Fitness Australia Terms & Conditions

The material on the Fitness Australia Ltd ABN 51 131 422 403 ('Fitness Australia') Website, under the domain name 'fitness.org.au' (collectively 'Website') resides on a server in the state of New South Wales, Australia. This Website is offered to you conditional upon your acceptance of these Terms of Use and the associated Privacy Policy. Your use of and access to this Website constitutes your acceptance.

We may change the Terms of Use at our discretion and without notice. A version of the current Terms of Use will be available on this Website as they are changed. By continuing to use our Website you accept the Terms of Use as they apply from time to time.

If you access this Website from outside Australia you are also responsible for ensuring compliance with all applicable laws in the place where you are located.

1. Anti-spam notice

Publication of electronic addresses on Fitness Australia's Website is for the purpose of professional communication only and must not be used to infer consent by Fitness Australia or the relevant addresses, to the receipt of unsolicited commercial electronic messages.

2. Content on this Website

Material or information ('Content') on this Website is not advice and is subject to periodic changes and may include technical inaccuracies or typographical errors. Fitness Australia does not warrant the accuracy, completeness or adequacy of the content in this Website. You should make your own enquiries before entering any transaction on the basis of the content on this Website.

3. External links and advertisements

This Website contains links to websites maintained by other organisations over which Fitness Australia has no control. Fitness Australia does not necessarily sponsor, endorse, or approve any material or advertising on external sites or the operations of external sites. You access those external sites and use their information, products and services solely at your own risk.

Fitness Australia makes no warranties or representations regarding the quality, accuracy, merchantability or fitness for purpose of any material or advertising on external sites to which this Website is linked, nor is Fitness Australia responsible for the availability of these external links. You should refer to the relevant external site or advertiser for information on its products and / or services.

4. Limitation of liability

Fitness Australia (i) makes no warranties or representations about this Website or any of the Content; (ii) accepts no responsibility for any loss suffered by you or anyone else in connection with the use of this Website or any of the Content; (iii) does not guarantee that this website will not cause damage or is free from viruses or any other defects or errors. Fitness Australia excludes, to the maximum extent permitted by law, any liability which may arise as a result of the use of this Website or the Content on it. Where liability cannot be excluded, any liability incurred by Fitness Australia in relation to the use of this website or the Content, is limited as provided under the Trade Practices Act 1974 (Cth) (s.68A).

Under no circumstances will Fitness Australia be liable for any incidental, special or consequential damages, including damages for loss of business or other profits arising in relation to the Content. This includes, but is not limited to, the transmission of any computer virus or any other defects or errors.

Fitness Australia shall not be held responsible or liable for any direct or indirect loss or damages caused or alleged to have been caused by your use, of, or reliance on, any content, goods or services available on external sites. Any concerns regarding an external link, should be directed to its responsible site administrator or webmaster.

5. Copyright in material on this site and restriction of use

Save and except for any third party copyright included on this website under a licence or agreement, all the Content of this Website and downloads from it, is owned by Fitness Australia Ltd (ABN 41 131 422 403). All rights reserved.

Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth) (or any other applicable legislation throughout the world), or as otherwise provided for in this copyright notice, no part of any Content may in any form or by any means (including electronic, mechanical, microcopying, photocopying or recording) be reproduced, adapted, stored in a retrieval system, transmitted or reproduced on any other Internet website without the prior written permission of the copyright owner.

For further information about copyright in Fitness Australia content contact the Legal Business Unit.

Fitness Australia grants you permission to do the following with the content unless otherwise indicated:

  • store a reproduction of the content on your local computer for the sole purpose of viewing it
  • print hard copies of the content for non-commercial use or personal use only
  • reproduce or distribute any complete page of the content so long as
    • you do not reproduce or redistribute less than a complete page, or, where a document consists of more than one page, less than the complete document
    • you do not modify the copy from how it appears on the Website (unless expressly authorised by Fitness Australia)
    • you adhere to the Permitted Use Statement for Standards, Guidelines and Resources available on this website, where applicable, and
    • the content is appropriately attributed to Fitness Australia

Without limiting the foregoing, you must not reproduce, frame, transmit (including broadcast), adapt, link to, or otherwise use any of the content on the website including audio and video excerpts without the prior written approval of Fitness Australia.

6. Copyright in other material

Fitness Australia makes no warranties or representations that third party material on this Website or material on other websites to which this Website is linked, does not infringe the intellectual property rights of any person anywhere in the world.

Fitness Australia is not, and must not be taken to be, authorising infringement of any intellectual property rights contained in material on other sites by linking this Website to such material on other sites.

7. Trademarks

Trademarks including but not limited to the words 'Fitness Australia', unless otherwise indicated, are owned by Fitness Australia in Australia and may be the subject of rights in other countries. You must not use Fitness Australia's trademarks except: (i) by saving or printing out a copy of Fitness Australia's website as permitted by the copyright notice above; (ii) as permitted by written agreement from Fitness Australia.

This Website may contain trade marks or logos of other companies or organisations and these are proprietary to the registered owner(s) of such marks.

8. Indemnification

You agree to indemnify, defend and hold harmless Fitness Australia, its officers and employees, from any loss, liability, claim, demand, damage or expenses (including reasonable solicitor's fees) asserted by any third party due to or arising from or in connection with your use of Content, or your conduct on this Website, or messages posted or transmitted by you on or through this Website. Fitness Australia reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, which shall not excuse your indemnification obligations.

9. Invalid terms and conditions

In the event that any or any part of the terms contained in these Terms of Use are determined by a court to be invalid, unlawful or unenforceable, then such term/s shall be severed from the remaining terms.

