Users Terms & Conditions

These terms constitute an agreement between you and AirFitness Pty Ltd ABN 44 622 361 406 of PO Box 440, Rose Bay  2029 NSW Australia (“we”, “our”, “us” and “AirFitness“ referring to this company). “You” and “Your” and “User” refer to the person who uses the AIRFITNESS online platform at www.airfitness.fit for any of our products and services, including those under the AIRFITNESS™,  MORFUS™and SUBACLASS™ brands (these terms applying to each and all of them)(“Platform”) or registers a Platform account with us (“Account”). You may be an actual or prospective supplier or acquirer of services who uses the Platform to facilitate your dealings with other users of the Platform. By registering an account or using the Platform, you agree to be bound by these terms and all other policies and terms we notify you, including via the Platform. These other terms and policies include our privacy policy at https://morfus.fit/privacy-policy/, our cookie statement at https://morfus.fit/cookies/and the general terms applicable to use of our online sites athttps://morfus.fit/terms-conditions/. https://subaclass.com/terms-%26-conditions

If you do not wish to be bound by these terms, do not use the Platform and do not register an account with us.

These terms apply to all dealings, including supplies of goods and services facilitated via the Platform. We may change these terms from time to time. If we propose to do so, we will give at least 2 weeks’ notice of this via this site. If you do not accept the change, do not continue to use the Platform after the end of that time because from then, these terms as changed will apply to that use.

Platform

If you have a current registered Account and subject to these terms, including your compliance with them, your permitted access to the Platform will be recognised by us for the sole purpose and to the extent we reasonably consider appropriate for facilitating the dealings set out onwww.airfitness.fit in any event on a non-exclusive, personal basis (“licence”). https://subaclass.com https://morfus.fit

You agree that if any consents are needed for your effective use of the Platform (for example consents for us to access, use, store and disclose your content) you will procure these consents and that our obligations under these terms are conditional on those consents having been procured. You agree to comply with our reasonable requests for confirmation of this.

You agree to be solely responsible for your interactions with other users of the Platform and that we are not responsible for the conduct of any user.

You acknowledge and agree:

· That we may configure our systems and determine the nature and manner of our technical support in such manner as we appropriate from time to time;

· To comply with such access and use procedures (including as to communications and security) as we require from time to time, including as we may publish via the Platform;

· That the Platform offers no features (whether performance, functionality or otherwise) which is not expressly stated on the Platform;

· That third party facilities, including social media services and software programs, may be used or available for use in connection with the Platform. You agree that your right to make any use of such facilities is governed by the terms if required by the relevant third-party and not by these terms;

· Not to do or permit anything to be done in respect of the Platform which is not expressly permitted by these terms. For example, you agree not to remove or modify any notice of our rights, engage in any form of content extraction/reproduction processes (for example those referred to as screenscraping or web crawling) or make any use of any content accessible via the Platform other than solely as necessary to give effect to the licence in accordance with these terms;

· To use reasonable efforts to prevent unauthorised third parties from accessing the Platform; and

·  That the maximum content storage space available to you in connection with the Platform, if any, may be as published on the Platform from time to time  and that you will not make or permit any use of the Platform in a way which we reasonably consider unacceptable. Examples are uses which involve misleading, defamatory or socially unacceptable content and direct marketing other than as approved by us and in any event other than as permitted under applicable laws.

Content

In these terms “content” refers to all information in any form and includes text, graphics and sound. You agree that:

· We are not responsible for and do not endorse any content available via the Platform by anyone other than ourselves;

· We make no representation and do not give any commitment that your use of the Platform will meet any expectations you may have of us or any third parties.  You use the Platform in full acceptance of the risks that the commitments or representations that third parties make, whether as to the quality or fitness for purpose of their goods or services, as to payment or otherwise, including as communicated to you via the Platform, may infringe your rights, may be false, confusing, misleading or deceptive or may not be honored;

· We may, but are not liable, to moderate (including to reject, change and remove) content and anything else connected with your use;

· All information you post on the Platform will be publicly accessible except to the extent the Platform’s settings permit otherwise and you adjust those settings accordingly. Except to act consistently with such settings, you agree that we owe no duty of confidence to you and are not obliged to ensure that any other user treats any of your information confidentially;

· You have sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all content made available by you or on your behalf; for your Platform use being free from all adverse claims and fully compliant with all rights anyone may have; and for honoring any promises or other representations made by you or on your behalf;

