- GOODS AND SERVICES
- We agree to provide You with the Goods and/or Services subject to these T&Cs. These T&Cs apply to all Agreements, offers to sell and other commercial transactions for Our supply of the Goods and/or Services.
- The Agreement will be on these T&Cs and will be read in conjunction with these T&Cs.
- These T&Cs operate to the exclusion of any terms and conditions to the contrary in any of Our other communication or documents and will supersede all prior Agreements.
- From time to time, We may review and amend these T&Cs and You will be bound by any variation which will apply to the supply of any Goods and/or Services after the effective date of the variation.
- You must pay to Us the Price for the Goods and/or Services specified by Us, on the Website, or on the Third Party Platforms, plus all taxes, card fees, freight, handling, delivery and insurance charges by Us for the Goods and/or Services (“the Price”).
- You agree that We may revise and amend the cost of Goods and/or Services We offer from time to time, which We will make reasonable efforts to inform You of.
- We will be entitled to charge You interest calculated at 12% per annum, on the balance of all overdue accounts and invoices from the due date of payment until the date of actual payment.
- You must pay the Price to Us at the time of booking the Service or ordering the Goods, and using the method specified by Us which may include payment via a Third Party Platform. Time of payment is of the essence of the Agreement.
- Where You have provided details of a debit or credit card (“Card”) for payment to Us:
- You agree and authorise Us to charge or make deductions from the Card to satisfy the whole or any part of the Price at any time without notice to You;
- You warrant You will ensure that the Card has sufficient clear funds available to pay the whole or any part of the Price when due to Us;
- If the Card declines when we first attempt to charge it, You agree we may continue to attempt to charge the Card everyday after that for which you will be charged the relevant Card Fees;
- You must provide us with an alternative method of payment if we are unable to deduct the Price from the Card within 10 days of the Price becoming due and owing; and
- We may charge the Card Fees to You.
- COVID / REFUNDS
- In this clause 5 (including sub-clauses 5.2 to 5.4 inclusive), “Term Enrolment Service” means running coaching Services for a full school term.
- If the Agreement is for supply of a Term Enrolment Service and the Term Enrolment Service ceases to be offered solely due to:
- the relevant DOSE instructor having COVID-19 or being required to isolate due to COVID-19; or
- a COVID Effect,
We will refund part of the amount paid by You to Us pro-rata, that is, equal to the number of weeks the Term Enrolment Service was not provided by Us, less an administration fee of $15.
- Other than as provided in clauses 5.2 and 6.3, You are not entitled to any refund of any monies paid to Us, including but not limited to:
- if You or another third party are unable to attend or use a Good and/or Service due to a COVID Effect; or
- if, in Our sole discretion, You are prohibited by Law from attending or using a Good and/or Service.
- Without limiting clause 10, We may in Our own discretion reschedule the time of delivery of a Good and/or Service, including but not limited to a Term Enrolment Service or DOSE membership subscription class. If We reschedule a Service and You are unable to attend the rescheduled Service, You are not entitled to any credit or refund of monies paid to Us for the Service.
- In this clause 6, “Class” means a running coaching class or Pilates class Service.
- If You wish to cancel a Class or Your attendance at a Class, You must give notice of the cancellation to Us at least 12 hours before We are scheduled to commence the relevant Class.
- If You cancel a Class or Your attendance at a Class in accordance with clause 6.2, We will credit monies paid by You to Us for the cancelled Class only.
- If You cancel a Class or Your attendance at a Class not in strict compliance with clause 6.2, You will be liable to pay to Us the Price for the Class.
- If You have purchased a DOSE membership subscription, We may in Our sole discretion charge you the Price of a casual class (in addition to the Price of Your DOSE membership subscription) to satisfy clause 6.4 above.
- We may, in Our sole discretion, cancel the supply of a Good and/or Service without prior notice to You.
- We are not responsible for any inaccurate or incorrect information or description on the Website.
- All Intellectual Property relating to the Website and the trademarks, logos, and other content on the Website belong solely to Us or Our licensors, advertisers, associated or related entities. DOSE and its associated and related entities retain all rights, title and interest in and to the Website and all related content and Intellectual Property.
