Terms of Use | Kylie Takarangi

KYLIE – THE FUNCTIONAL PHYSIO TERMS OF USE

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE KYLIE – THE FUNCTIONAL PHYSIO WEBSITE. BY ACCESSING AND USING THE WEBSITE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY CONTENT WITHIN THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE WEBSITE

1. Background 1.1 Kylie – The Functional Physio Pty Ltd (ACN 632 561 445) (“Company”, “we”, “our”, “us”) provides face-to-face physiotherapy services (“Services” or “Health Service”) and produces how-to videos of physical exercises that demonstrate the appropriate techniques to correctly perform the exercises (“Products”). Our website is located at www.thefunctionalphysio.com.au/ (“Website”). Our Website is a platform which provides access to our Products and booking information for our Health Service. The company can be contacted at Level 6, 3 Chapel mews, South Yarra, Vic 3141 or via email at kyliethefunctionalphysio@gmail.com

2. Compliance with Terms of Use 2.1 By accessing and using the Website, you warrant and represent to the Company that you have read and understood these Terms of Use, and agree to be bound by these Terms of Use.

3. Revision of Terms of Use 3.1 The Company may, in its sole discretion, modify or revise the terms upon which you are granted access to the Website, as set out in these Terms of Use, from time to time, and you agree to be bound by such modifications or revisions. The Company will attempt to notify you when these Terms of Use are amended however you should periodically review these Terms of Use to ensure that you are updated as to any amendments.

3.2 You agree that the Company is under no obligation to notify you when these Terms of Use are amended, and acknowledge that your continued access and use of the Website after the Terms of Use has been amended signifies your acceptance of the amended Terms of Use.

4. Access to the Products 4.1 In order to access the Products, you must create an account on the Website. You must be 18 years of age to create an account. You can create an account by selecting the “Create Membership Account” prompt. You will be asked to fill in your details, namely your personal details such as full name, mobile number, email, billing and delivery information and payment details. Upon creating an Account you may purchase a subscription plan for access to the Products.

5. Legitimate Purposes Only 5.1 The Website, Services and Products must be used for legitimate commercial business purposes only. You agree to use the Website, Products, Services and any other Company Content in a way which does not abuse it or its functionality, or otherwise restrict or affect the ability of others to access and use the Website.

6. Suspension or Termination of Access by Company 6.1 The Company reserves the right, in its sole discretion and without any form of liability to you or any other person, to restrict, suspend or terminate your access to part or all of the Website if it is determined by the Company in its absolute discretion that you have breached any aspect of these Terms of Use, or breached any applicable laws or regulations in your use of the Website. Restriction, suspension or termination is effective immediately unless the Company determines otherwise in its sole discretion and notifies you accordingly.

7. Termination of Access to Products by User 7.1 You may terminate your access to the Products by cancelling your subscription plan in accordance with your subscription plan.

8. Additional Terms and Conditions 8.1 In order to fully access and enjoy the Website and Products you may be notified that you are required to download or install software or content and/or agree to additional terms and conditions. You acknowledge and agree that any additional terms and conditions which are applicable to the Website are hereby incorporated into these Terms of Use.

9. Ongoing Obligations 9.1 These Terms of Use, as modified from time to time, will apply to you for so long as you access the Website. Any clause of these Terms of Use which by its nature or effect is intended to continue to apply to you after you stop accessing the Website, is capable of doing so, or is expressly stated to do so, and will continue in full force and effect after you stop accessing the Website.

10. Accounts 10.1 Once you create an Account you will be required to select a unique username and choose a password for your Account. When creating your Account, you must provide complete and accurate information. You are solely responsible for the activity that occurs on your Account. You must ensure that no automated systems (including without limitation robots, spiders and offline readers) access the Website or are otherwise used in connection with it, and must keep your Account password confidential and secure. You must not disclose your Account password to any third party. You must notify the Company immediately if you suspect any unauthorised use of your Account or access to your passwords. You are solely responsible for any and all use of your Account, and accordingly, you are liable to the Company for any losses sustained by it as a result of any unauthorised use of your Account. For the avoidance of doubt, you acknowledge and agree that the Company assumes no responsibility or liability for losses caused by unauthorised use of your Account.

