Terms and Conditions
GENERAL TERMS AND CONDITIONS OF USE
The following general terms and conditions (“Terms”) form a legally binding agreement between You and Us in relation to Your access to, and use of, the PUSHH Platform. In accessing or using the PUSHH Platform, You acknowledge that You have read, understood and agree to be bound by these Terms. If You do not accept these Terms, You must refrain from accessing or using the PUSHH Platform. By clicking “I Agree” or by otherwise using the PUSHH Platform (which includes this version and any other update, feature or future version of PUSHH Platform that We may provide), You agree to the following Terms, so You should read these Terms carefully.
Capitalised terms used in these Terms but not otherwise defined are defined in the Dictionary set out at the end of these Terms.
PUSHH hosts, maintains and, subject to these Terms, make available to You (and other Users) and Content Creators, its online platform for the publication and consumption of Content. This platform, comprising together the Website and the Application, is referred to in these Terms as the “PUSHH Platform”. The nature of the PUSHH Platform is that it is an online digital platform provided by Us so that You and other Users can access Content created by Content Creators, and so that those Content Creators can make content available to be seen and used by You and other Users. Our role is to host, maintain and manage the PUSHH Platform, but we are not the creators of any of the Content on the PUSHH Platform.
By using the PUSHH Platform You represent and warrant that You are at least 18 years old or, if You are less than 18 years old, that You have the permission of a parent or guardian to agree to these Terms and use the PUSHH Platform. Parents and guardians of Users under the age of 18 must read and agree to be bound by these Terms and agree to be responsible for the use of the PUSHH Platform by the children and/or wards.
If You are accepting these Terms on behalf of a company, organisation, association or agency as its authorised legal representative, then You represent and warrant that You have the power and authority to bind such company, organisation, association or agency to these Terms.
In order to use the PUSSH Platform (other than in relation to viewing areas of our Website that are publicly available), You are required to register with Us and to open an Account with Us. To do so, You must complete the registration process in the manner described Our Application. By registering and creating an Account with Us, You agree that all information You provide to Us is accurate and up to date and does not infringe any person’s rights. You also agree to update Your details if any of them change.
Your Account is personal to You and non-transferable. You are responsible for all of the activities that occur under Your account. You should carefully choose Your password and username and protect them from unauthorised use. Please let Us know immediately of any unauthorised use of Your account or any other breach of security. We are not liable for any loss if someone else uses Your password or account. Except to the extent expressly permitted by these Terms, you must not transfer your Account details or provide access to the PUSHH Platform or your Account to any third party or otherwise use, or make available for use, the PUSHH Platform for the benefit of any third party.
Access to the PUSHH Platform is permitted on a temporary basis, and We reserve the right to suspend, withdraw, discontinue or amend all or any part of the PUSHH Platform without notice. We will not be liable if, for any reason, the PUSHH Platform is unavailable at any time or for any period. You are responsible for making all arrangements necessary for You to have access to the PUSHH Platform. You are also responsible for ensuring that all persons who access or view the PUSHH Platform through Your internet connection are aware of these Terms, and that they comply with them.
We do not claim ownership of the information or data that You provide to Us in using the PUSHH Platform. You (or Your licensors, as applicable) will continue to own any and all Intellectual Property in such information. However, You agree to grant Us a perpetual, non-exclusive, assignable, worldwide and royalty free licence (with a right to sub-licence) to use, store, reproduce, adapt, communicate, publish, display and/or distribute such information, and to exploit it in connection with our business and/or for other commercial purposes. This right continues even if You no longer use the PUSHH Platform.
Access to, and use of, the PUSHH Platform or any part or feature of the Services, may be subject to payment of certain Fees by You, as set out by Us on the Website, the Application and/or in these Terms. You acknowledge that the continued availability of any part or feature of the PUSHH Platform or the Services may be conditional upon Your continued payment of such Fees in accordance with these Terms.
You acknowledge and agree We may change Our Fees at any time. We will endeavour to notify You via the Website and/or the Application of any changes to the Fees before they come into effect, however this may not always be possible.
If You do not accept the Fees or any changes to the Fees, You must not access or use the PUSHH Platform.
