Services Agreement

Thank you for choosing Seniors Fitness!

 

When we talk about the “Services”, we’re referring to the exercise services set out on our website at https://www.seniorsfitness.net.au/ and our other related services (Services).

 

In exchange for E.S. Moore & G.I Williams ABN 69 499 272 644 operating as Seniors Fitness (Seniors Fitness) providing you with these Services, you (the Client or you) agree to pay the Fees in accordance with the terms and conditions of this agreement.

 

We may change this agreement from time to time. When we do, we will provide you with reasonable notice. If you do not agree to any changes, please contact us. By continuing to use and/or pay for the Services, you accept any changes to this agreement that we communicate to you.

MEDICAL EMERGENCIES

 

Seniors Fitness provides exercise physiology services and other exercise services. These services do not provide emergency services. If you are experiencing an emergency, or if you suspect that you are experiencing an emergency, please contact 000.

Terms and Conditions

 

 

1. HOW TO READ THIS AGREEMENT

 

Capitalised words and phrases used in these terms and conditions have the meaning given:

 

(a) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or

 

(b) in the definitions in clause 20 of this agreement.

 

 

2. DURATION AND RENEWAL OF THIS AGREEMENT

 

(a) This agreement will commence on the date this agreement is signed or accepted by the Client, and continues in effect unless terminated or cancelled in accordance with clause 14 or extended in accordance with clause 2(b) (Term).

 

(b) The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.

 

(c) If any Services are supplied after the expiry of the Term, without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this agreement will continue to apply for those Services.

 

 

3. OUR SERVICES

 

3.1 TYPES OF SERVICES

 

Our Services include a range of different exercise and care services as set out on our website. We reserve the right to set different requirements and rules for our different Services and we may change these rules from time to time. You must always comply with any requirements or rules of our Services, which will be made available on our website or otherwise communicated to you.

 

3.2 ELIGIBLITY

 

By accepting this agreement, you acknowledge and agree that:

 

(a) you are at least 21 years old; and

 

(b) if you are accepting this agreement on behalf of another person (for example, a NDIS participant), you have the consent of that person to enter into this agreement and you represent and warrant that that person agrees to the terms and conditions of this agreement.

 

3.3 INITIAL ASSESSMENT

 

Before you participate in any of the Services, we may provide you with an initial assessment across several sessions. You will not be entitled to a refund for any such sessions that you do not attend.

 

3.4 PHOTOGRAPHS

 

(a) We may take photographs of you while you participate in the Services if we have your consent (Photos). We may use these photos to promote Seniors Fitness on our website, social media and other platforms. By accepting this agreement, you consent to your photograph being taken and used for marketing purposes.

 

(b) You acknowledge and agree that the Photos will form part of the New Material, and Seniors Fitness will own all Intellectual Property Rights in the Photos in accordance with clause 9.

 

3.5 ONLINE DELIVERY

 

If you participate in Services that are delivered online, you acknowledge and agree that:

 

(a) you will not be entitled to any refund of the Services for any technical issues or if you do not attend the online Services; and

(b) Seniors Fitness will record the Services it delivers online. If you are participating in a video call or conference and you choose to unmute or speak up during an online session, you acknowledge and agree that that will also be included in the recording.

 

4. DISCLAIMERS & WAIVER

 

(a) (Results not guaranteed) We cannot guarantee any outcome as part of your use of the Services. We cannot guarantee that our Services will be suitable for you. You acknowledge and agree that each person is an individual and results may vary.

 

(b) (Risk) You acknowledge and agree that there are inherent risks with exercising, and, to the maximum extent permitted by law, you assume all risk of injuries associated you’re your participation in the Services. If at any point you wish to stop participating in the Services, you must notify us immediately. While we will use our best endeavours to prevent injuries, you acknowledge and agree that injuries occur no matter who you are, and we cannot guarantee that the Services are free from any risk of injury or harm.

