Website & Services Terms

Website Services & Terms

Effective from 01/01/2019

These terms and conditions (Terms) govern your use of the www.tombaileypt.com website (Website). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE www.tombaileypt.com WEBSITE.

By using or accessing the Website, you agree to be bound by these Terms, which constitute a contract between you and THOMAS MICHAEL BAILEY ABN 94 372 254 226 (“we”, “us” or “our”). If you do not agree to all of the provisions contained in these Terms, do not use the Website.

We reserve the right to revise and update these Terms at any time. You should periodically review these Terms. Your continued use of the Website constitutes your acceptance of, and agreement to, any revised Terms.

Please also see our Privacy Policy, which is available below.

1. GENERAL

Definitions: In these Terms,

Access Mechanism has the meaning given in clause 2.2(b).

Claim means in respect of any person, any claim, action or proceeding, judgment, damage, loss, cost, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, injunction, specific performance, expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

Content includes information, software, photographic material, video, text, graphics, music, sounds, comments, messages, feedback, and all other content of any kind.

Prohibited Act has the meaning given in clause 2.3.

Protected Content has the meaning given in clause 3.1.

Subscription Area has the meaning given in clause 2.7.

User Account has the meaning given in clause 2.1.

User Account Only Areas has the meaning given in clause 2.1.

User Account Details has the meaning given in clause 2.2(a).

Third Party Content has the meaning given in clause 4.1(f).

Website means www.tombaileypt.com and all sites or pages hosted at or through www.tombaileypt.com.

a. Interpretation: Unless otherwise stated in these Terms:- (a) words importing the singular include the plural and vice versa; and any gender includes the other gender; (b) if a word or phrase is defined, cognate words and phrases have corresponding definitions; (c) a reference to a person or a party includes that person’s or party’s legal personal representative, executors, administrators, successors and permitted assigns; (d) a right includes a benefit, remedy, discretion, authority or power; (e) an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation; (f) where there are two or more persons bound or to be bound by any agreement or obligation, such agreement or obligation binds each of those persons severally and any two or more of them jointly; (g) a reference to a document or agreement, including these Terms, includes a reference to that document or agreement as novated, altered or replaced from time to time; (h) a reference to any thing includes the whole or part of that thing and a reference to a group of things or persons includes each thing or person in that group; and (i) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms.

2. USER ACCOUNT, ACCESS TO, AND USE OF WEBSITE AND SERVICES

1. In order to access certain areas of the Website, you must create a user account (User Account). Such areas are referred to in these Terms as “User Account Only Areas”. You must not access any User Account Only Area without a valid User Account.

2. In creating a User Account you warrant and agree that:

a. any information you provide as part of your user account, including (without limitation) your name, address and other identifying information is accurate, current and complete (User Account Details);

b. you will keep confidential and not provide to any person all login details, including (without limitation) any username, password, and/or password hint(s) chosen by you or assigned to you by us (Login Details), and any other mechanism for accessing or logging on to the Website, User Account or User Account Only Area (Access Mechanism);

i. you will not allow any other person to use your Login Details to access the Website or your User Account;

ii. we may rely on your User Account Details being accurate, complete and current unless and until you notify us that your User Account Details are no longer accurate, complete or current (as the case may be);

iii. you are solely responsible for all the activities that occur under your User Account, whether or not engaged in by you;

iv. you will comply with all conditions, usage restrictions or other requirements in respect of the Login Details (including any directions to use or stop using, temporarily or indefinitely, the Login Details) as notified or disclosed to you by us from time to time;

v. you will immediately cease using any Login Details or Access Mechanism if we or any of our Affiliates or authorised representatives notify you or, if you become aware, that your permission to use those Login Details or Access Mechanism has been withdrawn or expires;

vi. you will immediately notify us if you become aware or suspect that the security of the Login Details or Access Mechanism has been compromised for any reason, or if you suspect someone else has used or is using your Login Details; and

vii. you must keep your User Account Details up to date during so long as your User Account remains active; and

viii. you have no proprietary interest of any kind in your User Account, Login Details or any Access Mechanism;

3. Prohibited Acts: You must not use the Website, and must not allow your User Account to be used to, do any of the following (each a Prohibited Act):

a. post offensive, defamatory, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading, content of any kind;

b. access another person’s User Account or Login Details;

a. knowingly transmit or use any virus, worm, trojan, or other malicious or unauthorised code or disabling feature to or via the Website;

b. interfere with or disrupt the proper and intended operation of the Website, or use any means of automatically searching or mining data from the Website; or

c. attempt to do, or facilitate or encourage or assist another person to do, any Prohibited Act.

