Terms & Conditions

Risk Warning: Your participation in the Services may expose you to the risk of death, physical harm or personal injury. The risk of death, physical harm or personal injury may arise form, but is not limited to, third party participants, your physical fitness level, tiredness or overexertion, strenuous exercises, your training technique, equipment supplied by us or any failure to comply with our instructions or directions. You acknowledge and agree that death, physical harm or personal injury may arise from your or another party’s acts, omissions or negligence. You understand and voluntarily accept any risk that may arise from your participation in the Services.

1 Our Disclosures

Our complete terms and conditions are contained below, but some important points for you to know before you become a customer are set out below:

● Unless your Membership is terminated in accordance with these Terms, your Membership will roll over on an ongoing basis.

● The Risk Warning set out above apply to your access and use of the Services.

● You waive and release us, our affiliates and our Personnel from any responsibility or legal liability in connection with the Services to the extent they are a dangerous recreational activity or a recreational service, in accordance with the Risk Warning set out above and in these Terms.

● Subject to your Consumer Law Rights, we will have no Liability for any Third Party Services; any loss or corruption of data; scheduled or emergency maintenance; any loss, theft or damage to your property (including personal items); any negligent acts or omissions of you or any third party; the lack of suitability or benefit with respect to the Services; and/or Consequential Loss.

● Subject to your Consumer Law Rights, our Liability under this Terms is limited to the Fees paid by you in the previous 12 months immediately preceding the act, event or omission giving rise to the Liability.

● Subject to your Consumer Law Rights, any amounts paid by you to us are non-refundable.

Nothing in these terms limit your rights under the Australian Consumer Law.

2 Introduction

2.1 These terms and conditions (Terms) are entered into between Sydney Pole Pty Ltd (ACN 150 836 703) (we, us or our) and you, together the Parties and each a Party.

2.2 In these terms, you means the person using our Services.

2.3 We provide pole classes and pole practice sessions (Services) that you can book and manage through the Mindbodyonline app (Platform).

3 Acceptance

3.1 You accept these Terms by accepting them online, making part or full payment of the Fees or instructing us to proceed with the Services.

3.2 You must be at least 18 years old to access the Services or use the Platform.

3.3 We may amend these Terms, including what is available as part of our Services (for example, the inclusions, exclusions, updated features) or the Fees, from time to time, by providing 30 days’ written notice to you. If you do not agree to the amendment and it adversely affects your rights, you may cancel your Membership or Class Pack with effect from the date of the change in these Terms by providing written notice to us. If you cancel your Membership or Class Pack, (a) you will no longer be able to access the Services or use the Platform on and from the date of cancelation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.

4 Services

4.1 In consideration for your payment of the Fees, we agree to provide Services whether ourselves or through our Personnel. 4.2 You acknowledge and agree that the provision of some, or all, of the Services may be subject to availability or a screening process which you will be required to fulfil. We reserve the right to refrain from providing you the Services if you fail to fulfil the requirements of the screening process.

4.3 You may sign up for our Services on an ongoing basis by purchasing a membership (Membership) or on a one-off basis by purchasing a class pack (Class Pack)

4.4 We may, from time to time and in our sole discretion, introduce other membership services or offer additional services, including but not limited to a digital offering, coaching, personal training, individual or group classes (Additional Services). We will determine the fee (if any), scope and conditions of any Additional Services in our discretion. You may engage us to provide the Additional Services by requesting a change to your Account in accordance with clause 6.11. 5 Accounts

5.1 You must create an account to use our Services (Account).

5.2 You must provide basic information when registering for an Account including your full name, email address, phone number, date of birth and emergency contact and you must choose a username and password.

5.3 Where your selected Services includes access to the Platform, you will be invited to the Platform by us. 5.4 You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer or provide it to others.

5.5 You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.

5.6 Once you have an Account you may use the Platform to book, modify or cancel your registration for our Services.

6 Price and Payment Terms

6.1 You agree to pay us the fees set out in your Account (Fees).

6.2 We will offer you a free trial when you sign up to our Services through our Site (Free Trial Period). Free trials are only available for new Account holders and we may limit eligibility to prevent free trial abuse. At the end of your Free Trial Period, you may decide to purchase a Membership or a Class Pack.

6.3 Membership: You may purchase a Membership by paying the Membership Fees in advance on a fortnightly basis or some other recurring interval disclosed to you prior to your payment of the Fees (Billing Cycle).

6.4 Your Membership will automatically renew at the end of the Billing Cycle for the same period of time and you will be charged the Fees in connection with each subsequent Billing Cycle unless and until you cancel your Membership. 6.5 Class Pack: You may purchase a Class Pack by paying the Class Pack Fees for your preferred Services (either classes or practice sessions). A Class Pack is not automatically renewed and once you have accessed the Services you purchased, will need to purchase another Class Pack to access our Services.

6.6 You agree that we will deduct the Fees, and any other amount due and payable to us in accordance with this Agreement, from your nominated payment method as selected in your Account (Payment Terms).

6.7 You authorise us to, in accordance with these Terms, automatically direct debit any amounts payable to us by you under these Terms from your chosen payment method.

