Terms and Conditions of use Clubfit Software Pty Ltd.
1 About the Software
1.1 Clubfit is a cloud based software platform (the “Software”) that provides Gyms with a streamlined approach to all their customer relationship management (CRM) and customer management system (CMS) requirements, including but not limited to the management of:
(a) direct debit billing of memberships;
(b) membership information; and
(c) internal data collection and reporting.
(the “Services”)
1.2 The Software is operated by Clubfit Software Pty Ltd (ACN 169 187 213) (“Clubfit”). Access to and use of the Software, or any of its associated products, is provided by Clubfit. Please read these terms and conditions (the “Terms”) carefully. By using, browsing and/or signing up for use of the Software, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Software immediately.
1.3 Clubfit reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Clubfit updates the Terms, it will use reasonable endeavours to provide you with notice of same. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2 Acceptance of the Terms
2.1 You accept the Terms by completing and signing the purchase order provided to you by Clubfit and/or making any payment as required under these Terms for use of the Services. You may also accept the Terms by clicking to accept or agree to the Terms where and if this option is made available to you by Clubfit in the user interface.
3 The Services
3.1 In order to access the Services, you are required to complete a purchase order for your licence of the Software from Clubfit (the “Purchase Order”). By completing and signing the Purchase Order you agree to be bound by these Terms.
3.2 As part of your use of the Service, you will be required to provide personal information about yourself (such as identification or contact details). You agree that any registration information you give to Clubfit will always be accurate, correct and up to date.
3.3 You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Clubfit; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4 Licence Fee and Commission
4.1 As part of the Purchase Order, Clubfit will require you to pay an ongoing licence fee for the Software to facilitate your use of the Services (the “Licence Fee”).
4.2 You agree and acknowledge that Clubfit can alter the Licence Fee at any time and that, the altered Licence Fee will subsequently come into effect following the conclusion of the existing licence period particularised in the Purchase Order.
4.3 As part of the Services, Clubfit may manage the direct debit of all membership fees paid by your clients (the “Membership Fees”). In addition to the Licence Fee, you understand that Clubfit will also charge a commission on each Direct Debit Transaction that is performed by Clubfit as part of the Services (the “Commission Fee”).
4.4 You acknowledge and agree that transactions in relation to the Services are performed by Novatti Pty Ltd (ACN 647 567 084 ) t/as Novatti (“Novatti”) and Zepto. By using the Services you acknowledge and agree that you have read, understood and agree to be bound by the Terms and Conditions of Use, Privacy Policy and other relevant legal documentation of Novatti and Zepto found at zepto.com.au/ddr and zepto.com.au/ddrsa.
5 Waiver and Refund
5.1 Clubfit reserves the right to waive either the Membership Fees or the Commission Fee at its sole discretion (the “Waiver”). Where Clubfit elects to provide the Waiver, this must be particularised in the Purchase Order prior to it being entered into by you.
5.2 Clubfit will only provide you with a refund of the Licence Fee in the event they are unable to continue to provide the Services. Should this occur, the refund will be in the proportional amount of the Licence Fee that remains unused by the Member (the “Refund”).
6 Copyright and Intellectual Property
6.1 The Software, the Services and all of the related products of Clubfit are subject to copyright. The material on the Software is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Software (including but not limited to text, graphics, logos, button icons, video images, audio clips, software, code, scripts, design elements and interactive features) (the “Content”) are owned or controlled for these purposes, and are reserved by Clubfit or its contributors.
6.2 All trademarks, service marks and trade names are owned, registered and/or licensed by Clubfit, who grants to you a worldwide, non-exclusive, revocable license whilst you are a member to:
(a) download the Software to a device through the cloud;
(b) use the Software pursuant to the Terms;
(c) copy and store the Software and the material contained in the Software in your device’s cache memory; and
(d) print pages from the Software for your own personal and non-commercial use.
Clubfit does not grant you any other rights whatsoever in relation to the Software or the material on the Software. All other rights are expressly reserved by Clubfit.
6.3 Clubfit retains all rights, title and interest in and to the Software and all related content. Nothing you do on or in relation to the Software will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
6.4 You may not, without the prior written permission of Clubfit and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Software which are freely available for re-use or are in the public domain.
6.5 If you broadcast, publish, upload, transmit, post or distribute any content on the Software (“Your Content”), then you grant to Clubfit a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content, subject to the terms and conditions of Clubfit’s current Privacy Policy.
7 Service Level Targets
7.1 Clubfit will prioritise incoming incident and support requests as follows:
(a) Business and financial exposure – is there a significant risk of financial loss or client impact;
(b) Number of systems or people affected;
(c) Will work stop due to the reported issue;
(d) Is a workaround available in the meantime;
(e) What would be an acceptable resolution time for the circumstances.
7.2 Problems will be categorised by Clubfit upon receiving the request on the information provided at the time and may reasonably re-categorise the problems after receiving further information from you.
