ACTIVFY APP USER TERMS AND CONDITIONS

1. INTRODUCTION

1.1 The Activfy App is owned and operated by Activfy Pty Ltd (ACN 669 515 842) (Activfy,

our, us or we).

1.2 By downloading, using, browsing or accessing the Activfy App, you acknowledge that you

have read, understood and accept these Activfy App User Terms and Conditions

(agreement), together with our Privacy Policy, and agree to abide by them. If you do not

accept this agreement, you must not access and use the Activfy App.

1.3 In this agreement, you and your means the individual who accesses or uses the Activfy

App, and whose details are listed in the User Access Portal (and includes anyone acting on

your behalf or with your express or implied authority).

2. ACTIVFY APP

2.1 The Activfy App is an online portal or conduit made available through a mobile application

that:

(a) allows health and fitness centres and/or personal trainers (Service Provider) to

connect and interact with gym or fitness users and consumers (Customer);

(b) allows Customers to access and use personal training and fitness services, workout

plans and programs developed and provided by Service Providers (Fitness Services);

and

displayed, advertised or listed on, or via, the Activfy App (Fitness Products) by Service

Providers.

2.2 Although Activfy provide you with to access to Fitness Services and/or Fitness Products as

supplied by Service Providers through the Activfy App, Activfy is not a health and fitness

centre, fitness or personal trainer nor are we are not providing any kind of medical or

healthcare advice or medical services. Activfy is a mere online resource and tool to connect

Service Providers with Customers who have an interest in fitness and general wellbeing.

Our role in providing you with access and use of the Activfy App, Fitness Services and/or

Fitness Products should be construed strictly in this context only. The purchase of any

Fitness Products made available to Customers by Service Providers through the Activfy

App is governed by Shopify’s Terms of Service.

2.3 If you suffer from a serious or chronic injury, illness or health condition, then the Activfy

App, the Fitness Services and the Fitness Products may not be appropriate for your needs

or safe for you to use, and therefore we recommend that you check with your medical

practitioner first before accessing and using the Activfy App and the Services. Activfy are

not medical practitioners or health professionals, and we cannot provide you with medical

or health advice in relation to whether the Activfy App, Fitness Services and/or the Fitness

Products are safe and/or suitable for you to use.

2.4 By downloading, accessing and using the Activfy App, we grant you a non-exclusive, non-

transferable, personal, revocable and non-sublicensable licence to download, install,

access and use the Activfy App and the Services for the Subscription Term.

2.5 You must only use the Activfy App for personal and non-commercial purposes. You will not

acquire or be entitled to any rights other than those rights expressly set out in this

agreement.

3. SUBSCRIPTION TERM

3.1 This agreement will commence on the date you download and access the Activfy App

(Commencement Date) and shall continue until terminated in accordance with clause 17

(Subscription Term), unless you (as a Service Provider) terminate the agreement during

the Trial Period in accordance with clause 3.2.

3.2 If you (as a Service Provider) do not wish to continue to access and use the Activfy App

following the expiry of the Trial Period, you (as a Service Provider) must terminate the

agreement by selecting the ‘Delete Account’ function in your Service Provider Account prior

to the expiry of the Trial Period. If you (as a Service Provider) do not terminate the

agreement prior to the expiry of the Trial Period, the agreement will automatically continue

for the Subscription Term.

4. REGISTRATION AND ACCESS

4.1 To access and use the Activfy App:

(a) as a Service Provider, you must create and setup an account on the Activfy App

(Service Provider Account); or

(b) as a Consumer, you must create an and setup an account on the Activfy App

(Customer Account).

4.2 Your Service Provider Account or Customer Account will be operated by your email

address (User Name) and password (Password). You can change your Password at any

time by accessing the User Access Portal.

4.3 To setup a Service Provider Account or Customer Account on the Activfy App, you must:

(a) be over 18 years of age, and legally able to enter into contractual relations. If you are

under the age of 18 years, you may only access and use the Activfy App if you have

your parents’/guardians’ permission to access and use the Activfy App. Your continued

use of the Service Provider Account or Customer Account (as the context permits)

constitutes an acknowledgement by you that you are: (i) over 18 years of age; or (ii)

under 18 years of age, but have your parents’/guardians’ permission to access and use

the Activfy App and that your parents/ guardians have agreed to abide by this

agreement; and

(b) provide, and keep us up-to-date with, accurate registration information as described in

clause 6.1 (if you are a Service Provider) or clause 7.1 (if you are a Customer). All

Personal Information as well as the information you provide to setup your Service

Provider Account or Customer Account (as the context permits) is subject to our Privacy

Policy.

4.4 In relation to your Service Provider Account or Customer Account (as the context permits)

(Account), you are responsible for:

(a) maintaining control over, and the confidentiality of, your Account, User Name and

Password;

(b) keeping your Account registration information current, complete, accurate, and truthful.