6.8 You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions. You agree to complete a direct debit request form and/or direct debit request service agreement (if and when required), which may be provided by us or by a third-party provider on our behalf.

6.9 You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.

6.10 You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us in connection with the Platform.

6.11 Changes to your Membership: If you wish to suspend or make a change to your Membership (for example, by upgrading to a different Level), you must provide notice to us in person or over the phone that you wish to suspend or vary your Account at least 3 Business Days before the end of the current Billing Cycle. If you vary your Membership and the Fees increase, the increased Fees will apply at the start of your next Billing Cycle, and you will have access to the additional Membership

features at the start of your next Billing Cycle.

6.12 The Fees are only refundable and cancellable in accordance with your Consumer Law Rights and these Terms.

7 Bookings

7.1 You must use the Platform to make a booking for our Services (Booking).

7.2 When purchasing a Membership or a Class Pack, you must select one of the options for a level (Level). Each Level has a different number of credits included, which are utilised to book in our Services (Credits).

7.3 The number of Credits needed to book in a Service be outlined on the Platform. Once you make a Booking, the number of Credits available to you will reduce.

7.4 The number of Credits available to you will be outlined in your Account. Credits will only sit in your Account for 60 days from the date that you pay either the Membership Fees or the Class Pack Fees. After 60 days, the number of Credits in your Account will revert to zero and you will not be able to make another Booking until you purchase another Class Pack or pay the next Membership Fee in your Billing Cycle.

7.5 If you make an amendment to your Booking (for example, changing the time or date for your Booking) 6 or more hours in advance of the original Booking, your Credits will not be affected. If you make an amendment to your Booking within 6 hours of the original Booking, your Credits will not be refunded to you.

8 Our Intellectual Property

8.1 You acknowledge and agree that we own or license all Intellectual Property or content available on our Site, and the content that we have uploaded on to the Platform (Our Intellectual Property).

8.2 We authorise you to use Our Intellectual Property solely for your personal use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any third party. You may only access Our Intellectual Property on your personal device, and you may not use Our Intellectual Property for any commercial purpose. 8.3 You must not, without our prior written consent:

(a) copy, in whole or in part, any of Our Intellectual Property;

(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or

(c) breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.

8.4 This clause will survive the termination or expiry of your Membership or Class Pack.

9 Warranties

9.1 Despite anything to the contrary, to the maximum extent permitted by law, you acknowledge and agree that:

(a) your participation in the Services may expose you to the risk of death, physical harm or personal injury. The risk of death, physical harm or personal injury may arise form, but is not limited to, third party participants, your physical fitness level, tiredness or overexertion, strenuous exercises, your training technique, equipment supplied by us or any failure to comply with our instructions or directions. You acknowledge and agree that death, physical harm or personal injury may arise from your or another party’s acts, omissions or negligence. You understand and voluntarily accept any risk that may arise from your participation in the Services;

(b) in the event that you become aware at any time of any medical, physical or psychological condition, injury or impairment that may be detrimental to your health or affect your proper and safe use of the Services, you must immediately notify us, cease to use the Services and contact your medical providers; and

(c) you are solely responsible for determining the suitability of any Services, and your reliance on any information that is provided to you is at your own risk.

9.2 You represent, warrant and agree that:

(a) there are no legal restrictions preventing you from entering into these Terms;

(b) you will cooperate with us, and provide us with information and instructions that are reasonably necessary to enable us to provide the Services, as requested by us from time to time, and will comply with these requests in a timely manner;

(d) you will not use the Services if you are suffering from any illness, disease, injury or other condition that could be a risk to your health or safety or that of other members or our Personnel;

(e) where you are aware of or become aware of, any physical or medical conditions that prevent you from participating in your chosen Services, you will inform us and either:

i. you will not participate in those Services; or

ii. you have received consent from a medical professional to participate in those Services, and you will provide us with proof of such consent upon request;

(f) you will follow our reasonable instructions or requirements;

(g) you will treat our instructors with respect;

(h) you will not damage any property on our Premises;

(i) you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;

(j) the Services are provided solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, the Services to third parties without our prior written consent; and

(k) that any information, advice, material, work and services (including the Services) provided by us under these Terms does not constitute medical advice.

10 Australian Consumer Law

10.1 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 the Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).

10.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

10.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

10.4 This clause will survive the termination or expiry of your Membership or Class Pack.

11 Liability – Recreational Activities

Warning Under the Australian Consumer Law

11.1 By accepting these Terms, you agree that you have read the risk warning on the front page of these Terms and at clause 9.1(a), and you are aware that the Services are a recreational service (as that term is defined in the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law), or a dangerous recreational activity (as that term is defined in the Civil Liability Act 2002 (NSW), and carry inherent risk. You acknowledge and accept that there is a degree of risk in participating in the Services, and your participation in the Services is at your own risk.

11.2 Despite anything to the contrary, to the maximum extent permitted by law, you acknowledge and agree that we will not be liable for, and you agree to waive and release us, any affiliates and all parties associated with organising and delivering the Services (including our Personnel), from any Liability arising from or in connection with the Services in so far as they are a dangerous recreational activity or a recreational service.