7.3 The Response time is the time it takes Clubfit to receipt the issue and begin analysis of the problem:
| Priority | Impact / Description | Response | Rectification |
| 1 | Severe and critical impact to the business | Within 30 minutes | Rectification would be expected as soon as possible |
| 2 | Significant impact to the business | 2 hours | Rectification would be expected within 2 business day |
| 3 | Minor impact to business (or significant impact to a single user) | 4 hours | Rectification would be expected within 5 business days with a workaround provided within 1 business day if possible |
| 4 | No business impact, minor impact to individual or group of users | 1 day | Rectification expected within 20 business days, otherwise a workaround could be adequate resolution |
7.4 In addition to the above, Clubfit will use all reasonable commercial efforts, being no less than accepted industrial standards in this regard, to ensure that the Services are available to you 99% of the time in any calendar month. If it is not, you may request, and Clubfit will consider at its absolute discretion, whether you are eligible to a credit towards the subsequent monthly Licence Fee during the subsequent month in which the problem occurred.
8 General Disclaimer
8.1 Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
8.2 Subject to this clause 8, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) Clubfit will use its reasonable endeavours to provide the Services in accordance with Australian best practices, however, as Clubfit uses third party software and hardware such as Amazon Web Services, Club fit will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
8.3 Use of the Software, the Services, and any of the products of Clubfit, is at your own risk as software and hardware is inherently complex and cannot be free from errors or bugs. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Clubfit make any express or implied representation or warranty about its Content or any products or Services (including the products or services of Clubfit) referred to on the Software, save for any Customer Guarantees pursuant to the Australian Consumer Law. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Software, the Service, or any of its Content related products (including third party material and advertisements on the Software);
(c) costs incurred as a result of you using the Software, the Services or any of the products of Clubfit;
(d) the Content or operation in respect to links which are provided for your convenience; or
(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Software as a consequence of a Force Majeure event.
8.4 For the purposes of this clause, “Force Majeure” means any act or cause beyond a party’s reasonable control including but not limited to earthquake, acts of government, industrial disputes, accident, fire, explosions, floods, interruptions in telecommunications provided Clubfit has taken all proper precautions, due care and reasonable alternative measures with the object of avoiding the delay or failure to comply with the obligations under these Terms.
9 Limitation of liability
9.1 Clubfit’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of information to you.
9.2 You expressly understand and agree that Clubfit, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
9.3 Clubfit is not responsible or liable in any manner for any content (including the Content and your Content and third party content) posted on the Software or in connection with the Services, whether posted by Clubfit or by third parties.
9.4 Clubfit does not control and is not responsible for the behaviours and actions of its members, their comments, posts or information that they upload. Accordingly, Clubfit is not responsible for any offensive, inappropriate, obscene or unlawful content or actions that you may encounter on the Software or in connection with any of the services provided on the Software.
9.5 By using the Software, you acknowledge that you are solely responsible for ensuring that you do not use the Services in such a way that you will be at risk of personal or psychological harm.
10 Termination of Contract
10.1 The Terms will continue to apply until terminated by either you or by Clubfit as set out below.
10.2 If you want to terminate the Terms, you may do so by:
(a) providing Clubfit with thirty (30) days’ notice in writing at any time; and
(b) closing your accounts for all of the services which you use, where Clubfit has made this option available to you.
10.3 You may also terminate the Terms immediately where Clubfit is in material breach of these Terms and:
(a) you have provided Clubfit with 7 days written notice to rectify the material breach and Clubfit has not rectified the said material breach; or
(b) the material breach is incapable of remedy.
10.4 Clubfit may at any time, terminate the Terms with you if:
- you have breached any provision of the Terms or intend to breach any provision;
- Clubfit is required to do so by law;
- the partner, if any, with whom Clubfit offered the Services to you has terminated its relationship with Clubfit or ceased to offer the Services to you;
- Clubfit is transitioning to no longer providing the Services in the country in which you are resident or from which you use the service; or
- the provision of the Services to you by Clubfit is, in the opinion of Clubfit, no longer commercially viable.
10.5 Subject to local applicable laws, Clubfit reserves the right to discontinue or cancel your subscription at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Software or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Clubfit’s name or reputation or violates the rights of those of another party.
10.6 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Clubfit have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
11 Indemnity
11.1 You agree to indemnify Clubfit, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the Software or attempts to do so; and/or
(c) any breach of the Terms.
12 Dispute Resolution
12.1 Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
12.2 Notice:
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
12.3 Resolution:
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a) Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Queensland Law Society or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in Brisbane, Australia.
12.4 Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
12.5 Termination of Mediation:
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
13 Venue and Jurisdiction
The Services offered by Clubfit are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Software, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.
14 GST
Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with these Terms, are listed in Australian Dollars (AUD) and are GST exclusive. GST is only applicable to subscribers situated in Australia.
15 Governing Law
This agreement is governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to this agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. This agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
16 Independent Legal Advice
Both parties confirm and declare that the provisions of this agreement are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
17 Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms
