Terms and conditions
Athliv Pty Ltd & Athliv LLC (together with its affiliates, partners, licensors, subsidiaries and/or related companies, Athliv, we, or us) provides training, fitness, lifestyle and nutrition services, interactive online platforms and related products, services, interfaces, content and features through Athliv websites (the Athliv Site(s)), the interfaces on screens connected to Athliv fitness equipment (such as the Athliv Signature Series Rigs and Mobile Hero Kits) and through mobile, desktop, or device applications that can be used stand-alone or in a community interface/context (including iOS, Android and other smartphone and device applications (Apps)), Content, services and Athliv-controlled social media pages (including, but not limited to, Facebook, Instagram, Spotify and Twitter). The Athliv Sites and Apps are owned and operated by Athliv. The Athliv Sites and Apps, along with the screens connected to Athliv and studio interfaces and Athliv-controlled social media pages, shopping, e-commerce and community services are referred herein, collectively, as the Athliv Services.
AUSTRALIAN CONSUMER LAW IMPLIED TERMS
CERTAIN LEGISLATION AND CONSUMER PROTECTION LAWS AND REGULATIONS MAY CONFER YOU WITH RIGHTS, WARRANTIES , GUARANTEES AND REMEDIES RELATING TO PRODUCTS AND SERVICES PROVIDED BY ATHLIV TO YOU WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED.
THE SUPPLY OF PRODUCTS AND SERVICES BY ATHLIV THESE TERMS MAY BE SUBJECT TO THE AUSTRALIAN CONSUMER LAW (BEING SCHEDULE 2 OF THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH)).
WHERE THE AUSTRALIAN CONSUMER LAW APPLIES TO YOU,:
1. ATHLIV’S PRODUCTS AND SERVICES COME WITH GUARANTEES THAT CANNOT BE EXCLUDED;
2. YOU ARE ENTITLED TO A REPLACEMENT OR REFUND FOR A ‘MAJOR FAILURE’ AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE, SUBJECT TO THE LIMITATION OF LIABILITY SET OUT BELOW; AND
3. YOU MAY BE ENTITLED TO HAVE THE PRODUCTS REPAIRED OR REPLACED WHERE THEY FAIL TO BE OF AN ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A “MAJOR FAILURE”.
NOTHING IN THESE TERMS IMPACT YOUR RIGHTS UNDER SUCH LEGISLATION, CONSUMER PROTECTION LAWS AND REGULATIONS.
IF YOU CHOOSE TO CONTINUE TO REGISTER, CONTINUE TO USE OR ACCESS THE ATHLIV SERVICES OR DOWNLOAD THE APP AFTER HAVING HAD THE OPPORTUNITY TO READ THE TERMS OR IF YOU CLICK TO ACCEPT OR AGREE TO THE TERMS IF THIS OPTION IS MADE AVAILABLE TO YOU, YOU, AS A “USER”, CONFIRM YOUR KNOWLEDGE OF THE EXISTENCE AND CONTENT OF THE TERMS AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS WHICH GOVERN YOUR ACCESS TO, AND USE OF, THE ATHLIV SERVICES AND SUCH ACCEPTANCE AND AGREEMENT FORMS A BINDING AGREEMENT BETWEEN YOU AND ATHLIV. YOU ALSO CONFIRM THAT ALL REGISTRATION DATA IS TRUE, ACCURATE, CURRENT, UP TO DATE AND COMPLETE.
ATHLIV OFFERS THE ATHLIV SERVICES ON THE BASIS OF THE TERMS. IF YOU HAVE ANY QUESTIONS REGARDING THE TERMS OR THE ATHLIV SERVICES, YOU MUST CONTACT HELLO @ATHLIV.FIT BEFORE ACCESS OR USE OF THE ATHLIV SERVICES.
If you do not agree to be bound by the Terms, you may not access or use the Athliv Service and should exit and then not access or use the Athliv Services immediately. Neither registration as a user nor use of the Athliv Services shall be possible without your acceptance and agreement to the Terms. The Terms shall apply to all means of access to and each and every use of the Athliv Services.
Additional terms, conditions and policies specified from time to time may apply to other elements of the Athliv Services, materials and promotions and your use of those elements of the Athliv Service, materials and participation in such promotions is subject to those additional terms, conditions and policies which are hereby incorporated into the Terms by this reference.
