1 THESE TERMS
(a) 98gym.com and 98training.com (‘Websites’);
(b) all 98 Gym and 98 Training social media pages (including Instagram, Facebook, TikTok, YouTube and Twitter) (‘Social Pages’); and
(c) the 98 Gym App and 98 Training App (together the ‘Apps’), collectively the ‘Services’. 1.2 In these Terms:
(a) ‘98 Gym App’ means the ‘98 Gym’ mobile application available through the Apple App Store and Google Play Store;
(b) ‘98 Training App’ means the ‘98 Training’ mobile application made available through the Apple App Store and Google Play Store and at 98training.com;
(d) ‘we’, ‘us’ or ‘our’ refers to 98 Franchise Pty Limited (ACN 645 028 333), 98 Capital Pty Limited (ACN 639 004 032), 98 Training Pty Limited (ACN 639 004 452) and 98 Administration Pty Ltd (ACN 658 043 924), each ‘related body corporate’ (as defined in the Corporations Act 2001 (Cth)) and their agents, representatives, officers, directors, shareholders, employees, contractors, successors, affiliates, licensees and franchisees;
(e) ‘you’ refers to any user of the Services; and
1.3 Please read these Terms carefully. By doing any of the following things, you agree to be bound by these Terms:
(a) expressly accepting these Terms at any time, for example by clicking “I Accept” or “Proceed” or any clearly indicated activation phrase on your computer or other devices;
(b) downloading or updating the Apps;
(c) using the Websites;
(d) following, liking, connecting with, tagging, allowing yourself to be tagged, posting to or commenting on the Social Pages.
1.4 If you do not agree with these Terms, you must not download, update or use the Apps, or use the Websites and Social Pages.
1.5 We may amend, modify or otherwise update these Terms at any time and we will use our reasonable efforts to notify you of those changes. We will give such notice by posting the updated Terms on our Websites, using reasonable efforts to draw them to your attention.
1.6 Any changes to these Terms take effect from the date specified in the notice.
2 ACCESS AND USE OF SERVICES
2.1 For safety reasons, you must be at least 18 years old to use the Apps. We have the right to suspend or revoke your access to the Apps if we believe that you are under the age of 18 years old.
2.2 We have the right to suspend or revoke your access to or use of the Services if you;
(a) breach any of these Terms or any other terms, policies and procedures that apply to the use of the Services from time to time;
(b) do or say anything that brings us, our commercial partners and/or members into disrepute; (c) otherwise interfere with other parties’ rights to have reasonable use of and access to the Services.
3 YOUR USE OF THE SERVICES
3.1 You acknowledge the risks and dangers associated with the strenuous exercise that forms part of the Services, which include but are not limited to broken bones, soft tissue injuries, joint injuries, permanent disability or death. You assume all such risks and responsibility for damages, liabilities, losses or expenses which you may incur as a result of your use of the Services.
3.2 Each time you use the Services, you must ensure you are in good physical health and have no known medical or other reasons why you should not exercise. You should not use the Services until you have sought appropriate medical guidance.
3.3 We make no guarantee, warranty, representation or promise of any health outcomes associated with your use of the Services, including but not limited to weight loss, weight gain or other changes in body composition or your health or well-being more generally.
3.4 You must use the Services only for purposes that are permitted by these Terms, and any applicable law, regulation or generally accepted practices or guidelines.
3.5 You are solely responsible for protecting the confidentiality of any account information used to access the Services, including passwords. You agree to immediately notify us of any unauthorised use of your password or email address or any breach of security of which you have become aware.
3.6 You must not use the Services:
(a) in connection with any commercial endeavours except as approved in writing by us; (b) in a manner that violates a law or regulation;
(c) in a manner that does or may cause harm, distress or loss to any person.
3.7 You must not disrupt, interfere with, reverse engineer or compromise the security of the Website and Apps, and any software or hardware used in connection with the Website and Apps.
4.1 In the case of merchandise purchased from a Website or a 98 Gym, payment must be made via credit card or, if made available to you upon ordering, via After Pay, upon placing an order..
4.2 In the case of a 98 Training App subscription purchased directly from the Website, payment must be made, via credit card, upon subscription.
5 REFUND, RETURNS AND EXCHANGE POLICY
5.1 In the case of merchandise purchased from the Websites or a 98 Gym, to the extent permitted by law: (a) we will not provide you with a refund if you change your mind;
(b) if you purchase the wrong size, we will exchange the merchandise for the correct size as long as you return the merchandise to us in its original condition with all tags still attached; and
(c) if the merchandise is faulty, we will either repair the merchandise or replace it (at our cost and election).
