Terms and Conditions
Please read these terms and conditions carefully.
This Agreement is between Gymbud Pty Ltd (“GB”) ABN 85 614 093 542 and you (“User”).
Gymbud, as a downloadable software application, amongst other things, creates and sells gym memberships, programs and access to fitness information. From time to time Gymbud may act as an intermediary or agent for gym facilities in selling memberships or services or in booking services which are not directly organised or supplied by GB.
By downloading or using the app, these terms will automatically apply to you. Therefore, you should make sure you read them before using the app. We are offering you this app to use for your own personal use, be aware that you cannot send it on to anyone else and you’re not allowed to copy or modify the app, any part of the app, or our trademarks in any way. You are not allowed to attempt to extract the source code of the app and you also shouldn’t try to translate the app into other languages or make derivative versions. The app itself, and all the trademarks, copyright, database rights and other intellectual property rights related to it, still belong to GB.
- INTERPRETATION AND DEFINITIONS
"Agreement" is the agreement between Gymbud and the User which may be constituted verbally or by an exchange of letters, emails or other communication, or by the issue to the User of an Order and to which Agreement these Conditions shall apply.
"Conditions" means these Standard Terms and Conditions.
"GB" means GYMBUD PTY LTD or any associate or subsidiary company thereof.
"App" means the Gymbud mobile/online application.
"GST" means a goods and services tax, or a similar value added tax, levied or imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Gym" means each fitness centre or gym identified by Gymbud that is participating in a relevant Membership Program.
"Gym Conditions" means the rules, regulations, codes of conduct, or other requirements of each Gym.
"Membership Fees" means the fees identified in the table at clause 7 of these terms which correspond to the Membership Programs.
"Membership Programs" means the membership programs identified below at clause 7.
"Minimum Terms" means the minimum terms identified in the table at clause 7 of these terms which applies to the corresponding Membership Programs.
"Spot" means a feature on the website or app which enables you to select a person with whom you would like to train, connect, or otherwise interact further.
"Goods" means goods of the type customarily supplied by GB and the Supplier, and ordered by the Company from the Supplier from time to time.
"Price" includes any tax or duty (except Value Added Tax) chargeable in respect of the Goods and/or Services.
"Services" means the services which GB provides, and/or the Supplier is to provide to the Company, ancillary to the supply of the Goods, and as otherwise requested by the Company from time to time.
"User" means any person using the downloadable software application of Gymbud.
"Supplier" means any person contracting for the supply of Goods and/or Services to Gymbud and such expression includes (where the context requires) all employees and agents of the Supplier.
"Personal Information" means all information about a person that is ‘personal information’ as defined in the Act which is collected or held by Supplier in connection with this Agreement.
"Website" means the website hosted on the domain www.gymbud.com.au
Acceptance of the Agreement by GB incorporates these Conditions. No employee or agent of GB has the authority to vary these Conditions, which may only be varied in writing signed by a director of GB.
GB may make changes to this Agreement and to the Services from time to time. GB may do this for a variety of reasons including to reflect changes in or requirements of the law, new features, or changes in business practices. The most recent version of this Agreement will be posted on the App and Website, and the User should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect the Users rights or obligations, we will notify you in advance of the changes by reasonable means, which could include notification through the Services or via email. If you continue to use the Services after the changes become effective, then the User agrees to the revised Agreement.
The Price for the Membership Program subscription shall be as agreed between GB and the User and (save in the case of manifest or clerical error) the price stated in the Agreement shall be taken to be the Price agreed. GB may make additional charges for increased membership fees, for administration fees, or any other matter whatsoever.
- ELIGIBILITY AND CONDITIONS
Due to the nature of GB business, it is a condition that the upon entry to Gyms, the Users agree to all the Gym Conditions stated in their Terms and Conditions and in the Conditions required by this Agreement. If the User does not comply with these Conditions, GB and the Supplier may either (at its option) terminate or accept the User from accessing the Gyms and/or Services.
The User must be at least 18 years of age to create an account on GB and use the Service. By creating an account and using the Service, the User represent and warrant to GB that:
you can form a binding contract with GB;
you are not a person who is barred from using the Service under the laws of the New South Wales, Australia or any other applicable jurisdiction–meaning that the you the User are not a Specially Designated National or face any other similar prohibition;
you will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations, and;
you have never been convicted of a felony and that you are not required to register as a sex offender with any state, federal or local sex offender registry.