We expressly reserve the right to change, modify or amend the Terms from time to time and without notice and at our sole discretion. All changes are effective immediately when we post them and apply to all access and use of the Athliv Services thereafter. You acknowledge and agree that it is your sole responsibility to review these Terms as available on the Athliv Services periodically and to familiarise yourself with any modifications hereto. Your use of the Athliv Services following our posting of changes to the Terms will signify your acceptance and agreement to such changes.
For the avoidance of any doubt, an amendment to these Terms will not be applicable during the currency of any dispute with you which arose prior to the amendment in assessing and determining the subject matter of the dispute.
In the event that you object to the changes, you must notify Athliv immediately and must not access or use the Athliv Services and you acknowledge and agree that Athliv is entitled to terminate your account, registration and Membership.
You warrant that you will check the Terms (available at athliv.fit/terms-and-conditions/) from time to time and every time you use the Athliv Services so you are aware of any changes.
These Terms can only be waived in writing by an authorised officer of Athliv.
CAN YOU REGISTER?
You must be at least 18 years old, or the age of legal majority as determined by your country of use and residence, to register an account with, to purchase a Membership, to be provided the Athliv Services and to be legally able to be bound by the Terms. By using the Athliv Services, you represent and warrant that you are of legal age and meet all other eligibility requirements as are in place from time to time. If you do not meet the eligibility requirements, you must not access nor use the Athliv Services.
Subject to the laws of your country of residence, children under 18 years of age may establish and utilise an account with parent or guardian approval provided we receive express written consent of such minor’s parent or legal guardian.
If you permit your minor child or legal ward to use an Athliv Service, You hereby agree to these Terms on behalf of Yourself and Your child and You understand and agree that You will be responsible for all uses of the account by Your child whether or not such uses were authorised by You.
We may, without giving reasons, refuse to offer, suspend or terminate provision of the Athliv Services, or any part thereof, to any person or entity whether or not Athliv Services have previously been provided, registration completed or any Membership exists and change the eligibility requirements at any time without your being entitled to any refund of any previously paid amount.
Registration and Memberships are void where prohibited by the operation of these Terms or by law.
You are solely responsible for ensuring that the Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the Athliv Service is revoked where the Terms (or any part thereof) or use of the Athliv Service is prohibited or conflicts with any applicable law, rule or regulation applicable to you. The Athliv Services is offered and authorised only for your personal, non-commercial use, and not for the use or benefit of any third party. You must not authorise or allow any third party to use the Athliv Services.
In the event that your registration or Membership is cancelled by Athliv, you shall not be permitted, and must not, to re-register with Athliv.
Registration and Memberships are void where prohibited by the operation of these Terms or by law.
The Athliv Services are available solely through a one-time process of registration. In connection with the registration process, different types and levels of membership provide you with access to different types and levels of Athliv Services (from basic to full service) and accrue different fees and charges, which types, levels, services, fees and charges may be varied from time to time and at any time at the sole discretion of Athliv. The different types and levels of membership and amounts payable at any time and from time to time are able to be viewed at https://athliv.fit/membership/ (Membership).
You must pay the price, fees and other amounts associated with the Athliv Services provided in line with your particular Membership by credit card or other form of payment accepted by Athliv. You must provide us with complete and accurate account information, complete the registration process including your choice of Membership and billing details, and you must, ongoingly, notify us if any of your information (including billing details) change. If you fail to keep your account information up to date, we may suspend or terminate your registration and/or Membership. Athliv, reserves the right to contact you to verify your account information.
By registering, you confirm that you meet the age requirement in your country of use and that you are legally entitled to enter into and be bound to comply with agreements. Only persons who are legally entitled to enter into agreements themselves are allowed to register.
You acknowledge Athliv’s advice that you should use heightened caution when accessing your registration from a public or shared device so that others are not able to view or record your interactions, use, registration and account details or other personal information.
You may not use someone else’s name, or any name, location, other public profile information or image that violates any third party rights, is against the law, or that is offensive, obscene or otherwise objectionable (in Athliv’s sole discretion).
You are solely responsible for all activity that occurs on or otherwise through or using your account/registration, including any activity by unauthorised and fraudulent users. You must not allow others to use your account/registration. You must protect the confidentiality of your account information (including your password) and must not pass on any such information to any third parties. You acknowledge your registration is personal to you and you agree not to provide any other person with access to the Athliv Services whether or not as a result of the sharing of your registration. You agree that all information you provide in conjunction with your use of the Athliv Services is governed by the Terms and you consent to all actions we take with respect to your information consistent with the Terms.
If you suspect unauthorised access to your account/registration, you must immediately change your password and notify Athliv.
