WHOOSH TECHNOLOGIES PTY LTD ABN 32 615 376 808
USER TERMS AND CONDITIONS
Last updated: 05/02/18
The Whoosh Fitness Application (App) enables users to request personal fitness training and associated services (PT Services) with independent third party providers of such services (Trainers). The App will also allow users to purchase exercise equipment, clothing and accessories (Goods). These terms and conditions (Terms) govern your access and use of the App. By proceeding and using the App you agree to be legally bound by these Terms. If you do not agree to these Terms, or any amendments to them, you may not use the App. The Terms establish a contractual relationship between you and Whoosh Technologies Pty Ltd (Whoosh). Whoosh may immediately terminate your use of the App, the Terms or any PT Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof at any time for any reason.
Whoosh may amend these Terms from time to time.
Subject to your compliance with these Terms, Whoosh grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the App on your personal device solely for the purpose of obtaining PT Services; and (ii) access and use any content, information and related materials that may be made available through use of the App (Whoosh Content)
You may not: (i) remove any copyright, trademark or other proprietary notices from any or Whoosh Content; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit any Whoosh Content, except as expressly permitted by Whoosh; (iii) decompile, reverse engineer or disassemble the App except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the App or Whoosh Content; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any information made available by the App or unduly burdening or hindering its operation and/or functionality ; or (vi) attempt to gain unauthorized access to information or impair any aspect of App or its related systems or networks.
Third Party Services and Content
The App and Whoosh Content and all rights therein are and shall remain the property of Whoosh or its licensors.
Your Use of the Services
In order to use most aspects of the Services, you must register for and maintain an active personal user account (Account). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Whoosh certain personal information, such as your full name, address, mobile phone number and age, current medical condition and history, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the App. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Whoosh in writing, you may only possess one Account.
Pre-Exercise Screening Questionnaire
The App enables you to request PT Services with Trainers. . In the course of receiving PT Services you may be required to partake in physical activity or exercise of varying degrees of intensity. Prior to doing so you must complete a questionnaire in order to assist Whoosh identify whether you have any known medical conditions, or signs or symptoms of medical conditions, which may put you at a higher risk of an adverse event during physical activity or exercise (Questionnaire). If, based on your responses to the Questionnaire, Whoosh determines that you may be at a higher risk of an adverse event during physical activity or exercise, Whoosh may (i) refuse to provide you with access to PT Services or (ii) require you to provide a certificate from your GP or appropriate allied health professional approving your participation in the relevant physical activity or exercise prior to providing you continued access to the App or access to PT Services. You agree to provide accurate, complete and up-to-date information and to notify us as soon as you become aware of any change in your circumstances. You acknowledge and agree that any information which you provide to us pursuant to this clause may be collected, stored, and used by us in accordance with clause 5 (Privacy) below.
User Requirements and Conduct
You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the App and PT Services and not cause nuisance, annoyance, inconvenience, or property damage. In certain instances you may be asked to provide proof of identity to access or use the App or PT Services, and you agree that you may be denied access or use if you refuse to provide proof of identity.
By creating an Account, you agree that Whoosh may send you informational text (SMS) messages. You may opt-out of receiving text (SMS) messages from Whoosh at any time by sending an email with your request to email@example.com indicating that you no longer wish to receive such messages, along with the phone number of the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the App and PT Services.
Whoosh may, in Whoosh’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits, subject to any additional terms that Whoosh establishes on a per promotional code basis (“Promo Codes”). Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Whoosh; (iii) may be disabled by Whoosh at any time for any reason without liability to Whoosh; (iv) may only be used pursuant to the specific terms that Whoosh establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Whoosh reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Whoosh determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
User Provided Content
Whoosh may, in Whoosh’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Whoosh through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (User Content). Any User Content provided by you remains your property. However, by providing User Content to Whoosh, you grant Whoosh a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Whoosh the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Whoosh’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive. Whoosh may, but shall not be obligated to, review, monitor, or remove User Content, at Whoosh’s sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices
You are responsible for obtaining the data network access necessary to use the App. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the App and any updates thereto. You acknowledge that the App may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the App may result in charges to you for the services or goods you receive (Charges).
Whoosh shall notify you of Charges for PT Services prior to you requesting a booking. By making a request for PT Services using the App you agree to pay the applicable Charges as notified to you. Whoosh will facilitate payment to the Trainer as the Trainer’s payment collection agent. Payment of the Charges to Whoosh in such manner shall be considered the same as payment made directly by you to the Trainer. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Whoosh.
Whoosh may make goods available for sale to you via the App (Goods). The price of the Goods shall be specified in the Application and shall include applicable taxes where required by law and any applicable delivery and handling fee.
If you chose to order Goods, you will pay the price and applicable delivery and handling fees at the time you order them. We will endeavor to deliver Goods to you within 5 working days of your order. However, depending on when your order is placed and where your location is, this may vary. During peak times and public holidays delivery may also take longer. Risk and title in the Goods passes to you upon delivery of the Goods to your specified delivery address.