If You make any payments for Fees with a credit or charge card or an online payment account, You warrant that You are the cardholder or account holder and that the billing information provided is accurate, and You authorise Us to charge the designated credit or charge card or online payment account for the total amount of the Fees, plus any applicable GST. All payments and purchases made in connection with the PUSHH Platform are in Australian dollars. Any payments made in a currency other than Australian dollars will be converted into Australian dollars at the exchange rates provided to Us by our bank, payment merchant or other payment services provider.
Where applicable, You agree to pay all GST and other taxes imposed in connection with the supply of the PUSHH Platform to You or any Content or subscription for Content on the PUSHH Platform.
We are not obliged to provide refunds of any Fees paid by You, however We may offer a refund where We determine that extenuating circumstances apply.
In using the PUSHH Platform, You may come across links or references to external service providers, merchants or suppliers. We do not endorse, warrant, guarantee or make any promises about any information, products or services they may supply to You. Any transaction You have with these service providers are between You and them, and We do not get involved.
By accessing external website links to third party service providers and other sites through the PUSHH Platform, We do not promise that they are appropriate, that they work or that they are virus free.
We accept no responsibility for any loss or damage that may arise from Your use of, or engagement or transaction with, any third party service providers.
If you have any complaints or comments in relation to any Content, please contact us at [email protected] and we will address the matter accordingly (and in our sole discretion), including for example by taking down any offensive, misleading or dangerous Content. All action taken by us (and whether we take any action) in relation to a complaint made by You or another User is at our absolute discretion. We are not responsible for resolving or dealing with any disputes, disagreements or matters in relation to any dealings between You and any Content Creator, and we are not obliged to be involved in such disputes, disagreements or matters in any way. If You have a dispute with a Content Creator, You release us (and our directors, employees and agents) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known or unknown, arising out of or in any way connected with such disputes.
The PUSHH Platform is a services platform intended to facilitate: (1) the uploading and publishing of Content by Content Creators; (2) access, use and consumption of Content by You and other Users; and (3) the curation of Content, and the recommendation of Content to You and other Users using our predictive algorithms.
You acknowledge that any information and/or Content displayed on the PUSHH Platform is intended to be general information only and should not be considered professional advice or a recommendation by Us to perform any action, undertake any exercise, fitness, diet or lifestyle regime, choice or action, or acquire any product or service, or to otherwise engage in any action in relation to Content, or to engage in any relationship with a Content Creator. We are not the creators of, nor are we responsible for what is contained in, any of the Content. We do not endorse any Content or any Content Creator or any product or service referred to in any Content, and the fact that the PUSHH Platform might ‘recommend’ or ‘suggest’ to you Content for your use is not an endorsement of that Content. We do not vet or verify the qualifications or expertise of any Content Creator or the quality, accuracy or appropriateness of any Content, and We are not responsible for doing so. We make no warranty, representation or guarantee as to the qualifications or expertise of any Content Creators, and You must rely on your own judgment in making any decision to purchase or subscribe for any Content and/or performing any action, undertaking any fitness, exercise, diet or lifestyle regime, choice or action, or acquiring and product or services, as a result or in connection with any Content or Content Creator. You acknowledge and agree that You will exercise all due care and caution in, and that You are solely responsible for, entering into any transaction, arrangement or agreement for the sale, purchase or consumption or use of any Content, information, products and/or services via the PUSHH Platform .
We may change or improve the PUSHH Platform at any time. For example, We may develop and distribute updates, enhancements or new features. We may also restrict access to all or any part of the PUSHH Platform, stop making the PUSHH Platform available or modify its availability in any way. We are under no obligation to update any material that may be out of date at any given point in time.
We will always try to give You notice of any changes to the PUSHH Platform or its availability before such changes take effect, although this may not always be possible. To the maximum extent permitted by law, We do not accept liability for any damage or loss which You may suffer or incur as a result of such actions.
We, and Our licensors (as applicable), own all Intellectual Property in and to the PUSHH Platform (including any updates, enhancements and new features), and any Content and other material published on the PUSHH Platform. This material includes, but is not limited to, the design, layout, look, appearance, graphics, trademarks, branding and logos. You must not copy, modify, distribute, sell or lease any part of Our Intellectual Property other than in accordance with this section.
The PUSHH Platform, and the Content published on it, are protected by the copyright laws of Australia and treaties around the world. All such rights are reserved.
