Terms & Conditions of Use

Last modified as of 7 April 2008

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF THIS WEBSITE CAREFULLY

By using this Website (which shall include the use of any of our fee-based products or offerings (“Fee-Based Products”) and fixed price products and offerings ("Fixed Price Products"), you agree to these Terms and Conditions of Use ("Terms & Conditions"). Unless inconsistent with the context:

these Terms and Conditions shall be incorporated into any agreement between you and us (“Agreement”). In case of any inconsistency between these Terms and Conditions and any Agreement, the terms of the relevant Agreement shall prevail; and
reference to this Website shall include reference to our Fee-Based Products and Fixed Price Products (together "Products").

We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms & Conditions at any time. You should check these Terms & Conditions periodically for changes. By using this Website after we post any changes to these Terms & Conditions, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to these Terms & Conditions, you should not use this Website and, if applicable, you should cancel your membership with us.

The use of this Website is subject to important disclaimers, limitations of liability and indemnities, including regarding your health and which may affect your suitability to pursue any form of weight loss effort or regimen (“Regime”), which you should read carefully before using this Website.

1. Scope of Terms & Conditions

Unless we indicate otherwise, these Terms & Conditions apply to your use of the Australian websites which are owned or operated by SP Health Co Pty Ltd (ACN 123 248 046) ("SP Health") trading as “The Biggest Loser Club” and the Affiliates of SP Health (collectively, "we", "us" or "our"), including, without limitation, this Website and any other Australian website that we may own or operate currently or in the future (collectively, "Website"). For the purpose of these Terms & Conditions, "Affiliates" shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, SP Health, including, without limitation, their respective subsidiaries and affiliates; and “You”, “you” or “your” means any person or entity, and any subsidiary, affiliate or associate of such person or entity, that uses or purports to use this Website.

This Website and these Terms & Conditions are specifically directed to residents of Australia and this Website is for use only by residents of Australia. If you are not a resident of Australia you should not continue to use this Website.

SP Health currently operates this Website to provide weight loss management and information applications under licence of “The Biggest Loser Club” brand.

2. Terms & Conditions – General

By using this Website, you agree to be legally bound and to abide by these Terms & Conditions, just as if you had signed an agreement containing these Terms & Conditions. If you do not comply with these Terms & Conditions at any time, we reserve the right to cancel or terminate your password, user account, and/or access to this Website (or any part thereof). In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of this Website, including, but not limited to:

restricting the time this Website is available;
restricting the amount of use permitted; and
restricting or terminating your or any other user's right to use this Website.

You agree that any termination or cancellation of your access to, or use of, this Website may be effected without prior notice to you and without providing any reason for such termination. If you do not abide by the provisions of these Terms & Conditions, except as we may otherwise provide from time to time, you acknowledge and agree that:

we may immediately deactivate or delete your user account and/or all related information and files in your user account and/or bar any further access by you to such information and/or files, or this Website (or part thereof);
we shall not be liable to you or any third party for any termination or cancellation of, or variation of the applicable terms relating to, your access to, or use of, this Website;
your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us pursuant to this provision or these Terms and Conditions, or any policies or practices adopted by us in providing this Website, including without limitation any change in content or any change in the amount or type of fees or charges associated with the Fee-Based Products, is to cancel or terminate your membership with us;
we make no warranties in relation to Products and your rights with respect to any dissatisfaction with Products are, unless we agree otherwise, limited to those rights available to you under the Trade Practices Act 1974 (Cth), equivalent state based fair trading legislation and any other applicable statute or common law right;
we may supplement these Terms & Conditions with additional terms and conditions pertaining to specific content, activities or events ("Additional Terms");
such Additional Terms may be placed on this Website to be viewed in connection with the specific content, activities, features or events and shall be identified as such; and
any Additional Terms will upon first being placed on this Website, or otherwise made public, be incorporated by reference into and form part of these Terms & Conditions.

3. Charges and Fees for Products

By subscribing to or purchasing a Product, you agree as follows:

To pay, using a valid credit card (or other form of payment which we may accept from time to time), the fixed and periodic charges and fees set out on this Website (such as the fixed Registration Fee and the recurring Monthly Fees for Fee-Based Products and the fixed price for the Fixed Price Products), applicable taxes, and other charges, surcharges, costs and fees incurred in order to access or purchase our Products (“Fees”).

