CARDIOFIT TERMS AND CONDITIONS
1.1 These Terms and Conditions form a legally binding agreement between you (“you”, “User”) and Cardiofit Health Australia PTY LTD (“Cardiofit” “we,” “us” or “our”) in respect of your use of the Cardiofit mobile software application that Cardiofit makes available and the related website located at https://cardiofit.app/ and any other websites owned or controlled by Cardiofit (together or separately the “Service”).
1.2 By installing, using or otherwise accessing the Service, you agree that you have read, understood, and agree to be bound by these Terms and Conditions.
1.3 Cardiofit reserves the right to alter, modify, add to or change in any way, any provision of these Terms and Conditions and may, limit or expand the services available via the Service, however any material changes to these Terms and Conditions will be notified to the User prior to being implemented.
1.4 You acknowledge the following are the key terms apply between you and Cardiofit in respect of your use of the Service:
You may use the Service to subscribe to a range of immersive audio workouts made available by Cardiofit from time to time (“Workouts”).
You are agreeing to pay the applicable subscription fees for access to the Workouts which can be found at https://cardiofit.app/login
Your use of the Workouts is at your sole risk. You should consult with your health care professional before using the Workouts.
By using the Service you consent to the collection, use, and disclosure of your personal information as per Cardiofit’s Privacy Policy which is available at https://cardiofit.app/privacy (“Privacy Policy”).
2.1 These Terms and Conditions shall apply from the date that the User first accesses or starts using the Service and shall continue until the User ceases using the Service (“Term”).
2.2 During the Term you are granted a non-exclusive, non-transferable, non-sublicensable license to use and access the Service for personal, non-commercial purposes only in accordance with the further Terms and Conditions set out herein.
2.3 During the Term you will be entitled to access the full range of Workouts available via the Service subject to your payment of the applicable subscription fees as further set out in Clause 4 below (“Subscription”).
3.1 All materials incorporated into the Service including, but not limited to, underlying software, code, design, text, graphics, video, music and other files is the property of Cardiofit or is licensed to Cardiofit (“Cardiofit Content”). All rights are reserved. Cardiofit Content shall not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written consent of Cardiofit.
3.2 All Trade Marks, logos, trade dress and service marks on the Service are either Trade Marks or registered Trade Marks of Cardiofit and shall not be copied, imitated, or used, in whole or in part, without the prior written consent of Cardiofit.
4.1 The User will be required to pay the prescribed subscription fees which are set out here [insert subscription fee link] in order to access the Workouts via the Service (“Subscription Fees”).
4.2 All Subscription Fees are quoted in AUD dollars and are payable online via credit card.
4.3 Subscription Fees can be paid either monthly or annually. If the User elects to pay the Subscription Fees on a month by month basis, they will be required to pay one month in advance and if they elect to pay the annual fees, they will pay for one year in advance.
4.4 First time subscribers to the Workouts may be eligible for a free trial, in accordance with the terms set out here [insert link to free trial details].
5.1 Your Subscription will automatically renew for the same period of time of your initial Subscription (ie either monthly or annually) unless or until you cancel your Subscription via the Service in which case the Subscription (and your access to Workouts) shall end at the completion of the applicable Subscription period. For the avoidance of doubt, upon cancellation of your Subscription a refund will not be provided for the days remaining during the current Subscription Period.
5.2 Following cancellation of your Subscription and at the end of your paid Subscription period, your access to Workouts will cease until such time that you choose to renew your Subscription.
5.3 Upon cancellation of your Subscription you have the option to fully deactivate your account and delete information in your account, however you acknowledge that your information may continue to be stored by us in accordance with our Privacy Policy.
5.4 Without limiting the generality of any other clause contained in these Terms and Conditions, Cardiofit may terminate your Subscription immediately by notice in writing if you are in breach of a material term of these Terms and Conditions, including but not limited to such circumstances where there are any outstanding Subscription Fees payable to Cardiofit.
5.5 Termination by Cardiofit pursuant to this Clause 5.4, shall not relieve the User of their obligation to pay all amounts due and which accrued up to the date of termination, nor shall it effect the provisions of these Terms and Conditions which are intended to survive termination.
5.6 If notice of termination is given to the User, Cardiofit may, in addition to terminating these Terms and Conditions:
5.7 If the User has elected to pay the Subscription Fees on an annual basis, the User acknowledges that in the month leading up to the end of the annual period, Cardiofit will notify the User that their payment is due, and unless cancelled by the User prior to the end of the current Subscription Period, Cardiofit may deduct a further annual fee from the User on the next annual due date.
6.1 The Service is provided on an “as is” basis and subject only to your rights pursuant to the Australian Consumer Law, without representations or warranties of any kind to the User, whether express or implied, including without limitation as to the quality and/or fitness of the Service for a particular use or purpose, accessibility or warranties that access or use of the Service will be uninterrupted or error-free, and that the Service will be secure or free of viruses or other harmful material or elements, or that the Cardiofit Content will be correct, accurate, timely or complete.
6.2 Where Cardiofit is found to be liable for breach of any warranty or condition implied by statute and which cannot be lawfully excluded, Cardiofit’s liability is limited (to the extent permitted by the Australian Consumer Law) to the following, at Cardiofit’s option:
(a) in the case of goods supplied or offered by Cardiofit:
(i) to the supply of those goods again; or
(ii) to the payment of the cost of having those goods supplied again; or
(b) in the case of services supplied or offered by Cardiofit:
(i) to the supply of the services again; or
(ii) to the payment of the cost of having services supplied again.