Athliv is not responsible and will not refund any amounts paid by you, or purporting to be paid by you, at any time before you have notified us of unauthorised or fraudulent use (including, but not limited to, use by your children, family or friends).
Athliv will provide information on its then-current registration and Membership requirements (including, but not limited, to eligibility requirements and fees) on the Athliv Site and/or by other means through, and of access to, the Athliv Services.
Features, prices, fees and other amounts associated with the Athliv Services are subject to change at Athliv’s discretion at any time. Athliv reserves the right to withdraw or amend any Athliv Services or any functionality or material or services associated therewith in its sole discretion and without notice to you.
Upon registration and choice of Membership, you expressly agree that Athliv is authorised to charge the monthly fee for your Membership, at the then current-rate, together with any other costs, taxes or incidental charges you incur in connection with your use of the Athliv Services to your chosen payment method.
Membership Fees will be billed to your payment method on the first day of your Membership and then on the corresponding calendar day on each successive month. In the event your Membership started on the 29th, 30th or 31st and that day is not contained in a particular month, Athliv will bill your payment method on the last day of that particular month.
Payment is made in advance of each Membership period and, once paid, the Membership is valid for such period and cannot be cancelled nor terminated any earlier than the expiration of that Membership period.
If Athliv is unable to collect any fees from a credit card, account or payment method you designate (for any reason) and that inability is not caused by Athliv (including a declined transaction), you shall recompense Athliv for all fees, charges and expenses incurred as a result thereof (including merchant and bank fees) and any applicable failed payment fee Athliv decides to impose from time to time.
After 7 days from the date of any unpaid amount, your registration/account will be terminated or suspended.
You agree to pay Athliv any expenses (including legal costs on an indemnity basis) reasonably incurred by or on behalf of Athliv in collecting any outstanding amounts due by you to Athliv.
WARNING – AUTOMATIC RENEWAL OF MEMBERSHIP
THE OPERATION OF THESE TERMS IS SUBJECT TO TERMS AND CONDITIONS IMPLIED BY AUSTRALIAN LAW INCLUDING BUT NOT LIMITED TO, THE AUSTRALIAN CONSUMER LAW (BEING SCHEDULE 2 OF THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH)).
UNLESS YOU CANCEL YOUR MEMBERSHIP OR YOU NOTIFY US AT LEAST 2 BUSINESS DAYS BEFORE THE END OF YOUR MEMBERSHIP PERIOD THAT YOU DO NOT WISH TO RENEW YOUR MEMBERSHIP PERIOD THAT YOU DO NOT WISH TO RENEW YOUR MEMBERSHIP, YOUR ATHLIV MEMBERSHIP WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL MONTH AND YOU AUTHORISE US TO BILL THE THEN-CURRENT MEMBERSHIP FEE AND ANY APPLICABLE TAXES TO THE PAYMENT METHOD ATHLIV HAS ON RECORD FOR YOU.
Given that your Membership is subject to automatic renewals at the end of each Membership period, your credit card or other means of payment approved by Athliv will be automatically charged at the expiry of your Membership with the then current prices, fees and other amounts associated with your Membership type should you not have requested a cancellation prior to the end of the preceding period of membership.
To cancel your Membership, you can change your registration status by visiting https://athliv.fit/login/ and following the prompts. Your cancellation request will take effect at the expiration of the then current Membership period and despite your actual use (or otherwise) of the Membership after your cancellation request until the expiration of the period. There is no refund available for any prepaid period.
From time to time, we may offer certain users various trial or other promotional memberships, which are subject to these Terms except as otherwise stated in the trial or promotional offer itself. We may limit the number of promotions for which you may be eligible at our sole discretion.
YOUR RIGHT TO USE THE ATHLIV SERVICES
Subject to your strict compliance with the Terms and whilst you are permitted to maintain a registration to access and use the Athliv Services, Athliv grants you a non-exclusive, non-sublicensable, personal, revocable, non-transferable right and license to use the Athliv Services and to access the Athliv Sites and Apps and to view (but not to copy) Content for your own personal and non-commercial purposes and the right to download one copy of the App to any single device whilst keeping all copyright and other proprietary notices unchanged. This license grant is subject to you agreeing to, and abiding by, the Intellectual Property Policy which is available for your review at https://staging.athliv.fit/intellectual-property- and-dcma-policy, which forms an integral part of the Terms. This license will remain in effect unless and until you violate the Terms or your registration terminated by you or Athliv.