· You have sole responsibility to ensure that all personal information provided to us by you or on your behalf is provided with the consent of the relevant individual and that such consent includes to the dealings set out in our privacy policyathttps://morfus.fit/privacy-policy/and our cookie statement is at https://morfus.fit/cookies/. https://subaclass.com/cookies https://subaclass.com/privacy-policy

· The Platform may not be secure and may not be such as to detect or reject faulty or aberrant data;

· Information on the Platform does not assist you to consider all the matters that should be considered in any decision-making of any relevant kind and will not be used by you as a substitute for your own independent and appropriately informed decisions regarding your affairs;

· You will not make or permit any access to or use of the Platform unless you have in place all appropriate strategies to manage risks associated with your use of the Platform, an assessment of which you will make in your own independent judgement;

· You will be responsible for providing your own access facilities (which include telecommunications services and access devices);

· You will ensure that all your access facilities meet prudent security standards, including those which may be required by us from time to time and will remain free from any circumstances (including viruses) which may adversely affect us or the Platform;

· Your access facilities will be reasonably appropriate for use in conjunction with the Platform;

· If you believe that an aspect of the Platform constitutes an infringement of your or a third party’s rights, you will contact us as soon as possible and let us know. We do not condone or authorise the Platform being implicated in any infringement of anyone’s rights or any conduct which is wrong; 

· Without limiting the use and disclosure consents to give us as set out in our privacy policy (referred to in these terms), we may make your content and any other information (in any form) relevant to your relationship with us under these terms available to anyone who provides reasonable evidence as to their right to this, including a law enforcement officer, a person representing a professional or industry standards organisation, representatives of any person who has died or been injured and someone who appears to us to be a counterparty to a transaction involving you effected via the Platform;

· We own all rights, including intellectual property rights, in the Platform and all content related to the Platform, whether the foregoing have been made available by us, by a user of the Platform (including you) or otherwise. Other than as you modify as permitted by a change to the Platform’s settings, you agree that we may exercise such intellectual property rights in such manner as we decide in our absolute discretion;

· That your licence in respect of access to the Platform is limited as provided under “licence” above; 

·  We may take such action as we consider appropriate in respect of the Platform.  We may do so without notice to you and without reason, whether or not any circumstances occur in respect of the Platform which we consider to be unacceptable.  Such actions may include, in whole or in part, blocking orremoving content (including communications); suspending or terminating access and notifying third parties such as law enforcement officers and rights owners.  

Your payments & other responsibilities

Details we include on the Platform include those about our charges for use of the Platform. You agree to pay us such of those charges as are applicable to your category of access, plus all relevant indirect tax (such as Australian GST). You irrevocably authorise us to debit your payment device such as a direct debit authority or a credit card (“payment device”) (with a corresponding credit in our favour). You agree that we may do this within the times stated by us on the Platform. If for any reason a direct debit to your payment device is not available, you will in any event pay us the amount due and owing within 7 days after request. You agree to pay interest on amounts overdue at the rate of 10% per annum. You warrant that the payment device you nominate for the purpose of these terms will remain valid at all time relevant to dealings facilitated via the Platform.

In respect of our supplies which are subject to indirect tax, we will provide a tax invoice on the relevant dates.

We use the services of a payment provider such as Stripe Payments Australia Pty Ltd to facilitate payments. If there is a service fee payable for such payment provider services in respect of a payment due to us from you, we may debit your payment device in our favour for such fee. You agree to act consistently with the terms relevantly required by the payment service provider of which you should reasonably be aware.

In respect of payment transactions other than for fees payable to us by you, you agree that we act solely as a payment facilitator. When you register for an account, you may be asked to provide certain details, including financial and business registration details and you agree to provide these.

You irrevocably authorise us to provide your financial institution details to our nominated payment service provider to facilitate your dealings with other users, including to set up a direct debit account between you and that service provider to enable direct transactions to and from your nominated accounts via the Platform.

You acknowledge and agree that in respect of any goods and services supplied or acquired with the assistance of the Platform, we are not liable for payment. Relevant users (for example the client in respect of any services from a trainer) will be solely liable for payments for those goods and services. You release us from all costs, expenses, demands, damages and claims in any way relating to the indebtedness of a user to you.

You thatin respect of the supply of any goods or services via the Platform, you will not (and will not allow any other person to) negotiate payment arrangements other than as facilitated by the Platform and any such attempted circumvention is a breach of these terms.

You warrant that:

· you have not entered into any other agreement, arrangement or understanding which may conflict with these terms;

· you are solely responsible for the supply or acquisition (as the case may be) of the goods and services you elect to have facilitated via the Platform;  and

· when you have any communication in relation to such goods and services, you are doing so under a direct arrangement with the counterparty user, not with us and are solely responsible for your relevant supply or acquisition terms in respect of such relationship.