10. Variation of terms of use

Fitness Australia reserves the right, at its sole discretion, to change, modify, add or delete portions of these Terms of Use at any time and you should therefore periodically review this page.

11. Website unavailability

Fitness Australia does not accept responsibility in the event that the website is unavailable to you due to any computer downtime, malfunction or such other event outside the control of Fitness Australia.

12. Password requirement

Fitness Australia members may obtain a password by logging into the Fitness Australia Website and registering for a password. In certain circumstances non-members may be able to obtain a password. For further information, please contact us. Fitness Australia may refuse to issue a password, in its sole discretion, until such time as it has satisfied itself about the identity of the user and the ability of the user to perform its obligations under these Terms of Use.

13. Password security

You must keep your password confidential at all times. You must not: (i) allow anyone to watch you enter your password when accessing the website; (ii) record your password in any manner that would indicate to anyone that it is the user's password. You must inform us as soon as possible if you become aware of misuse of your password or loss or theft of a record of the password, or if you suspect that the password has become known to anyone. If you delay unreasonably in notifying us, you will be liable for your losses.

14. Registration

Whether you are a member of Fitness Australia or a non-member, you need to register in order to purchase products and services from this Website, enrol into courses or enter competitions. Members may be entitled to receive discounts when purchasing and / or registering for products and services from this Website. Access to some areas of this Website may also be restricted to members only and / or CEC approved program providers. Find out more about becoming a member of Fitness Australia and the benefits available to members.

AusREP Registration

  1. Registration fees are non-refundable.
  2. Payment is debited once application has been submitted.
  3. Please allow one week for processing applications.
  4. A tax receipt will be issued by Fitness Australia Limited, (ABN: 51 131 422 403), on receipt of payment.

Business Membership

  1. As a Business Member with Fitness Australia you agree to comply with, support, promote and be bound by your states Fitness Industry Code of Practice.
  2. Membership is activated when we receive from you a completed application form and payment. A tax invoice will be issued upon receipt of payment.
  3. Membership is for one year commencing on the date your application is accepted and is renewable on the anniversary of the date for a subsequent year.
  4. All membership fees must be paid annually in advance.
  5. An invoice will be sent to you before your membership renewal date which is payable prior to renewal date.
  6. Membership may be suspended or terminated if your payment is not received by the renewal date.
  7. There is no refund of any membership fees should you cancel your membership at any stage during your membership year. 
  8. Changes to membership fees will only be made at the time of annual renewal of your membership.
  9. Membership is not transferable.
  10. You must notify us of changes to your contact details in writing (by letter, fax or email) otherwise we may not be able to make our services available to you.
  11. We reserve the right to change, from time to time, the services available to members.

    Advisory Services 
     
  12. Any verbal advice provided by our advisers (via one of our hotlines or otherwise): is given in good faith; is given on the basis that you haveaccurately disclosed all relevant facts to us; and relates only to the facts which you have disclosed to us and your individual circumstances.
  13. Verbal advice may not represent the only or definitive solution to your enquiry or contain all the detail required to answer your enquiry fully as the nature of the communication is instantaneous and prevents extensive deliberation. You should carefully consider the extent to which your verbal advice suits your objectives, financial situation or need before acting on it as we may not be able to take them fully into account during a brief telephone conversation or initial meeting.

    Business Membership Disclaimer
  14. In relation to the provision of membership services: we exclude all implied conditions and warranties except those the exclusion of which would contravene any statute or cause anypart of these terms and conditions to be void; to the fullest extent permitted by law, we will not be liable for any loss or damage (whether foreseeable or not) suffered by any person acting on our advice, whether the loss or damage arises in connection with our negligence, default or lack of care, any misrepresentation or any other cause; and our liability is limited to providing you with the services again.

15. Registration for Events

If you have registered but fail to attend an event, you will be liable for payment unless cancellation is made in writing, in accordance with Fitness Australia's Cancellation Policy advertised for individual events. You can check the Cancellation Policy for individual events at registration.

Offline registrations: Offline registrations are made by fax or mail and all efforts will be made to process offline registrations within two (2) working days of receipt. For fax or mail registrations, please contact us.

Online registrations: If you encounter difficulties with online registrations, please contact us.

16. Payment

Your payment must accompany any registration for events or orders to purchase products.

16.1 Payment terms

A Tax Invoice will be issued once processing has been completed. Any dispute regarding the invoice must be notified to Fitness Australia within two (2) business days of receipt of invoice. No product or service shall be delivered to you without payment being received by Fitness Australia.

16.2 Payment types

The following credit cards are accepted:

  • Visa
  • Mastercard

Online transactions: Fill in your details and Fitness Australia will charge the transaction to your account.

Offline transactions: Print off the offline payment form and send the transaction by:

  • Mail - send the completed form with payment (with your credit card details OR cheque OR Australian money order) to Member Administration.
  • Fax - fax the completed form with payment (credit card details - cheque and Australian money orders cannot be processed via fax) to Member Administration.

17. Prices

Prices are correct at the time they appear on this Website. However, Fitness Australia reserves the right to change prices at any time.

The prices appearing on this Website may have a GST component and you are encouraged to check this at point of payment, otherwise the prices include processing, handling, insurance and delivery charges for delivery within Australia.

In order to obtain a GST exclusive price, you may be asked to declare your residential status, physical location and use of the supply of goods or services you purchase on this Website in the following form: I declare that (i) I am not an Australian resident; and (ii) I am not, or will not be, in Australia at the time I receive the goods or services. Please note that your transaction will not be completed unless you make this declaration when prompted.