For the avoidance of any doubt whatsoever, in the event that you breach any provision of these terms, the licence granted hereunder will terminate immediately.
You must not reproduce, duplicate, copy, modify, distribute, sell, resell, transfer, create derivative works from, decompile, reverse engineer, disassemble otherwise exploit in any manner not authorised herein the Athliv Services (including any portion of the Athliv Sites or Content), nor will you take any measures to interfere with or damage the Athliv Service (including any portion of the Athliv Sites or Content).
Except as expressly set out herein, these Terms grant you no rights in or to any intellectual property of Athliv.
No right, title or interest in or to the Athliv Services (including any Content on the Athliv Services) is transferred to you, and all rights not expressly granted are reserved by Athliv. Any use of the Athliv Services (including Content) not expressly permitted by the Terms is a breach of the Terms and may violate copyright, trademark, privacy and other laws.
HOW DOES YOUR REGISTRATION COME TO AN END?
The Terms begin on the date you first use the Athliv Service and continue as long as you a registration/account with us and/or continue to use the Athliv Services.
You agree that Athliv may, in Athliv’s sole discretion, terminate, suspend, disable, or delete your account (or any part thereof) or your access to the Athliv Services or block or remove any User Content (defined below) that you submitted, with or without notice and for lawful reason, including if Athliv determines you have breached these Terms or that your conduct or User Content would damage Athliv’s reputation or goodwill. If Athliv deletes your account, you may not re-register for or use any Athliv Services including, but not limited to, under any other user name or profile. Athliv may take any action as it determined necessary so as to block your access to the Athliv Services and/or to prevent re-registration.
Upon termination of suspension, regardless as to the reasons therefore, your right to use Athliv Services shall immediately cease and you acknowledge and agree that Athliv may then immediately deactivate and/or delete your registration/account, associated information, User Content and any other files or information in your account.
You agree that Athliv shall not be liable to you or any third party resulting from the termination, suspension or other actions taken by Athliv.
In the event of account deletion for any reason, User Content may no longer be available and Athliv is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Membership or it, or your registration, is terminated for any reason, you will lose access to all Content or features provided through the Athliv Service. Athliv, in its sole discretion, may make available a very limited amount of Content or features to non-subscribers from time to time, and any use of that Content is governed by the Terms. Non-subscribers will still need to be registered at the time of use and must comply with these Terms in all respects.
In the Terms:
Content means content, details, data, information, photographs, text, graphics, images, moving images, sound, illustrations, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Athliv Services. Content includes, without limitation, User Content.
User Content means any content that users (including you) provide to be made available through the Athliv Services or otherwise created in association with a user’s use of the Athliv Services.
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by, or on behalf of, you is accurate, complete, up-to-date, and in compliance with the Terms and with all applicable laws, rules and regulations. You acknowledge that all Content is provided without charge and all User Content accessed by you using the Athliv Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting from such access. To the full extent permitted by law, but without limiting any rights you have pursuant to the Australian Consumer Law, we make no representations, warranties or guarantees with respect to any Content that you access on, or through, the Athliv Services.
As between you and Athliv, you represent that you own (or have all rights necessary to grant Athliv the rights below to) all User Content that you submit to the Athliv Service, and that Athliv will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant Athliv an unlimited, worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use (irrespective of the type of usage), copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any and all intellectual property rights including “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Athliv Service permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to Athliv, or through, the Athliv Service about improving or adding new features or products to the Athliv Service or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to Athliv an unlimited, worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Athliv Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
All Content used or displayed on the Athliv Services is owned by Athliv, its licensors, vendors, agents and/or its Content providers (including its other users).
You warrant that you will regularly save important User Content, personal details and information externally and confirm that you shall not hold Athliv responsible or otherwise liable for any lost or damaged details, information or User Content.
You acknowledge and agree that Athliv is entitled, at its sole discretion, to delete any of your User Content for any reason and without providing reasoning.
Athliv neither claims ownership of any User Content, supervises User Content nor accepts any responsibility for inaccuracies therein.