 

(c) (Muscle soreness) You may find that by proceeding with our Services, you experience some level of discomfort or pain. It is normal to feel temporary soreness following new exercises within 3 days after exercising with Seniors Fitness. If soreness persists longer or becomes sharp, burning or shooting pain, please inform Seniors Fitness, seek medical advice or contact 000 in case of an emergency.

 

(d) (Online delivery) If you participate in the Services that we deliver online, you acknowledge and agree that you will be participating in the Services entirely unsupervised. You are responsible for maintaining a safe space, for any issues that occur when you access the Services online and for covering the cost of any equipment or software you use to access the Services online.

 

(e) (Reliance on information) You acknowledge and agree that the Services are reliant on the information and/or documentation you provide to us about your health. You agree to provide us with updated, accurate and complete information about your health. By using the Services, you represent and warrant that you have fully informed us of your medical history and any existing conditions, including injuries, physical restrictions, disabilities or predispositions to sickness or injury (Conditions) that may affect your participation in the Services or that if you are aware of such Conditions, you participate in any Services provided by Seniors Fitness entirely at your own risk.

 

 

5 WHAT WE EXPECT FROM YOU

 

5.1 INFORMATION ABOUT YOU

 

(a) Before participating in the Services, we will request that you fill in required forms and provide us with information about you, your health, your health history and any other conditions that may affect your participation in the Services.

 

(b) You represent and warrant that you will notify Seniors Fitness if and when your health circumstances change.

 

5.2 YOUR BELONGINGS

 

You are responsible for your belongings while at the clinic, even when you leave your belongings at the clinic overnight. Seniors Fitness will not be liable if any of your belongings are lost, damaged and/or stolen at the clinic. Where we use storage facilities at the clinic, Seniors Fitness will not be liable if your belongings are lost, damaged and/or stolen. You use our storage facilities at your own risk.

 

5.3 CLINIC RULES

 

When you are participating in the Services at our clinic, you acknowledge and agree that:

 

(a) you must wear suitable clothes and closed shoes; and

 

(b) you will comply with our strict noise policy and respect our other clients and neighbours, including by refraining from using your mobile phone to make phone calls and refraining from profanity

5.4 EQUIPMENT USE

 

You acknowledge and agree that, when participating in the Services at our clinic:

 

(a) you must follow Seniors Fitness’ rules and instructions;

 

(b) if you are unsure how to use equipment, you must ask Seniors Fitness personnel for assistance or schedule a time with one of our exercise specialists;

 

(c) you are responsible for any damage to the equipment caused by you or your guests; and

 

(d) you will:

 

(i) use a clean towel when you use the equipment (including exercise mats);

 

(ii) wipe down machines with supplied wipes after use;

 

(iii) follow the set time limits;

 

(iv) put equipment away after use;

 

(v) keep phone calls to a minimum;

 

(vi) not use a camera without our express permission; and

 

(vii) not drop any weights at any time.

 

5.5 COMPLIANCE WITH LAWS

 

The Client agrees that it will not, by receiving or requesting the Services, breach any applicable Laws.

 

6 HOW PAYMENT WORKS

 

6.1 PAYING OUR FEES

 

You must pay the fees to Seniors Fitness in accordance with this agreement, including any Membership Fees defined below (together, the Fees).

 

6.2 MEMBERSHIP FEES

 

(a) If you have purchased a membership with us (Membership), you may purchase a Membership at different frequencies (Membership Period) and you must pay for each Membership Period in advance of your next Membership Period (Membership Fees). The Membership Fees will be payable every fortnight.

 

(b) (Upfront payment) You can pay upfront, or as far in advance as you like. If you wish to pay for your Membership upfront, you must pay for all goods and services upfront at the time of booking using the payment method specified by Seniors Fitness.

 

(c) (Changes to fees) We may change the Membership Fees from time to time. If we do this, we will provide you with reasonable notice before you decide to renew your Membership.

 

(d) (Transfer) Unless otherwise agreed in with Seniors Fitness in writing, you may not transfer your Membership to another person at any time.