11. Communications 11.1 By creating an Account, you consent to the Company providing you with marketing, promotional and advertising materials and other communications regarding offerings which the Company considers may be of interest to you.

12. Company Content 12.1 The Company grants to you a limited, non-exclusive right to access and use the Website and all other content and material associated with the Website which are owned by the Company (and for the avoidance of doubt includes all trademarks, brand names, logos and audiovisual materials incorporated into the Website) (Company Content), for the purposes of using and enjoying the functionality of the Website (Access Right). The Access Right ends after you stop using the Website, or these Terms of Use otherwise cease or are terminated.

13. Use of Company Content 13.1 You must not copy or reproduce the Website, Products, Services or any other Company Content by any means or in any form without the Company's prior written consent, except to the extent strictly required for you to access and use the Website. You are solely responsible for the use of the Company Content under your Account, and must ensure that the Website is protected at all times from misuse, damage, destruction or any form of unauthorised use. You acknowledge that in the event that the Company modifies, enhances, updates or upgrades any other part of the Website

during the Term, these Terms of Use apply to that Website part.

14. Intellectual Property 14.1 You acknowledge that the grant of the Access Right, and these Terms of Use, do not include any transfer of title or ownership to you of any rights in the Website, Products, Services, Products and any other Company Content (including any associated intellectual property rights, which include but are not limited to rights of copyright). You further acknowledge that in addition to any other remedies available to the Company under these Terms of Use or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of, the Website, Products, Services or any other Company Content will entitle the Company to avail itself of any equitable remedies against you which may be available, including but not limited to injunctive relief.

14.2 All rights (including but not limited to intellectual property rights) in the Website, Products, Services and any other Company Content will remain the property of the Company in all respects, regardless of whether or not such modifications or alterations were authorised by the Company (pursuant to these Terms of Use, or otherwise). Accordingly, all rights (including intellectual property rights) subsisting in any modifications or alterations will vest in the Company immediately upon creation, without the need for any further formality or documentation. You agree to execute (or procure the execution of) any documentation, and perform any other acts, required by the Company to confirm this fact and give effect to this clause, and will if necessary assign to the Company (or procure the assignment of) all rights (including intellectual property rights) arising out of any modifications or alterations to the Website, Products Services, or any other Company Content.

14.3 You represent and warrant that the information provided by you through your use of the Website does not and will not infringe the rights, including without limitation, the intellectual property rights, of any person or other third party.

14.4 The Company may only use the information provided by you through your use of the Website in a way that does not disclose personal information to any third party, where personal information has the meaning given under applicable privacy laws.

15. Prohibited Use 15.1 Your use of the Website, Products, Service and any other Company Content and the information you provide must not:

(a) Be false, inaccurate or misleading;

(b) Be fraudulent or deceptive;

(c) Infringe on any third party’s copyright, patent, trademark, trade secret, intellectual property or other proprietary rights of publicity or privacy;

(d) Violate any applicable law (including those governing customer protection, unfair competition, criminal law, anti-discrimination or trade practices law);

(e) Be defamatory, threatening, harassing, unlawfully discriminative or offensive;

(f) Contain any viruses, trojan horses, time bombs, trap doors, back doors, Easter eggs, spiders, robots, screen scrapers, data aggregation tools or other devise or other computer programming routines that may or are intended to damage, modify, delete, interfere with, intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Website.