RESTRICTIONS ON USE
You agree that are prohibited from and agree that you must and will not:
1. Circumvent, avoid, by pass or disable any Content protection system, digital rights management technology, user and/or country limitations or other technology used by Athliv or any third party to protect the Athliv Services and/or Content;
2. Save, post, upload, publish, submit, distribute or transmit any User Content or engage in any activity that:
i. you do not have exclusive right to use;
ii. infringes, misappropriates or violates a third party’s property or rights of publicity or privacy or other rights;
iii. is fraudulent, false, misleading or deceptive;
iv. violates any law;
v. is defamatory, profane, hateful, abusive, indecent, pornographic, offensive, promotes discrimination, bigotry, racism, harassment or harm against any individual or group or is otherwise objectionable;
vi. is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity;
vii. exploits minors or
viii. promotes illegal or harmful activities or substances;
3. Delete or alter any identification, warnings, disclaimers, disclosures, copyright, trademark or other proprietary rights notices from copies of materials in, on or from the Athliv Services;
4. Save, publish, transmit or distribute any User Content that is racist, insulting, discriminating, denunciating, sexual, glories violence or is otherwise inappropriate or illegal;
5. decompile, reverse engineer, disassemble or otherwise reduce any Athliv Services to a human-readable form;
6. remove identification, warnings, disclaimers, disclosures, copyright or other proprietary notices in or on the Athliv Services;
7. access or use any Athliv Services in an unlawful or unauthorized manner or in a manner that suggests an association with our content, products, services or brands, unless you have an executed agreement with us that allows for such activity;
8. use, alter, copy, modify, store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit, create derivative works of, or exploit any Athliv Services or any part thereof, except as expressly authorized in these Terms or as part of the Athliv Services provided to you;
9. introduce a virus or other harmful component, or otherwise tamper with, impair or damage any Athliv Services or connected network, or interfere with any person or entity’s use or enjoyment of any Athliv Services;
10. access, monitor, or copy any element of the Athliv Services using a robot, spider, scraper or other automated means or manual process without our express written permission; or
11. sell, resell, or make commercial use of the Athliv Services, unless you have an executed agreement with us that expressly allows for such activity. You may not access or use any Athliv Service in violation of Australian export control and economic sanctions requirements.
You guarantee Athliv that all required rights, licences, permits, approvals and other authorisations necessary and relating to User Content (including to trademarks and trade names you publish) have been validly obtained by you and confirm you are exclusively responsible for such User Content.
You agree to provide Athliv with immediate notice of any breaches of these obligations by you or at any time you become aware.
Although Athliv is not obligated to monitor access to or use of the Athliv Service or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Athliv Service, to ensure compliance with the Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Athliv Service and Athliv’s systems. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of the Terms. We have the right to investigate violations of the Terms or conduct that affects the Athliv Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Rights and Terms for Apps
Subject to your compliance with the Terms, Athliv grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile, desktop or other device that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Except as expressly permitted in the Terms, you may not:
i. copy, modify or create derivative works based on the App;
ii. distribute, transfer, sublicense, lease, lend or rent the App to any third party;
iii. reverse engineer, decompile or disassemble the App; or
iv. make the functionality of the App available to multiple users through any means.
Athliv reserves all rights in and to the App not expressly granted to you under the Terms.
If you access any Athliv Services using an Apple iOS or other third party device, you acknowledge that each of those third party companies, such as Apple Inc., will not be responsible for any damages arising out of the failure of a Athliv Services to operate as intended.
You represent and warrant that
(a) you are not located in a country that is subject to an Australian or U.S. Government embargo, or that has been designated by the Australian or U.S. Government as a terrorist-supporting country;
(b) you are not listed on any Australian or U.S. Government list of prohibited or restricted parties;
(c) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and
(d) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
Member Interactions, Dealings with Third Parties
When networking or interacting with other Athliv members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Athliv is not responsible for the verification of the actual identity of any user. You shall yourself confirm the identity of the other users with whom you interact in conjunction with the Athliv Services before any such interaction in any form or manner. Your participation, correspondence or personal or business dealings with any third party found on or through the Athliv Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Athliv is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings. In addition, when visiting or taking classes at any of our studios, please be advised that Athliv is not responsible for any lost or stolen items and that visitors, guests and members are required to adhere to then-current policies in place at that studio and the directions of that studio’s employees and representatives.
Except to the extent contributed to by the negligent and wilful act or omission of Athliv in breach of its obligations hereunder (and, in such case, only to the extent of such contribution), you agree to indemnify, defend, and hold harmless Athliv and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to a breach by your of these Terms.
You shall bear the costs of any legal proceedings, on an indemnity basis, which Athliv may be involved in in connection with such claims including Court costs and legal fees.
In the case of such a claim being brought against Athliv, you shall promptly, truthfully and completely make available to Athliv all information as may be necessary to allow Athliv to defend against it.