You warrant that you will meet all eligibility criteria published by us on the Platform from time to time, including competency and insurance.

You agree to takes sole responsibility for your actions, including in preventing personal injury and being a sufficiently fit and competent person to supply or as the case require receive the services you may transact via the Platform. On request, you agree to give us such information as we reasonably request (in such form as we also reasonably request) confirming your compliance with all eligibility criteria.

You acknowledge and agree that proposed counterparties to transactions with you may require specific criteria to be agreed, over and above those required by us, to conclude a transaction.

If you are an acquirer of goods or services facilitated via the Platform, you warrant to us that you will have enough funds available via your payment device to enable payment for the relevant goods or services. You authorise us to deduct payment, for our own account, of all relevant payment device surcharges and reasonable administration fees for managing circumstances where there may be insufficient funds available via your payment device.

Liability exclusions, releases and indemnities

Some mandatory laws such as Schedule 2 of the Competition and Consumer Act 2010 (Cth) and comparable fair trading legislation of Australian states or territories may give you certain guarantees which cannot be excluded or limited for example in relation to acceptable quality of goods or services under certain supply contracts (Mandatory Laws). Everything in these terms is subject to the provisions of Mandatory Laws to the extent that apply to you and nothing in these terms shall be read as excluding or limiting their application to you to the extent their application is required by law.

Subject to the foregoing all terms (whether conditions, warranties or other) which would otherwisebe implied in these terms are excluded.

YOUR USE OF GOODS OR SERVICES ACQUIRED VIA THE PLATFORM MAY RESULT IN DEATH OR PERSONAL INJURY OR PROPERTY DAMAGE. IF YOU SUSTAIN OR CAUSE ANY SUCH LOSS, IT MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESPONSES AND SO, TO THE EXTENT PERMITTED UNDER MANDATORY LAW (AS DEFINED ABOVE) YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE ARISING OUT OF OR RELATING TO A DEALING WHICH IS FACILITATED VIA THE PLATFORM, AND FOR ALL LIABILITY WHICH WE MIGHT SUFFER OR INCUR IN RESPECT OF SUCH INJURY, DEATH OR DAMAGE.

Except in relation to liability for our breach of these terms (which you agree shall be limited, for all claims in aggregate, to paying an amount equal to the amount of fees we have received for goods or services supplied or acquired by you via the Platform in the period of one year prior to the date of the relevant circumstances under your first claim) you agree that we are under no liability to you in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with these terms (including in respect of goods or services supplied pursuant to these terms).

Without limiting the following sentence, you warrant that you have not relied on any representation made by us which has not been stated expressly in these terms, or upon any descriptions, illustrations or specifications in any way relating to the Platform including catalogues, website or publicity material made available by us. You acknowledge that to the extent we have made any representation which is not otherwise expressly stated in these terms, you have been provided with an opportunity to independently verify the accuracy of that representation.

In respect of any claim under or in connection with these terms, you and we agree that to the maximum extent permitted by law, these terms exclude the operation of any laws which would apportion any liability to us which would not have been so apportioned but for such laws.

To the extent permitted under Mandatory Law, you release, waive and discharge us and our related companies and their respective representatives, officers and employees and those in privity with them (“releases”) from and against:

·  any loss (including legal costs and expenses and liability) incurred or suffered by any of the releasees arising from any claims against any of the releasees where such loss or liability was caused by a breach by you of your obligations under these terms or any of your wrongful, unlawful or negligent acts or omissions.

·  any loss (including legal costs and expenses and liability) suffered or incurred you and your personal representatives, assigns, heirs, and next of kin or wards on account of death or injury to person or property, arising out of or related to any goods or services supplied, or the supply of which has been facilitated, via the Platform, whether caused in whole or in part, by the sole or concurrent negligence of the releasees or otherwise, including, without limitation, negligent response as well as any and all actions, counterclaims or cross actions, claims, demands, damages, costs, legal fees and expenses of any kind whatsoever which may now exist or hereafter arise, whether brought by you or on your behalf (collectively “Claims”). The benefit to us under this clause is for all releasees and, in this regard, we shall be deemed to be, acting as agent on behalf of and for the benefit of those who are also named as releasees. To the extent permitted under Mandatory Laws, you agree to indemnify, defend, and save and hold harmless the releasees and each of them from any and all Claims.

Cancellations and Suspensions and Termination

You agree that we may refuse, suspend or cancel registration of an Account for any reason in our sole discretion.