The GST exclusive price is only available to customers who:

  • are non residents
  • are outside Australia at the time they receive the supply of the e-learning course and any other materials
  • agree to the declaration referred to previously

18. Refund Policy

It is important to Fitness Australia that all clients understand their rights and obligations in relation to refunds.

  • Fitness Australia AusREP Registration & Business Membership is a non-refundable fee.
  • Should you believe that your circumstances for a refund requires special consideration, please make an application in writing to the Manager, Industry  Services via email to registration@fitness.org.au, fax to 1300 734 613 or via mail to PO Box 6453, Alexandria 2015.
  • Should a refund be approved you will be notified by return email within 10 working days and asked to return all original documents received to the following address before the refund will be processed:

Fitness Australia Limited

Attn: Manager, Industry Services
PO Box 6453
ALEXANDRIA NSW 2015

  • Should a refund be granted a $55.00 (inc GST) Administration Fee will apply.

NOTE: If your refund request is approved you will be required to send in your original registration/membership documents before your refund can be processed.

19. Participation in competitions

All competitions that you may enter on this Website are governed by the relevant State legislation and have their own rules and conditions. You are encouraged to read these carefully before entering into any competitions.

20. Privacy Policy

In addition to those provisions under the Fitness Australia Privacy Policy, Fitness Australia will disclose relevant personal information collected about you when you place this order to the third party suppliers for the purposes of providing order and delivery information. The third party supplier has agreed that such information shall not be used except for the purposes of fulfilling the order to the Fitness Australia customer. The third party supplier will retain such relevant information as is necessary for the purposes of a warranty claim. Upon expiry of such a time, the information will be returned to Fitness Australia and managed in accordance with the Fitness Australia Privacy Policy, described herein.

  

AusREPs Terms & Conditions

1. Application of these terms

  • 1.1 By applying to be registered on the Australian Register of Exercise Professionals (Register), you accept these terms and conditions as amended from time to time, and agree to be bound by them.
  • 1.2 We have the right to approve or deny your application, and your right to be Registered under this Agreement is at our discretion.
  • 1.3 If you apply to be registered, and we approve your application, an agreement will be formed between us and you on these terms and conditions (Agreement). This will entitle you to be on the Register and to such other benefits provided by this Agreement.
  • 1.4 These terms and conditions are the only terms and conditions upon which we are prepared to enter you on the Register, and will govern your registration on the Register to the exclusion of all other terms and conditions.
  • 1.5 If the whole or any part of any clause of this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
  • 1.6 This Agreement does not create a relationship of employment, agency or partnership between the parties.
  • 1.7 We may subcontract the performance of the whole or any part of our obligations under this Agreement
  • 1.8 This Agreement is governed by the laws, and the parties submit to the non- exclusive jurisdiction, of the courts of New South Wales, Australia.

2. AusREPs Registration Process

  • 2.1 We will determine whether you are eligible to be registered in accordance with this Agreement.
  • 2.2 We may give or withhold registration in our absolute discretion. If we withhold registration we will give you reasons for that decision.
  • 2.3 If we accept your application to be registered on the Register, we will notify you of:
    • (a) our acceptance and your registration on the Register (Registration)
    • (b) the period of your Registration (Registration Period).
  • 2.4 You must maintain your Registration throughout the entire Registration Period.

3. Audit Procedure

  • 3.1 We may, and you allow us to, carry out an audit of your Records to confirm that the activities undertaken by you meet your Registration requirements at any time during the Registration Period.
  • 3.2 Without in any way limiting clause 1, we may audit your Records where:
    • (a) there have been material and relevant changes to industry standards or any other criteria communicated by us from time to time;
    • (b) when we receive a complaint about you;
    • (c) when you notify us of any changes to your Registration in accordance with clause 1; or
    • (d) when you apply to renew your Registration.
  • 3.3 You will provide us with all necessary assistance and any means of access which we (or our authorised Personnel) require to enable us to carry out a proper audit of your Records. In particular, you will:
    • (a) provide to us all material that is relevant to the audit within the timeframe requested; and
    • (b) authorise us (or our authorised Personnel) to enter and remain on your premises during business opening hours to conduct an inspection to ascertain whether a breach of this Agreement has occurred or is occurring.
  • 3.4 If our audit discloses that you fail to comply with Registration requirements, we may do any one or more of the following:
    • (a) give you a reasonable period of time to meet the outstanding requirements and our notice will stipulate the date by which you must satisfy those requirements;
    • (b) by notice in writing to you, suspend, withdraw or cancel your Registration;
    • (c) require you to, and you must, pay our costs of conducting the audi
  • 3.5 If you do not meet the outstanding requirements set out in our notice by the stipulated date under clause 4(a), we may by notice in writing to you suspend, withdraw or cancel your Registration.

4. Our obligations

  • 4.1 In consideration for you carrying out your obligations under this Agreement we will provide you with the following services while you are on the Register:
    • (a) publish on the Register your professional qualifications, contact details or any other relevant information;
    • (b) update information on the Register if requested by you in writing and approved by us;
    • (c) enable you to access and use our AusREPs Brand in accordance with clause 6;
    • (d) keep all documents you have provided to us for the purposes of applying for and maintaining your Registration confidential and secure; and
  • 4.2 access to benefits that we provide from time to time (in our discretion) for exercise professionals who are on our Register.