4. Suspension or termination of your User Account: We may disable, suspend or terminate your (or any other) User Account, Login Details and/or any Access Mechanism at any time without notice if:

You notify us that you wish to terminate or suspend your User Account;

. your User Account becomes inactive (including, without limitation, if you have not logged in to your User Account for more than 30 consecutive days);

a. we suspect (in our sole discretion) that your User Account Details or Login Details are out of date or inaccurate or that your Account, Login Details or the Access Mechanism have been compromised in any way;

b. we believe (in our sole discretion) that you have engaged in, are engaging in, or are likely or intend to engage in a Prohibited Act, or your User Account has been, is being, or is likely to be, used to engage in a Prohibited Act;

c. we consider (in our sole discretion) it is necessary in order to comply with any law or to protect the safety of any person.

5. Removal and moderation of content: We may remove from the Website at any time, without notice, content of any kind for any reason in our sole and absolute discretion.

6. Your User Account Information and other material: Except as required under privacy law and our Privacy Policy, you agree that we have no obligation to store, retain or destroy your User Account or User Account Information uploaded by you to, or through the Website, whether your User Account is active or has been suspended, terminated or otherwise.

7. Subscription Areas: Certain areas of the Website may only be accessed with a valid subscription with us that authorises access to that area (Subscription Area). You must not access any Subscription Area without a valid applicable subscription. You may also be required to have a valid User Account.

3. CONTENT AND INTELLECTUAL PROPERTY

1. Limited licence to use content: Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access the Website and the content available for your personal, non-commercial use, provided that you comply fully with these Terms (Protected Content). You acknowledge that nothing in these Terms or your use of the Website grants to you any proprietary interest or right to sublicense any of Protected Content or any content you obtain from the Website or your use of them, including (without limitation) when it is downloaded to your computer or other device.

2. You acknowledge that the Website contains content that is or may be protected by copyright, patents, trademarks or other intellectual property rights. You must not modify, publish, transmit, distribute, perform, purport to sell, create derivative works of, or in any way exploit, any Protected Content, whether in whole or in part, without our prior written consent.

3. Copyright Complaints: If you believe that your work has been copied, reproduced or used in a way that constitutes copyright infringement or are aware of another person doing so, please contact info@tombaileypt.com.

4. DISCLAIMERS, LIMITATION OF WARRANTY AND LIMITATION OF LIABILITY

1. DISCLAIMERS

a. The opinions, information and other content contained on the Website and the Services are for informational and entertainment purposes only, are not intended as medical or nutritional advice and are not a substitute for professional advice, diagnosis or treatment of any disease or condition. You should consult your physician or other health care professional before starting any nutrition and/or fitness program to determine if it is appropriate for you.

b. We make no representation that any information on the website is in every respect accurate, current, or complete. To the fullest extent permitted by law, we assume no responsibility for any error or omission in any Content published on or available through the Website, or that it is suitable for your personal circumstances. You are encouraged to confirm any such information with other sources and make your own assessment of its reliability and suitability for your individual circumstances. Any reliance you place on such information is therefore strictly at your own risk.

c. No duty to warn or advise: The Content in the Website is not a substitute for direct, personal, professional medical care and diagnosis. We are not medical professionals and anything in this website should be cleared with your physician prior to use. There are risks associated with any health, exercise and nutritional activity. You agree and acknowledge that the warnings set out on the Website, in the Services and these Terms are not advice or a comprehensive statement of risk and are not intended to be relied upon as such. To the extent permitted by law, you agree that nothing in any warning or other information set out or communicated in or through the Website or these terms shall give rise to any duty to warn of any risk or any other matter, duty to advise or other duty of care.