Subject to these Terms, We grant You a limited, personal, revocable, non-assignable, non-sublicensable and non-exclusive right to access and use (i.e. to download and display locally using the PUSHH Platform) the Content contained on the PUSHH Platform solely to enable You to enjoy the benefits of the PUSHH Platform as intended by Us under these Terms. Any use, reproduction, modification, distribution, sale, sub-licence or storage of the PUSHH Platform (and any Content contained on the PUSHH Platform) for any purpose other than using the PUSHH Platform in accordance with these Terms is expressly prohibited without prior written permission from Us.
You must ensure that Your access to and use of the PUSHH Platform is not illegal or prohibited by any laws which apply to You.
By using the PUSHH Platform, You undertake that You will not:
- incorporate the PUSHH Platform or any Content into a product or service you provide to a third party;
- sell, license, rent, lend, copy, distribute or otherwise use or exploit the PUSHH Platform or any Content, or any related Intellectual Property, for commercial use or in any context outside the PUSHH Platform;
- use the PUSHH Platform for competitive analysis or to build competitive products;
- remove or obscure any proprietary or other notices contained on the PUSHH Platform;
- reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the PUSHH Platform, except to the extent expressly permitted by applicable law (and then only upon advance notice to Us);
- use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the PUSHH Platform for any purpose, including without limitation use on third-party websites;
- attempt to probe, scan, or test the vulnerability of the PUSHH Platform or any associated system or network, or breach security or authentication measures without proper authorisation;
- do anything which is otherwise, in Our view, inappropriate or harmful to the PUSHH Platform; or
- encourage or assist any third party to do any of the above.
While We endeavour to adhere to best practice policies and procedures to prevent data loss, We do not guarantee that there will be no loss of data and We expressly exclude liability for any loss of data no matter how caused.
You must not violate the security of the PUSHH Platform in any way. We may suspend or cancel Your account or Your access to the PUSHH Platform if We suspect any security violation. We may also inform any law enforcement body of any suspected unauthorised or criminal activity. Examples of security violations include:
- attempting to gain unauthorised access to any part of the PUSHH Platform, servers or system infrastructure You were not intended to have access to;
- interfering with or otherwise circumventing mechanisms in the PUSHH Platform intended to limit your use;
- use the PUSHH Platform in a way that was not intended by Us;
- attempting to reverse engineer the PUSHH Platform or any system or offering provided through it;
- interfering with or disrupting (or attempting to interfere or disrupt) any servers or networks connected to the PUSHH Platform;
- sending or storing any harmful code (including, for example, any computer virus, trojan, worm or other code that is harmful or disabling or which assists in or enables unauthorised access to or corruption of data); or
- using any feature of the PUSHH Platforms or any other means to send unsolicited commercial correspondence to other Users.
We may update these Terms at any time, with such updates taking effect when You next use the PUSHH Platform or after 30 days, whichever is sooner. No other amendment to the agreement constituting these Terms will be effective unless made in writing, signed by You and by Us.
We will use reasonable endeavours to give You notice of any update to these Terms (which notice may be through the Website and/or the Application) before the change comes into effect, although this may not always be possible.
If You continue using the PUSHH Platform after an update takes effect, You are deemed to have agreed to the update and will be bound by these Terms as amended.
We have spent a significant amount of time developing and refining the PUSHH Platform and are confident You will enjoy using it and find it useful. However, We cannot promise or guarantee any specific outcomes from the use of the PUSHH Platform. To the maximum extent permitted by law, We do not make any representations or guarantees about the User experience, quality, or outcomes of any use of the PUSHH Platform. You acknowledge that the PUSHH Platform is provided on an “as is” and “as available” basis and that, to the fullest extent allowed by law, we expressly disclaim all express and implied warranties including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
By accessing and using the PUSHH Platform and Content, You assume all risks associated with such access and use.
As there are many factors beyond Our control that may affect the performance or compatibility of #D with certain software or hardware, We cannot promise that Your use of #D will be uninterrupted or error or defect free or that errors or defects in #D will be corrected. While We use reasonable measures to ensure the accuracy and currency of data and information on #D, We are not responsible for the data and information supplied to or by Users or third parties. We make no guarantee that the data on #D is accurate or current. It shall be Your own responsibility to ensure that any products, services or information available through #D meet Your specific requirements. Information is for guidance only and is not intended to form any part of a contract.
