DISCLAIMER & WAIVER

1 APPLICATION

1.1 This Disclaimer and Waiver applies your use of the EVERFIT FITNESS APP (the App) provided by NEW BODY LOADING PT (ABN 16513749244) (we, us, our) to you.

 

1.2 By downloading, accessing or paying for a subscription for the App, you hereby agree to the terms of this Disclaimer and Waiver.

 

1.3 For the purposes of this Disclaimer and Waiver:

 

(a) Claim means any claim, cross-claim, causes of action, notice, demand, direction, accounts, costs (including legal costs and expenses), charges, expenses, arbitrations, liabilities, damages, losses, actions, suits, proceedings, litigation, claims and demands either at law or in equity and/or arising under a statute; and

(b) App means the Everfit App provided by NEW BODY LOADING PT (ABN 16513749244).

 

2 MEDICAL DECLARATION

2.1 You declare that after careful consideration you are not subject to any existing injury, medical condition or treatment that may render you unsuitable for using the App.

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3 GENERAL DISCLAIMER

3.1 We provide the App on an “as-is” basis and whilst every effort is taken to ensure the information provided on the App is accurate, we make no warranty, representation, or guarantee regarding the suitability of the App for any particular purpose, nor do we assume any liability whatsoever arising out of the application or use of the App. It is your responsibility to independently determine the suitability of the App and to test and verify

the same.

 

3.2 We do not and cannot guarantee that you will achieve any results after using the App.

 

3.3 You acknowledge and agree that we, our employees, affiliates and representatives are not responsible for decisions that you may make, or for any consequences, undesired or otherwise, that may flow from your use of the App.

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3.4 Any testimonials of the App, wherever published (online or in print) are not to be taken as a guarantee that you will achieve the same or similar results.

 

3.5 Any information, documents, guidelines or recommendations provided by the App, or via one of our representatives via the chatbot on the App, are made on the basis of information that was available at the time.

 

3.6 You acknowledge and agree that any results to be attained by you while using the App are dependent upon you solely. Your success depends on many factors, including your own commitment, dedication, desire, and motivation, your dissemination and application of the information and exercises provided to you via the App to your own circumstances or your capabilities.

 

3.7 We provide support, guidance and tools for you to set goals, determine priorities and achieve results, but any decision you make, and the consequences that flow from such decisions, is your sole responsibility. Your success depends on many factors, including your dedication, participation, desire, and motivation.

 

4 APP AND EXERCISE PROGRAMS DISCLAIMER

 

4.1 Without limiting clause 3, we do not practice medicine and do not purport to diagnose or treat medical conditions or diseases, but you may use the App with the goal to improve your health.

 

4.2 The implementation of any physical exercises provided on the App may have unexpected or unintended consequences, which may vary from person to person, and you acknowledge that you perform any recommended exercises at your own risk.

 

4.3 You acknowledge and agree that the App provides you with access to certain personalised exercise programs based on the information you upload to the App relating to your current health information and any other information requested by the App. You further acknowledge that some of our programs are not suitable for everyone, especially if you have a serious injury, are pregnant or postnatal, or are 65 years of age or over, and we are in no way liable for any injury, damage or loss resulting from you entering false, incorrect or incomplete information that results in you being provided a program that is not suitable you. If you have any questions about the suitability of a particular program please contact us at contact@newbodyloading.com.au or seek the advice of a medical practitioner.

 

4.4 You acknowledge and agree that the App and the chatbot feature of the App must not be used in emergency situations or where you are seriously injured, including but not limited to where you are suffering from broken bones, torn muscles or ligaments, dizziness, numbness or loss of sensation, or any other serious injury or condition.

 

4.5 You acknowledge and agree that we are not liable for any injury you may suffer as a result of use of the App or your incorrect execution of exercises or information provided through exercise videos on the App or provided by our representatives on the chatbot feature of the App.

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4.6 Prior to starting any of our recommended physical exercises, you should always consult with your medical practitioner.

 

4.7 The information and exercise videos provided on the App:

(a) shall not involve or constitute the practice of medicine;

(b) will not constitute a doctor-patient relationship between you and us; and

(c) shall not be a replacement or substitute for medical advice which should be obtained from your medical practitioner.

 

4.8 All information and exercise videos on the App are intended for general education and information purposes only. Nothing on the App or any of the information or content provided to you on the App, purports to offer medical advice. Use caution and always seek professional advice before acting on any information that we provide.

 

4.9 You acknowledge that you accept full responsibility for informing yourself and assessing all the risks of any exercises provided on the App and will rely solely on your own assessment of these risks before participating in those exercises.

 

4.10 You understand there are risks of aggravating pre-existing injuries if you perform exercises that are not suitable for you, and you should always consult a medical practitioner before commencing any program on the App if you have any pre-existing injury.

 

4.11 If you use any of the information or exercise videos on the App, you agree that you do so at your own risk; are voluntarily participating in these activities; you assume all risk of injury to yourself; and agree to release and hold us harmless from any and all claims made against us, which arise directly or indirectly as a result of or in connection with your use of our Services and any exercises or activities which relate to the provision of those Services.