If you wish to cancel your request for any goods or services (“booking”) for any reason we must be notified within 24 hours of your booking being placed. Cancellation of the booking must be made by the procedure stated by us which may be notified via the Platform. Failure to do this may lead to your cancellation rejected or to us charging such administration fee as we reasonably specify to your payment device. This fee may include an amount on account of any surcharges we are charged in respect of your booking.

We will not be responsible or liable in any way for any postponement, cancellation, no-show, termination or other non-performance of the supply of any goods or services, or any dispute between users in respect of any such matters.

We may terminate these terms or suspend performance of our obligations under these terms (for such period as we specify) immediately by notice in writing if we consider there are reasonable grounds to do so, for example an act or omission which a reasonable person in your position would not do or suffer, if we are unable to contact you or if we consider you may be in breach of these terms. If such termination or suspension occurs, we may (amongst other things) retain any moneys paid, charge a reasonable sum for services performed in respect of which no sum has been previously charged and be regarded as discharged from any further obligations under these terms.

You agree that on expiry or termination of these terms for any reason, all your rights in respect of the Platform shall end.

You agree and acknowledge that we have no obligation to retain any information relating to you (including your content) and that all such information may be irretrievably deleted by us after 6 months from the date of any suspension, termination or expiry of these terms.

Force majeure

We shall not be liable for any delay or failure to perform our obligations under these terms if such delay is due to circumstances beyond our reasonable control (“Force Majeure”). If a delay or failure is caused or anticipated due to Force Majeure, our obligations will be suspended. If a delay or failure by us to perform our obligations due to Force Majeure exceeds sixty (60) days, we may immediately terminate these terms on providing notice in writing to you via the communication means specified by you at the time of establishing your access to the Platform. If these terms are terminated pursuant to the preceding subclause, we are not liable to refund any moneys paid by you pursuant to these terms.

Privacy

You acknowledge that our privacy policy and cookies statement set out important information about how we collect, use and disclose your personal information and your rights in respect of these things. Our privacy policy is at https://morfus.fit/privacy-policy/and our cookie statement is at https://morfus.fit/cookies/. https://subaclass.com/privacy-policy https://subaclass.com/cookies Our privacy policy tells you, for example, about what kinds of personal information we collect and hold; our collection of your personal information from others; how we collect and hold personal information; why we collect, hold, use and disclose personal information; where we store your personal information; how you may access, correct or enquire about your personal information; how you may complain to us regarding your personal information; our sharing of data overseas; how long we keep your personal information and how to contact us regarding privacy matters.
You agree to our practices set out in our privacy policy and cookie statement.

Regardless of our source of your personal data and of the basis on which we collect or hold it, it is our policy to observe your rights under your privacy law to opt out of our direct marketing to you. Our direct marketing materials will generally tell you how to do this, but if you are not sure, a member of our privacy team will help you.

General

These terms constitute the entire agreement between us and you and supersede all prior representations, agreements, statements and understandings, whether verbal or in writing. The benefit of these terms shall not be assigned by you without our written consent. No right under these terms shall be deemed to be waived by us except by notice in writing signed by us. A waiver by us will not prejudice our rights in respect of any subsequent breach of these terms by you. Any non-enforcement of these terms will not be construed as a waiver of our rights. If any provision of these terms is held invalid, unenforceable or illegal for any reason, these terms shall remain otherwise in full force apart from such provisions which shall be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality. These terms will be governed by and construed according to the law in force in Sydney in the State of New South Wales, Australia.

Complaints and dispute resolution

By making any use (including access) of the Platform, you agree that in addition to any statutory complaint rights you may have, for any complaints or disputes in connection with such use the following complaints and dispute resolution processes apply, with each of us not unreasonably withholding consent to the resolution of disputes through online means:

·  we will first try to resolve issues without recourse to arbitration or litigation using mediation administered by  a reputable recognised disputes resolution service reasonably specified by us (Dispute Service), such as the Australian  Disputes  Centreor the Australian Centre for International Commercial Arbitration (ACICA),  in  accordance with  the  rules/guidelines of that Dispute Service; and

·  if we are unable to resolve issues promptly, either of us may refer any such complaints or disputes to be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as in force when the relevant issue arose.  Any such arbitration shall be administered by the Dispute Service. The appointing authority shall be Dispute Service. The number of arbitrators shall be one. Subject to the above concerning resolution through online means, the place of arbitration shall be Sydney and the law to be applied is the law in force in that place. The language to be used in the arbitral proceedings shall be English.

Last updated:  10 September 2019