With regard to Fee-Based Products we:

Each time you use or apply for our Fee-Based Products, you reaffirm your agreement that we may charge your credit card (or other form of payment, if applicable). In the event we cannot charge your account, we reserve the right to terminate your access to our Fee-Based Products. Unless you advise us otherwise in advance, your subscription to Fee-Based Products will automatically be renewed at our standard subscription rates and for our standard period (usually monthly or three-monthly) at the start of the relevant billing period. If you wish to purchase alternative Fee-Based Products at any time, your new Fee-Based Products will supersede your current Fee-Based Products at the start of the next billing period, unless we agree otherwise.

All Fees are quoted in Australian dollars and are inclusive of any applicable GST, except where otherwise stated.
In addition to the Fees, you are responsible for all charges and fees associated with connecting to this Website, including without limitation all telephone access lines (including long-distance charges, when applicable), internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access our Products.
For the purposes of your use and purchase of our Products, including identification and billing, you agree to provide us with true, accurate, current and complete information as required by the order form for our Fixed Price Products or the subscription or sign up process to our Fee-Based Products ("Subscription Data") including your complete legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date) as required.

You agree to allow us to share your Subscription Data with third parties for the purpose of verifying the information you provide and billing your credit card or otherwise charging your account. You agree to maintain and promptly update the Subscription Data to keep it accurate at all times.

Without limiting any other provision of this Agreement, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that this is the case, we reserve the right to suspend or terminate your user account or subscription and refuse any and all current or future use by you of this Website (or any portion thereof) or any of our Fee-Based Products or to refuse to provide you with Fixed Price Products. Subscribers to Fee-Based Products are obligated to check the My Account feature of this Website to determine whether your Subscription Data is current and accurate, and, if not, to correct or update your Subscription Data including your billing information.
You are entirely responsible for maintaining the confidentiality of your password and user account information. You must notify us immediately in the event of any known or suspected unauthorised use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorised disclosure of your or anyone else's password or credit card information. In the event of a breach of security by you, you will remain liable for any unauthorised use of your subscription until you update your Subscription Data. If your credit card expires, is cancelled, is lost or is subject to use without your authorisation, you will immediately access the My Account feature of this Website and update your Subscription Data. You are entirely responsible for any and all activities which occur under your user account, as well as for paying any amounts billed to your credit card by a third party which were not authorised by you.
In the event of your failure to satisfy limitations we set based on demographic, geographic, health and/or other similar criteria, or if we otherwise properly terminate your subscription to one of our Fee-Based Products prior to the end of the applicable period in accordance with these Terms and Conditions, or if you cancel your subscription to one of our Fee-Based Products, you agree that the Registration Fee and the full Monthly Fees paid in advance by you for any month (or portion thereof) (regardless of whether you logged onto this Website or used the Fee-Based Product during that month) are non-refundable.

4. Cancellation of Subscription

Either you or we may terminate or cancel your subscription to our Fee-Based Products at any time. If you choose to cancel or terminate your 3 month or 12 month subscription prior to the end of your contract period, you accept that your account will continue to be debited until your end date. You understand and agree that the cancellation or termination of your subscription is your sole right and remedy with respect to any dispute with us including, without limitation, any dispute related to, or arising out of:

these Terms and Conditions (including our enforcement or application of these Terms and Conditions);
any of our practices or policies, including our Privacy Policy, (and including our enforcement or application of these policies);
the Content available through this Website including any change in content provided through this Website;
your ability to access and/or use this Website; and
the amount or types of our Fees or billing methods, or any change to our Fees or billing methods.

Upon cancellation or termination of your subscription to our Fee-Based Products, we may immediately deactivate your user account and all related information and/or files in your user account and/or bar any further access to such information and/or files, this Website (or part thereof).