5.2 98 Training App subscriptions purchased directly from the Website are, to the extent permitted by law, non-refundable.
6 INTELLECTUAL PROPERTY
6.1 We, and our licensors, own the intellectual property rights (including copyright and trade marks) in respect of the Website, Apps and Social Pages, and their contents. You must not copy, modify, transmit or adapt the Website and Apps or their contents, or otherwise infringe the intellectual property rights of us or our licensors, without our prior written consent.
6.2 If, in the course of using the Services, you provide any content (including photos, videos, other images and text) to us (including by way of posting on the Social Pages), you grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty-free licence to use, publish, reproduce and modify that content for any purpose. You warrant that you own the intellectual property rights in that content and that it does not infringe the intellectual property rights of any third party.
6.3 You agree that in using the Services, you will not publish any threatening, harassing, defamatory, obscene, offensive, hate mail or speech or facilitate others to commit such acts in whatever format.
6.4 You agree that we may, and reserve the right to, remove any content posted or comments made by you that we believe in our sole discretion to be damaging to us or any third party.
7 PRIVACY AND YOUR INFORMATION
7.2 You warrant that any information you provide to us in the course of accessing the Services will always be accurate, correct and up to date.
8.1 The Services may from time to time contain hyperlinks to websites or platforms operated by third parties. Such websites and platforms are not under our control, and we are not responsible for and do not control or approve, the contents or operation of any such websites and platforms.
9 OUR LIABILITY TO YOU
9.1 Your use of the Services at your own risk and acknowledge that the use of the Services may involve risk of injury, whether caused by you or another party.
9.2 To the extent permitted by law:
(a) we exclude any liability to you in contract, tort, statute or in any other way for any injury, damage or loss of any kind whatsoever (including, without limitation, any liability for direct, indirect, special or consequential loss or damage), sustained by you and/or any other person, or for any costs, charges or expenses incurred by you, arising from or in connection with your use of or access to the Services, or any inability to use or access the Services, and/or any act or omission of ours;
(b) you agree not to bring any claim or proceeding against us for any damage, loss, injury or liability you and/or any other person may suffer arising out of or in connection with your use of the Services; and (c) you forever discharge and release us from all liability to you and/or any other person for our acts or omissions arising out of or in connection with our provision of the Services.
9.3 You hold us harmless against any claims, proceedings losses, liabilities, costs or other expenses (including legal costs) incurred by you in connection with, whether directly or indirectly, your breach of these Terms, your use or access of the Services or any violation by you of any applicable law.
10.1 To the extent permitted by law:
(a) all statutory and implied guarantees, warranties and conditions of any kind in connection with the Services are expressly disclaimed (but we do not exclude any statutory or implied guarantee, condition or warranty which cannot be lawfully excluded);
(b) we do not warrant that:
(i) your access and use of the Services will be uninterrupted, or that the Services will operate error-free, that any defects will be corrected or that the Services are free of computer viruses, trojans, spyware and other harmful material;
(ii) we will be able to prevent any unlawful, harmful or inappropriate use, modification or alteration of the Services, or that we will give notice of such use, modification or alteration;
(c) we do not warrant or make any representations about the correctness, accuracy, currency, completeness, reliability, quality or otherwise of the Services or their contents. Your use of the Services and the content provided as part of the Services is at your own risk and the Services and the content provided as part of the Services are provided on an “as is” basis without any warranties of any kind. We may change the services and/or content forming part of the Services at any time without notice.
10.2 If we breach a non-excludable term, condition or guarantee, We will be liable for that breach. However, if We are allowed to limit Our liability for that breach under the relevant law, Our liability will be limited to supplying the same services again or paying the cost of having the services supplied by someone else (at Our option).
11.1 We make no representation that the services or any content within the services comply with the laws of any country outside Australia. If you use or access the services from outside Australia, you do so at your own risk and you are responsible for ensuring compliance with all laws in the place where you are located.
11.2 By using the Services, you agree that any claim or dispute arising in connection with these Terms, or your use of the Services, will be resolved in accordance with the laws of New South Wales and under the exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.
11.3 These Terms form the entire agreement between us and you in relation to the Services and your use of them.
11.4 We will not be responsible for any delay in performing our obligations under these Terms due to causes beyond our reasonable control.
11.5 Any failure or delay on our part to exercise a power or right we have under these Terms does not amount to a waiver of that power or right and will not preclude our entitlement to exercise that power or right at a later date.
These Terms are current as at 14.04.2023