You must not impersonate another account holder or provide false identity information

to gain access to or use the Activfy App;

Name or Password; and

(d) for all activities or transactions that occur using your Account. We are not liable for any

loss or damage arising out of, or in connection with, any unauthorised access or use of,

your Account, User Name and Password.

5. YOUR GENERAL OBLIGATIONS

5.1 When accessing and using the Activfy App, you must at all times:

(a) provide us with all necessary co-operation and information to facilitate and provide the

Activfy App including (but not limited to) proof of identity;

(b) ensure that all information is true, accurate, and not misleading;

to download, access, and use, the Activfy App;

(d) comply with all Relevant Laws with respect to your obligations under this agreement;

and

(e) comply with all of our directions, policies and guidelines advised in writing to you or as

displayed on the Activfy App from time to time.

5.2 Activfy will not be liable to you or anyone else if, for any reason, the Activfy App is

unavailable at any time or for any period. From time to time, Activfy may suspend or restrict

access to all, or some parts of the Activfy App.

5.3 You must not:

(a) introduce, access, store, distribute or transmit any viruses, worm, trojan or other

malicious code into the Activfy App;

(b) violate any Activfy IP or any third party service provider’s Intellectual Property Rights;

or distribute all or any portion of the Activfy App, or any other third party software that

you may access or use through the Activfy App, in any way;

(d) access all or any part of the Activfy App and the Fitness Services in order to build a

product, service or code which competes or reproduces the Activfy App and/or the

Fitness Services (in full or part);

(e) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise

reduce to human-perceivable form all or any part of the Activfy App in any way, or

otherwise learn the source code or algorithms underlying the Activfy App;

(f) license, sell, rent, lease, sub-let, transfer, assign, distribute, display, disclose, or

otherwise commercially exploit, encumber or otherwise make the Activfy App and the

Services available to any third party; and

(g) use the Activfy App or the Fitness Services for any unlawful purpose or other purpose

not authorised by Activfy in writing.

6. SERVICE PROVIDER OBLIGATIONS

6.1 At the time a Service Provider creates a Service Provider Account with us, the Service

Provider must also create a Service Provider Profile, which will include your business

information and Personal Information, such as:

(a) your business name, business logo or banner, profile picture, main business contact

details (including contact person details, date of birth (if you are a personal trainer),

email address, mobile number and address) and a description of your fitness and/or

personal training business;

(b) a description of the Fitness Services and/or Fitness Products offered or made available

by you to Customers; and

contained in the Service Provider Profile and the accuracy of any advertisements,

Fitness Services or Fitness Products displayed or listed for sale on, or via, the Activfy

App.

6.2 At any time during the Subscription Term, you may:

(a) edit your Service Provider Profile or update or change your Service Provider Profile; or

(b) update, change, delete or add Fitness Services and/or the Fitness Products advertised,

listed or displayed by you on, or via, the Activfy App.

6.3 Activfy will not be liable to the Service Provider, Customer or any third party in connection

with, or arising out of, any:

(a) failure to update or change your Service Provider Account, Service Provider Profile, or

any Fitness Services and/or Fitness Products advertised, listed or displayed by you on,

or via, the Activfy App following your request; or

(b) Loss incurred by the Service Provider, the Customer or any third party as a result of, or

in connection with, any content, advertisement or information which is uploaded,

published or submitted by the Service Provider to the Activfy App.

6.4 During the Subscription Term, you (as a Service Provider) will:

(a) hold and maintain any and all registrations and licences as required under Relevant

Laws to provide or supply Fitness Services;

(b) ensure any Fitness Services provided to Customers are appropriate for the Customers’

age, gender, fitness level, health status or condition and personal circumstances;

merchantable quality and free from defects (unless otherwise disclosed to the Customer

in your Service Provider Profile prior to the Customer purchasing the Fitness Products);

and (ii) accurately described in the Service Provider Profile;

(d) ensure that the sale and supply of Fitness Products will comply with all Relevant Laws,

and you will not sell any Fitness Products that are dangerous, unsafe or illegal;

(e) you have all necessary permits and licences to offer, distribute, sell or supply the

Fitness Products;

(f) pay the Subscription Fee (except during the Trial Period) in accordance with this

agreement;

(g) ensure that all information or content you display, publish and upload to your Service

Provider Profile in relation to the Fitness Services and/or Fitness Products is true,

complete and accurate. You will immediately update your Service Provider Profile if

your details or any other information or content you submit or upload to the Activfy App

in relation to the Fitness Services and/or Fitness Products is inaccurate, incomplete or

out of date (including, but not limited to, the availability of Fitness Products); and

(h) not act in any manner which could bring the Activfy App and Activfy into disrepute.

6.5 Activfy is not responsible for monitoring or censoring any advertisements, information or

content published by a Service Provider on, or via, the Activfy App (Listing); however, if a

Service Provider fails to comply with clause 6 or any other term of this agreement (including

any of Activfy’s policies or guidelines published by us from time to time), Activfy may, at our

absolute discretion and with or without notice to the Service provider:

(a) remove your Service Provider Profile or Listing published or displayed on your Service

Provider Profile; or

(b) to restrict, suspend or terminate your Service Provider Account or Service Provider

Profile.