Third Party Software and Applications
Downloading and/or installing any third party software and/or applications that are not expressly authorised by Athliv on any Athliv hardware constitutes a breach of the Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by Athliv.
The Athliv Services contain links to third party websites and services. These links are provided only as a convenience. Further, third party websites and services may link to Athliv’s Sites through our affiliate marketing program or otherwise.
Athliv accepts purchase orders for the Athliv Signature series Rigs, Athliv hero series Kits and any other equipment, apparel or accessories that Athliv may offer through the Athliv Site. Supply is not guaranteed even if an order or payment is accepted by Athliv and is subject to availability. Product, service, pricing and other information provided is subject to corrections, amendment, variation and changes at any time and without notice. Advertising depictions, graphics and diagrams, colours, styles and other options and variants depicted are for illustrative purposes only and may not accurately reflect actual product or component, features, design and availability and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
We reserve the right to cancel an order placed by you at any time and for any reason prior to our delivery of the product(s). Please see our Warranty and Returns Policy (available for your review at https://athliv.fit/warranty/) for further information about Athliv products, purchase terms, shipping, taxes, warranty, recall and return information.
Each time you make a purchase through Athliv, you reaffirm your billing information is true and correct and that Athliv is authorised to bill your nominated account(s).
You acknowledge and agree that the Athliv Services may be the subject of interruptions, delays, disruptions, unavailability or technical issues and that Athliv shall not be liable therefore and therefrom.
Athliv reserves the right to modify the Athliv Services and any service, material, Content or information provided therein or associated therewith, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Athliv Services, at any time, in its sole discretion.
Any new features that alter, modify, augment, enhance or otherwise impact the Athliv Services or other offerings are subject to these Terms.
Athliv may, at any time, restrict access to all or any part of the Athliv Services. Athliv will not be liable if, for any reason, all or any part of the Athliv Services is unavailable whether as a result of planned outages or suspension or any matter or thing in or outside the control of Athliv.
You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Athliv Service.
Except where required by law, Athliv has no obligation to screen or monitor any Content and does not guarantee that any Content available on the Athliv Service is suitable for all users or that it will continue to be available for any length of time.
Athliv provides the Athliv Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Athliv Service exclusively at your own risk. Other than as expressly provided in writing by Athliv in connection with your purchase of a Athliv product, to the extent permitted by law, and without limiting your rights pursuant to the Australian Consumer Law, Athliv expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, Athliv makes no representations or warranties:
• That the Athliv Service is or will be permitted in your jurisdiction;
• That the Athliv Service will be available at all, or at any, times and will be uninterrupted or error-free;
• Concerning any Content, including User Content including the transmission thereof;
• Concerning any third party’s use of User Content that you submit;
• That the Athliv Service will meet your personal or professional needs;
• That Athliv will continue to support any particular feature of the Athliv Service; or
• Concerning sites and resources outside of the Athliv Service, even if linked to from the Athliv Service.
To the extent that another party may have access to or view Content on your device, you are solely responsible for informing such party of all disclaimers and warnings in the Terms.
SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH), MAY IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED EXTENT. THESE TERMS MUST IN ALL CASES BE READ SUBJECT TO THESE STATUTORY PROVISIONS. IF ATHLIV IS LIABLE TO YOU UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) OR SIMILAR LEGISLATION, TO THE EXTENT TO WHICH ATHLIV IS ENTITLED TO DO SO, ATHLIV LIMITS ITS LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE PROVISIONS TO:
1. IN THE CASE OF GOODS, AT ATHLIV’S OPTION:
A. THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS;
B. THE REPAIR OF THE GOODS;
C. THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR
D. THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND,
2. IN THE CASE OF SERVICES, AT ATHLIV’S OPTION:
A. THE SUPPLYING OF THE SERVICES AGAIN; OR
B. THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ATHLIV BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF ATHLIV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010(CTH), MAY LIMIT THE ABILITY TO EXCLUDE LIABILITY. IF ATHLIV IS LIABLE TO YOU UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) OR SIMILAR LEGISLATION, TO THE EXTENT TO WHICH ATHLIV IS ENTITLED TO DO SO, ATHLIV LIMITS ITS LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE PROVISIONS TO: IN THE CASE OF GOODS, AT ATHLIV ‘S OPTION: THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; THE REPAIR OF THE GOODS; THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND, IN THE CASE OF SERVICES, AT ATHLIV ‘S OPTION: THE SUPPLYING OF THE SERVICES AGAIN; OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. In no event shall Athliv’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of two hundred and fifty dollars ($250.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You acknowledge and agree that:
(a) the material (including without limitation, advice and recommendation) within the Athliv Services is provided to You solely as general educational and informational purposes; and
(b) Your use of:
(i) the Athiv Services; and/or
(ii) goods, equipment and products
sold or otherwise provided to You are at Your sole risk.