All Users and Suppliers are independent and not associated in any way with GB. Nothing in this agreement constitutes the relationship of partnership or employer and employee between GB and any User with whom other Users may engage with via or as a result of the use of the Website, App, Gyms or elsewhere. As each Gym is independent to GB, GB does not guarantee, warrant or is not otherwise obligated to ensure the Users access to any Gym. The Users acknowledges and agrees that the Gyms which are available under any Membership Program are subject to change at any time and that such change may occur without notice.
Though GB strives to encourage a respectful user experience through features like the double-opt in that only allows users to communicate if they have both indicated interest in one another, it is not responsible for the conduct of any user on or off of the Service. The User agrees to use caution in all interactions with other users, particularly if you decide to communicate off the Service or meet in person. In addition, the User agrees to review and follow GB Safety Tips, located on www.gymbud.com.au, prior to using the Service. You should not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other users.
The User is solely responsible for their interactions with other users. The Users understands that GB does not conduct criminal background checks on its Users or otherwise enquire into the Users background. GB makes no representations or warranties as the conduct of Users. GB reserves the right to conduct any criminal background check or other screening at any time using available public records.
In respect of fitness advice, content and interactions, the User is solely responsible for their interactions with other Users via the Website, App, or at any other facility such as Gyms. The User acknowledges that any person with whom you engage via the Website or App may not be appropriately trained for the activities in which the User may engage in. The User should obtain independent and professional medical and other advice before deciding to take any action as a result of the Users use of the Website, App, or behaviour in any activity at any Gym or elsewhere.
By using the Services, the User agrees that they will not:
use the Service for any purpose that is illegal or prohibited by this Agreement;
spam, solicit money from or defraud any users;
impersonate any person or entity or post any images of another person without his or her permission;
bully, “stalk,” intimidate, harass, threaten, assault or defame any person;
post any Content that violates or infringes anyone’s rights, including rights of publicity, privacy, copyright, trademark or other intellectual property or contract right;
post any Content that is hate speech, threatening, sexually explicit or pornographic; incites violence; or contains nudity or graphic or gratuitous violence;
post any Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
solicit passwords for any purpose, or personal identifying information for commercial or unlawful purposes from other users or disseminate another person’s personal information without his or her permission;
use another user’s account, and;
create another account if we have already terminated your account, unless you have our permission.
GB reserves the right to investigate and/ or terminate your account without a refund of any purchases if you have misused the Service or behaved in a way that GB regards as inappropriate or unlawful, including actions or communications that occur off the Service but involve users you meet through the Service.
The User is responsible for maintaining the confidentiality of their login credentials used to sign up for GB, and they are solely responsible for all activities that occur under those credentials. If you think someone has gained access to your account, please immediately contact firstname.lastname@example.org
Upon entry into Gym Suppliers, the User shall at all times comply with all reasonable instructions, codes of conduct, rules and directions of Gyms and persons authorized on behalf of Gyms. You acknowledge that any Gym may terminate your access to that particular Gym if considered appropriate in the sole and absolute discretion of the relevant Gym. The User acknowledges that each Gym may have different access privileges and that you may be required to pay additional amounts for certain access and classes for example.
You must comply at your own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority so far as these same may affect or apply to the Users proposed activities, concerning their use of the Website, the App and any Gym.
The User must provide access to their GB app in order to gain access to any Gym and comply with any other entry requirements of each Gym.
The User warrants that they will only engage in exercise with appropriately qualified and trained personnel and it is the Users responsibility to ensure that they are appropriately qualified and trained and that you have access to first aid, insurances, and other medical assistance as may be necessary depending on the proposed activities.
The User obligations under this clause survive termination or expiry of this agreement.
The User indemnifies GB from and against all actions, costs, charges, claims and demands in respect of any breach of this clause.
The User grants GB a non-exclusive right and licence (with a right to sub-license) to reproduce, copy, cache, store, use, distribute, display, communicate, publish, transmit and promote any information, photos or data you post, upload, transmit, or permit GB to access as a result of the Users use of the Website or App.
