PEAK PREGNANCY PTY. LTD. ACN 161 018 453
TERMS AND CONDITIONS
- The Company is the owner of the Website from which it offers a midwifery based personal training service that provides women with unique customised exercise programs and nutritional guides specifically for women before, during and after pregnancy.
- The Company agrees to grant the Member access to the Website and use of the Services subject to these Terms and Conditions.
- The Member agrees to the use of the Website and the provision of Services in accordance with these Terms and Conditions.
In these Terms and Conditions unless the context indicates a contrary intention:
“Application Form” refers to the initial payment form completed by the Member on the Website containing the Member’s contact information;
“Company” means PEAK PREGNANCY PTY. LTD. ACN 161 018 453;
“Confidential Information” means information which relates directly or indirectly to the business, operations or affairs of the business of the Company and which the Company, acting reasonably, advises the Member it regards as confidential, whether the information is in oral, visual or written form or is recorded in any other medium and includes the Data, the Program, the Services, information contained on the Website, the existence of these Terms and Conditions and any other information whatsoever supplied by the Company to the Member and any other records, documents, plans, formulae, specifications, Intellectual Property, devices, methods, price information, and papers of every description including all copies or extracts from the same relating to the affairs or the business of the Company or any subsidiary of a party which from time to time is made available or becomes known or comes into the possession of the Member;
“Data” means the information contained in the Application Form, the Member’s questionnaire under clause 4 below and any other information provided by the Member either in writing, verbally or via the use of the Website in any form whatsoever;
“Fees and Charges” include, but are not limited to, all fees and charges related to the Services and Program and any other fees and charges as set by the Company in respect of the Services and Program from time to time, which form and are subject to these Terms and Conditions;
“Intellectual Property” means copyright, patents, trademarks, (registered or not), designs, design rights, trade secrets, logos and all other proprietary technical information;
“Member” means a person who completes the Application Form on the Website and pays the Fees and Charges to the Company, whether or not the Company provides the Services and/or a Program to that person;
“Program” means a customised exercise program and personal nutritional guide designed specifically by the Company for the Member or any other written information or advice provided by the Company to the Member;
“Services” consists of the following:
(a) Prenatal Body Prep: This is a customised program to prime the Member’s body ready for a strong and healthy pregnancy, to accelerate weight loss and focus on improving fertility to help with conception;
(b) Pregnancy program for mums to be: A personally designed program tailored to the Member’s individual pregnancy needs. The program is modified and adapted to the ever-changing requirements of the Member’s developing pregnancy; and
(c) Postnatal Body Revamp: A personally designed program that targets fast and effective weight loss to shed those pregnancy kilos. The program is tailored safely around the Member’s labour and birth experience including mode of delivery (caesarean section or spontaneous delivery), whether or not the Member is breastfeeding, postnatal needs and more;
“Terms and Conditions” refers to these terms and conditions as supplemented, amended or varied from time to time; and
“Website” means the website www.peak-pregnancy.com
THE PARTIES AGREE AS FOLLOWS:
- 1. Services and Access to Website
1.1 In consideration of the Member completing the Application Form, accepting these terms and conditions and making payment of the Fees and Charges, the Company will provide the Member with:
(a) a welcome email with the Member’s user name and password, providing the Member with access to the Member’s only section of the Website applicable for their chosen program for a period of 4 months from the date of payment of the Fees and Charges which email also contains instructions to complete the Member’s compulsory questionnaire as outlined in clause 4 below; and
(b) the nominated Services, including the Member’s chosen Program.
1.2 The Member acknowledges and agrees that:
(a) the Member is not permitted to share its username or password with any other person. Access to the content within the Website is for the Member’s personal use only;
(b) the Program will be provided within approximately 7 days of the Member completing and returning the questionnaire referred to in clause 4 below except that if after receipt of the said questionnaire the Company determines in its absolute discretion that the Member is not suitable to receive the Services or a Program, the Company shall provide written notification of the same to the Member and the Member will be refunded 100% of the Fees and Charges paid; and
(c) the Company accepts no responsibility if there isn’t ongoing, uninterrupted or fault-free access to the Website for any reason whatsoever outside the Company’s control;
(d) although the Company endeavours to source information from up to date, reliable and trustworthy resources, information contained within the Website and information provided by the Company may become out-dated after the date of publication;
(e) the Member is over 18 years of age. If the Member is not over 18 years of age they have the permission of their parent or guardian to become a Member and receive the Services.