You acknowledge and agree that:
(a) Athliv provides sports training, wellness, physical training, fitness, nutrition and other related information, applications, and content through the Athliv Services;
(b) Athliv Services are intended for educational purposes only in order to assist You and other users in the understanding of Your personal training, wellness, physical fitness, nutrition and sports efforts;
(c) Athliv is not a medical organisation and cannot, and does not, give You medical advice or a medical diagnosis;
(d) nothing contained in the Athliv Services should be construed as medical advice or a medical diagnosis;
(e) any information and reports generated by Athliv should not be interpreted as a substitute for physician consultation, evaluation, treatment, or good sense and personal judgment about Your own condition;
(f) participating in any type of sports has inherent risk of injury;
(g) the risk of injury from participation in a fitness regimen and/or from the performance of any exercise is significant, including the potential for catastrophic injury or death;
(h) by voluntarily undertaking any exercise displayed through the Athliv Services, You assume the risk of any resulting injury;
(i) You must consult a medical professional, physician or healthcare provider before undertaking any nutrition program, fitness regimen or exercise program, including any exercises or techniques set forth or described in the Athliv Services;
(j) You will not undertake or perform any exercise or technique described in the Athliv Services or otherwise by Athliv until and unless You consult with and are cleared by a medical doctor in relation to such participation;
(k) You will not partake in any nutrition program, fitness regimen or exercise program, including any exercises or techniques set forth or described in the Athliv Services if You (or Your family) have a history of high blood pressure or heart disease, or if You have ever experienced chest pain when exercising or have experienced chest pain in the past month when not engaged in physical activity, smoke, have high cholesterol, are obese, or have a bone or joint problem that could be made worse by a change in physical activity;
(l) if You experience faintness, dizziness, pain or shortness of breath at any time while exercising You must stop immediately;
(m) any material, text, pictures, and description set forth in the Athliv Services:
(i) is for educational purposes only (e.g., the information illustrates and explains various fitness-related and exercise techniques);
(ii) is not intended to be a substitute for professional medical advice, diagnosis or treatment; and
(iii) does not advise that You or any other user undertake or perform any particular technique or exercise;
(n) You will never disregard professional medical advice, or delay in seeking it, because of something You have received through the Athliv Services and You will never rely on information received through the Athliv Services in place of seeking professional medical advice; and
(o) if You choose to use Athliv Services without prior consent of Your physician, You are agreeing to accept full responsibility for Your decisions and agreeing to hold harmless Athliv, its agents, employees, contractors and any affiliated companies from any liability with respect to injury or illness to You or Your property arising out of or connected with Your use of the Athliv Services.
LIMITED WARRANTY AS TO GOODS, EQUIPMENT AND PRODUCTS
You acknowledge and agree that:
(a) Athliv warrants its goods, equipment and products to be free from defects in materials and workmanship for a period of 120 days from date of purchase, provided they have not been subjected to obvious abuse, neglect or misuse;
(b) Athliv’s sole liability is limited to repairing or replacing goods, equipment and products that is returned within this 120-day period, unless specific equipment literature specifies otherwise;
(c) in no event shall Athliv’s liability exceed the value of the goods, equipment and products;
(d) Athliv shall not be liable for any special or consequential damages that result from the use of any goods, equipment and products;
(e) applicable law may not allow the limitation or exclusion of liability of special or consequential damages so the above limitation or exclusion may not apply to your purchase, but it is intended to be the maximum limitation as permitted by law;
(f) use and misuse of goods, equipment and products involves serious risks including injury, disability and death;
(g) Athliv cannot and will not be responsible for the misuse or unauthorised and improper use of goods, equipment and products;
(h) goods, equipment and products must be inspected for use to ensure they are not damaged before each use;
(i) if damaged, you must not use any goods, equipment and products;
(j) you are solely responsible for a failure in inspection of any issue with any goods, equipment and products; and
(k) you have complete control over the area in which you will use any goods, equipment and products.