To the maximum extent permitted by law, We (and Our directors, employees and agents) do not accept any liability for, and You agree to release Us (and Our directors, employees and agents) from any and all claims in relation to any loss, howsoever caused, suffered or incurred by You arising from:
- Your use of the PUSHH Platform; and/or
- Your consumptions or use of any Content,
(including without limitation any consequential losses or damages) and any liability We owe is limited, to the maximum extent permitted under law, to the amount You paid to use the PUSHH Platform. To the maximum extent allowed at law, in no event will We be liable for any direct, indirect, incidental, special, exemplary, consequential, or other damages or losses (including, but not limited to, loss of profits, business interruption, loss of program or data), without regard to the form of action, whether under legislation, in contract, tort, negligence, strict liability, or otherwise, arising out of or in connection with the PUSHH Platform, or any Content, service, site or link displayed on or accessed through the PUSHH Platform.
You agree to indemnify, defend and hold Us (and Our directors, employees and agents) harmless from and against all claims, liabilities, losses and expenses (including reasonable legal fees on a full indemnity basis) that arise from:
- activity which You engage in with or through the PUSHH Platform;
- any breach of these Terms by You;
- any breach of any rights of a third party by You;
- any breach of any applicable law by You; or
- any transaction, dispute or other dealing between You and another person that arises from or through the PUSHH Platform or in relation to any Content or Content Creator.
You acknowledge and agree that the Content made available on the PUSHH Platform is not tailored to You or Your specific circumstances (including Your health), and that any use by You of the Content, including in relation to performing exercises or routines, following recommendations, health decisions, lifestyle decisions and/or decisions based on or relating to any Content or information contained in any Content, is done at your own risk. We are not responsible for any of Your health or fitness outcomes or any injury or illness suffered or sustained by you in the course of or in relation to your consumption of any Content or the PUSHH Platform. To the maximum extent permitted by law, you indemnify and hold Us (and Our directors, employees and agents) harmless from and against all claims, liabilities, losses and expenses (including reasonably legal fees on a full indemnity basis) in relation to any adverse outcomes for your health and/or fitness and/or any injury or illness suffered or sustained by you.
We may suspend or terminate Your access to the PUSHH Platform (or any part of it) or your Account, if We consider that You are in breach of any provision of these Terms, or otherwise at any time at Our discretion. We are not required to provide You with any reason.
These Terms and any disputes or claims arising out of or in connection with them or their subject matter or formation shall be governed by the laws of South Australia. You submit to the jurisdiction of the courts of South Australia in respect of any claim arising from, or related to, these Terms, although We reserve the right to bring proceedings against You for breach of these Terms in Your country of residence or any other relevant jurisdiction.
If any provision of these Terms is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from these Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Terms, and will not in any way affect any other circumstances of or the validity or enforcement of these Terms.
In these Terms, unless the contrary intention appears:
“Account” means the digital account you create with Us to use the PUSHH Platform.
“Application” means the digital application for mobile devices known or referred to as “[PUSHH Fitness]”, made available by Us.
“Content” means any information, data, text, graphics, photographs, videos, trade marks, logos, sounds, music, audio clips, artwork, computer code, software, scripts, written posts and comments, material, and interactive features generated, provided, used, displayed, or otherwise accessible on or through the PUSHH Platform.
“Content Creator” means a creator of any Content who has an account with Us that enables them to make Content available on the PUSHH Platform.
“Fee” means any fee charged by Us for the User’s use of Our Services.
“Intellectual Property” means any registered or unregistered rights in any copyrights, patents, inventions, discoveries, trade marks, processes, systems, methods, know-how, designs or confidential information or any rights of a similar nature under the laws of Australia or anywhere else in the world.
“PUSHH Platform” means the digital online platform provided by Us to You, other Users and Content Creators via the Website and the Application for the distribution and consumption of Content.
“Services” means the services, information, products and/or resources provided by Us (including with respect to the Application and the Website), or any other communication we may have with Users in accordance with these Terms.
“Terms” means these terms and conditions;
“User” means any person who has access to, or otherwise uses, the PUSHH Platform.
“Website” means the website operated by Us at www.pushhfit.com and includes, without limitation, any subdomains and services associated with such website.
“We”, “Us”, “Our” means PUSHH Fitness Pty Ltd ACN 630 581 369 and its related bodies corporate and associates (as defined in the Corporations Act 2001 (Cth))
“You”, “Yourself”, “Your” means any person, company or organisation who is a User.