7. CUSTOMER OBLIGATIONS

7.1 When you (as a Customer) create a Customer Account with us via the Activfy App, you

must provide accurate and complete registration information, which will include your

Personal Information, such as your full name, email address, phone number and profile

picture.

7.2 Before ordering with or purchasing any Fitness Services and/or Fitness Products offered or

supplied by Service Providers on, or via, the Activfy App, you should carefully review the

Service Provider Profile and Listing (including, but not limited to, the Service Provider’s

qualifications, skills and experience in providing, offering or selling Fitness Services and/or

Fitness Products).

7.3 We do not recommend or endorse any Service Providers (including Service Provider

Profiles) or any content, information or advertisements published, posted or appearing on

Service Providers Profiles, the Activfy App or our related social media pages. You

acknowledge and agree that, to the maximum extent permitted by Relevant Laws:

(a) Activfy is not responsible for monitoring or censoring Listings; however, we may (in our

absolute discretion and with notice to you) remove, modify, refuse to publish or alter the

Listing if we consider that such Listing do not comply with this agreement (including any

of our policies or guidelines published by us from time to time);

(b) Activfy makes no representations, warranties or guarantees in relation to the availability,

continuity, reliability, accuracy, currency or security of the Activfy App, the Fitness

Services, Fitness Products or any other ancillary products or services made available to

you on, or via, the Activfy App. You acknowledge that the Fitness Services, Fitness

Products or any other ancillary products or services made available to you on, or via,

the Activfy App are provided ‘as is’;

other ancillary products or services made available to you on, or via, the Activfy App,

meets your specific needs and/or are suitable for the purposes for which they are used

or purchased; and

(d) Activfy makes no representations, warranties or guarantees in relation to: (i) the

standard, availability, quality or fitness for purpose of Fitness Services and/or Fitness

Products offered or supplied by Service Providers on, or via, the Activfy App; (ii) the

reliability, expertise, legitimacy, repute, or credibility of any Service Provider; or (ii) a

Service Providers ability or willingness to sell, provide or deliver the Fitness Service

and/or Fitness Products to you.

7.4 When using the Fitness Services made available through Activfy App, it is your

responsibility to ensure:

(a) there is an adequate space and/or facility free of hazards, objects or spills for you to

undertake or participate in the Fitness Services;

(b) you are wearing appropriate clothing that is suitable for fitness and exercise;

and level of skill and experience; and

(d) you do not participate in workout plans that may cause you injury.

8. USER CONTENT

8.1 When you create your Account and when access and use the Activfy App, you will be

required to provide User Content to Activfy. You will retain ownership of your User Content

and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality

of your User Content. To the maximum extent permitted by Relevant Laws, we do not

warrant that any User Content published or displayed on the Activfy App by a Service

Provider or Customer (or any Content or Third Party Products or Services displayed or

published on the Activfy App by a third party service provider) is accurate, complete,

reliable, current or error-free, nor do we make any warranty about the standard or quality of

any Content, User Content or Third Party Products or Services displayed on, or via, the

Activfy App . You (and not Activfy) are solely responsible for the completeness, accuracy,

reliability, legality and quality of any User Content published or posted by you (or anyone

else on your behalf) on, or via, the Activfy App.

8.2 You grant Activfy a worldwide, non-revocable, non-exclusive, royalty-free, perpetual,

transferrable and sub-licensable licence to use, disclose, share, reproduce, store, distribute,

publish, export, adapt, edit, translate, produce derivative works from or copy, your User

Content (and all Intellectual Property Rights contained therein) for any purpose, including

for the purpose of:

(a) enabling Activfy to provide the Activfy App and otherwise perform our obligations and

exercising our rights under this agreement;

(b) informing you of other products or services that Activfy may offer from time to time or in

relation to Third Party Products and Services;

warrant, legal proceedings or in response to a law enforcement agency request;

(d) using usage patterns, trends, and other statistical or behavioural data derived from use

of the Activfy App for the purposes of providing, operating, maintaining, or improving the

Activfy App, or our other products and services; and

(e) sharing User Content with an Affiliate or other third party (with whom Activfy may

contract or be affiliated with from time to time) for the purposes of performing or

improving the Activfy App.

8.3 As all Activfy App (excluding registration information) is stored exclusively on your mobile

device (and not on the Activfy App), you acknowledge that we do not back-up or archive

your User Content and therefore:

(a) you are responsible for maintaining back-ups of your User Content; and

(b) we are not liable to you for any Loss, destruction, alteration, corruption or disclosure of

User Content caused by your acts or omissions or the acts of omissions of other users

of the Activfy App or any third party.