 

(e) (Automatic renewal) Your Membership will automatically renew for each Membership Period unless you provide us with 30 days’ written notice. Even if you do not use the clinic or any part of the Services, your Membership Fees will still be payable and you will not be entitled to a refund. If your Membership is cancelled or terminated in accordance with this agreement, no refund will be payable to you by Seniors Fitness for any unused period of your Membership.

 

(f) (Refunds) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.

 

(g) (Cooling off period) You may cancel your Membership if you notify us within 7 days of accepting or signing this agreement. However, this cooling off period does not mean you are entitled to a refund of any initial assessments in accordance with clause 3.3.

6.3 FOUNDATION MEMBERS

 

(a) If you are a foundation member, your Membership Fees will not change unless you cancel your Membership in accordance with this agreement.

 

(b) You acknowledge and agree that the benefits of your foundation membership may be cancelled if you do not participate in the Services for six (6) weeks (unless you provide evidence of medical issues or a vacation where you have been unable to participate in the Services).

 

6.4 PAYMENT METHOD

 

Direct debit (DD) is the preferred payment method for Membership. If you do not pay for your Membership through DD, or if you choose to pay upfront, you acknowledge and agree that:

 

(a) administrative fees apply to cover the cost of Seniors Fitness’ personnel processing each payment; and

 

(b) you will not receive an itemised invoice, which may impact your ability to claim these fees through third parties.

 

6.5 DIRECT DEBIT

 

If you are paying for your Membership by direct debit, you:

 

(a) agree to enter into a service agreement with the DD service provider (DD Agreement);

 

(b) authorise Seniors Fitness to charge your bank account in advance of each Membership Period in line with the DD Agreement;

 

(c) acknowledge and agree that each direct debit payment will incur transaction fees per transaction for bank accounts and surcharges for different credit cards;

 

(d) must ensure that there are sufficient funds available in their account to allow the DD service provider to debit the Fees payable;

 

(e) must give Seniors Fitness a notice of at least 48 hours if:

 

(i) the member is transferring or closing the account specified in their DD Agreement;

(ii) there are any changes to the Member’s credit card specified in their DD Agreement; and

 

(f) acknowledge and agree that if a debit is returned by your financial institution as ‘unpaid’:

 

(i) the DD service provider will charge a dishonour fee in addition to any fees charged under the DD Agreement by the DD service provider; and

(ii) Seniors Fitness may suspend your access to the clinic or any part of the Services until the amounts payable are received by Seniors Fitness.

 

6.6 INVOICES

If Seniors Fitness issues an invoice to you, payment must be made by the time(s) specified in such invoice and in accordance with the remittance method set out in an invoice.

 

6.7 COVID-19 LOCKDOWN

 

(a) Where a stay-at-home decision by a government authority in response to COVID-19 prevents you from attending and using the clinic (Lockdown), we reserve the right to change this agreement in accordance with the Lockdown rules.

 

(b) You may still cancel your Membership in accordance with this agreement during a Lockdown.

 

(c) Unless otherwise agreed in writing, if you continue to pay your Membership Fees during a Lockdown, you acknowledge and agree that:

 

(i) you will not be entitled to a refund of any unused period of your Membership during a Lockdown; and

(ii) after a Lockdown, Seniors Fitness reserves the right to offset any Membership Fees paid during a Lockdown against any future Membership Fees payable by you to Seniors Fitness after a Lockdown.

 

6.8 SUSPENSION OF SERVICES

 

Seniors Fitness reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees.

 

6.9 CARD SURCHARGES

 

Seniors Fitness reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

 

7. PRIVACY

 

(a) We may collect personal information about you in the course of providing you with our Services, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.

 

(b) Our Privacy Policy contains more information about how we use, disclose and store your information and details how you can access and correct your information.

 

(c) We may collect sensitive information about you during the course of providing you with Services. We only collect information that you choose to provide us and will not collect this without your consent. It is up to you whether you choose to disclose your sensitive information.

 

(d) We may need to share sensitive information about you in a medical emergency in cases where we may not be able to obtain your consent.

 

(e) By accepting this agreement, you agree to be bound by the clauses outlined in our Privacy Policy.