- 2. Service Selection
The Member agrees that the Member is to make its own assessment as to which of the Services will best suit the needs of the Member and that the use of the Program and the Services is at the Member’s own risk. The Member acknowledges that the Company does not provide credits for unused Services.
- 3. Payments
3.1 The Company uses Paypal for Member’s financial transactions. The Company does not have access to the Member’s credit card or bank details or other payment details. By choosing to proceed with the financial transaction the Member agrees not to hold the Company responsible or liable for any loss, damage or fraud in which the Member could incur as a result of the transaction.
3.2 The Company, on receipt of cleared and correct funds, will send a tax invoice to the email address the Member supplied at the time of the payment transaction.
3.3 Other than as provided for in clause 1.2(b), refunds are not permitted except, pro rata refunds may be given in the absolute discretion of the Company if the Member’s only section of the Website is unavailable for more than 7 consecutive calendar days.
3.4 If the Member has opted to pay for the Program in instalments, the Member understands that the Member’s account will continue to be debited until the completion of the Member’s full subscription, unless the Company has provided the Member with a written exemption.
- 4. Member’s Questionnaire
4.1 Following receipt of the Fees and Charges by the Company, the Member will receive an email containing instructions explaining the Member’s compulsory questionnaire to be completed by the Member which requests personal information relating to the Member’s medical history, obstetric (pregnancy/past pregnancy) history and some demographic questions.
4.2 The Member agrees to honestly answer and complete all the questions, enabling the Company to create the Member’s Program. If the questionnaire is incomplete or the Company requires further information to create the Program, the Company will request the Member to provide the additional information.
4.3 The Member acknowledges the Program is designed from the information in the questionnaire so the questionnaire is very detailed. It is the Member’s obligation to disclose all aspects of the Member’s medical, obstetric, family and personal circumstances, both current and past in the questionnaire and it is very important if the Member is in doubt, the Member must disclose such information.
4.4 The Member must return the completed questionnaire within 10 calendar days of receipt of the welcome email. If the Member does not return a completed questionnaire to the Company within 10 calendar days, access to the Members only section of the Website will be temporarily suspended by the Company until receipt of a satisfactorily completed questionnaire.
4.5 The Member agrees that if they are unsure of any medical terms or any questions within the questionnaire the Member must consult their General Practitioner or health care provider before answering the questions and submitting the questionnaire to the Company.
4.6 The Member agrees that, prior to completing the questionnaire they will access the “get started” section of the members only Website which contains important pre start information. Members must read and understand everything in the “get started” section before commencing the Program.
4.7 The following medical conditions and pregnancy complications must be disclosed to the Company:
Absolute obstetric contraindications
(a) pregnancy induced hypertension;
(b) premature rupture of membranes;
(c) incompetent cervix or cerclage;
(d) persistent second or third-trimester bleeding;
(e) intrauterine growth restriction (IUGR); or
(f) preterm labour during current or prior pregnancy.
Absolute medical contraindications
(a) hemodynamically significant heart disease;
(b) uncontrolled hypertension;
(c) uncontrolled renal disease;
(d) hemodynamically significant anaemia; or
(e) uncontrolled diabetes mellitus.
4.8 Persons with the medical conditions and pregnancy complications listed in clause 4.7 above will not be accepted by the Company to receive the Services or a Program as more specialised care will be required.
- 5. Medical Advice
5.1 Before Members start their Program, as with any exercise or fitness program, it is very important for each Member to consult their general practitioner or health provider and Members must seek clearance before starting the Program.
5.2 Before acting on any information provided on the Website or provided to the Member via email or any other form of contact, the Member should evaluate the accuracy and reliability of the content. Information provided by the Company to the Member is not to be taken as medical advice and any information you obtain through the Company is not a substitute for medical advice provided by a medical practitioner or Member’s health care professional. The Member must stop exercising immediately and seek immediate medical attention from their medical practitioner if a Member experiences any changes to their medical condition.
5.3 The Member acknowledges the Company and its employees, servants or agents are not dieticians, medical doctors or obstetricians and so the Member agrees to consult with their general practitioner or health care professional before commencing the Program.
- 6. Support and Advice Provided by the Company
6.1 For the duration of Member’s Program, the Member receives unlimited email access to ask the Company questions relating to the Services and the Program.