5. Your obligations

  • 5.1 To maintain your Registration, you must:
    • (a) promptly inform us in writing if the information on the Register is not, or will not be, accurate, complete or up-to-date;
    • (b) comply with the following requirements:
      • (i) obtain 20 continuing education credits during the Registration Period;
      • (ii) at all times hold a current first aid certificate and a CPR certification; and
      • (iii) hold any other qualifications reasonably determined by us from time to time.
    • (c) keep written CEC activity records in relation to your CEC activities until five years after the end of the Registration Period during which the activity was completed;
    • (d) strictly comply with:
      • (i) this Agreement;
      • (ii) the Code of Ethics;
      • (iii) the Scope of Practice;
      • (iv) our Privacy Policy; and
      • (v) Fitness Australia Terms and Conditions relating to use of our website;
    • (e) comply with all applicable laws, regulations, codes of conduct and any instructions, directions, requirements and requests made by any Authority in relation to your conduct under your Registration;
    • (f) act in accordance with the highest standards of ethics, professionalism and business practice; and
    • (g) not conduct yourself in a manner that damages or is likely to damage our goodwill and reputation or the goodwill and reputation of any of our associates or related parties, the fitness industry, the AusREPs Brand or the Intellectual Property;
    • (h) not disparage us, other persons on the Register or Approved CEC Providers;
    • (i) immediately advise us if you receive:
      • (i) any notice or communication from any Authority relating to your conduct in which it is claimed that there has been non-compliance with any laws, regulations or codes of conduct; and
      • (ii) any complaint about your Registration; and
      • (iii) any information about a matter that could harm or affect our goodwill and reputation or the goodwill and reputation of other persons on the Register, the AusREPs Brand or the Intellectual Property.

6. Intellectual property

  • 6.1 You acknowledge that:
    • (a) we are the owner of the AusREPs Intellectual Property and any changes or improvements to the AusREPs Intellectual Property
    • (b) you do not obtain any interest in the AusREPs Intellectual Property; and
    • (c) you do not have a right to use the AusREPs Intellectual Property except for the AusREPs Brand, and your right to use the AusREPs Brand comes from this Agreement.
  • 6.2 We grant you a limited, royalty-free, non- exclusive licence to use the AusREPs Brand in Australia for the sole purpose of promoting and delivering services as a person registered on the Register in accordance with this Agreement.
  • 6.3 The licence to use the AusREPs Brand is granted only if you:
    • (a) use the AusREPs Brand in the manner specified by us in the AusREPs Branding and Advertising Guidelines (if any) or any other guidelines determined by us from time to time;
    • (b) do not make changes to or interfere with the AusREPs Brand;
    • (c) do not register or seek to register any of the AusREPs Brand; and
    • (d) do not use the AusREPs Brand, the words “The Australian Register of Exercise Professionals”,   “Australian Register”, “AusREP” or the acronym “AusREPs” or “REPs” or derivatives of those words or that acronym in your corporate name or business name, or in any trade mark or service mar
  • 6.4 We may change, add to, or discontinue the use of any of the AusREPs Brand.
  • 6.5 We will give written notice to you of any changes proposed under clause 4 and you will comply with the notice at your own cost, within the reasonable

7. Withdrawal, suspension and termination

  • 7.1 A Default Event occurs if you:
    • (a) fail to carry out any provision of this Agreement, the failure is capable of being remedied, and you do not remedy that failure within the period of time specified in a written notice from us specifying the failure and requiring it to be remedied;
    • (b) fail to comply with any material obligation, undertaking or warranty under this Agreement and that failure is not, on any reasonable or economic basis, capable of remedy;
    • (c) are subject to an Insolvency Event; or
    • (d) bring the fitness profession, fitness industry, other persons on the Register or us into disrepute.
  • 7.2 If a Default Event occurs, or we have reasonable grounds to suspect a Default Event has occurred or is likely to occur:
    • (a) we may, at any time:
      • (i) remove any information about your Registration from the Register; and
      • (ii) withdraw your licence to use the AusREPs Brand under clause 6; and
    • (b) you must, at our request, immediately stop using the AusREPs Brand and remove all material from any website and promotional literature that associates you or your business with us,
    without in any way limiting our other rights and remedies under this Agreement or at law.
  • 7.3 If a Default Event occurs we may, in our absolute discretion, by giving notice to you:
    • (a) suspend your Registration for a specified period pending an investigation by us; or
    • (b) terminate this Agreement and cancel your Registratio
  • 7.4 You may terminate this Agreement if you give us 30 days’ notice of such termination for any reason whatsoever.
  • 7.5 On termination of this Agreement:
    • (a) unless this Agreement expressly provides otherwise, all rights, benefits and authorisations granted by each party to the other under this Agreement will cease;
    • (b) you must immediately stop using the AusREPs Brand and remove all material from any website and promotional literature that associates you and/or your business with us;
    • (c) each party must immediately return to the other party all documents and materials containing Confidential Information and any other property owned by the other party;
    • (d) the obligations of the parties will cease but the following clauses continue: clauses 4, 1.5, 1.6, 1.7, 1.8 (General provisions), 6 (Intellectual Property, but not the right to use the AusREPs Brand), 7.5 (Consequences of Termination), 8 (Indemnity & Disclaimer), 11 (Privacy) and 13 (Dictionary and Interpretation);
    • (e) accrued rights or remedies of either party are not affected; and
    • (f) we will not refund the fees and charges paid by you.

8. Indemnity and disclaimer

  • 8.1 You will be solely responsible for, and will indemnify us and keep us indemnified in respect of:
    • (a) any claims or demands made or any legal proceedings commenced by any person which arises out of your conduct as an exercise professional or your relationship with your customers, suppliers and other persons with whom you deal; and
    • (b) any loss and expense suffered or incurred by us arising directly or indirectly from any breach of this Agreement by you,

unless caused by us or our Personnel.

  • 8.2 The information on the Register may not be accurate or up-to-date in all instances. We do not warrant the quality, accuracy or completeness of any information on the Register. We expressly disclaim any liability to the fullest extent permitted by law, the content on the Register that is provided by you.

