Terms and conditions

In these Application Terms and Conditions (Terms) “we”, “us” or “our” mean Tammy Hembrow Health & Fitness Pty Ltd (ABN 26 613 660 316), its successors and assignees, (referred to as “we”, “us” or “our”) and you, the person, organisation or entity that downloads and/or uses the Tammy Fit mobile application (Application) (referred to as “you” or “your”), and collectively the Parties. These Terms apply to the download and use of the Application, including all sales made by us to you through the Application. The Application provides fitness videos, nutrition plans and related services.

1. Agreement

These Terms form a binding legal agreement between us and you. By downloading and using the Application, you agree to comply with, and be legally bound by, these Terms. Your download and use of the Application indicates that you have had sufficient opportunity to access these Terms and contact us, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older. You must not download or use the Application if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to these Terms, you should not download or use the Application.
Our Privacy Policy sets out how we collect, use and protect your personal information, is available on the Application and is included as part of these Terms.

2. Registration

Access to the Application will require you to register for an account (Account).
You will be required to provide certain basic information when registering for an Account, including your name, email address and password.
You agree to provide accurate, current and complete information during the registration process and update such information to keep it accurate, current and complete. We reserve the right to suspend or terminate any Account and your access to the Application if any information provided to us proves to be inaccurate, not current or incomplete.
It is your responsibility to keep your Account details and password confidential. You are liable for all activity on your Account. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorised such activities or actions.
You will immediately notify us of any unauthorised use of your Account.

3. Price and Payments

The products and services available through the Application may be sold on a subscription basis. To access and use these products and services in full, you will be required to subscribe when creating your Account and pay the subscription fees as set out on the Application which may vary depending on the particular products and/or services you have selected, or the length of the subscription you have selected (Subscription Fees).
If we offer any free trial period, the first instalment of the Subscription Fees are due and payable once the free trial period ends. You agree to pay us the Subscription Fees on an ongoing basis, to maintain your subscription. You must pay the Subscription Fees in the amount and currency specified on the Application.
Your subscription will automatically be renewed on the same periodic basis (either monthly, quarterly or yearly), upon receipt of the Subscription Fees, set out on the Application at the time of purchase.
All purchase prices include value added tax (where applicable).
You must pay for your Subscription Fees by one of the methods set out on the Application, which may include the iTunes payment software platform.
Your initial payment of your Subscription Fees will be processed upon receipt of your request to subscribe, or, if we offer any free trial period, once the free trial period ends. Each payment of your Subscription Fees will cover your access to and use of the selected products and services for the period specified on the Application.
You must not pay, or attempt to pay, for an order through any fraudulent or unlawful means. If any payment is not able to be successfully processed then your subscription may be cancelled.
Our pricing structure or payment methods may be amended from time to time in our sole discretion. After a pricing change, you have the choice to continue using the Application, or to cease to use the Application without penalty. Any change relating to our pricing structure or payment methods is immediately effective upon us publishing the change on the Application, and will apply to any usage of the Application following the change.

4. Cancellation of Subscription

You may cancel your subscription at any time through the Application. If you cancel your subscription:

you will not receive a refund of any Subscription Fees which you have paid;
we will not charge your iTunes account for any further Subscription Fees; and
your access to the selected products and services will cease on the day on which the next Subscription Fee payment would have been received but for the cancellation. [or will access be removed immediately]

5. Collection Notice

We collect personal information about you in order to enable you to access and use the Application, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.
We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide our products to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process.
By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.

6. Intellectual Property Rights

Intellectual Property Rights mean all present and future rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights (Intellectual Property Rights).
We own all Intellectual Property Rights in the Application, business, products, services, videos and branding, as between us and you. The foregoing contain material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the copyright which subsists in all creative and literary works incorporated into our Materials.
You must not breach our Intellectual Property Rights by, including but not limited to altering or modifying any of the Materials, creating derivative works from the Materials, distributing the Materials to unauthorised third parties or using our Materials for commercial purposes such as onsale to third parties.