Please refer to the Membership Programs in the table below, which may be made available to you subject to these Conditions via the Website or the App, their corresponding features, minimum term, special conditions, and associated Membership Fees (if any):
Subject to and conditional upon the Users acceptance of the Conditions and Membership Program payment, the User is granted a limited and non-exclusive license to access the features of the relevant Membership Program.
|Membership Program||Features||Minimum Term (months)||Special Conditions||Membership Fees|
Access to Spot and Match Feature
Maximum 50 Spots per day
Unlimited Access to Spot and drop feature
Access to GeoBud feature
|3 months||N/A||$8 per month|
|12 months||N/A||$6 per month|
|18 months||N/A||$3 per month|
Unlimited Access to Spot and drop feature
Access to GeoBud feature
The ability to access any Gym listed on the Gymbud passport
|3 months||You must comply with all terms and conditions and any other requirements of each Gym including but not limited to the completion of pre-exercise screening||$90 per month|
|12 months||$75 per month|
|18 months||$65 per month|
Invoices addressed to the User are to be sent by GB by express post or email in accordance with the Agreement and must refer to the Users identification number.
If appropriate, statements addressed to the Users are to be sent on a monthly basis and shall list all invoices issued but then unpaid with cross references to the appropriate GB membership number.
The User shall pay the Price as agreed between the parties in accordance with the Membership Program. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the membership subscription.
The User agrees to provide GB with valid and updated credit card information, or a valid membership order. If the User provides credit card information to GB, the User authorises GB to charge such credit card for all purchased Membership Programs for the initial subscription term and any renewal subscription term(s).
If payment is to be made by a method other than credit card the User has 30 days from receipt of a valid invoice submitted by GB in accordance with Clause 8.
Deleting your account on GB or deleting the GB application from your device does not cancel your subscription; GB will retain all funds charged to your IAP Account until you cancel your subscription through your IAP Account.
GB and the User shall agree from time to time the amount, if any, of the Membership Fee deposit amount for the Goods and/or Services associated with the App.
In the event that any damage suffered by the GB is in excess of the agreed upon Membership Fee amount, the User agrees that they are to be liable for such without any liability being apportioned to GB.
For any dishonoured payment made with GB, through their system will incur a failed payment fee of $15.00 for each dishonour incurred.
Once a notification of dishonour is received by the User, the User agrees that GB may terminate and/or suspend the Users access to the App or Website.
The User shall comply with all requirements imposed upon occupiers of premises, and shall indemnify GB against any liability arising under such requirements. The Supplier shall maintain adequate insurance cover in respect of such risks and produce to GB on demand a copy of the policy and certificate of insurance demonstrating such insurance.
To the fullest extent permitted by applicable law, in no event will GB or its service providers be liable for any indirect, consequential, exemplary, incidental, special, or punitive damages, including, without limitation, loss of profits, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other tangible losses, resulting from: (i) the Users access to or use of or inability to access or use the Services, (ii) the conduct or content of other users or third parties on, during, or following use of the Services; or (iii) unauthorised access, use or alteration of your content, even if GB has been advised of the possibility of such damages. In no event will GB aggregate liability to you for all claims relating to the service exceed the amount paid, if any, by the User to GB for the Service while the User has an account.
The User shall indemnify GB in full against any claims, loss, costs, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, GB as a result of: -
a breach or negligent performance in performance of the Services;
loss or damage or injury of any nature caused to the User or for which GB may be liable to third parties, due to the use of the application or website or other activities of the Goods supplied or in the Services provided;
claims in respect of death or injury, however caused, to any of the Users while at Gym premises or other places of services;
consequential loss or damage sustained by the User (or for which GB may be liable) as a result of the failure of the Supplier to provide safe Services in accordance with the terms of the Agreement;
a breach of these conditions given by GB in relation to the Goods and/or Services, including any outstanding fees given by GB in respect of any products and/or services incorporated within the App, without limitation if GB is required to take steps to recover outstanding Membership fees from the User, the User must pay associated costs and expenses in doing so (including legal costs and fees);
any act or omission of the User of the App or Website, downloading and installing the software application, and
any consequential loss of access to data stored through the App and/or Website.
The Supplier shall maintain adequate insurance cover against the risks set out in this clause 12 at the Supplier’s own cost and shall produce on demand for inspection by GB the policy and certificate of insurance in respect of such cover.