You may cancel your subscription by contacting Customer Service or by such other means as we may provide from time to time. We will attempt to process all cancellation requests within 72 hours after receipt of requests. If you cancel near the end of your current billing period and have been or are inadvertently charged the next billing period’s Fee, you should contact Customer Service to have the charges reversed. If you use a Fee-Based Product during that next billing period, you will be considered not to have cancelled the subscription and therefore will be liable to pay fees in respect of that next billing period and not entitled to a refund for that cancellation. We reserve the right to charge and collect Fees incurred before your cancellation takes effect.

5. Fixed Price Products

By placing an order for a Fixed Price Product you agree to these terms and conditions as amended from time to time. You acknowledge that you are an Australian citizen and that Fixed Price Products will only be delivered to an Australian address.

Title to a Fixed Price Product will pass to you when you provide full payment for the Fixed Price Product or when you receive the Fixed Price Product, whichever is the later.
Risk of loss or damage to the Fixed Price Products shall pass to you on the date that we provide the Fixed Price Product to a third party for delivery to you.

Any estimates made in relation to any delivery date of Fixed Price Products are estimates only, and we provide no warranty or representation that such an estimate will be correct. By ordering a Fixed Price Product you agree that timing is not of the essence with regard to delivery of Fixed Price Products.

The published price of the Fixed Price Products will be inclusive of GST unless we have stated otherwise.

6. Availability of Fee-Based Products and Fixed Price Products

The availability and use of our Fee-Based Products and Fixed Price Products may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to our Fee-Based Products and/or may terminate your subscription to our Fee-Based Products at any time based on these criteria. You understand that we may refuse to supply you with Fixed Price Products at any time based on these criteria. For example, pregnant women, and individuals under the age of 18 may not be provided with a Fixed Price Product or may not be able to subscribe to our Fee-Based Products. We may limit the subscription to a certain Fee-Based Product only to individuals currently attending meetings organised or controlled by us.

7. Ownership

All materials on this Website, including but not limited to information, software, photographs, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles, audio, images and other materials ("Content"), are protected by copyright and other intellectual property rights under Australian law, international conventions and other laws. You may not distribute, exchange, modify, sell or transmit anything you copy from this Website, including but not limited to any text, images, audio and video, for any business, commercial or public purpose. You agree to follow all instructions on this Website limiting the way you may use any of the Content. There are a number of proprietary logos, service marks and trade marks found on this Website. By making them available on this Website, SP Health is not granting you any licence to utilise those proprietary logos, service marks or trade marks. Any unauthorised use of the Content may violate copyright laws, trade mark laws, the laws of privacy and publicity, and civil and criminal statutes. If you download any Content from this Website, you may not remove any copyright or trade mark notices or other notices that go with it.

8. Restrictions on Use of Materials

Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access and use this Website and the material provided hereon for your personal, non-commercial use, provided that you comply fully with the provisions of these Terms and Conditions. You understand that only you may use your user account and password, and that your subscription to our Fee-Based Products is only valid for your personal, non-commercial use and may not be shared with others. You agree to be financially responsible for all usage or activity of Fee-Based Products. To subscribe to our Fee-Based Products, you represent that you are an Australian citizen or a resident of Australia with a valid and current Australian mailing address.

You acknowledge that you may only use the Fixed Price Products for personal, non-commercial use, and may not sell, lease, licence or otherwise receive any consideration for allowing the Fixed Price Products to be used by any other person or entity. You agree to indemnify us and keep us indemnified against any loss suffered by us due to you selling, leasing, licencing or otherwise receiving any consideration for allowing the Fixed Price Products to be used by any other person or entity.

You acknowledge that this Website contains Content that is protected by copyrights, patents, trade marks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is protected under applicable laws and we own copyright or other property rights in the selection, coordination, arrangement and enhancement of all such Content. All trade marks appearing on this Website are trade marks of their respective owners. The Biggest Loser® is the trade name and the registered trade mark and service mark of Reveille LLC. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on this Website. You may not modify, publish, transmit, reuse, report, distribute, perform or participate in the transfer or sale of, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment, is strictly prohibited unless you receive our prior written consent.

9. Privacy and Security

We are committed to protecting your privacy and security. For more information, you should review our Privacy Policy. By agreeing to these Terms and Conditions, you also consent to the collection and use of your Personal Information in accordance with the Privacy Policy.