d. In no event will we be liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this website.

e. External and Third Party Links and Sites: The Website may contain links to external websites, and you may be offered a number of automatic links to other websites that may interest you (External and Third Party Links and Sites). We accept no responsibility for, or liability in respect of, and make no warranty whatsoever as to, the content, security, privacy practices, accessibility, or terms and conditions of External and Third Party Links and Sites. You agree and acknowledge that if you access, use, or rely upon any External and Third Party Links and Sites you do so entirely at your own risk.

f. Third Party Content: Other users of the Website, third party advertisers and other third parties may from time to time post or publish information or content (including advertising material) on the Website (Third Party Content). We make no representation whatsoever as to the accuracy, quality or otherwise in respect of any Third Party Content. You agree and acknowledge that any use of or reliance upon any Third Party Content is entirely at your own risk.

g. Social media and member forum: Other users of the Website or other third parties may from time to time establish social media groups, pages, forums or websites. These groups, pages, forums or websites are not in any way affiliated with the Website. We do not endorse, curate or authorise any of those groups, pages, forms or websites, or any content contained or posted on them. We make no representation and give no warranty (whether as to accuracy, quality, completeness or otherwise), and accept no responsibility or liability for, the conduct or content of any such groups, pages, forums, posts websites or content.

h. Testimonials, case studies, and examples found at TomBaileyPT.com are unverified results that have been forwarded to us by users of TomBaileyPT.com, and may not reflect the typical purchaser’s experience, may not apply to the average person and are not intended to represent or guarantee that anyone will achieve the same or similar results. If we have disclosed typical results based on information provided to us by a manufacturer or other reputable third party source, you should presume that the typical results as stated are more reliable than the testimonials and other examples found at TomBaileyPT.com. However, you should always perform due diligence and not take such results at face value. We are not responsible for any errors or omissions in typical results information supplied to us by manufacturers or other reputable third parties. If a product or service is new, you understand that it may not have been available for purchase long enough to provide an accurate results history.

2. Limitation of warranty: To the fullest extent permitted by law, and except as otherwise expressly specified, we do not give any warranty of any kind, whether express or implied, about the Website, or any content, material or representations posted on, through or with respect to the Website, or about any External and Third Party Links and Sites or Third Party Content.

3. Release: To the fullest extent permitted by law, you release and forever waive any and all Claims you may have against us, for any loss, damage, expense or injury (including any Claim) you sustain arising out of or in connection with your access to (or inability to access) or use of the Website or any External and Third Party Links and Sites or any Third Party Content.

4. Limitation of liability: To the fullest extent permitted by law you agree that:

a. We will not be liable to you or any person for any Claim resulting from or arising out of:

i. your use or inability to use the Website, including (without limitation) their unavailability at any time or for any period, whether or not by reason of matters within our control or within the control of any vendor providing software or services support to us;

ii. unauthorised access or alterations of your transmissions to or from the Website by a third party;

iii. any viruses that may infect your computer equipment or other property whether by reason of your access to or use of the Website or Services, or otherwise;

iv. activities resulting from the loss or misuse of your User Account Details, Login Details or other Access Mechanism;

v. statements or conduct of any third party;

vi. any indirect or consequential loss, or any economic loss; or

vii. any other matter relating to the Website, except to the extent resulting from our gross negligence or wilful default;

Each of the limitations in clauses 4.4(a)i-vii is a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

b. to the extent our liability is not otherwise excluded, or is unable to be excluded, that liability, howsoever arising (including any breach of these Terms or other agreement with you) and of whatever kind (whether based on breach of contract, tort, strict or product liability, breach of warranty or otherwise), shall be limited to direct damages up to the amount (if any) you have paid us for the use of the Website in the immediately preceding six (6) months, or $2,000 (whichever greater);

5. The limitations on and exclusion of liability for damages in these Terms shall apply regardless of whether the liability is based on breach of contract, tort, strict or product liability or breach of warranty.

6. You acknowledge that your use of the Website is entirely at your own risk, and you are responsible for taking all precautions you deem necessary or advisable to protect you against any Claim, risk, hazard, loss or damage that may arise from your use of the Website.