9. Fees

  • 9.1 You agree to pay us the fees and charges that are specified in your application, or as otherwise published by us from time to time.
  • 9.2 The fees and charges referred to in clause 1 must be paid on time and in the manner specified by us.
  • 9.3 The fees and charges referred to in clause 1 are non-refundable unless otherwise prevented by law, or permitted under another clause in this Agreement.
  • 9.4 You acknowledge and agree that:
    • (a) we will not commence assessing your application;
    • (b) we will not accept your application and register you on the Register; and
    • (c) we may suspend, withdraw or cancel your Registration,

if you do not pay the fees and charges in accordance with this Agreement.

10. Goods and services tax (GST)

  • 10.1 In this clause:
    • (a) ‘GST’ means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time (GST Act) or any replacement or other relevant legislation and regulations; and
    • (b) words used in this clause which have a particular meaning in the ‘GST law’ (as defined in the GST Act) have the same meaning, unless the context otherwise requires.
  • 10.2 Unless GST is expressly included, the consideration expressed to be payable under any other clause of this Agreement for any supply made under or in connection with this Agreement does not include GST.
  • 10.3 To the extent that any supply made under or in connection with this Agreement is a taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time.

11. Privacy

  • 11.1 You must:
    • (a) disclose to, or allow us to access, such Personal Information as is necessary to enable us to register you on the Register;
    • (b) ensure that we and each of our Personnel are entitled to collect, use, store and disclose that Personal Information in accordance with this Agreement; and
    • (c) not do anything that would cause us or our Personnel to be in breach of a Privacy Law.
  • 11.2 Each party must, with respect to Personal Information that it receives from the other party in connection with this Agreement:
    • (a) protect the confidentiality of that Personal Information;
    • (b) comply with all applicable Privacy Laws; and
    • (c) implement policies and procedures to protect the privacy and security of that Personal Information.
  • 11.3 You acknowledge and agree that we may use, and disclose to third parties (including your customers and potential customers), information relating to the status of your Registration, any application to be on the Register and any application to maintain or renew your Registration.
  • 11.4 We may disclose and publish this information on the Register on any platform such as our website or mobile phone application.

12. Changes to these terms

  • 12.1 Unless otherwise prevented by law, we may, by at least 30 days’ notice to you, alter or vary this Agreement.
  • 12.2 You may terminate this Agreement if you are not satisfied with any variation under clause 1 and you give us notice of such termination within 30 days after we gave you notice of the variation.
  • 12.3 If you terminate this Agreement under clause 2, clause 7.5 (except for paragraph f)) applies. We will refund part of the fees and charges we consider reasonable having regard to your particular circumstances.

13. Dictionary and interpretation

  • 13.1 In this Agreement:

Agreement has the meaning ascribed to that term in clause 1.3.

Approved CEC Provider means a person or body that has been approved by us to provide an Approved CEC Program which is an education or training program, event, module course or assessment, in whatever form, approved by us.

AusREPs Brand is limited to the words, tagline and logos set out in the AusREPS Branding and Advertising Guidelines or any other requirements determined by us from time to time.

AusREPs Branding and Advertising Guidelines mean the guidelines published by us from time to time.

AusREPs Intellectual Property includes:

  • a) the trade marks, trade names or logos owned or licensed by us which we authorise you to use;
  • b) any registered or unregistered product or service names owned or licensed by us;
  • c) all copyright in the materials, documents, programs or other items provided to you as part of your Registration;
  • d) our website and domain name; and
  • e) all inventions and discoveries made by us.

AusREPs Registration Guide means the guide developed by us which outlines the material required to support an application for Registration which may change from time to time.

Authority means any statutory government, industry or regulatory body.

Confidential Information of a party means any information of or relating to the party that:

  • a) is by its nature is confidential;
  • b) is designated as confidential; or
  • c) the other party knows or ought to know is confidential,

and includes:

  • d) information comprised in or relating to any intellectual property of the party or its related bodies corporate;
  • e) information relating to the business, financial position, operations or affairs of the party or its related bodies corporate; and
  • f) information relating to the Personnel, policies and strategies of the party or its related bodies corporate.

Corporations Act means the Corporations Act 2001 (Cth).

Insolvency Event means:

  • a) being an insolvent under administration or insolvent (each as defined in the Corporations Act);
  • b) having a controller (as defined in the Corporations Act) appointed;
  • c) being in receivership, in receivership and management, in statutory management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent);
  • d) being otherwise unable to pay debts when they fall due; or 
  • e) having something with the same or a similar effect happen under the laws of any jurisdiction.

Personal Information means all information about a person that is ‘personal information’ as defined in the Privacy Act 1988 (Cth) which is collected or held by any parties in connection with this Agreement.

Record means a written record relating to a CEC activity or qualifications on which a person relies on to meet the Registration requirements.

Registration means our registration of you on the Register in accordance with clause 2.

Registration Period has the meaning ascribed to that term in clause 2.3.

you, your or derivatives of any of those terms, means the applicant set out in your application to be registered on the Register.

we, us, or derivatives of any of those terms, means Fitness Australia Limited (ABN 51 131 422 403) of PO Box 6453 Alexandria NSW 2015, New South Wales.

  • 13.2 A reference to any legislation or statutory instrument or regulation in this Agreement is a reference to that legislation or statutory instrument or regulation as amended or replaced from time to time.
  • 13.3 No provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision.
  • 13.4 If a party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly.
  • 13.5 An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly.
  • 13.6 A party, which is a trustee, is bound both personally and in its capacity as a trustee.