Notwithstanding anything else contained herein in this Agreement:
To the fullest extent permitted by the law, GB does not accept liability of any nature for the acts, omissions or default of those providing Services in connection with GB or any liability for any injury, damage, loss, inconvenience additional expenses or any other claim whatsoever, which are incurred at or in association with the use of the App or Website.
Where legislation implies any condition or liability which cannot be excluded or modified, that condition or liability will be deemed to be limited to the lesser amount of the Membership Fees and will be included in this Agreement.
To the extent permissible by law, GB will not be responsible in tort, contract or otherwise for any loss or damage arising out of injury or death sustained by you or any other guest or member, howsoever arising and whether or not arising as a result of your use of the App or Website.
GB reserves the right to modify, moderate, remove or filter any website or application content without notice at any time.
Without prejudice to any other rights or remedies which GB may have, GB may terminate the Agreement without liability to the User immediately on giving notice to the User if: -
the User commits a material breach of any of the terms of the Agreement and fails to remedy that breach within 30 days of being notified in writing of the breach;
the User is insolvent or has any overdue or unpaid Membership Fees;
the User compromises GB ability to provide the Membership Program; or
For just cause.
GB shall not be liable for any loss (including consequential loss) to the Gym if the Agreement is terminated under clause 13.1 above.
GB may terminate the Agreement at any time by giving a minimum of 30 days’ notice to the User.
GB may restrict the User’s access from the App, Website and/or Gyms.
The User may not terminate or cancel the subscription of the Services unless agreed by GB in writing and notified 30 days prior to the termination.
Either party's rights in respect of antecedent breach shall survive termination of the Agreement (howsoever caused).
You may terminate the Membership Program without additional fees prior to the expiry of the Minimum Term with immediate effect by providing us with written notice if:
GB breaches their obligations to you; or
you otherwise become entitled to do so under consumer legislation.
Termination within your Minimum Term where none of the above conditions are met will incur a Cancellation fee of the lessor amount of $300.00 and an amount referable to the remainder of your membership.
At the end of the Minimum Term, the User’s Membership Program will continue indefinitely on the monthly basis, until terminated in accordance with clause 13 of these Conditions.
The User agrees that all the Intellectual Property rights including the App, trademarks, copyright and database rights related to GB, belong to GB.
The User must not reproduce, copy, adapt, modify, publish or disseminate any part of the App, Website, or GB trademarks in any way, unless lawful.
The User must not attempt to or extract the source code of the App.
The User must not translate the app into other languages or make derivative versions.
The Service may contain advertisements and promotions offered by third parties and links to other web sites or resources. GB is not responsible for the availability (or lack of availability) of such external websites or resources. If you choose to interact with the third parties made available through our Service, such party’s terms will govern their relationship with you. GB is not responsible or liable for such third parties’ terms or actions.
The Agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties with respect to the Agreement.
No variation of the Agreement shall be effective, unless agreed by GB. GB may revise these Conditions for its website at any time without notice. By using GB Website and App you are agreeing to be bound by the then current version of these Conditions.
Failure of GB to exercise any of its rights under the Agreement shall in no way constitute a waiver of these rights, nor shall such failure excuse the User from any of its obligations under the Agreement.
The rights and remedies of GB under the Agreement are not exclusive and are in addition to other rights and remedies.
If any provision (or part of a provision) of the Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, the Agreement shall be varied so as to delete such provision (or part) and the remaining provisions of the Agreement shall continue to be valid and enforceable.
The Agreement shall be governed by and construed in accordance with New South Wales law and each of the parties irrevocably submits to the exclusive jurisdiction of the New South Wales Australian courts.
All prices are to be inclusive of the Goods and Services Tax at 10% (GST).
GB provides the Service on an “as is” and “as available” basis and to the extent permitted by applicable law, grants no warranties of any kind, whether express, implied, statutory or otherwise with respect to the Service (including all content contained therein) including, without limitation, any implied warranties of satisfactory quality, merchantability, fitness for a particular purpose or non-infringement. GB does not represent or warrant that (i) the Service will be uninterrupted, secure or error free, (ii) any defects or errors in the Service will be corrected or (iii) that any content or information the User obtains on or through the Services will be accurate.
GB takes no responsibility for any content that any User or third-party posts, send, receives through the Services. Any material downloaded or otherwise obtained through the use of the Service is accessed at your own discretion and risk.