8.4 You agree to make your own enquiries to verify information or data displayed on, or via, the

Activfy App (including Third Party Products and Services) and to assess the suitability of

any information, User Content or Content before relying upon such information, User

Content or Content. If you choose to rely upon any information or Content displayed or

published on, or via, the Activfy App (including User Content and Third Party Products and

Services) you do so at your own risk. We make no representations or warranties that use of

the Content, User Content and Third Party Products and Services will not infringe any third

party’s Intellectual Property Rights.

9. FEES AND PAYMENT

9.1 We do not charge you a fee to download the Activfy App. However, if you (as a Service

Provider) wish to access and use Activfy App and Services, except for during the Trial

Period, you (as a Service Provider) must pay us the Subscription Fees during the

Subscription Term. The Subscription Fees are payable in advance on a monthly basis in

accordance with the Direct Debit Authority in clause 10.

9.2 During the Trial Period, you (as a Service Provider) will not be required to pay the

Subscription Fees to access and use Activfy App, but following the Trial Period, all

Subscription Fees will be payable.

9.3 When setting up your Service Provider Account, you will be offered payment options to pay

the Subscription Fees. Activfy may, at our absolute discretion and without notice to you,

change the payment methods that can be used to access and use the Activfy App at any

time.

9.4 When you (as a Customer) orders or purchase:

(a) Fitness Services offered for sale by a Service Provider, you (as a Customer) will pay the

Service Provider the full price for the Fitness Services as displayed on, or via, the

Activfy App; and

(b) Fitness Products offered for sale by a Service Provider, you will be re-directed to the

Shopify Website and you will be charged the full price by Shopify (who acts as the

payment collection agent for the Service Provider) for the Fitness Products (Purchase

Price) as displayed on the Shopify Website. The Shopify Terms of Service govern the

sale of the Fitness Product by the Service Provider to the Customer.

9.5 Shopify will collect the Purchase Price from the Customer on the Service Provider’s behalf

and will remit the Purchase Price (less a Service Fee) to the Customer in accordance with

the Shopify Terms of Service.

9.6 The Purchase Price displayed on the Activfy App are posted by the Service Provider and

are current at the time of issue. The Purchase Price and availability of Fitness Services and

any other ancillary products or services made available to you on, or via, the Activfy App,

are subject to change effective immediately upon posting by the Service Provider on the

Activfy App. You agree to pay the Purchase Price current at the time of payment.

9.7 The Subscription Fees, Service Fee and Purchase Price are in Australian Dollars and are

exclusive of any goods and services taxes, which is payable in addition. To the maximum

extent permitted by Relevant Laws and except as otherwise contemplated in this

agreement, the Subscription Fees, Service Fee, Purchase Price and all other amounts

owing to Activfy under this agreement are non-refundable.

9.8 The purchase price, charges or fees for Fitness Products displayed on the Shopify Website

or other third party websites which are linked to Activfy App may not be correct and Activfy

is not bound by them.

9.9 We use Third Party Payment Processors to process payments made in connection with

transactions occurring through the Activfy App. By making payment of the Subscription

Fees and Service Fee (and all other fees owing to us under this agreement) and Purchase

Price to the Service Provider, you agree to provide the Third Party Payment Processors

with accurate and complete billing information, and you authorise us to share your billing

information (including Personal Information) with our Third Party Payment Processors for

the purpose of processing your payment.

9.10 Activfy may, at our absolute discretion, change the Subscription Fee and/or Service Fee at

any time, by giving you written notice, or by otherwise posting it on the Activfy App. Where

a change relates to an increase in Subscription Fee and/or Service Fee, Activfy shall

provide you with 21 days prior written notice or by otherwise posting it on the Activfy App.

The fee increases will come into effect in the next billing cycle. If you do not agree to these

changes, you should terminate the agreement in accordance with clause 17 no later than

21 days after the date you received written notice of the changes, or the changes were

posted on the Activfy App.

10. DIRECT DEBIT AUTHORITY

10.1 By accepting this agreement, you authorise our Third Party Payment Processors to debit

the Subscription Fees or any other amount owing to Activfy under this agreement from your

credit card or bank account (as applicable) as and when such fees are due and payable

under this agreement (Direct Debit Authority).

10.2 You may cancel or change your Direct Debit Authority by accessing the Apple Pay

Subscription’ settings or ‘Google Pay Subscription’ settings on your mobile device before

the day on which your next debit is due. If you cancel or defer Direct Debit Authority, Activfy

may not be able to provide you with access to, and use of, the Activfy App, unless you

provide Activfy with new Direct Debit Authority.

10.3 It is your responsibility to ensure that there are sufficient funds available on your credit card

or bank account (as applicable) to allow each debit to be made in accordance with the

Direct Debit Authority.

10.4 If you believe that an error has been made in debiting your credit card or bank account (as

applicable), you should update your credit card or bank account details by accessing the

Apple Pay Subscription’ settings or ‘Google Pay Subscription’ settings on your mobile

device as soon as possible.

10.5 If you cancel the Direct Debit Authority, your right to access and use the Activfy App will

cease at the end of the current billing cycle. If you wish to re-activate your subscription, you

will need to pay the Subscription Fees prevailing at the time you re-active your Service

Provider Account.