- We will not be responsible or liable for any alleged defect in the Goods and/or Services unless You give notice of the alleged defect to Us within 30 days of delivery.
- THE CLIENT’S WARRANTIES
- You warrant that You have not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by Us or anyone on Our behalf in respect of the Goods or Services, other than those that are expressly contained in the Agreement.
- You acknowledge and agree that no results of the Goods and/or Services are guaranteed, and that any recommendation, advice, opinion, or insight provided by Us does not constitute medical, or other professional advice.
- You accept sole responsibility for:
- any acts or omissions as a result of, in reliance upon, or in connection with the Goods and/or Services, including but not limited to any decision, recommendation, advice, or conclusion;
- any and all risks associated with the Goods and/or Services; and
- any international transaction fees charged by Your bank.
- If Our Good and/or Service is to be provided to person under 10 years old (“the Child”), the Child’s parent or adult legal guardian must supervise the Child at all times whilst the Child is using or participating in the Good and/or Service, unless otherwise advised in writing by Us.
- FORCE MAJEURE
- We will not be liable for any breach of the Agreement due to any matter or thing beyond Our control, including but not limited to inclement weather. We are also excused from performing any term, covenant or condition required by the Agreement during the time and to the extent that performance is prevented wholly or in part by circumstances beyond Our
- Any time or date named and accepted by Us, for supply, provision, delivery, or arrival of Goods and/or Services is an estimate only and does not constitute a condition of the Agreement or part of the description of the Goods and/or Services and is not of the essence of the Agreement.
- NO WARRANTY
- We make no express warranties to You, except those expressly set out in the Agreement and these T&Cs.
- The Parties acknowledge and agree that:
- any prior representations, agreements and arrangements, including representations as to the suitability of the Goods or Services;
- any descriptions, illustrations and material contained in any advertisement, website, catalogue, price list or brochure; and
- all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods or Services for any purpose or as to design, assembly, installation, material or workmanship or otherwise, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void;
are expressly excluded from, and do not form part of, the Agreement unless specifically stated in the Agreement to the contrary.
- We will not be liable in any circumstances for any loss or damage whatsoever allegedly incurred and arising out of any:
- Conditions, warranties and terms implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void;
- Alleged liability to You in contract for consequential or indirect damages arising out of or in connection with the provision of the Goods and/or Services or the Agreement, even if We knew they were possible or they were otherwise unforeseeable, including, without limitation, lost profits and damages suffered as a result of claims by a third party;
- Claims by You in negligence for acts or omissions of DOSE or Our employees, agents, or contractors arising out of or in connection with the Agreement.
- If clauses 5.3, 8, 11.3 and/or 12.1 are held by a court to be unlawful, invalid or unenforceable for any reason, including pursuant to the Competition and Consumer Act 2010 (Cth), You agree that Our total liability to You for any loss or damage suffered by You in relation to the Agreement will not exceed the amount that is the lower of:
- The amount covered by Our insurer specifically for that loss or damage; and
- The actual amount received by Us from Our insurer specifically for that loss or damage.
- NO LIABILITY FOR THIRD PARTIES
- You acknowledge and agree that We are not liable for any loss, damage, or defects attributable to or resulting from:
- the provision of services by a third party, including a third party engaged by Us; and
- the manufacture of any goods that are manufactured by third parties.
- LIABILITY AND INDEMNITY
- We will not be liable to You or any other party in contract, tort, warranty, strict liability, or any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages, or for any claim for loss of profits, and You agree that We may plead these T&Cs as a bar to any such claims whether they arise at law, in equity, under any statute, regulation, or other legislative instrument, or under any contract, deed, or any other instrument made or approved under any law.