6.3 The Cardiofit Content or User Materials may include technical inaccuracies or typographical or other types of errors. Cardiofit has the right to make changes, modifications and updates to any Content contained on the Service without prior notice.
6.4 To the fullest extent permitted by law, Cardiofit and its related bodies corporate, its directors, and employees expressly disclaim all warranties, express or implied, of any kind with respect to the Service.
6.5 Cardiofit is in no way responsible and accepts no liability for any loss (including but not limited to loss of revenue or anticipated profits, loss of goodwill, loss of business) in connection with:
(a) the conduct and behaviour of any User, whether on the Service or otherwise;
(b) any incorrect or inaccurate content on the Service;
(c) the consequences of any malfunction of any equipment or programming associated with the operation of the Service;
(d) any information available on or through the Service or on or through any third party websites to which is linked to from the Service.
6.6 Under no circumstances will Cardiofit be responsible for any loss or damage, including, but not limited to, personal injury or death, resulting from the User’s use of the Service, whether occurring on the Service other than in the case of Cardiofit’s gross negligence or wilful misconduct. The User accepts sole risk and responsibility in using the Services and acknowledges that they should seek advice from a health professional prior to using the Workouts.
7.1 Through the Service Users may be able to link to other websites which are not under the control of Cardiofit. Cardiofit has no control over the nature, content and availability of those external websites. Unless otherwise stated, the inclusion of any links on the Service does not imply a recommendation or endorsement of the goods and services, or opinions contained within such websites.
8.1 THE USER WARRANTS THE FOLLOWING:
9.1 Each party indemnifies the other, and holds the other (and where applicable, its officers, directors, employees, contractors, affiliates and licensors) harmless from and against:
(a) any and all claims, demands and damages (including but not limited to legal fees) made by a third party due to or arising from or related to that party’s violation of these Terms and Conditions, or that party’s violation of any laws, regulations or third party rights;
(b) liability for or in respect of any physical injury (including death) to that party or any other person;
(c) damage to property;
insofar as the injury, damage or other liability, damage or loss is attributable to the that party’s negligence, breach of these Terms and Conditions, or unlawful or wilful act or omission in connection with these Terms and Conditions or use of the Service.
10.1 We handle your personal information in accordance with our Privacy Policy found here
11.1 The User acknowledges that these Terms and Conditions are personal to it and cannot be assigned, transferred, sold or otherwise disposed of without the prior written consent of Cardiofit. Cardiofit reserves its right to assign these Terms and Conditions in whole or in part at any time.
12.1 Pursuant to Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c), a copyright owner or their agent may submit a takedown notice to us via our DMCA Agent listed below. As an internet service provider, we are entitled to claim immunity from said infringement claims pursuant to the “safe harbor” provisions of the DMCA. To submit a good faith infringement claim to us, you must submit a notice to us that sets forth the following information:
Notice of Infringement – Claim
12.2 Title 17 USC §512(f) provides civil damage penalties, including costs and attorney fees, against any person who knowingly and materially misrepresents certain information in a notification of infringement under 17 USC §512(c)(3).
12.3 Please note that we may share the identity and information in any copyright infringement claim we receive with the alleged infringer. In submitting a claim, you understand and accept that your identity and claim may be communicated to the alleged infringer.
12.4 Send all takedown notices to our DMCA Agent listed below. Please send by email for prompt attention.
Designated Agent:
Tim Topham
Cardiofit Health PTY LTD
401 Docklands Drive, Suite 1319
Docklands VICTORIA, 3008
Australia
Phone: +1 (831) 295-8573
Email: privacy@topmusic.co
Service Provider:
Tim Topham
Cardiofit Health PTY LTD
401 Docklands Drive, Suite 1319
Docklands VICTORIA, 3008
Australia
Phone: +1 (831) 295-8573
Email: privacy@topmusic.co
12.5 Counter Notification – Restoration of Material. If you have received a notice of material being taken down because of a copyright infringement claim, you may provide us with a counter-notification in an effort to have the material in question restored to the Service. Said notification must be given in writing to our DMCA Agent and must contain substantially the following elements pursuant to 17 USC Section 512(g)(3):
12.6 Repeat Infringer Policy. We take copyright infringement very seriously. Pursuant to the repeat infringer policy requirements of the Digital Millennium Copyright Act, we maintain a list of DMCA notices from copyright holders and make a good faith effort to identify any repeat infringers. Those that violate our internal repeat infringer policy will have their accounts terminated.
14.1 These Terms and Conditions and the access and use of the Service shall be governed by and construed in accordance with the laws of Victoria, Australia. By accessing and using the Service, the Users accepts that any dispute under these Terms and Conditions or arising out of access and/or use of the Service shall be subject to the exclusive jurisdiction of the Victorian Courts in Australia and by accessing and/or using the Service, the User hereby submits to the jurisdiction of such courts for such purposes.
14.2 In the event of any dispute regarding these Terms and Conditions, the parties agree to attempt in good faith to resolve such dispute by mediation undertaken in Victoria, Australia.
14.3 Users are solely responsible for compliance with any applicable laws of the country from which they access this Service.
14.4 This Agreement is the entire agreement between Cardiofit and the User and shall supersede and/or override any previous oral or written agreements between the User and Cardiofit.
LAST UPDATED: 3/3/23
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