 

Fitness Australia Quality Accreditation Terms & Conditions

under the Fitness Industry National Quality Framework

1. Application of these terms

1.1         Application

By applying to participate in the Fitness Australia Quality Accreditation (FAQA) program (FAQA Program) for accreditation, you accept these terms and conditions as amended from time to time, and agree to be bound by them.

1.2         Agreement

These terms and conditions, the FAQA Handbook and the  Fitness Industry National Quality Framework comprise of the agreement between us and you in relation to participating in the FAQA Program, applying for, renewing and maintaining accreditation (this agreement).

2. Applying for accreditation

2.1         Eligibility

To be eligible to apply to participate in the FAQA, you must own and operate a fitness business in Australia

2.2         Application

  • (a) To participate in the FAQA Program you must apply by using our forms and provide us with all information we request (Application).
  • (b) By applying to participate in the FAQA Program, you agree:
    • (i) we may make such inquiries as we see fit to determine your eligibility and suitability for accreditation;
    • (ii) to abide by all rules, guidelines and standards set by us, as amended from time to time;
    • (iii) to comply with our Privacy Policy;
    • (iv) that, if you withdraw from the accreditation process before it is concluded, we will refund any accreditation fee paid by you but you forfeit the application fee which is non-refundable; and
    • (v) that, if your fitness business is not accredited at the completion of the FAQA Program, that you forfeit the accreditation fee which is non-refundable.

2.3         Consideration

We will only accept your Application if you:

  • (a) satisfy the eligibility criteria set out under clause 2.1;
  • (b) pay the application fee and the accreditation fee; and
  • (c) provide accurate and complete information requested by us.

2.4         Approval 

  • (a) We may accept or reject your Application in our absolute discretion.  If we do not accept your Application we will give you reasons for that decision.
  • (b) If we accept your Application we will notify you of the acceptance and the period available to you for completion of the FAQA Program in order to achieve or renew accreditation (assessment period). 
  • (c) We will also provide you with access to our accreditation online portal, Fitness Australia Dashboard, which will include information about the FAQA Handbook, the Fitness Industry National Quality Framework and other educational resources and tools designed to assist you in learning about accreditation.

3. Gaining accreditation

3.1         Participating in the FAQA Program

During the assessment period, you agree to participate in the FAQA Program and comply with the rules and procedures in the FAQA Handbook, which consist of:

  • (a) undertaking consumer research; and
  • (b) conducting a self-assessment of your fitness business against the criteria set out under the Fitness Industry National Quality Framework; and
  • (c) undergoing an accreditation assessment conducted by a FAQA assessor that is either (as determined by us in our absolute discretion) an on-site assessment or a virtual assessment (FAQA assessment); and
  • (d) any other requirements that are set out in our FAQA Handbook.

3.2         Access to evidence

  • (a) If you undergo an on-site assessment, you must ensure that the FAQA assessor is able to access and view any document or record that demonstrates compliance against the criteria set out under the Fitness Industry National Quality Framework.
  • (b) For a document or record that is provided to us, our Personnel or the FAQA assessor, you:
    • (i) must ensure that the document or record is true and correct and is not in any way misleading or deceptive; and
    • (ii) may redact any confidential or personal information in the document or record that is not relevant to the FAQA assessment.

3.3         Completing the FAQA Program

Once you have completed the FAQA Program in accordance with this agreement, we will notify you in writing that you:

  • (a) will be granted accreditation with effect on and from the accreditation date; or
  • (b) will not be granted accreditation, and give you the reason or reasons for that decision, by identifying the requirements that have not been met, and that you can take remedial action in accordance with clause 3.4 (Remedial Notice). 

Undertaking and completing the FAQA Program in accordance with this agreement does not guarantee that you will achieve accreditation.

3.4         Remedial Action

If you receive a Remedial Notice under clause 3.3(b), we may grant accreditation if, within six calendar months after you receive the Remedial Notice, you take the remedial action specified in the Remedial Notice to our reasonable satisfaction and otherwise in accordance with the policies and procedures in the FAQA Handbook.

4. Maintaining accreditation

4.1         Scope of accreditation

  • (a) Accreditation will be in respect of your fitness business and only extends to the goods, services, operations and management of your fitness business at the time of, and as assessed during, the assessment period.
  • (b) Any changes to the goods, services, operations or management of your fitness business which was not assessed during the assessment period does not have the benefit of accreditation and you must not engage in any conduct that (expressly or implied) suggests the relevant good, service, operation or management of your fitness business has been assessed by us and determined to comply with the criteria in the Fitness Industry National Quality Framework.

4.2         Accreditation period

Accreditation will be for three years from the accreditation date (accreditation period), unless:

  • (a) accreditation is revoked before the end of the accreditation period in accordance with clause 8.1; or
  • (b) the accreditation period has changed as agreed between the parties.

4.3         Our obligations

In consideration for you carrying out your obligations under this agreement we will provide you with the following services (referred to as the Service) while you hold accreditation for your fitness business:

  • (a) publish your details as an accredited fitness business; and
  • (b) enable you to access and use our FAQA Brand in accordance with clause 6.2; and
  • (c) keep all documents and program material you have provided to us for the purpose of accreditation confidential and secure.