11.3 For the avoidance of doubt, you agree to release us from any Liability and waive any claims for: (a) death;

(b) physical or mental injury (including aggravation, acceleration or recurrence of such injury);

(d) the coming into existence of any other condition, circumstances, occurrence, activity, form of behaviour, course of conduct, or state of affaires in relation to you, that

i. is or may be harmful or disadvantageous to you or the community; or

ii. may result in harm or disadvantage to you or the community,

arising from or in connection with the dangerous recreational activity or recreational services, including your participation in the Services.

11.4 This release does not apply to significant personal injury caused by reckless conduct by Sydney Pole Pty Ltd or its Personnel. 11.5 This clause 11 will survive the termination or expiry of these Terms.

12 Limitations on Liability

12.1 Despite anything to the contrary, but subject to your Consumer Law Rights:

(a) you agree that these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are expressed in these Terms;

(b) we will have no Liability, and you waive and release us from all Liability, arising from or in connection with:

i. the Services to the extent they are a dangerous recreational activity or recreational service (as these terms are defined in clause 11.1;

ii. any loss, theft or damage to your property (including personal items);

iii. any negligent acts or omissions of you or any third party, including any third party that you allow onto the Premises or to use any part of the Services and/or any other member or user of the Premises; and/or iv. the lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services;

(d) each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that Party to mitigate its losses; and

(e) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you in the 12 months immediately preceding the act, event or omission giving rise to the Liability (and where there has been less than 12 months of Fees paid, an amount equal to 12 months of Fees calculated on a pro rata basis having regard to the amount of Fees paid and the period of time).

12.2 This clause 12 will survive the termination or expiry of your Membership or Class Pack.

13 Termination

13.1 Subject to each Party’s right to terminate these Terms, if you purchase a Membership, your Membership will operate on an ongoing basis for the period of time set out in your Account, unless either Party provides written notice that it does not wish to renew the Membership.

13.2 Cancellation of Memberships: You may request to cancel your Membership by providing us with 14 days’ written notice. 13.3 A Membership will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

(a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or

(b) the Defaulting Party is unable to pay its debts as they fall due.

13.4 Should we suspect that you are in breach of these Terms, we may suspend your access to the Services or the Platform while we investigate the suspected breach.

13.5 Upon expiry or termination of your Membership or Class Pack:

(a) we will remove your access to the Services and the Platform;

(b) you agree to return to us, any property belonging to us that is in your possession, including your Digital Access Card; and

(c) where we terminate your Membership as a result of your unrectified default, you also agree to pay us our reasonable additional costs directly arising from such termination, including recovery fees.

13.6 Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.

13.7 Termination of a Membership or Class Pack will not affect any rights or liabilities that a Party has accrued under these Terms.

13.8 To the maximum extent permitted by law, no refunds will be offered on any Class Packs.

13.9 This clause will survive the termination or expiry of your Membership or Class Pack.

14 Collection Notice

14.1 We collect Personal Information about you in order to provide the Services to you, to enable you to access and use the Services and the Platform, to monitor your progress, to contact and communicate with you and to respond to your enquiries and for other purposes set out in our Privacy Policy.

14.2 We may disclose that Personal Information to third party service providers who help us deliver our Services (including our information technology service providers, data storage, web-hosting and server providers, professional advisors, debt collectors, 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 services to you. In certain circumstances, we may disclose your Personal Information to third parties located, or who store data, outside Australia.

14.3 Our Privacy Policy contains further information about how we store and use your Personal Information; how you can access and seek correction of your Personal Information; how you can make a privacy-related complaint; and our complaint handling process.

14.4 By providing your Personal Information to us, you acknowledge and agree that we will collect, hold, use and disclose your Personal Information in accordance with our Privacy Policy.

15 Notice Regarding Apple

15.1 To the extent that you are using or accessing the Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.

15.2 Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform. 15.3 If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility. 15.4 Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to: (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

15.5 Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.

15.6 You agree to comply with any applicable third-party terms when using our mobile application. 15.7 Apple and Apple subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

15.8 You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

16 General

16.1 Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

16.2 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

16.3 Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

16.4 Entire Terms: Subject to your Consumer Law Rights, these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

16.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notifies the other party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations and uses reasonable endeavours to minimize the duration and adverse consequences of the Force Majeure Event.

16.6 Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

16.7 Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

16.8 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. We will handle your Personal Information in accordance with our Privacy Policy.

16.9 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

17 Definitions

17.1 Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission, and/or, any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data. The Parties agree that your obligation to pay us the Fee under these Terms will not constitute “Consequential Loss”.

17.2 Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control. 17.3 Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

17.4 Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

17.5 Personal Information has the meaning given in the Privacy Act 1988 (Cth).

17.6 Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

17.7 Premises means our physical premises where we will offer some of our Services to you.

17.8 Privacy Policy means our privacy policy available from Sydney Pole.

17.9 Site means our website available at www.sydneypole.com

For any questions or notices, please contact us at:

Sydney Pole (ACN 150 836 703)

Email: info@sydneypole.com

Last update: 1 August 2023