- You release and indemnify and agree to keep Us indemnified from any and all costs (including all legal fees and costs) and any other legal or other expenses incurred by it in investigating or defending any action or threatened actions (on an indemnity basis), damages, liabilities, penalties, fines, expenses or losses including indirect, incidental, consequential, punitive or exemplary loss or damage (including but not limited to loss of profit), whether resulting from breach of contract, tort, warranty, strict liability, statute or any other legal theory or otherwise that We may incur in relation to You or any third party, including where the cost, damage, liability, penalty, fine, expense or loss is caused by or contributed to by Us in any way or for any reason whatsoever.
- You will pay on an indemnity basis all expenses, costs and disbursements, including debt collection agency fees, commission and any fees paid to Our solicitors (on an indemnity basis) incurred by Us or Our appointed agents in recovering payment of any outstanding monies, enforcing Our rights under the Agreement, or in investigating or defending any action or threatened actions.
- DOSE Movement Pty Ltd enters into the Agreement as trustee for the Scarlett Duncan Trust (“the Trust”) and in no other capacity. DOSE will not be liable, and You may not enforce any rights against DOSE, under the Agreement except to the extent DOSE is entitled to be indemnified out of the assets of the Trust.
- If You do not recover all money owing to You by DOSE by enforcing the rights referred to in clause 13.4, You may not seek to recover the shortfall by bringing proceedings against DOSE Movement Pty Ltd in its personal capacity.
- If You default in observing all or any of Your obligations, warrantees or covenants under the Agreement or these T&Cs, die, commit an act of bankruptcy, take or have taken against You any action for Your winding up, are placed under official management, administration or receivership, then We may without prejudice to any other right or remedies We have:
- treat as discharged all or any obligation arising from any Agreement;
- retain any security given or monies paid by You and apply this in reduction of any money owed or owing by You to Us; and
- take steps We may deem necessary in Our sole discretion to mitigate Our damages suffered including the putting to use, sale or disposal of Goods and/or Services.
- In addition to any other rights under the Agreement, We may terminate the Agreement immediately upon any one of the following events:
- Substantial interference with providing the Goods or Services by any cause wholly or partly beyond Our control;
- Any substantial breach of the Agreement or these T&Cs by You;
- If You make an assignment for the benefit of or enter into any arrangement or composition with Your creditors or go into liquidation (whether voluntary or compulsory except for the purpose of reconstruction or amalgamation) or have a receiver appointed or commit an act of bankruptcy or if a sequestration order is made against the Your estate;
- Any failure by You to pay any part of the Price in accordance with clauses 3 and 4.
- If the Agreement is terminated for any reason:
- You must pay Us for all Goods and/or Services provided by Us, all work done by Us, and all goods or materials used or procured by Us to the date of termination; and
- We may retain any security given or monies paid by You and apply this in reduction of any money owed or owing by You under this clause 14.
- CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
- You must keep the Confidential Information confidential and maintain proper and secure custody of Confidential Information.
- You must not, without Our prior written consent:
- disclose the Confidential Information to a third party; or
- use or reproduce any Confidential Information in any form,
unless as required by Law.
- You acknowledge and agree that all rights in and relating to the Intellectual Property are and remain the property, or under the control of, Us.
- You do not acquire any right, title, or interest in any Intellectual Property under the Agreement.
- A party may give a notice required under these T&Cs or the Agreement by hand, post, or by email, to the address or email address of the party set out in the Agreement.
- A party may give notice of a new address or email address for service to the other party, and that new address or email address will be the address for service of the party for the purposes of this clause 16.
- We may assign, sub-contract or sub-let the whole or any part of the Goods and/or Services or Our obligations under an Agreement, without seeking Your consent.
- You may not assign, sub-contract or sub-let any part of the Goods and/or Services, or any of Your rights, liabilities, or obligations under any Agreement, without Our prior written consent.
- The covenants, agreements and obligations contained in any Agreement and these T&Cs will not merge or terminate upon the repudiation or termination of the Agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect.
- Any waiver by Us must be in writing signed by Us. Failure by Us to enforce any right or remedy is not a waiver of any right or remedy, or a waiver in respect of a continuing breach.
- If any provision contained in these T&Cs is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions in these T&Cs are not affected.