11. INTELLECTUAL PROPERTY

11.1 You acknowledge that Activfy, or our licensors, are the owners of the Activfy App (and any

Intellectual Property Rights contained therein) including any information, Content or

technology that may be provided to, or accessed by, you in connection with your use of the

Activfy App (including any modifications, enhancements of the foregoing) (collectively,

Activfy IP)). Accessing and using the Activfy App does not give you (or anyone else)

ownership of, or any right, title or interest in the Activfy IP.

11.2 Ownership of any User Content will vest in the creator of that User Content, but excluding

Activfy IP.

12. OUR OBLIGATIONS

12.1 Subject to your compliance with the terms of this agreement, during the Subscription Term,

Activfy shall use reasonable endeavours to provide you with access to and use of the

Activfy App.

12.2 The undertaking in clause 12.1 shall not apply in the event of:

(a) any non-conformance which is caused, or contributed, by use of the Activfy App

contrary to our instructions or the terms of this agreement;

(b) modification or alteration of Activfy App by any party other than Activfy or our duly

authorised Personnel;

you in conjunction with which the Activfy App are used;

(d) Force Majeure Events; and

(e) the unsuitability or malfunction of the Activfy App when used in conjunction with any

software, apps, applications and tools supplied by a third party provider.

12.3 In the event that Activfy fail to provide you with access and use of the Activfy App and the

Services in accordance with clause 12.1, Activfy shall use reasonable endeavours to

correct any such non-conformance, or provide you with an alternative means of

accomplishing the desired performance. The foregoing constitutes your sole and exclusive

remedy for any breach of clause 12.1.

13. THIRD PARTY PRODUCTS AND SERVICES

13.1 You acknowledge that the Activfy App may require you to use or access Third Party

Products and Services and that you do so solely at your own risk.

13.2 We make no representation or commitment and shall have no liability or obligation

whatsoever in relation to the content or use of any such Third Party Products and Services,

or any transactions completed, and any contract entered into by you, with the owner,

licensor or operator of such Third Party Products and Services.

13.3 Activfy recommends that you refer to the third party’s terms and conditions and privacy

policy prior to using the relevant Third Party Products and Services.

13.4 Activfy does not endorse, sponsor or approve any Third Party Products and Services used

in conjunction with the Activfy App. It your sole responsibility to determine that specific

products or services, meet your needs and are suitable for the purposes for which they are

used.

13.5 Any rights you may have to access Third Party Products and Services shall be limited to:

(a) the extent of Activfy’s ability to pass on such rights to you; or

(b) the relevant third party licensor terms.

14. NO WARRANTIES

14.1 While the Content (including User Content and Third Party Products and Services) made

available to Customers through the Activfy App is designed to provide Customers with

resources and tools to improve and develop your fitness and health, the Customer

acknowledges and agrees that Activfy does not warrant, represent or guarantee that by

using the Activfy App or any Fitness Services and/or Fitness Products offered by Services

Providers through the Activfy App, the Customer will materially improve your health or

fitness or that you will achieve a minimum wellbeing standard, or that the Customer will

achieve your desired health and fitness outcomes or goals. The Customer is solely

responsible for setting achievable health and fitness goals and taking the required or

necessary steps to achieve your personal goals.

14.2 The Customer understands and acknowledges that undertaking or participating in Fitness

Services involves strenuous physical exercise and movement. By accessing and using the

Activfy App and Fitness Services provided by Service Providers (alone or in conjunction

with any Third Party Products and Services), there is an increased risk of personal injury or

death and you voluntarily and knowingly assume such risks. When using the Activfy App,

Fitness Services and/or Fitness Products, Customers should carefully follow any safety

instructions or user guidelines provided through or within the Activfy App. Reliance on, and

use of, the Content, User Content, Fitness Services, Fitness Products and Third Party

Products and Services is at your own risk.

14.3 To the maximum extent permitted by Relevant Laws, Activfy excludes all express or implied

representations, conditions, statutory guarantees, warranties and provisions (whether

based on statute, common law or otherwise), in connection with the Activfy App, the Fitness

Services and Fitness Products.

14.4 Nothing contained in this agreement excludes, restricts or modifies the application of any

condition, warranty or other obligation, the exercise of any right or remedy, or the imposition

of any liability under the Competition and Consumer Act 2010 (Cth) or any other

international, national, State or Territory legislation where to do so is unlawful.

14.5 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws,

Activfy makes no representation, warranty or guarantee in relation to the availability,

continuity, reliability, accuracy, currency, validity or security of the Activfy App (or any

Content, User Content, Fitness Products and Fitness Services and Third Party Products

and Services generated or made available through the Activfy App) and Activfy will not be

liable if the Activfy App, or becomes unavailable for any reason, including directly, or

indirectly as a result of:

(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;

(b) negligent, malicious, willful acts or omissions of third parties (including third party

service providers) or other users;

respect of any of the systems used in connection with the provision of the Services or

the Activfy App;

(d) services provided by third parties (including internet service providers) ceasing or

becoming unavailable; or

(e) a Force Majeure Event.

