services, you will not be refunded the Fees.
To the maximum extent permitted by law, no refunds will be provided unless there is a major failure of the Services. Please let us know if you have any issues with our Services that you think should entitle you to a refund and we’ll consider your situation.
6 ACCEPTABLE USE
We’ll need you to make a few promises about the way you’ll use the Services.
(a) not to copy, reproduce, translate, adapt, vary or modify the Services without our express consent;
(b) not to use the Services in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(c) not to use the Service for the purpose of distributing unsolicited commercial content, junk mail, spam, bulk content or harassment;
(d) not to attempt to breach the security of the Services or Stay Sharpe Fitness’s system security, or otherwise interfere with the normal function of the Services, including by:
(i) gaining unauthorised access to Stay Sharpe Accounts or data about other users of the Services;
(ii) scanning, probing or testing the Services for security vulnerabilities;
(iii) overload, flood, mailbomb, crash or submit a virus to the Services or Stay Sharpe Fitness’s system; or
(iv) instigate or participate in a denial-of-service attack against the Services or Stay Sharpe Fitness’s system; and
(e) to ensure that your employees, sub-contractors and other agents who you have authorised to use or access the Services comply with the Terms.
7 YOUR DATA
As part of using the Services, you’ll generate data about your fitness progress, as well as sharing other personal information with use when you register for, and use, your Stay Sharpe Account (Your Data).
You acknowledge and agree that if you participate in any group activities using the Services, including leader boards and rewards programs, the relevant parts of Your Data will be visible to the other participants.
By uploading any Your Data, you grant to Stay Sharpe Fitness (and its agents or service providers) a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in Your Data in order for Stay Sharpe Fitness to use, exploit or otherwise enjoy the benefit of Your Data.
We don’t have any obligations to screen Your Data in advance of it being posted and your compliance with these Terms is your responsibility. However, we may, if we choose, review and remove any of Your Data at any time without giving any explanation or justification for removing the material and/or information.
8 OUR CONTENT
Unless we indicate otherwise, all materials used in the Services (including text, graphics, logos, icons, sound recordings and software) are subject to Intellectual Property Rights that are owned or licensed by us (Our Content).
You must not attempt to download or otherwise copy any of Our Content.
You may only access and use Our Content for the sole purpose of enabling you to use the Services in accordance with your Program, except to the extent permitted by law or where you have received prior written approval from us.
9 ADDING AND REMOVING FEATURES
We may, from time to time, remove features or add new features to the Services. If we do this and unless we notify you otherwise (in our discretion) we won’t adjust the Fees.
We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information (including Your Data), your computer systems, mobile phones or other electronic devices arising in connection with use of the Services. You should take your own precautions to ensure that the process which you employ for accessing the Services does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
11 THIRD PARTIES
The Services may contain text, images, data and other content provided by a third party (Third Party Content). We’re not responsible for any of this Third Party Content and we make no representation or warranty about the quality, suitability, accuracy, reliability, currency or completeness of any Third Party Content.
The Services may also contain links to websites operated by third parties (Third Party Links). Third Party Links are provided for convenience and may not remain current or be maintained. We do not endorse and are not responsible for Third Party Links and have no control over or rights in linked websites.
By using the Services, or any other third party service, you acknowledge and agree that third party terms & conditions (Third Party Terms) may apply (including app store providers such as Apple and Google).
You agree to any Third Party Terms applicable to any third party goods and services, and Stay Sharpe Fitness will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
12 NOTICE REGARDING APPLE
If you are accessing the Services from the Apple, Inc. (Apple) iOS Store, you acknowledge and agree:
(a) these Terms are between you and Stay Sharpe Fitness and not with Apple. Apple is not responsible for the Services or any content available on the Services;
(b) Apple has no obligation whatsoever to furnish any maintenance and support services for the Services;
(c) in the event of any failure of Stay Sharpe Fitness to conform to any applicable warranty, you may notify Apple, and Apple will refund the price for the Services. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs of expenses attributable to any failure to conform to any warranty will be Stay Sharpe Fitness’s responsibility;
(d) Apple is not responsible for addressing any claims by you or any third party relating to the Services, including, but not limited to:
(i) product liability claims;
(ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection, privacy, or similar legislation;
(e) in the event of any third party claim that the Services or your use of the Services infringes any third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim;
(f) that you represent and warrant that:
(i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting’” country; and
(ii) you are not listed on any U.S. Government list of prohibited or restricted parties;
(g) you must comply with applicable third party terms of agreement when using the Services; and
(h) Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.
13 OPERATION OF THE APP DEPENDENT ON THIRD PARTIES
You acknowledge that the Services are dependent on software and hardware developed by third party providers such as Apple and Google. If following an update by such third party provider, the Services can no longer function as they did prior to the update, we will not (to the maximum extent permitted by law) be liable to you for any loss or damage you might suffer as a result.
14 SERVICE LIMITATIONS
The Services are made available to you strictly on an ‘as is’ basis. We can’t guarantee, and make no warranties, to the extent permitted by law, that:
(a) the Services will be free from errors or defects;
(b) the Services will be accessible or available at all times;
(c) messages sent through the Services will be delivered promptly, or delivered at all;
(d) information you receive or supply through the Services will be secure or confidential; or
(e) any information provided through the Services is accurate or true.
15 LOCATION OF SERVICES
Stay Sharpe Fitness controls the operation of the Services from headquarters located in Australia. Some Services or parts thereof may be operated from, or hosted on mirrors or servers, at various locations outside of Australia.
We make no representation or warranty that all of the features of the Services will be available to you outside of Australia or that they are permitted to be accessed outside Australia.
You’re solely responsible for your decision to use the Services from other locations and you acknowledge that such use may be subject to, and you are responsible for, compliance with applicable local laws in relation to your use of the Services.
To the maximum extent permitted by applicable law, Stay Sharpe Fitness limits all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Services to the Fees paid in the month where the event giving rising to the liability occurred, in aggregate. This includes personal injury, death and the transmission of any computer virus.
You agree to indemnify Stay Sharpe Fitness and its employees, contractors and agents in respect of all liability for loss, damage or injury which may be suffered by you or any other person arising from, or in connection with, your use of the Services and/or breach of these Terms.
All express or implied representations and warranties given by us are, to the maximum extent permitted by applicable law, excluded.
Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
To the maximum extent permitted by law, under no circumstances will Stay Sharpe Fitness be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Services, these Terms or their subject matter (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
You are responsible for the cancellation of your Stay Sharpe Account. You can cancel your Stay Sharpe Account at any time by using the functionality provided in the app. However, your access to your Stay Sharpe Account will remain active for the rest of current billing cycle, and the Fees for that billing cycle will not be refunded to you.
To the extent permitted by law, we reserve the right to terminate your access to any or all of the Services or any part of the Services at any time without notice, for any reason, provided that we refund to you any Fees for Services which you have paid for and not received.
We may also terminate your access to any or all of the Services at any time without notice and without issuing a refund of the Fees if you breach any provision of these Terms.
Upon cancellation, termination or expiry of your Stay Sharpe Account, we will delete any of Your Data associated with your Stay Sharpe Account. You won’t be able to recover any of this after cancellation, termination or expiry of your Stay Sharpe Account so we recommend you back up anything important to you. We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of your Stay Sharpe Account.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
18.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Queensland. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
18.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
18.7 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.