 

4.12 In relation to the App, we do not guarantee that your health will improve, or experience an improvement in any aspect of your physical health, as any results you achieve may also be dependent on you and your own motivation and commitment.

 

4.13 The App provides various video exercises, which may involve a degree of risk if not executed correctly.

 

4.14 You understand and acknowledge that the risks performing the exercises available on the App or provided by our representatives on the chatbot feature of the App, include but are not limited to:

a) incorrect execution of exercises demonstrated on exercise videos provided by the App or provided by our representatives on the chatbot feature of the App;

(b)falls and tripping;

(c) equipment related hazards (e.g. broken, defective, inadequate or old equipment,

unexpected equipment failure);

(d)uneven ground; and

(e) inadequate first aid.

 

You hereby acknowledge that all the above risks are known and accepted by you.

 

4.15 You further understand and acknowledge that any of these risks and others, not specifically named, may cause injuries that may be categorized as minor or serious. Minor injuries include, but are not limited to, scrapes, bruises, sprains and cuts. Serious injuries are rare, but a possibility, which include, but are not limited to, broken bones, fractures, torn or strained ligaments and tendon. In choosing to participate in the exercises provided

by the App and you fully understand, accept and assume all risks whether before, during or upon completion of the exercises.

 

4.16 You warrant that you are of sound mind when you accept this Disclaimer and Waiver, and have the capacity to accept full responsibility for assessing whether you are willing to participate in any activity which carries an element of risk. In summary, you acknowledge the App provides activities that carry risk of physical injury and that you shall be solely responsible for consenting to participate in such activities.

 

4.17 You acknowledge that we are not liable for any Claim you bring against us or any injury or loss you may suffer as a result of participating in any exercise.

 

4.18 You accept full responsibility for informing yourself and assessing all the risks of being involved with the exercises provided by the App, especially if you have a pre-existing physical injury or medical condition.

 

4.19 You confirm any information you have provided us is true and correct in relation to your health information, medical history and any existing health conditions you have, and if required by us, have obtained or will obtain medical advice from your GP or appropriate medical professional, prior to using our App, to ensure you are not at major risk of injury, or physical or mental harm during exercises provided by the App.

 

4.20 We are not responsible for any loss or corruption of information, content or images you upload to the App.

 

4.21 We do not guarantee continuous, uninterrupted or secure access to the App or that any information provided by us is up to date and accurate.

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4.22 You acknowledge and accept that Apps in general are never wholly free from defects, errors and bugs, and we give no warranty or representation that the App will be wholly

free from defects, errors and bugs;

 

4.23 We are not responsible if the App is temporarily unavailable, but will take all reasonable steps to ensure any technical issue affecting access to the App is addressed as soon as possible.

 

4.24 Regarding our App, while the appropriate protections are in place, we do not guarantee the App will be free from external intruders (hackers) or virus or worm attacks, as this is ultimately out of our control.

 

5 WAIVER AND RELEASE OF LIABILITY

 

5.1 To the extent permitted by Law and in consideration of being permitted to participate in our Services, you agree that you will not make, take or seek any Claim against NEW BODY LOADING PT (ABN 16513749244)  and its officers, employees, agents, and independent contractors (all collectively referred to as “the Releasees”) arising directly or indirectly out of or in connection with your use of the App and you unconditionally and irrevocably

forever waive, release, acquit, covenant not to sue, and discharge the Releasees from and against any loss, liability, cost (including all legal costs and expenses on an indemnity basis), expense, damage, charge, penalty, outgoing or payment, however arising and whether present, unascertained, future or contingent and includes indirect and consequential loss (Loss) arising directly or indirectly out of or in connection with your

use of the App.

 

5.2 Without limiting the above, you acknowledge and agree that in the event that you are injured, you will bring no Claims, legal or otherwise, against the Releasees in respect of that injury or damage and you hold the Releasees harmless.

 

5.3 You agree to release, waive, acquit and forever discharge the Releasees from all Claims (including, but not limited to, claims for negligence, breach of contract or breach of statute), or right to compensation for damages you may claim to have or that you may have arising out of acts or omissions by yourself or by the Releasees, as a result of any information provided by one of our representatives via the chat feature of the App or otherwise resulting from your use of the App.

 

5.4 You agree to hold harmless and indemnify the Releasees from any and all Claims made against or Loss suffered by the Releasees, which arises directly or indirectly as a result of any information provided by one of our representatives via the chatbot feature of the App or otherwise resulting from your use of the App.

 

5.5 This Disclaimer and Waiver shall bind your heirs, executors, personal representatives, successors, assigns, and agents.

 

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6 ACKNOWLEDGEMENT OF UNDERSTANDING

 

6.1 You acknowledge that you have read this Disclaimer and Waiver and fully understand its terms. You acknowledge you are 18 years or over. You understand that you are giving up substantial rights. You further acknowledge that you agree to this Disclaimer and Waiver freely and voluntarily.