10. Becoming a Registered User

There is no cost to being a public user of this Website. You do not have to become a registered user to use this Website. However, if you do not register, you may be precluded from using certain products, offerings, features, or resources of this Website. You must register in accordance with instructions that you will find on this Website to participate in, and to contribute to, any Forum or use of the My Account feature of this Website. A "Forum" means any Community Section, message board, bulletin board, or similar activity where you and other users of this Website can communicate. If you elect to become a registered user of this Website, you agree to provide us with true, accurate and complete information about yourself ("Registered User Data"), and to maintain and promptly update the Registered User Data to keep it accurate. Without limiting any other provision of these Terms & Conditions, if you provide any information that is untrue, inaccurate or incomplete, or we have reasonable grounds to suspect that this is the case, we reserve the right to suspend or terminate your user account and refuse any and all current or future use of this Website (or any portion thereof). You agree not to assign, transfer or sublicense your rights as a registered user of this Website.

11. Community Standards and Conduct Guidelines

You acknowledge that all Content and all information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials posted, emailed, or otherwise transmitted to, on or through this Website, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the "Postings"), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to, on or through this Website. We do not control the Postings of others and, as such, you agree that we have no responsibility for the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of this Website (as described below), you understand that by using this Website, you may be exposed to Postings that are (without limitation) inaccurate, offensive or objectionable. Except for Postings created by us (as to which you agree that liability shall rest with the entity which created the relevant Content and shall be governed by these Terms & Conditions), under no circumstances will we be liable in any way for any Postings, including, but not limited to, for any errors or omissions in any Postings, or for any loss or damage of any kind incurred as a result of the access to or use of any Postings posted, emailed or otherwise transmitted to, on or through this Website.

You agree not to use this Website (including any Forums) to do, or attempt to do, any of the following (as to which you agree to accept us as sole arbiter in our absolute discretion):

upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, defamatory, invasive of another's privacy, hateful, or racially, ethnically, religiously, sexually or otherwise objectionable;
harm, wrongly influence or threaten Children in any way;
impersonate any person or entity, including, but not limited to, a director, officer, employee, shareholder, agent or representative of SP Health, our Affiliates or any other person or entity, or falsely state or otherwise misrepresent an affiliation with us, any of our Affiliates or any other person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to, on or through this Website;
upload, post, email or otherwise transmit any Postings or other materials that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment or other contractual relationships or under non-disclosure agreements);
upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trade mark, trade secret, moral right, copyright, right of privacy or publicity or other proprietary rights of any party;
upload, post, email or otherwise transmit any unsolicited or unauthorised advertising or promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any other form of commercial solicitation or promotion, except in those areas, if any, that are specifically designated for such purpose;
upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy, limit, compromise, delay or divert the functionality of any computer software or hardware or telecommunications equipment;
disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of a Forum (or other portion of this Website) are able to type, or otherwise act in a manner that negatively affects other users' ability to use any Forum;
interfere with or disrupt this Website or servers or networks connected to this Website, or disobey any requirements, procedures, policies or regulations of networks connected to this Website;
intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to, any law and/or regulations having the force of law;
"stalk" or otherwise harass another user of this Website or employee of SP Health or of any of our Affiliates;
collect or store personal data or attempt to collect or store personal data about other users of this Website; or
upload, post, email or otherwise transmit information which purport to be medical, health or weight-loss advice or advice of any other nature whatsoever.

Your privilege to use this Website (including the Forums) and to contribute to discussions on the Forums depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of this Website and/or take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, we may terminate, in our sole discretion and without providing any reasons, your use of, or participation in, any Forum.

All Forum communications, including, but not limited to, message board communications, are public and not private communications. We reserve the right to monitor any areas of this Website (including any Forum) for adherence to the community standards and conduct guidelines set forth above or for any other purpose, but you agree we have no obligation or duty to do so and you release us from any such obligation or duty. You acknowledge that, by providing you with the ability to distribute Postings in the Forums, we are acting as a passive conduit for such distribution and we are not undertaking any obligation or liability