 

 

8. CONFIDENTIALITY

 

8.1 CONFIDENTIAL INFORMATION

 

The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party, except:

(a) with the other party’s prior written consent;

 

(b) as required by Law; or

 

(c) to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Discloses).

8.2 BREACH

 

If either party becomes aware of a suspected or actual breach of clause 8.1 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of clause 8.1.

 

8.3 PERMITTED USE

 

A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.

 

8.4 RETURN

 

On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party (unless otherwise required by Laws).

8.5 ADDITIONAL DISCLOSEES

 

Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 8. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.

 

 

9 INTELLECTUAL PROPERTY

 

9.1 DEFINITIONS

 

In this clause and when used elsewhere in this agreement, the following terms have the following meanings in relation to Intellectual Property Rights:

 

(a) Existing Material means Material of either party, other than New Material;

 

(b) New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and

 

(c) Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.

 

9.2 EXISTING MATERIAL

 

(a) Except to the extent otherwise stated in this clause 9:

 

(i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and

(ii) nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.

 

(b) The Client grants to Seniors Fitness (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.

 

(c) The Client warrants that Seniors Fitness’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Seniors Fitness from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

 

(d) Seniors Fitness grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:

 

(i) such Existing Material is incorporated into the New Material; and

(ii) such use is reasonably required for the Client to enjoy the benefit of the Services.

 

9.3 NEW MATERIAL

 

(a) Unless otherwise agreed with Seniors Fitness, Intellectual Property Rights in New Material are immediately assigned to and vest in Seniors Fitness as those rights are created.

 

(b) Seniors Fitness grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use the New Material to the extent such use is reasonably required for the Client to enjoy the benefit of the Services.

 

9.4 THIRD PARTY INTELLECTUAL PROPERTY

 

Seniors Fitness warrants that:

 

(a) the provision of the Services to the Client; and

 

(b) the Client’s receipt and use of the Services for their intended purpose, will not infringe the Intellectual Property Rights of any third party.

10. SUBCONTRACTING

 

Seniors Fitness may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.

 

 

11. WARRANTIES

 

(a) To the maximum extent permitted by applicable Laws, all express or implied representations and warranties not expressly stated in this agreement are excluded.

 

(b) 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, the Client may be entitled to certain remedies (like a refund or replacement) if there is a failure with the goods or services provided.

 

12. LIABILITY

 

(a) (No reliance) You acknowledge and agree that in deciding to pay for the Services and in entering into this agreement, you have not relied on the skill or judgment of Seniors Fitness and you have satisfied yourself as to the condition and suitability of the Services or the clinic for your intended purpose.

 

(b) (Limitation of liability) To the maximum extent permitted under applicable Laws, and without limiting any of the Member’s rights under the Competition and Consumer Act 2010 (Cth) Seniors Fitness’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this agreement:

 

(i) is excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits or loss of goodwill; and

(ii) is limited, insofar as it concerns other liability, to the total money paid to Seniors Fitness under this agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).

 

(c) (Indemnity) The Client agrees at all times to indemnify and hold harmless Seniors Fitness and its officers, employees, agents and contractors (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’, agents’ or contractors’:

 

(i) breach of any term of this agreement; or

(ii) negligent, fraudulent or criminal act or omission.

 

(d) (Consequential loss) Seniors Fitness will not 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 this agreement or any goods or services provided by Seniors Fitness, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable Laws.

 

 

13. RISK

 

(a) Participating in the Services involves the potential for injury and you are participating in any Services at your own risk with knowledge of the dangers involved, including but not limited to, physical injury, muscle and ligament strains, illness, bruising, falls, injury through equipment failure, injury through impact during participation and death.

 

(b) You acknowledge that there will be times where you will not be supervised by any Seniors Fitness personnel and agree to accept any risks of loss, injury, damage or death arising out of your unsupervised use of the clinic or participation in the Services, unless there is reckless disregard or gross negligence on Seniors Fitness’ behalf.