4.4         Your obligations

To maintain your accreditation, you must:

  • (a) strictly comply with the terms of this agreement;
  • (b) at all times ensure that your accredited fitness business complies with, and is not in any way inconsistent with, the requirements under the FAQA Handbook and criteria set out under the Fitness Industry National Quality Framework;
  • (c) participate in the FAQA Improvement Program;
  • (d) comply with all applicable laws, regulations, codes of conduct and any instructions, directions, requirements and requests made by any Authority in relation to your accredited fitness business;
  • (e) act in accordance with the highest standards of ethics, professionalism and business practice, and you will provide prompt, efficient, professional and courteous service to customers;
  • (f) not conduct yourself in a manner that damages or is likely to damage our goodwill and reputation or the goodwill and reputation of any of our associates or related parties, the FAQA Brand or the FAQA Intellectual Property;
  • (g) not disparage us or any other accredited fitness businesses;
  • (h) at all times during the accreditation period, maintain complete, true and accurate records in accordance with all applicable laws; and
  • (i) provide us with written notice of any of the following events or circumstances within the following timeframe:
Event or circumstance Timeframe
Receipt of any notice or communication from any Authority relating to your accredited fitness business in which it is claimed that there has been non-compliance with any law, regulation or code of conduct Immediately
Receipt of any information about a matter that could harm or affect our goodwill and reputation or the goodwill and reputation of other accredited fitness businesses, the FAQA Intellectual Property or your accredited fitness business Immediately
If you are a company, there is a change in shareholding or directors 30 days
Change of contact details for your accredited fitness business 30 days
Any material change in goods, services, operation or management 30 days
Any other event or circumstance that may have a material adverse effect on your accredited fitness business or your accreditation Immediately
  • (j) promptly provide us with any information reasonably requested by us about an event or circumstance under clause 4.4(i).

4.5         No control or influence over you

Subject to our rights, and your obligations, under this agreement in relation to your accredited fitness business, we acknowledge and agree that we will have no control or influence over you with respect to the conduct of your accredited fitness business.

4.6         Change in ownership

  • (a) You acknowledge and agree that the accreditation you hold in respect of your fitness business is personal to you.  You must give us 30 days’ written notice before you sell, transfer, assign or dispose of your accredited fitness business and provide us with the purchaser and their representatives’ details.
  • (b) If the purchaser of your fitness business wishes to hold accreditation in respect of the fitness business, the purchaser must:
    • (i) comply with our reasonable requests in relation to the purchase of your accredited fitness business; and
    • (ii) agree to be bound by this agreement.

4.7         Renewal of accreditation

If you wish to renew your accreditation, you must apply before the expiry of the accreditation period and comply with our renewal requirements in the FAQA Handbook.  We may in our absolute discretion require you to undergo an audit in accordance with clause 5 or re-apply for accreditation in accordance with clause 2.

5. Audit procedure

5.1         Our right to audit

  • (a) We may, and you allow us to, carry out an audit of your accredited fitness business at any time during the accreditation period. 
  • (b) Without in any way limiting clause 5.1(a), we may audit your accredited fitness business in the following circumstances:
    • (i) there have been material and relevant changes to industry standards, the criteria set out under the Fitness Industry National Quality Framework or any other requirements communicated by us from time to time;
    • (ii) we consider that your accredited fitness business no longer meets all of the requirements set out in this agreement;
    • (iii) when you apply to renew your accreditation;
    • (iv) when we receive a complaint about your accredited fitness business; or
    • (v) when you notify us of a change to your accredited fitness business in accordance with clause 4.4(i). 

5.2         Your obligations during an audit

  • (a) During an audit, you must provide us, our Personnel and/or FAQA assessor with assistance reasonably required by us, our Personnel and/or FAQA assessor to enable the audit to be carried out.
  • (b) If we, our Personnel or FAQA assessor requests access to a document or record for audit purposes, you must comply with the obligations under clause 3.2.
  • (c) The costs associated with the audit process that are incurred by us will be payable by you if we conduct the audit:
    • (i) due to circumstances under clause 5.1(b)(ii) or 5.1(b)(iv); or
    • (ii) for any other reason, and the outcome of the audit discloses that your accredited fitness business no longer meets all the requirements set out in clause 4.4.
  • (d) You and your Personnel will provide us with all necessary assistance and any means of access which we (or our authorised Personnel) require to enable us to carry out a proper audit of your accredited fitness business. In particular, you will:
    • (i) provide to us all material that is relevant to the audit within the timeframe requested and comply with the conditions under clause 3.2(b); and
    • (ii) authorise us (or our authorised Personnel) to enter and remain on your accredited fitness business to conduct an inspection to ascertain whether a breach of this agreement has occurred or is occurring.

5.3         Audit outcome

If our audit discloses that your accredited fitness business no longer meets all the requirements set out in clause 4.4:

  • (a) we may give you notice specifying those changes to your accredited fitness business that we consider are necessary to ensure that your accredited fitness business continues to meet all those requirements during the accreditation period;
  • (b) we will give you a reasonable period of time to make those changes and our notice will stipulate the date by which the changes must be made;
  • (c) if clause 5.2(c) applies, we will require you to, and you must, pay to us our costs of conducting the audit; and
  • (d) additional fees may apply to you in order to change your accredited fitness business.

5.4         Consequences

If you:

  • (a) do not make the changes as specified in the notice by the stipulated date under clause 5.3; and
  • (b) choose not to exercise your right to appeal our decision or have exhausted your right to appeal under clause 8.2,

we may by notice in writing to you suspend or revoke your accreditation.

6. Intellectual property

6.1         FAQA Intellectual Property

You acknowledge that:

  • (a) we are the owner of the FAQA Intellectual Property and any changes or improvements to the FAQA Intellectual Property;
  • (b) you do not obtain any interest in the FAQA Intellectual Property; and
  • (c) you do not have a right to use the FAQA Intellectual Property except for the FAQA Brand, and your right to use the FAQA Brand comes from this agreement.