7. User Licence

Subject to these Terms, we grant you a personal, non-exclusive, non-transferable, limited and revocable licence to use the Application and the Materials for your own personal and/or non-commercial use only on a mobile device (Device) owned or controlled by you as permitted in accordance with these Terms (User Licence), and not to use the Application or Materials in any other way or for any other purpose, apart from local fair dealing legislation. All other uses are prohibited without our prior written consent.
The right to use the Application is licensed to you and is not being sold to you. You have no rights in the Application other than to use it in accordance with these Terms.
These Terms and User Licence govern any updates to, or supplements or replacements for, this Application, unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
As a condition of your use of our Application, you agree to abide by these Terms; not to provide the Application to any third party; that we have the right to refuse you any and all current or future use of the Application and that we reserve the right to include or exclude entry to, or remove you from the Application.

8. Acceptable Use and Prohibited Use

Your use of the Application and Materials and the transmission of User information in connection with the Application is limited to the contemplated functionality. In no event may the Application be used in a manner that:
1. harasses, abuses, stalks, threatens, defames or otherwise interfere, infringe or violate the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
2. is unlawful, fraudulent or deceptive;
3. uses technology or other means to access the Application that is not authorised by us;
4. uses or launches any automated system, including without limitation, robots, spiders, or offline readers, to access the Application;
5. tampers with, hinders or modifies the Application or attempts to do so, attempts to introduce viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality, knowingly transmit viruses or other disabling features, damages or interfere with the Application including but not limited to the use of trojan horses, viruses, or piracy or programming routines that may damage or interfere with the Application;
6. attempts to gain unauthorised access to our computer network or user accounts;
7. encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
8. violates these Terms;
9. attempts to damage, disable, overburden, or impair our servers or networks;
10. fails to comply with applicable third party terms; or
11. facilitates or assists another person to do any of the above acts.

You must not:
1. post, upload, publish, submit or transmit any content that:
  1. infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy;
  2. is fraudulent, false, misleading or deceptive;
  3. requests money from, or is intended to otherwise defraud other Users;
  4. denigrates us or the Application;
  5. transmits junk mail, chain letter, spam mail, spimming, phishing, trolling or other unauthorised mass transmission;
  6. contains videos, images or media content of another person without his or her permission (or if such person is a minor, without the consent of the minor’s legal guardian);
  7. is defamatory, abusive, obscene, pornographic, profane, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
  8. is violent or threatening or promotes violence or actions that are threatening or intimidating to any other person; or
  9. promotes illegal or harmful activities or use of illegal or harmful substances.
2. print, publish, modify, link to or distribute any content from the Application or any other documentation that we provide to you, unless we have authorised you in writing to do so;
3. breach copyright or Intellectual Property rights, including but not limited to, that you must not republish, copy, distribute, transmit or publicly display material from our Application; alter or modify any of the code or the Materials on the Application;
4. cause any of the Application to be framed or embedded in another website;
5. use the Application or any of the Materials therein for commercial purposes
6. collect or harvest any personally identifiable information, including phone number, from the Application, nor to use any communication systems provided by the Application for any commercial solicitation or spam purposes;
7. modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any of the Application or Materials therein; or
8. facilitate or assist another person to do any of the above acts.
Any use of the Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays and other content associated with the Application is prohibited.
We reserve the right, in our sole discretion, to terminate any User Licence, remove content or assert legal action with respect to Content or use of the Application, that we reasonably believe is or might be in violation of these Terms. Our failure or delay in taking such actions does not constitute a waiver of our rights to enforce these Terms.
Upon termination of the Terms, we have no further obligation to you, and may cease to provide the Application to you. The accrued rights, obligations and remedies of the parties are not affected by the termination of these Terms.

9. Dispute

Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our products or services, please contact us. If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

The complainant must tell the respondent in writing the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Queensland, Australia to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.

Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

10. Consumer Law, Return, Refund and Exchange Policy

ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for goods or services provided to a person or entity defined as a “consumer” under the ACL is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
Warranties: Except for your Statutory Rights, all products and services are provided to you without warranties of any kind, either express or implied, and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.