14.6 You acknowledge that, to the maximum extent permitted by Relevant Laws, Activfy does

not make any warranty or representation that:

(a) your access to, and use of, the Activfy App will be uninterrupted, virus-free or error-free;

and/or

(b) the Activfy App (or any Content, User Content, Fitness Products, Fitness Services

and/or Third Party Products and Services), will be accurate, complete, reliable, current

or is suitable for any particular purpose or use under any specific conditions, and so is

provided on an “as is” basis.

14.7 You acknowledge that your access to, and use of, the Activfy App (including Content, User

Content, Fitness Products, Fitness Services and/or Third Party Products and Services) may

be interrupted or unavailable during scheduled or unscheduled maintenance.

15. LIMITATION OF LIABILITY

15.1 To the maximum extent permitted by Relevant Laws, Activfy will not be liable to you or any

third party for:

(a) any Claims or Losses (including Consequential Loss); or

(b) loss of, or damage to, any property or any personal injury, illness or death to you, any

third person,

arising out of, relating or connected to, the provision or use of the Activfy App, Fitness

Products and Fitness Services (including Content, User Content and/or Third Party

Products and Services generated or made available through the Activfy App or the

Services) and this agreement, regardless of the cause of action on which they are based,

even if advised of the possibility of such damage occurring.

15.2 All risk in using the Activfy App passes to you upon creating an Account or otherwise using

the Activfy App (whichever is earlier). Activfy assumes no responsibility and Activfy has no

liability to you or anyone else for any use of, or reliance on, any Content, User Content,

Fitness Products, Fitness Services and/or Third Party Products and Services obtained or

generated from your access to, and use of, the Activfy App.

15.3 To the maximum extent permitted by Relevant Laws, under no circumstances will Activfy’s

aggregate liability to you or anyone else, whether based upon warranty, contract, statute,

tort (including negligence) or otherwise, exceed the amount you paid to Activfy under this

agreement in the one month immediately preceding the date on which the Claim giving rise

to such liability arose.

15.4 You agree to defend, indemnify and hold Activfy, our Affiliates and our Personnel

(collectively, the Indemnified) harmless from and against any and all Claims or Losses,

that may be brought against the Indemnified or which the Indemnified may pay, sustain or

incur as a direct or indirect result of or arising out of:

(a) your (or your Personnel’s) access to, and use of, or reliance on the Activfy App, or the

Fitness Services or Fitness Products made available through the Activfy App (including

the User Content and Third Party Products and Services);

(b) any breach of our or any third party’s Intellectual Property Rights or other rights caused

by you; or

16. PRIVACY

All Personal Information you provide to open an Account and any User Content you

upload, generate, share, or publish on, or via, the Activfy App, is subject to Activfy’s

disclose your User Content to any third party. You warrant that, in relation to any

Personal Information comprising User Content or any other information disclosed to

Activfy on, or via, the Activfy App:

(a) it has been collected in accordance with Privacy Laws;

(b) you have the authority to upload, post, publish or otherwise transmit such information

on, or via, the Activfy App; and

parental/guardian consent) who are the subject of such Personal Information in order for

Activfy to use, disclose, store, transfer, process or handle it.

17. TERMINATION

17.1 During the Subscription Term you may terminate this agreement at any time by deleting

your Service Provider Account or Customer Account (as the context permits). In this case,

you (as a Service Provider) will not be entitled to a pro rata refund of the Subscription Fees

for the unused portion of the Subscription Term.

17.2 Activfy may terminate the agreement any time (without liability to you except Activfy will

provide you with a pro rata refund of the Subscription Fees for the unused portion of the

Subscription Term) by giving you 14 days’ written notice.

17.3 You agree that Activfy may, at any time and at our sole discretion, with or without cause or

any notice to you, terminate, suspend or block your access to (either temporarily or

permanently):

(a) your Account and/or the User Access Portal; and/or

(b) the Activfy App;

(d) any Fitness Services, Fitness Products or any other products and services offered for

sale on, or via the Activfy App (including Third Party Products and Services).

17.4 Cause for such suspension or termination under clause 17.3 may include, but are not

limited to:

(a) any serious or repeated breaches or violations of this agreement, our policies and

guidelines (including our Privacy Policy), the Shopify Terms of Service and any other

agreements entered into between the parties;

(b) serious or repeated breaches or violations of Activfy’s or a third party service providers’

Intellectual Property Rights;

during the Trial Period);

(d) your activities, conduct or transactions on, or, via, the Activfy App, brings, or has the

capacity to bring, Activfy into disrepute; or

(e) requests by law enforcement or other government agencies.

17.5 If Activfy terminates the agreement in accordance with clauses 17.3 or 17.4, you

acknowledge and agree that you are not entitled to pro rata refund of the Subscription Fees

for the unused portion of the Subscription Term.