- These T&Cs and the Agreement are governed and are to be construed in accordance with the laws in force in the State of Western Australia. These T&Cs and the Agreement are subject to the exclusive jurisdiction of the Courts of Western Australia.
- DEFINITIONS AND INTERPRETATION
- In this document, unless the context otherwise requires:
“Agreement” means any contract or agreement, whether formal or informal, written, oral or partly written and partly oral, formed between You and Us, including through a Third Party Platform.
“Card Fees” means any and all fees imposed by EZI Debit, PayPal or another payment platform in relation to Us charging the Card as described in clause 4.2, including but not limited to the EZI Debit fee of $14.80 for each attempt to charge the Card as described in clause 4.2.3.
18.1 In this document, unless the context otherwise requires:
“Confidential Information” means information belonging to Us which is not available to the public which We have indicated is confidential, or would be of commercial value to a competitor of DOSE, or is found in Our plans, policies, or guides.
“COVID-19” means the COVID-19 coronavirus disease.
“COVID Effects” means an impact on Our ability to provide Goods or Services arising from COVID-19 or any Law.
“DOSE”, “Our”, “Us”, and “We” means DOSE Movement Pty Ltd (ACN 646 752 374) as trustee for Scarlett Duncan Trust trading as DOSE Running.
“DOSE Trade Marks” means trade marks, logos, business names and trade names owned, or controlled under licence, by Us.
“Goods” means the provision of goods by Us to You under an Agreement, including but not limited to:
- Pilates balls;
- resistant loop bands;
- resistant bands;
- sliding disks;
“Goods and/or Services” means Our provision of Goods, Services, or Goods and Services.
“Intellectual Property” means all intellectual and industrial property including but not limited to patents, copyright, designs, trade marks (including the DOSE Trade Marks), logos, know-how and confidential information used or developed by Us, which includes but is not limited to the Confidential Information and video content in the DOSE movement subscription.
“Law” means an Act of Parliament, Statute, regulation, proclamation, ordinance or by-law including all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing one or more of them.
“Notice” means a notice in accordance with clause 16.
“Party” means each party to an Agreement, including DOSE and You, and “Parties” has a corresponding meaning.
“Price” has the meaning stated in clause 3.
“Service” means the provision of online and/or in person services by Us under an Agreement, including but not limited to:
- running coaching and running programs, including but not limited to group recreational sessions, group adventure running, private sessions and personal programs;
- Pilates instruction services, including group and private sessions.
“T&Cs” means the terms and conditions set out herein subject to any amendments expressly made by Us under clause 2.3.
“Third Party Platforms” means any third party platform used by Us for or in connection with the provision of Goods and/or Services or the Agreement, including but not limited to: Mailchimp, Mindbody, Ezidebit, Facebook, Instagram, Vimeo, Shopify, Insurge.
“the Website” means the following website:
“You” and “Your” means the individual, association, partnership or company entering into an Agreement with Us and includes Your successors and assigns.
- In this document, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
- a reference to any gender includes all genders;
- a reference to a recital, clause or schedule is to a recital, clause or schedule of or to these T&Cs;
- a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, restated or replaced from time to time;
- a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
- a reference to a body, other than a Party to the Agreement (including, without limitation, an institute, association or authority), whether statutory or not:
- which ceases to exist; or
- whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially succeeds to its powers or functions.
- If a party comprises two or more persons, the covenants and Agreements on their part bind and will be observed and performed by them jointly and each of them severally and may be enforced against any one or any two or more of them;
- A reference to a party includes its executors, administrators, successors and permitted assigns;
- Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- All references to A$, $, dollar, $, or to currency are references to Australian dollars;
- “Including” and similar expressions are not and must not be treated as words of limitation.
- No provision of these T&Cs will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of these T&Cs or that provision.
- Headings are for ease of reference only and do not affect the meaning of these T&Cs.
- RECEIPT AND ADVICE
- You hereby acknowledge receipt of these T&Cs and agree to be bound by them. You accept these T&Cs in acknowledgement that they are legally binding and presently enforceable. You further acknowledge that You have had the opportunity of obtaining independent legal advice and that You understand the T&Cs outlined above.