5. PAYMENT, PRICING AND CANCELLATION

1. No refund or exchange except as required by law: Subject to any statutory or other rights which cannot by law be excluded or limited, all fees and charges, including purchases for digital downloads and subscriptions from the Website, are non-refundable and non-exchangeable.

2. Pricing: By purchasing a Subscription, you agree to pay the price for that Subscription specified by us at the time of ordering (Price).

3. Changes in pricing: We may increase or vary the fees and charges for Subscriptions, or institute new fees or charges, at any time in our sole and absolute discretion by publishing them on the Website or by such other means we consider appropriate. Any increase in charges or fees, or new charges or fees, will take effect from the date of your next renewal or purchase of the Subscription to which those charges or fees apply, provided that in the case of automatic renewal, we have given you 7 days’ written notice of the change.

4. Currency and GST: Prices are in Australian dollars (AUD) and include GST.

5. Payment:

a. All payments to us are processed by a third party payment processing provider (Third Party Payment Service). By purchasing a Subscription, you agree to be bound by any terms and conditions of that Third Party Payment Service in addition to these Terms. The Third Party Payment Service or your bank or other financial institution may require you to pay processing fees or other fees and charges. Any such fees and charges are your sole responsibility and are not included in the price of your Subscription unless otherwise specified. We accept no responsibility for your use of any Third Party Payment Service.

b. You will be charged on a recurring basis at the commencement of each monthly (or other specified) period.

6. Keeping your information up to date: You agree to keep your account and other information including your email address and payment details up to date so that we can process payment, complete your purchase(s), and contact you as needed in connection with your purchases or account.

7. Incidental charges and expenses: In addition to any fees or charges payable to us, you agree that you remain responsible for all charges, fees or expenses associated with signing up for, using and connecting to the Subscriptions, including (without limitation) travel costs, telephone or internet access and charges, computer or other equipment.

8. Termination for incorrect or invalid payment details: If your payment is declined or fails for any reason, we may cancel your Subscription immediately without prior notice to you.

9. Cancellation can be done anytime by opening the ‘Your Account’ tab, opening ‘View or Cancel plans’ under Billing and then selecting Cancel Subscription. Please note that you must cancel no later than 48 hours before your next payment is due or you will be charged for the following month.

6. INDEMNITY

1. To the fullest extent permitted by law, you agree to indemnify, defend and forever hold us harmless from and against all Claims, including reasonable legal costs, resulting from any breach of these Terms by or any activity related to your User Account or use of the Website (including, without limitation, infringement of any third party’s copyright, trade mark, patent or other intellectual property rights anywhere in the world or any negligent or wrongful conduct) by you and any liability for any Claim, whether direct, indirect, incidental, special and/or consequential, including loss of profits or income, suffered by us or you, or claims made against us which result from your breach of these Terms, or your use of the Website.

2. Each of the indemnities in clause 6.1 is a separate obligation by you to us. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

7. AMENDMENT, VARIATION OR ADDITION TO THESE TERMS

We may amend, vary, revise, or modify (including by deleting or adding terms) these Terms at any time and without prior notice. By continuing to use the Website you agree to be bound by the amended Terms.

8. PRIVACY

a. When you provide us with personal information to complete a transaction, verify your credit card or subscribe to membership, you are consenting to our collection and use of information provided for the specific purpose for which it is provided. Your personal information will be handled in accordance with our Privacy Policy. You may withdraw your consent at any time by contacting info@tombaileypt.com.

b. We may disclose your personal information if required to do so by law or if you violate our Terms and Conditions of Use.

c. We use and store cookies in accordance with our Privacy Policy.

9. COPYRIGHT NOTICE AND GUIDELINES

Any redistribution or reproduction of part or all of the contents in any form is prohibited other than the following:

a. you may use Content from the Website for social media posts, but only in the form of screenshots or video content not exceeding 60 seconds

b. you may print or download to a local hard disk extracts for your personal and non-commercial use only

c. you may copy the content to individual third parties for their personal use, but only if you acknowledge the website as the source of the material

You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or other form of electronic retrieval system.