6.2 The Company will endeavour to answer Member’s emails within 2-3 calendar days, depending on the availability of a suitably qualified or experienced employee of the Company being available to answer the email. If the Company feels the Member’s question is outside of its area of expertise, the Company may refer the Member to its general practitioner or health care provider for answers.
6.3 It is the Member’s responsibility to contact the Company on a weekly basis to update it on the Member’s progress with the Program and any changes to Member’s medical, obstetric or personal condition.
- 7. Member’s Warranties and Acknowledgments
7.1 The Member warrants, acknowledges and agrees that:
(a) use of the Program and the Services is at the Member’s own risk;
(b) there is no guarantee that the Services and the Program will achieve the purpose required by the Member;
(c) the Company and its employees, agents or servants are not dieticians, medical doctors or obstetricians and the Services and Programs are dietary guides only;
(d) the Data and information provided to the Company by way of the Member’s questionnaire is true, correct, accurate and current;
(e) it has fully disclosed all medical conditions to the Company;
(f) it has or will consult with its general practitioner or health care professional before commencing the Program;
(g) it will immediately inform the Company with any new information or changes to its medical, obstetric, personal condition or any medical or obstetric complications as these may affect the Member’s ability to continue with the Program or the Services;
(h) the Member will respect other Members, by agreeing not to behave in a manner or upload material that may be intimidating, offensive, discriminating, harassing, racially offensive, pornographic, illegal, threatening on the Website or any of the Company’s social media pages;
(i) under no circumstance will it post commercial information or advertise directly or indirectly within the Website or the Company’s social media pages;
(j) it will not share its Program unless necessary for consultation with the Member’s personal general practitioner, or health care provider or specialist;
(k) it will not share its username or password or grant access to any third party to the Website;
(l) it will not misrepresent its affiliation with the Company whether that be falsifying their affiliation with or linking in with the Company whether by advertising, marketing, social media, using third party websites;
(m) it will not excessively download, print, save or forward content, videos, pictures, recipes within the Website or the Company’s social media pages;
(n) the Company may monitor the Member’s use and access of the Website and if it considers unreasonable access or abnormal activity is occurring, including whether there is excess downloading or multiple accesses from different locations, Member access may be suspended or cancelled at the sole discretion of the Company;
(o) it will not post, publish or upload onto the Website or any of the Company’s social media pages any content or engage in any conduct which may cause any damage or harm whatsoever to the Company’s or any of its employees reputation, image or goodwill.
7.2 The Member acknowledges that the Company is not responsible or liable in any way whatsoever for:
(a) any incorrect, outdated or incomplete information or advice contained in the Data and on the Website;
(b) any injury or death from the use of the Website, Program or Services or from any information or advice provided to the Member;
(c) any financial loss occurring from the use of the Website, Program or Services or from any information or advice which is provided to the Members via email or any other form of contact;
(d) any delay in providing the Program to the Member or responding to a query from the Member;
(e) any virus, spam, contamination, damage or loss as a direct or indirect consequence from the use of the Website or email, Face book, Youtube, Twitter, Linked in, or any other social media contact with the Company;
(f) any difficulty the Member has in viewing videos or other information on the Website;
(g) any disruption to the Member’s ability to access the Website, where that inability is due to problems beyond the Company’s control or planned maintenance;
(h) the accuracy or reliability of content provided on or within third party websites, whether or not that third party website was recommended by the Company;
(i) any information or material, services, advice provided or supplied by any third party website or link thereto, including personal data or payments or refunds. Members accept and take full responsibility for any personal loss or damages arising from any linked or third party web site accessed by them;
(j) any pre pregnancy, pregnancy, or post pregnancy complications, morbidity or mortality of any kind including but not limited to preterm labour, under weight gain, over weight gain or changes to lactation;
(k) the Member’s personal information being misused or becoming insecure as a result of the Company’s computer system or database being hacked or compromised; and
(l) the actions of the Member, including if they misread or misunderstand information, erroneously act on information or fail to comply with clause 7.1 above or cause harm directly or indirectly to themselves or baby/fetus.
- 8. Intellectual Property and Confidential Information
8.1 The Company shall retain copyright in the Website and the Program. The Company also reserves all present and future moral rights in all Intellectual Property in the Program, the information on the Website and in any Services provided by the Company. The Program and information on the Website must not be given, reproduced or disseminated, to any person, public authority, institution or organisation without the express written permission of a duly authorised representative of the Company.