11. Limitation of Liability and Disclaimers

While the information and material contained on the Application and in relation to our products and services is believed to be accurate and current, it is provided by us in good faith on an "as is" basis, and we and our directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy or completeness of the information contained on the Application or in relation to our products and services, including without limitation nutritional or fitness information.
You acknowledge and agree that we (and Tammy Hembrow) have no medical or nutritional experience, certifications or qualifications and cannot suggest which workout programs or nutrition plans will work for specific individuals and their particular fitness level and medical condition.
We strongly advise that you consult with a medical professional before beginning any workout program or nutrition plan outlined in our products and services, as not all workout programs or nutrition plans are suitable for all individuals. The programs and plans outlined in our products have been designed for healthy individuals with a solid baseline of fitness. The programs may not be suited to individuals with particular medical conditions, including without limitation having a disease, illness, disorder, or who are elderly or recovering from illness or disease.
Our products are provided for educational and informational purposes only and should not be used as a substitute for professional medical or nutritional advice. You are responsible for making your own inquiries and seeking independent advice from a medical professional before acting on any information or material made available to you through the Application.
You acknowledge and agree that any work out program or nutritional plan outlined in our products should not be construed as providing any recommendations or advice. You understand and accept that our products and services do not include any supervision or monitoring of your use of the work out program or nutritional plan. You acknowledge and agree that there is the possibility of physical injury when participating in the workout programs outlined in our products and/or services, for which we take no responsibility. To the extent permitted by law, you agree to use our products and services at your own risk, that you are voluntarily using our products and services, and assume all risk of injury to yourself, and agree to release and discharge us from any and all claims or causes of action, known or unknown, arising out of your purchase and use of our products and services.
Our liability is governed solely by the ACL and these Terms.
To the extent permitted by law, we exclude all conditions, warranties, representations and liabilities in relation to the Application and the products, including but not limited to the following:
1. we expressly disclaim any implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
2. we take no responsibility for, and will not be liable for the Application or the products or services being unavailable, including your inability to access the functionality of the Application by reason of lack of internet connection (for which we are not responsible), failing to meet your expectations or medical or nutritional needs, failing to result in any desired health or nutritional benefit or outcome, or resulting in any injury, harm or any other undesired outcome or effect on you or any third party; and
3. we will not be liable for any loss, damage, injury, death, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise, suffered by you or claims made against you, arising out of or in connection with the Application, inability to access or use the Application, the products, the services, the late supply of products or services, or these Terms, even if we were expressly advised of the likelihood of such loss or damage.
To the extent permitted by law, our total liability arising out of or in connection with the products, the services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the total price paid by you for the purchase of products and/or services under these Terms.
This clause will survive termination of these Terms.

12. Indemnity

You indemnify us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from your breach of these Terms. You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our products or services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us. The obligations under this clause will survive termination of these Terms.

13. General

Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
Accuracy: While we endeavour to keep information up to date and correct, we make no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, videos, products, services, or related graphics contained on the Application for any particular purpose. You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.
Termination: We reserve the right to refuse supply of the products or services ordered by you if you breach any of these Terms, including if we suspect that you are on-selling or reselling the products or services to third parties without our consent, at our sole and unfettered discretion.
GST: If and when applicable, GST payable on our services or products will be set out on the Application. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
Notice: Any notice in connection with these Terms will be deemed to have been duly given when made in writing and delivered or sent by email, facsimile or post to the Party to whom such notice is intended to be given or to such other address, email address or facsimile number as may from time to time be notified in writing to the other Party.
Waiver: Any failure by a Party to insist upon strict performance by the other of any provision in these Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by us of any of these Terms shall be effective unless we expressly state it is a waiver and we communicate to you in writing.
Assignment: You must not assign any rights and obligations under these Terms, whether in whole or in part, without our prior written consent.
Severability: If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
Jurisdiction and Applicable Law: Your use of the Site and any dispute arising out of your use of it is subject to the laws of Queensland and the Commonwealth of Australia. These Terms are governed by the laws of Queensland and the Commonwealth of Australia and subject to the exclusive jurisdiction of the courts operating in Queensland. The Site may be accessed throughout Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Site.
Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.

For any questions or notice, please contact us at:

Tammy Hembrow Health & Fitness Pty Ltd (ABN 26 613 660 316)
fitness@tammyhembrow.org
Last update: 4 April 2018