THOMAS MICHAEL BAILEY ABN 94 372 254 226 (“we”, “us” or “our”) is committed to protecting and respecting your privacy.

This privacy policy (Policy) is compliant with the requirements of the Privacy Act 1988 (Cth) (as amended and supplemented from time to time) (the Act) and the Australian Privacy Principles (APPs) and is available free of charge for you to access on our website at www.tombaileypt.com/privacy/.

Please be aware that except to the extent required by law, or when it is deemed impracticable to do so, you have the option of remaining anonymous, or using a pseudonym, when dealing with us in relation to a particular matter.

1. SCOPE OF POLICY

This Policy applies to all information or opinion about an identified individual or an individual who is reasonably identifiable (you), whether the information or opinion is true or not, and whether the information is recorded in a material form or not (Personal Information) that is collected, stored, used and disclosed by us.

In this policy, we explain the kinds of Personal Information we collect, how and why we collect and use it, and what controls you have over our use of it.

Please read the following carefully to understand our practices regarding the collection and use of your Personal Information.

2. PERSONAL INFORMATION THAT WE COLLECT AND HOLD

The Personal Information collected, held, used and disclosed by us includes, but is not limited to, the following information about you:

a. name and/or username;

b. date of birth (see section 3 below);

c. gender;

d. country of residence;

e. email address;

f. medical/health information (see section 3 below);

g. a record of pages you visit on our website;

h. information about any complaints you may lodge; and

i. information about or related to your customised training program, support provided to you by our coaches or any other service we provide you.

Some of the above information may also be classified as “health information” under the Act. Please see section 3 below for details about how we might collect, hold, use or disclose health information about you.

3. HEALTH INFORMATION AND SENSITIVE PERSONAL INFORMATION

Given the nature of our business as provider of online fitness resources, we may also collect some sensitive information about you, for example, information about your health, which is afforded a higher level of privacy protection.

The Act includes the following information as “health information”:

a. information or an opinion about the health (including illness, disability or injury) of an individual);

b. the individual’s expressed wishes about the future provisions of health services provided to him or her; or

c. personal information which is collect as part of providing a “health service”, collectively, ‘Health Information’.

Under the Act, a “health service” includes (among other things) any activity intended or claimed to assess, maintain or improve an individual’s health, or to record the individual’s health for the improving or managing the individual’s health.

Health Information which we might collect about you includes, but is not limited to:

a. any medical issues (as may be relevant to your use of services we provide to you);

b. your health situation (for example, whether you are injured, pregnant or disabled, to the extent relevant to your use of the services we provide to you);

c. your current height, weight and BMI;

d. what facilities or equipment you use to train;

e. training frequency;

f. training experience;

g. progress management – a weekly photo of you, and record of height, weight, and similar information, as you work towards your goals through our program;

h. progress management – a record of your progress in weekly exercises;

i. your daily calorie requirements calculated using the Content on our website;

j. your specific nutritional requirements;

k. a description of your fitness and nutrition goals; and

l. any other information required for the provision of our programs to you.

We will not collect, use or disclose any of your Health Information except to the extent necessary to provide a health service to you through our programs, and will ensure that any Health Information is collected, used and disclosed only in accordance with rules established by other competent health or medical bodies (where applicable) that deal with obligations of professional confidentiality.

4. HOW WE COLLECT AND HOLD PERSONAL INFORMATION

We will only collect Personal Information from you directly, unless it is unreasonable and impractical to do so.

We may collect Personal Information from you directly in the following ways:

a. if you subscribe to a membership with us or create an account on our website;

b. if you participate in promotional offers;

c. if you choose to subscribe to our mailing list; or

d. if you disclose information such as contact details via our website.

In a situation where it is unreasonable or impractical to obtain Personal Information from you directly, you may be asked to consent to our collection of your Personal Information from a third-party.

We will always notify you after any of your Personal Information has been collected by us from a third party.

We take reasonable steps to:

a. protect your Personal Information from misuse, interference and loss and from unauthorised access, modification or disclosure;

b. ensure that our system is appropriately backed-up to prevent the loss of your Personal Information; and

c. destroy or de-identify Personal Information when it is no longer required.