(g) Damage the integrity of the Website or the Company or dilute, tarnish or otherwise harm our brand in any way;

(h) Breach or violate any of our policies;

(i) Use our Website in connection with the distribution of unsolicited commercial email (“spam”) advertisements;

(j) Attempt to gain unauthorized access to the Website or networks connected to the Website; or

(k) Tamper with, hinder the operation of or make unauthorized modifications to the

Website. 15.2 Without limiting any provision of these Terms of Use, the Company reserves the right to investigate and take any appropriate action (including suspension or termination of Accounts and access to the Website, or legal action, if necessary) against you if the Company determines, in its sole discretion, that you have engaged in prohibited use as referred to at clause 14(a).

15.3 The Company expressly reserves the right to take any action deemed necessary in respect of any Prohibited Use or other illegal or unauthorised use of the Website by any person, including referring matters to appropriate authorities for further investigation (such as police) and appropriate legal action.

15.4 You must immediately notify the Company if you become aware or reasonably suspect that any user is engaging in Prohibited Use, or proposes to do so.

16. Cookies 16.1 You acknowledge and agree that the Company may, from time to time, use cookies in connection with the Website, for purposes including but not limited to storing your Website preferences, determining whether you have installed all required software, to authenticate sessions, to customise material that is made available to you, or to otherwise provide the Website to you. You acknowledge that if you set your computer to block all cookies, you may restrict your access to certain features of the Website.

17. Your Warranty 17.1 You warrant that you have authority to enter into and to perform your obligations under these Terms of Use, and that you have the ability to perform, and will perform, your obligations under these Terms of Use.

18. Disclaimers 18.1 You acknowledge that the Website, Products and any other Company Content is not a health service nor does it provide health advice. The Website and Products are designed for educational purposes only. You should not rely on the Website and/or Products as a substitute for professional medical advice, diagnosis or treatment. You should consult a health care professional before subscribing to and using the Website and/or Products particularly an assessment and clearance from a physiotherapist. You acknowledge that the exercises on the Website and/or Products are not to be considered a recommendation for a specific treatment plan or course of action. The use of any information on the Website and/or the Products is solely at your own risk. Use of the Products may result in injury and you acknowledge that by voluntarily undertaking any exercise on the Website and/or in the Products you assume risk for any resulting injury.

18.2 The Company does not warrant that the Website, Products, Services or any other Company Content will be error free, or that your use of the Website, Products or any other Company Content will be uninterrupted, or that the they will meet your requirements. Accordingly, you expressly acknowledge and agree that use of the Website, Products and any other Company Content is at your sole risk, and further acknowledge and agree that to the extent permitted by law, the Website, Products and any other Company Content is provided "as is", with all faults and without warranty of any kind. Accordingly, the Company is not responsible for any problems, failures or technical malfunctions of any telephone lines or networks, computer online systems, servers or providers, computer equipment, software, or any other object or material, related to your use of the Website and Products including but not limited to any damage resulting from the access, download or use of Company Content or other material used by you as part of your use of the Website.

18.3 Further, the Company makes no warranties or representations regarding the security of material, data and information uploaded or submitted by you in your use of the Website and/or Products, and is not responsible for the loss of any material, data and information uploaded or submitted by you in your use of the Website and/or Products.

18.4 The Company expressly disclaims, to the fullest extent permitted by applicable laws

and regulations, any statutory or other guarantee or warranty relating to the Products, Website and any other Company Content, including but not limited to guarantees of acceptable quality and warranties of merchantability or fitness for purpose. The Company cannot guarantee, and does not promise, any specific results from use of the Website and/or Products.

18.5 In no circumstances shall the Company be responsible for any loss or damage, including personal injury or death, resulting from use of the Website and/or Products, from any information provided by you through your use of the Website or from your conduct, whether online or offline.

18.6 The Company may only use information provided by you through your use of the Website in a way that does not disclose the personal information of the customer to any third party, where personal information has the meaning given under applicable privacy laws.