8.2 The Member shall treat all Confidential Information disclosed by the Company as confidential, and shall not disclose to any party or make known in any manner any part of the Confidential Information without the Company’s prior written consent, except for the Member’s general practitioner or health care provider.
8.3 The Member shall not make use of the Confidential Information disclosed by the Company for its own benefit or the benefit of a third party and shall only use the Confidential Information for the purposes of the Services.
8.4 The Member shall not for whatever reason either for itself or for any third party appropriate, copy, memorise or in any other manner reproduce any of the Confidential Information without the written consent of the Company.
8.5 The Member agrees that it will forever observe the obligations of confidence set out in this clause unless released from such obligation in writing by the Company;
8.6 The Member agrees that the obligations provided for in this clause will survive from the date the Member accepts these Terms and Conditions.
8.7 The Parties agree that the undertaking of confidentiality does not apply to Confidential Information which is or becomes available to the public other than as a result of a breach of this clause.
- 9. User Generated Content
9.1 The Member may choose to participate in posting photos, pictures, content, links, images, articles and on discussion boards within social media pages operated by the Company or the Website.
9.2 The Member agrees should it choose to publish any such material, the Member is declaring it has the legal right to do so and indemnifies the Company from and against any liability, actions, demands, claims, suits, causes of action, proceedings, costs and expenses (including legal costs on a full indemnity basis) of whatsoever nature which may be taken or made against or incurred by the Company in relation to or arising out of any allegation that the material infringes any third party’s intellectual property rights and understands and accepts full responsibility that copying, redistributing, forwarding, download, reproducing this material by others, including other Members of the Company is totally outside the control of the Company.
9.3 The Company may monitor the publication and use of Member generated content and may take any action, including removing or banning a Member from sharing any further content, as considered necessary by the Company.
9.4 The Member agrees, should it become aware of any unauthorised duplication, redistribution, reproduction of any of the Company’s content, Confidential Information or Intellectual Property, published by another Member or any other person whatsoever, it will notify the Company immediately.
9.5 The Member agrees by posting content on the Website or on any of the Company’s social media pages or accounts, the Member grants the Company an irrevocable licence to redistribute, copy, modify, adapt, publish, display this material for profit or commercial purposes. The Member agrees the Company maintains the right to remove or edit user content with or without permission from the Member.
9.6 The Member acknowledges and agrees the Company is not responsible for accuracy nor legality of Member generated content.
- 10. Default
If the Member defaults in the due and punctual observance of all or any of its obligations or covenants under these Terms and Conditions, the rights of the Member to access the Website shall be immediately suspended or terminated, at the discretion of the Company.
- 11. Privacy
11.1 The Privacy Act 1988 requires the Company to have procedures in place that cover the collection, use and disclosure of personal information that it receives from the Member. This information is needed to process the requirements of the Member and is used for internal purposes. Without this information the Company is unable to design the Program and provide the correct Services to the Member. The Company complies with the National Privacy Principles in relation to the collection and disclosure of information regarding the Member.
11.2 The Company may collect and hold personal information such as:
(c) Telephone numbers;
(d) Email addresses;
(e) Information disclosed by Member in questionnaire;
(f) Details of Programs and Services provided to the Member; and
(g) Information disclosed in emails or online contact with Member
11.3 The information may be collected:
(a) directly from the Member;
(b) from other entities who provide services to the Company related to the Program and Services the Company provides to the Member;
(c) from publicly available information; and
(d) from an individual’s representative (i.e. spouse, general practitioner).
11.4 The Company uses the personal information collected to provide the Member with the Program and Services as requested.
11.5 The Company may also use the personal information collected to:
(a) inform the Member of other products, services or offerings available from the Company or its affiliates, including related entities and business associates, including any marketing material;
(b) conduct surveys or research about the Member’s opinion of current services and products or of potential new services and products that may be offered;
(c) contact the Member regarding a product offered by an external business partner which may be of interest to the Member; and
(d) provide to likely or actual buyers of the whole or part of the Company’s business or for internal restructuring purposes.
11.6 The Company may disclose the Member’s personal information to third parties including:
(a) government and regulatory authorities as requested;
(b) the Company’s professional advisers;
(c) the Member’s representatives;
(d) subsidiaries or related entities of the Company; and
(e) to a likely or actual buyer of the whole or part of the Company or its business.