YOUR DECLARATIONS, ACKNOWLEDGEMENT AND CONFIRMATIONS
You, through the purchase and/or use of Athliv Services,:
(a) declare Yourself physically and mentally sound and suffering from no condition, impairment, disease, infirmity, or other illness that would prevent Your participation in the Athliv Services or Your use of any goods, equipment and products;
(b) acknowledge that You have been informed of the need for a medical professional’s approval for Your participation in the Athliv Services or in the use of any goods, equipment and products;
(c) recognise it is Your sole responsibility to obtain an examination by a medical professional prior to involvement in any exercise program;
(d) confirm you have either had a physical examination and been given Your medical professional’s permission to participate, or if You have chosen not to obtain a medical professional’s permission prior to beginning the use of Athliv Services, You acknowledge that You are doing so at Your own risk.
(e) confirm that You have control over the area in which You will undertake activities associated with the Athliv Services;
(f) acknowledge that Athliv has not inspected any goods, equipment and products and has no knowledge of their condition;
(g) take sole responsibility for any goods, equipment and products;
(h) acknowledge that any goods, equipment and products and may malfunction and/or cause injuries and that You take sole responsibility to inspect any and all such goods, equipment and products;
(i) understand and am aware that the Athliv Services, including the use any goods, equipment and products, are potentially hazardous activities;
(j) acknowledge the possibility that injuries including, but are not limited to, abnormal blood pressure, fainting, disorders in heartbeat, heart attack, and, in some instances, death may occur and that injuries could result in You becoming partially or totally disabled and incapable of performing any gainful employment or having a normal social life and You voluntarily participating in the use of the Athliv Services and the use of any goods, equipment and products with knowledge of the dangers involved;
(k) understand and take sole responsibility for any and all injuries that may occur to Yourself and/or others related to the use of the Athliv Services and the use of any goods, equipment and products, even if not specifically set forth in this Deed, whether or not they fall within the scope of reasonably foreseeable injuries related to such activities.
WAIVER AND RELEASE OF LIABILITY
(a) In consideration of Athliv’s agreement to provide the Athliv Services, You hereby agree to hold harmless Athliv, its respective representatives, executors, agents, and assigns from any and all claims, demands, damages, rights of action or causes of action, present or future, arising out of or connected to Your participation in any and all use of the Athliv Services and the use of any goods, equipment and products, or any and all acts or omissions, including negligence by Athliv or its representatives.
(b) You acknowledge and agree that this waiver and release of liability includes, but is not limited to,:
(i) injuries to Yourself and/or others that may occur as a result of:
A. any goods, equipment and products that may malfunction or break;
B. any and all defects, latent or apparent, in the design or condition of any goods, equipment and products;
C. any and all slips, falls, or dropping of any goods, equipment and products;
D. any and all improper maintenance of any goods, equipment and products;
E. any hazardous condition that may exist on Your premises, including, but not limited to, the specific workout area; and
F. Athliv’s negligent instruction or supervision;
(ii) damage to property, including but not limited to, any goods, equipment and products and Your premises.
CONTRACTING ENTITIES, GOVERNING LAW AND JURISDICTION
Residents of Australia are contracting for the Athliv Services with Athliv Pty Ltd
These Terms shall be governed by the laws of the State of New South Wales, Australia, without regard to principles of conflicts of law.
The parties submit to the non-exclusive jurisdiction of the State of New South Wales, Australia.
FOOD AND DRUG ADMINISTRATION WARNING
Athliv expressly informs you that products or services referred to, offered, sold or recommended in association with the Athliv Services may contain statements, assertions or information which has been evaluated by the Food and Drug Administration and Athliv expressly confirms that those products or services are not intended to diagnose, treat, cure, prevent or otherwise deal with or assist with any particular disease or medical condition.
The Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the Athliv Site from time to time:
• Purchase Terms
• Return and Warranty Policy
• Intellectual Property Policy
In the event of a conflict between any policies posted on the Athliv Service and the Terms, the Terms will control. The Terms represents the entire understanding between Athliv and you regarding the Athliv Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of the Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of the Terms will remain in full force and effect.
INTELLECTUAL PROPERTY POLICY
You acknowledge and agree that your use of the Athliv Services and any Content contained therein is dependent upon you agreeing to and abiding by the Athliv Intellectual Property Policy at all times.
Whilst the Athliv Services may be accessible in other jurisdictions, such access is strictly prohibited and you acknowledge and agree that Athliv makes no representations nor warranties with respect to the use of the Athliv Services outside Australia.
If you use the Athliv Services from other locations, you do so at your own risk and are responsible for all consequences of doing so.