19. Limitation of Liability 19.1 To the fullest extent permitted by applicable laws and regulations, the Company will not be liable for any direct, consequential, special or indirect loss suffered by you or any other party arising from your use of the Website and/or Products. Notwithstanding anything to the contrary in these Terms of Use, to the extent the Company is unable to fully exclude its liability pursuant to applicable legislation, the Company's liability to you in respect of any cause of action whatsoever will not in aggregate exceed a total amount of $10. Further, to the extent that it is entitled to do so, the Company limits its liability in respect of any breach of any applicable legislation which cannot lawfully be excluded (including the Competition and Consumer Act 2010 (Cth)) to:

(a) in the case of goods (including the Products), and at the sole option of the Company, either (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired. 19.2 The Company expressly disclaims, to the fullest extent permitted by applicable laws and regulations, any statutory or other guarantee or warranty relating to the, Website, Products, Website and any other Company Content, including but not limited to guarantees of acceptable quality and warranties of merchantability or fitness for purpose. The Company cannot guarantee, and does not promise, any specific results from use of the Website and/or the Products. In no circumstances shall the Company be responsible for any loss or damage, including personal injury or death, resulting from use of the Website, Products or from any User Content submitted as part of the Website or from your conduct, whether online or offline.

20. Indemnity 20.1 You agree to indemnify and hold the Company, its subsidiaries and affiliates and their respective officers, agents, partners and employees (Indemnified Parties), from and against any loss (including legal costs and expenses on a solicitor/own client basis) or liability incurred or suffered by any of the Indemnified Parties in relation to any claim, suit, demand, action or proceeding by any person against any of the Indemnified Parties arising from your use of the Website, Products and any other Company Content and any information provided by you through your use of the Website and/or Products, or any breach by you of these Terms of Use, including but not limited to the representations and warranties made by you as set out in these Terms of Use.

21. Confidentiality 21.1 You agree that you will keep secret and confidential, and not directly or indirectly disclose, or allow to be disclosed to any third party any commercial aspects of these Terms of Use that are not public knowledge, and any of the confidential information of the Company (Confidential Information), except to the extent necessary for you to properly use the Website or perform your obligations or exercise your rights pursuant

to these Terms of Use, unless otherwise expressly authorised in writing by the Company to do so.

21.2 You will inform the Company immediately upon becoming aware or suspecting that an unauthorised person has become aware of any Confidential Information.

21.3 You are permitted to disclose Confidential Information to such third parties as are strictly necessary, where you are required by law to do so (provided that you give the Company reasonable advance notice and opportunity to object to the requirement to disclose such information or obtain an appropriate order to protect its Confidential Information), or if the Confidential Information enters the public domain (other than as a result of a breach by you of your obligations under this clause).

21.4 On request by the Company, you will immediately return or erase/delete/destroy (at the Company's option) all Confidential Information in your possession or control. The obligations of confidence under these Terms of Use will continue to apply after expiration or termination of these Terms of Use.

22. Governing Law 22.1 These Terms of Use will be governed by the laws of the state of Victoria, and you and the Company expressly submit to the exclusive jurisdiction of the courts of Victoria in respect of all matters relating to these Terms of Use and your use of the Website generally.

23. General 23.1 You agree that these Terms of Use constitutes the entire agreement between you and the Company regarding your access and use of the Website, Products and any other Company Content subject to any additional Terms and Conditions policies which may apply.

23.2 You acknowledge the right of the Company to take action against you to prevent a breach of these Terms of Use and further acknowledge that damages may not be an appropriate remedy in those circumstances. You also acknowledge that the failure of the Company to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision.

23.3 You expressly agree and acknowledge that you are not authorised or permitted to bind the Company in any way whatsoever in relation to any contract or agreement with any third party.

23.4 Every provision of these Terms of Use is independent of the other. Any provision which is prohibited or unenforceable in any jurisdiction will be ineffective to the extent only of such prohibition or unenforceability, and the other provisions will continue in full force and effect.

23.5 You agree that you will do all things necessary to give full effect to these Terms of Use and any transactions contemplated by them.

23.6 These Terms of Use were last updated on 12th of November 2019 by Merton Lawyers of 1/26 Liddiard Street Hawthorn Vic 3122.