Some security measures that we have in place to protect your Personal Information include the following:

a. access to the database where your personal information is stored is restricted to particular authorised staff members;

b. the password for database access is changed frequently;

c. we use well-known and widely used development technology to run and maintain our website; and

d. our hosting providers manage the server and database protection in accordance with standard web practices.

In the case that any of the Personal Information held by us is lost, or subjected to unauthorised access, modification, disclosure or other misuse or interference, we will notify you immediately and advise you of the steps you should take in response to the breach. Additionally, if we receive any unsolicited Personal Information (i.e. we inadvertently obtain information about you that we did not request) we will determine whether we would have been able to obtain the information by the methods described in this section 4. If not, we will, as soon as practicable, destroy the information and ensure that the information is de-identified.

5. THE PURPOSE FOR WHICH WE COLLECT, HOLD, USE AND DISCLOSE PERSONAL INFORMATION

Personal Information which is collected by us will be held, used and disclosed by us for the primary purpose of providing training and fitness regimes to our customers including:

a. sending you an email to notify you of any account changes or updates to our services;

b. supporting and enhancing our relationship with you (this includes processing your membership subscription, providing you with better support and service and sharing company news and information with you) and;

c. to deal with complaints.

We may also disclose Personal Information to the extent required or authorised by applicable law, but otherwise will never do so without your consent or otherwise as expressly provided for in this Privacy Policy.

We do not sell any of your Personal Information to third parties.

6. DISTRIBUTION OF PERSONAL INFORMATION

We will not distribute the Personal Information you provide to another foreign entity unless we are required to do so by law or you provide your express consent to such a disclosure. Before disclosing any of your Personal Information to a foreign entity, we would also take reasonable steps to ensure that the entity to whom we disclose the information does not breach any of the Australian Privacy Principles.

7. CONSEQUENCES IF ALL OR SOME PERSONAL INFORMATION IS NOT COLLECTED

You do not have to provide us with any Personal Information. However, if you choose to withhold any requested information, you may not be able to utilise our full offering or access special promotions that is dependent upon the collection of such information.

8. HOW LONG WE RETAIN YOUR PERSONAL INFORMATION

We will only retain your Personal Information for as long as necessary to provide our services (as described in section 5 above) to you.

9. ACCESS AND CORRECTION OF PERSONAL INFORMATION

You have a right to request access to your Personal Information and to request its correction, by emailing us at info@tombaileypt.com or by otherwise sending your request to the address specified in section 10 below. Upon receipt of a written request from you, we will give you access to the Personal Information we hold about you within 30 days of receiving your request unless an exception to access applies under the Privacy Act.

Upon receipt of a written request from you we will comply with our obligations under the Privacy Act to correct, amend, delete or cease to deal with any Personal Information we hold about you if it proves to be factually inaccurate, incomplete, or irrelevant to the purpose(s) for which it is being held within 30 days.

10. COMPLAINTS PROCESS

If you have a complaint about the way we have dealt with your Personal Information please make a complaint in writing to our Customer Support Manager, whose details are included in section 11 below. We will respond to all complaints within 30 days.

Please note that you may lodge your complaint anonymously. However, this may limit our ability to deal with your complaint and implement a satisfactory remedy.

If you do not receive a response from us within the specified period, or are dissatisfied with our response, you may then lodge your complaint with the Office of the Australian Information Commissioner (OAIC). To lodge a complaint with the OAIC you can either submit a Privacy Complaint Form online or submit the form to the OAIC by mail, fax or email. The Privacy Complaint Form and further details on how to lodge a complaint with the OAIC can be accessed via the OAIC website at: https://www.oaic.gov.au/individuals/how-do-i-make-a-privacy-complaint.

11. CUSTOMER SUPPORT MANAGER CONTACT DETAILS

By Email:

info@tombaileypt.com

12. UPDATES TO OUR PRIVACY POLICY

This privacy policy is subject to change without prior or separate notification. Any changes will be posted on our website.

This privacy policy was last updated on 01 May 2019