11.7 The Company may also supply personal information to its agents or contractors, including:
(a) Mailing services;
(b) Delivery information and addresses;
(c) Billing and debt recovery functions;
(d) Customer inquiry services; and
(e) Marketing functions.
11.8 The Company will store personal information provided securely and will take all reasonable steps to prevent:
(a) unauthorised access to or disclosure of the Member’s personal information; and
(b) loss or misuse of the Member’s personal information.
11.9 Once the Member’s personal information is no longer needed by the Company, reasonable steps will be taken to destroy or de-identify it.
- 12. Term and Termination
12.1 The Company may immediately terminate the Services and revoke the Member’s access to the Website at any time in the following circumstances:
(a) if the Member breaches its warranties in clause 7.1 in any way;
(b) if the Member breaches its copyright or confidentiality obligations as per clause 8 in any way;
(c) if the Member defaults in the due and punctual payment of any Fees and Charges to the Company pursuant to these Terms and Conditions being outstanding for more than thirty (30) days;
(d) in the event of any other breach by the Member of these Terms and Conditions, which breach is not remedied within seven (7) days of written notice from the Company requiring the breach to be remedied; and
(e) upon giving the Member seven (7) days written notice of its intention to do so.
12.2 If the Services are terminated, the Member is still obligated to pay all monies owed to the Company for the Services performed up to and including the date of termination pursuant to these Terms and Conditions and for the costs incurred by the Company.
- 13. Indemnity and Release
13.1 The Member hereby indemnifies and holds harmless and shall continue to indemnify and hold harmless the Company against all liability, actions, demands, claims, suits, causes of action, proceedings, costs and expenses (including legal costs on a full indemnity basis) suffered or incurred by the Company by reason of, arising out of or referable to any breach or non performance by the Member of any provision of these Terms and Conditions and on the part of the Member to be observed and/or performed.
13.2 The Member hereby releases and holds harmless the Company and its employees, agents or servants from and against any and all liability, actions, claims, suits, causes of action and demands whatsoever that the Member may now or in the future have against the Company and its employees, agents or servants arising out of or in connection with the Member’s use of the Website, Services or Programs and this release may be pleaded as an absolute bar to any such claim against the Company and its employees, agents or servants.
- 14. No Warranties and Limitation of Liability
14.1 Notwithstanding anything contained herein the Member acknowledges that no representation, warranty or condition, express or implied, is given by the Company and its employees, agents or servants about the Program and the Services or that the Program and the Services provided comply with the rules, regulations, laws and legislation of the place where the Member is located and the Company and its employees, agents or servants will not be liable under any circumstance for any claims, losses or damages of any kind whatsoever (including but not limited to any indirect, special or consequential damage or injury to any person, corporation or other entity) by reason of or arising out of the Program and the Services and such Program and Services not complying with such rules, regulations, laws and legislation or by reason of or arising out of any inaccuracy, error or omission in the Program and Data and any other information provided by or to the Company.
14.2 Where the Australian Consumer Law and other laws imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of services, to the extent that it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these terms and conditions and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these Terms and Conditions which cannot be excluded, then the liability of the Company for any breach of such term will be limited to the amount of the Fees and Charges paid by the Member.
- 15. General
15.1 No amendment or variation of these Terms and Conditions is valid and binding on the Company unless it is in writing and signed by an authorised officer of the Company.
15.2 The Member may not assign these Terms and Conditions or any of its rights and obligations in whole or in part in these Terms and Conditions, whether by actual assignment or by operation of law or by providing any information on the Website to any third party without the Company’s prior written consent, unless otherwise agreed to in writing between the parties.
15.3 A provision of these Terms and Conditions may not be waived except in writing and signed by an authorised officer of the Company. No waiver or breach of any provision of these Terms and Conditions shall constitute a waiver or breach of any other provision.
15.4 If the Member comprises two or more parties each of those parties are jointly and severally liable on the covenants and obligations herein.
15.5 These Terms and Conditions shall be governed and construed in accordance with the laws of Western Australia and the parties submit to the jurisdiction of the Courts of Perth, Western Australia and waives any right to object to any proceedings being brought in those Courts.
15.6 If any part of these Terms and Conditions become void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. None of these Terms and Conditions will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to these Terms and Conditions.
15.7 If these Terms and Conditions are inconsistent with any other previous document or agreement between the parties, these Terms and Conditions will prevail to the extent of the inconsistency.