17.6 You agree that all such suspensions or terminations shall be made at Activfy’s sole

discretion and that Activfy shall not be liable to you or any third party for any such

suspension or termination.

18. EFFECT OF TERMINATION

18.1 On termination of this agreement for any reason:

(a) Activfy will disable your Account and your User Content will no longer be accessible by

you through the Activfy App. All User Content will be permanently and securely

destroyed within 30 days; however, Activfy will be required to retain Personal

Information (including basic registration information) in accordance with documentation

retention and destruction laws; and

(b) all licences to access and use the Activfy App granted under this agreement will

immediately terminate; and

19. FORCE MAJEURE

Activfy will not be responsible to you (or anyone else) if Activfy are prevented from or

delayed in performing our obligations, by acts, events, omissions or accidents beyond our

reasonable control, including but not limited to, acts of God, governmental actions,

shipping, postal or other relevant transport strike, failure or accident, lockouts or other

labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act

or omission of a third party, epidemic, pandemic, mandatory government shutdown or

lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or

services, the failure of performance provided by others, hacker attacks, denial of service

attacks, internet interruption or virus, accidents or breakdown of plant, machinery,

software, hardware or communication network, or default of hosting or data centre

providers (Force Majeure Event).

20. DISPUTE RESOLUTION

20.1 Any party claiming a dispute exists under the agreement (excluding any dispute between a

Service Provider and Customer in connection with a transaction, which must be resolved

between the parties themselves without interference from, or the involvement of, Activfy)

must notify the other party in writing of the nature of the dispute (Dispute Notice), except

where urgent interlocutory relief is being sought.

20.2 The parties must in good faith attempt to resolve any dispute between them.

20.3 If the dispute cannot by resolved within 30 days of receipt of a Dispute Notice, either party

may commence legal proceedings in relation to the dispute.

20.4 Each party must continue to perform its obligations under this agreement notwithstanding

the existence of any unresolved dispute.

21. UPDATES AND VARIATIONS

21.1 Without notice to you, Activfy may, at our absolute discretion, from time to time:

(a) change, add or delete the functions, features, performance, or other characteristics of

the Activfy App; or

(b) apply or install updates to, or new versions of, the Activfy App.

21.2 You acknowledge that the Content on the Activfy App are subject to change at any time and

may be out of date at any given time. Activfy are under no obligation to:

(a) update, correct or fix any Content, User Content, faults or errors in the Activfy App.

However, we may, at our absolute discretion, provide you with standard user support

services during Business Hours; and/or

(b) notify you of any changes to the Content, User Content or the Activfy App unless

required by a Relevant Law to do so.

21.3 Some of the provisions contained in this agreement may also be superseded by provisions

or notices published elsewhere on the Activfy App. Any changes are effective immediately

upon posting to the Activfy App. Your continued use of Activfy App thereafter constitutes

your acceptance of all such changes to the agreement.

21.4 Please read this agreement before using the Activfy App as the agreement may have

changed since the last time you accessed and used the Activfy App. If you do not agree to

any change, then you must immediately stop using the Activfy App.

22. SEVERABILITY

If any provision in this agreement is found to be invalid or unenforceable by a court of

law, such invalidity or unenforceability will not affect the remainder of this agreement

which will continue in full force and effect.

23. RELATIONSHIP

No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-

franchisee relationship is intended or created between you and us by this agreement.

24. ASSIGNMENT

Neither party shall, without the prior written consent of the other party (which will not be

unreasonably withheld), assign or transfer all or any of its rights or obligations under this

agreement, except that Activfy may assign, sell or transfer our rights or obligations under

this agreement to an Affiliate or bona fide third party purchaser of Activfy’s business.

25. ENTIRE AGREEMENT

This agreement, and any other documents referred to in it, represent the entire

agreement between us and you in relation to the subject matter and supersedes any

previous arrangements, agreements, representations, understandings or statements

(whether verbal, in writing, or in some other format).

26. JURISDICTION AND APPLICABLE LAW

The laws of the State of Victoria, Australia govern this agreement. You agree to submit to

the exclusive jurisdiction of the Courts of Victoria, Australia.

27. DEFINITIONS

In this agreement, the following words shall have the following meanings:

(a) Activfy App means the online health and fitness marketplace or e-commerce platform

(including all Intellectual Property Rights contained therein) made available to

Customers and Services Providers via a mobile application.

(b) Activfy IP has the meaning given to it by clause 11.1.

includes our Personnel and Affiliates.

(d) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is

Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person

referred to in (ii) above, and for this purpose Control means the power of a person to

secure (whether by the holding of shares, possession of voting rights or by virtue of any

powers conferred by articles of association, constitution, partnership agreement or other

document regulating such person) that the affairs of another are conducted in

accordance with its wishes.

(e) Business Days means each day excluding Saturdays, Sundays and public holidays in

Victoria.

(f) Business Hours means 9:00am to 5:00pm local time on Business Days.

(g) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or

demand of any nature whether present or future, fixed or unascertained, actual or

contingent, at law, in equity, under statute or otherwise.