You may choose to purchase exercise equipment, clothing or accessories directly from Trainers. In such a case your contract to purchase the goods is with the Trainer directly, not Whoosh, and arrangements for payment and delivery of the goods must be made with the Trainer.
All Charges are due immediately and payment will be facilitated by Whoosh using the preferred payment method designated in your Account, after which Whoosh will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Whoosh may use a secondary payment method in your Account, if available. All payments shall be processed using facilities provided by Braintree Payments.
Whoosh reserves the right to establish, remove and/or revise Charges for any or all PT Services or Goods at any time in Whoosh’s sole discretion. Whoosh will use reasonable efforts to inform you of Charges and revisions to Charges. Whoosh may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar PT Services or Goods, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the App or the Charges applied to you. You may elect to cancel your request for PT Services at any time prior to the Trainer’s arrival, in which case you may be charged a cancellation fee. Your first cancellation shall be free of charge. Thereafter, the cancellation fee shall be calculated as follows: (i) the minimum cancellation fee shall be $5.00 (incl. GST); (ii) if you cancel a request for PT Services within 24 hours of a scheduled appointment, the cancellation fee shall be 50% of the relevant Charges; (iv) if you cancel a request for PT Services within 1 hour of a scheduled appointment, you must pay the Charges in full. If you fail to attend a scheduled appointment, you must pay the Charges in full.
You acknowledge that in order to provide you with the benefit of the App, the PT Services and the Goods, Whoosh may need to collect, store and use personal information (including health information) relating to you. In particular, to ensure your safe participation in any PT Services, Whoosh may need to collect and store information relating to your current medical condition and history and disclose such information to the relevant Trainer. You consent to the collection, storage, use and disclosure of your personal information in this manner and in accordance with these Terms.
Whoosh may collect personal information relating to you including your full name, address, mobile phone number, age, current medical condition and medical history (including information provided by you in response to the Questionnaire) and information relating to your fitness level, strengths and weaknesses, and exercise preferences (Personal Information). Whoosh may collect Personal Information via the App, from you directly or from Trainers.
Whoosh shall store Personal Information securely and take reasonable steps to protect it from misuse and loss, unauthorized access, modification or disclosure. Whoosh shall not disclose Personal Information to any third parties other than Trainers, unless required by law.
Whoosh shall only use Personal Information in connection with your use of the App and the provision of PT Services to you. Whoosh may disclose Personal Information to Trainers where such disclosure is necessary to enable the safe and effective provision of PT Services to you. Whoosh shall not disclose your contact details (address, mobile phone number) to Trainers (or to any other third party) who are not involved in providing PT Services to you.
Disclaimers; Limitation of Liability; Indemnity.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WHOOSH DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMSTO THE FULL EXTENT PERMISSIBLE BY LAW. IN ADDITION, WHOOSH MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WHOOSH DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONDITION, WARRANTY, RIGHT OR REMEDY WHICH IS CONFFERRED ON YOU BY THE AUSTRALIAN CONSUMER LAW IN SCHEDULE 2 TO THE COMPETITION AND CONSUMER ACT 2010 (CTH) (CONSUMER LEGISLATION). IF WHOOSH BREACHES A WARRANTY WHICH HAS BEEN IMPLIED BY THE CONSUMER LEGISLATION, WHOOSH’S LIABILITY FOR BREACH WILL BE LIMITED, WHERE PERMITTED BY THE CONSUMER LEGISLATION, TO (AT WHOOSH’S ELECTION) (i) THE SUPPLY OF THE GOODS OR SERVICES AGAIN; OR (ii) REFUND OF CHARGES.
LIMITATION OF LIABILITY
WHOOSH SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES. WHOOSH SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER,. WHOOSH SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND WHOOSH’S REASONABLE CONTROL. IN NO EVENT SHALL WHOOSH’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED DOLLARS (AUD$500).
WHOOSH’S SERVICES MAY BE USED BY YOU TO ORDER GOODS AND/OR REQUEST AND SCHEDULE HEALTH AND FITNESS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT WHOOSH HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY GOODS OR HEALTH AND FITNESS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS CLAUSE DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You agree to indemnify and hold Whoosh and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including legal fees) arising out of or in connection with: (i) your use of services or goods obtained through your use of the App; (ii) your breach or violation of any of these Terms; (iii) Whoosh’s use of your User Content; or (iv) your violation of the rights of any third party, including Trainers.
Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of the State of Victoria, Australia.
Claims of Copyright Infringement
Claims of copyright infringement should be sent to Whoosh’s designated agent. Please visit Whoosh’s web page at https://whooshfitness.com/legal for the designated address and additional information.
Whoosh may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent to your address as set forth in your Account.
You may not assign or transfer these Terms in whole or in part without Whoosh’s prior written approval. You give your approval to Whoosh for it to assign or transfer these Terms in whole or in part, including to: (i) a subsidiary or affiliate; (ii) an acquirer of Whoosh’s equity, business or assets; or (iii) a successor by merger. No joint venture, partnership, employment or agency relationship exists between you, Whoosh or any Third Party Provider as a result of the contract between you and Whoosh or use of the Services.
If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”