(c) You acknowledge that while Seniors Fitness uses its best endeavours to ensure that the clinic and any facilities and/or equipment are free of faults and safety issues, there may be instances of equipment failure, and/or equipment and other objects may be left in incorrect positions by other clinic users. You agree that Seniors Fitness will not be liable for any loss or damage arising out of such circumstances unless there is reckless disregard or gross negligence on Seniors Fitness’ behalf.

 

(d) You will bear all risk of loss or destruction of, or damage to, any equipment and/or other property and/or people arising out or contributed to by your participation in the Services.

 

 

14. CANCELLATION

 

14.1 NOTICE PERIOD

 

(a) (In-person services) Subject to the cooling-off period for Memberships in clause 6.2(g), you must provide us with 30 days’ written notice if you wish to cancel your Membership or any other Services that are delivered to you in person.

 

(b) (Online services) The following process applies if you are participating in Services delivered online.

 

(i) If you are participating in an online Membership, you can cancel your Membership through the functionality available on the Website, at least 1 day prior to the next due payment.

(ii) If you are cancelling claimable booked Services, you will be liable to pay a $10 administration fee for the cancellation if you do not provide at least 24 hours’ notice.

 

14.2 CANCELLATION FOR CAUSE

 

(a) Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:

 

(i) is in breach of this agreement and either:

 

(A) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or

(B) that breach is not capable of remedy; or

 

(ii) ceases, suspends or threatens to cease or suspend to conduct its business; or

 

(iii) becomes subject to any form of insolvency or bankruptcy administration.

 

15. THIRD PARTY TERMS AND CONDITIONS

 

(a) The Client acknowledges and agrees that the terms & conditions of third party suppliers of goods or services (Third Party Terms) may apply to any part of the Services.

 

(b) Seniors Fitness will endeavour to notify the Client of Third Party Terms that apply to the Services, in which case:

 

(i) the Client must immediately notify Seniors Fitness if they do not agree to the Third Party Terms; and

 

(ii) if Seniors Fitness does not receive a notice in accordance with clause 15(b)(i), the Client will be taken to have accepted those Third Party Terms, and Seniors Fitness will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

 

(c) The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect Seniors Fitness’s ability to provide the Services.

 

 

16. DISPUTE RESOLUTION

 

(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.

 

(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.

 

(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.

 

(d) If the dispute is not resolved within a period of 14 days after the date of the notice, a party may by notice to the other party or parties to the dispute refer the dispute for mediation by the Australian Disputes Centre (the ADC) in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (Guidelines). The terms of the Guidelines are hereby deemed incorporated into this agreement.

(e) If the dispute is not resolved within 28 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.

 

 

17. FORCE MAJEURE

 

(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:

 

(i) reasonable details of the Force Majeure Event; and

 

(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.

 

(b) Subject to compliance with clause 17(a), the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.

 

(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.

 

(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:

 

(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

 

(ii) strikes or other industrial action outside of the control of the Affected Party;

 

(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

 

(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.

 

 

18. NOTICES

 

(a) A notice or other communication to a party under this agreement must be:

 

(i) in writing and in English; and

 

(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

 

(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

 

(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state or territory; o

(ii) when replied to by the other party, whichever is earlier.

 

 

19 GENERAL

 

19.1 GOVERNING LAW AND JURISDICTION

 

This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia 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.

 

19.2 BUSINESS DAYS

 

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

 

19.3 AMENDMENTS

 

This agreement may only be amended in accordance with a written agreement between the parties.

 

19.4 WAIVER

 

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.

 

19.5 SEVERANCE

 

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.

 

19.6 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.

 

19.7 ASSIGNMENT

 

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.

 

19.8 COUNTERPARTS

 

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

 

19.9 COSTS

 

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.

 

19.10 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.

 

19.11 INTERPRETATION

 

(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.

 

 

20 DEFINITIONS

 

In these terms and conditions, the following words and phrases have the following meaning:

Term

Meaning

Business Day

A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Sydney.

Confidential Information

Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.

Intellectual Property Rights

All copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, Seniors Fitness and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.

Laws

Any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Services are performed or received and includes any industry codes of conduct.