(h) Commencement Date has the meaning in clause 3.1.

(i) Content means all the information, text, materials, graphics, logos, button icons,

images, video and audio clips, trade marks (whether registered or not), layout,

arrangement, graphical user interface, look and feel, databases, functionality and

control features of the Activfy App.

(j) Consequential Loss means the following, however arising and even if it is reasonably

contemplated by the parties on the Commencement Date as a likely result of breach of

the agreement:

(i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss,

damage, cost or expense;

(ii) loss of revenue, profit, income, bargain, opportunity (including professional and

career opportunities), use, production, customers, business, contract, goodwill, or

anticipated savings, loss caused by business interruption, or the cost of obtaining

new financing or maintaining existing financing, loss of or corruption to data, loss

of use of data;

(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise

may be incurred or suffered by a third party; or

(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is

incurred or suffered by or to a third party.

(k) Customer has the meaning in clause 2.1(a).

(l) Customer Account has the meaning in clause 4.1(b).

(m) Fitness Services has the meaning in clause 2.1(b).

(n) Fitness Products has the meaning in clause 2.1(c).

(o) Intellectual Property Rights means designs, copyright, trade marks, patents,

operations, software or systems, trade names and domain names, rights in goodwill,

rights in confidential information or other intellectual property rights, whether under

statute, common law, equity, and whether registered or unregistered, and including all

applications for, and renewals or extensions of, such rights and all similar rights which

subsist or will subsist now or in future in any part of the world.

(p) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any

nature or kind, including all legal and other professional costs including Consequential

Loss.

(q) Password has the meaning given to it by clause 4.2.

(r) Personal Information has the same meaning that it has under Privacy Laws, namely

information or an opinion about an identified individual or an individual who is

reasonably identifiable, whether the information or opinion is true or not and recorded in

a material form or not.

(s) Personnel means any director, officer, employee, contractor or agents, of a party (in

your case, includes any person acting for or on your behalf)

(t) Privacy Laws means any applicable laws and codes of practice dealing with privacy,

including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles

and any other legislation, codes and policies relating to the handling of Personal

Information.

(u) Privacy Policy means our privacy policy available on the Activfy App or Website or

such other web address notified by us to you from time to time), which is incorporated

into this agreement.

(v) Purchase Price has the meaning in clause 9.4(a).

(w) Relevant Laws means any relevant rules of common law, principles of equity,

international, federal, state and local laws, statutes, rules, regulations, proclamations,

ordinances and by-laws and other subordinate legislation, rulings, or legal requirements

and Privacy laws, anywhere in the world.

(x) Service Fee means the fees (being a percentage of the Purchase Price) payable by a

Service Provider to Activfy each time a Service Provider sells Fitness Products to a

Customer or otherwise transacts with a Customer on, or via, the Activfy App as further

specified on the Activfy App. The Service Fee is collected by Shopify on behalf of

Activfy.

(y) Service Provider has the meaning in clause 2.1(a).

(z) Service Provider Account has the meaning in clause 4.1(a).

(aa) Service Provider Profile means the profile of a Service Provider that is displayed on

the Activfy App and which contains the Service Provider’s business information and

Personal Information, as further described in clause 6.1.

(bb) Shopify means the e-commerce and retail platform made available through the

Shopify Website.

(cc) Shopify Website means the website owned and operated by Shopify, the URL being

www.shopify.com/au.

(dd) Shopify Terms of Service means the terms of service that govern the use of the

Shopify Website, the URL being www.shopify.com/legal/terms/.

(ee) Subscription Fees means the fees payable by Service Providers to access and use

the Activfy App (including Third Party Products and Services) for the Subscription

Term as further described on the Activfy App.

(a) Subscription Term has the meaning in clause 3.1.

(b) Trial Period means 3 consecutive days from the date you register and setup your

Service Provider Account.

(including all Intellectual Property Rights contained therein) that:

(i) are provided by third party providers;

(ii) interoperate with the Activfy App; or

(iii) may be identified as third party products or services.

(ff) Third Party Payment Processor means Shopify Payments, Apple Pay, Google Pay

and any other a third party payment processor permitted by Activfy from time to time.

(gg) User Access Portal means the portal provided to you to access and use the Activfy

App.

(hh) User Name has the meaning in clause 4.2.

(ii) User Content means all data, information, content, materials and Personal Information

(including images, photographs, workout plans and program, nutritional data and

information):

(i) uploaded to, or stored on, the Activfy App by you or your Personnel;

(ii) transmitted by the Activfy App at your or your Personnel’s instigation;

(iii) supplied by you or your Personnel to Activfy uploading to, transmission by, or

storage on, the Activfy App; or

(iv) generated by the Activfy App as a result of the use of the Services by you or your

Personnel,

but excluding Activfy IP.

(jj) Website means the website located at www.activfyapp.com and any other website

notified by us from time to time.

(kk) you or your has the meaning in clause 1.3.d