6.2         Licence to use FAQA Brand

  • (a) We grant you a limited, royalty-free, non-exclusive licence to use the FAQA Brand in Australia for the sole purpose of promoting your accredited fitness business in accordance with this agreement.
  • (b) The licence to use the FAQA Brand is granted only if you:
    • (i) use the FAQA Brand in the manner specified by us in the FAQA Handbook;
    • (ii) do not make changes to or interfere with the FAQA Brand;
    • (iii) do not register or seek to register any of the FAQA Brand; and
    • (iv) do not use the FAQA Brand, the words “Fitness Australia”, “quality accreditation” “accredited” or “national quality framework” , the acronym “FAQA” or derivatives of those words or acronyms in your corporate name or business name, or in any trade mark or service mark.
  • (c) We may change, add to, or discontinue the use of any of the FAQA Brand.
  • (d) We will give written notice to you of any changes proposed under clause 6.2(c) and you will comply with the notice at your own cost, within the reasonable timeframe specified by us.

7. Privacy

7.1         Your obligations

You must:

  • (a) disclose to, or allow us to access, such Personal Information (including Personal Information relating to your customers) as is necessary to enable us to assess whether to grant, renew, suspend or revoke accreditation and provide the Service;
  • (b) ensure that we and each of our Personnel are entitled to collect, use, store and disclose that Personal Information in accordance with this agreement, so as to enable us to assess whether to grant, renew, suspend or revoke accreditation and provide the Service; and
  • (c) not do anything, and must ensure that your Personnel do not do anything, that would cause us or our Personnel to be in breach of a Privacy Law.

7.2         Protecting Personal Information

Each party must, with respect to Personal Information that it receives from the other party in connection with this agreement or the Service:

  • (a) protect the confidentiality of that Personal Information;
  • (b) comply with all applicable Privacy Laws; and
  • (c) implement policies and procedures to protect the privacy and security of that Personal Information.

7.3         Disclosure to third parties

You acknowledge and agree that we may use, and disclose to third parties (including your customers and potential customers), information relating to the status of your Application and accreditation.  We may disclose this information on our website.

8. Revocation, suspension and cancellation

8.1         Suspend or revoke accreditation

  • (a) We may suspend or revoke your accreditation if you, or if we have reasonable grounds to suspect that you:
    • (i) fail to satisfy any of the conditions for maintaining accreditation under clause 4.4, the failure is capable of being remedied, and you do not remedy that failure within the period of time specified in a written notice from us specifying the failure and requiring it to be remedied; or
    • (ii) fail to comply with any material obligation, undertaking or warranty under this agreement and that failure is not, on any reasonable or economic basis, capable of remedy; or
    • (iii) are subject to an Insolvency Event.
  • (b) We may suspend your accreditation for a fixed period and/or impose conditions from time to time.

8.2         Cancel accreditation

You may cancel your accreditation if you give us 30 days’ written notice of such cancellation for any reason whatsoever.

8.3         Consequences of suspension

If your accreditation is suspended, you must immediately stop:

  • (a) representing that your fitness business is, or holding your fitness business out as, an accredited fitness business; and
  • (b) using our FAQA Brand.

8.4         Consequences of revocation, cancellation or expiration

If your accreditation is revoked, cancelled or has expired:

  • (a) unless this agreement expressly provides otherwise, all rights, benefits and authorisations granted by each party to the other under this agreement will cease;
  • (b) you must immediately stop representing that your fitness business is, or holding your fitness business out as, an accredited fitness business;
  • (c) you must immediately stop using our FAQA Brand and remove all material from any website and promotional literature that associates your fitness business as an accredited fitness business and certify that you have complied with this requirement;
  • (d) each party must immediately return to the other party all documents and materials containing Confidential Information and any other property owned by the other party;
  • (e) the obligations of the parties will cease but the following clauses continue: clause 6 (Intellectual Property except for the right to use the FAQA Brand), clause 7 (Privacy), this clause 8.4 (Consequences of revocation, cancellation or expiration), clause 10 (Limitation of liability and indemnity), clause 14 (General provisions) and clause 15 (Dictionary and interpretation);
  • (f) accrued rights or remedies of either party are not affected; and
  • (g) we will not refund the fees and charges paid by you.

9. Appeals and complaints

9.1         Appealable decisions

If you receive a notice from us that we have decided:

  • (a) to reject your Application;
  • (b) that we will not grant you accreditation for your fitness business; or
  • (c) that your accredited fitness business no longer meets all the requirements set out in clause 4.4 and we will therefore suspend or revoke your accreditation,

you may give us notice to the effect that you wish to appeal against our decision (appeal notice) in accordance with our appeal procedure in the FAQA Handbook.

9.2         Complaint

If you are dissatisfied with the conduct of a FAQA assessor or Personnel during an accreditation process or audit, you may make a complaint in accordance with our complaints procedure in the FAQA Handbook.

9.3         Appeal and complaints procedure

You will comply with our appeal and complaints procedure in the FAQA Handbook which may change from time to time.

10. Limitation of liability and indemnity

10.1       Information provided by us

The information contained in the Fitness Industry National Quality Framework, FAQA Handbook and any other information provided by us is general and in no way constitutes, and should not be relied upon as, professional advice.  We do not represent or warrant its accuracy, adequacy or completeness.  We are not responsible for any loss suffered as a result of or in relation to the use of the information in the Fitness Industry National Quality Framework, FAQA Handbook or any other information provided by us.

10.2       FAQA assessments, audits and accreditation

You acknowledge and agree that:

  • (a) FAQA assessments or audits do not constitute an audit of your fitness business;
  • (b) we rely on statements and information provided by you and your Personnel in carrying out FAQA assessments and audits and in determining whether your fitness business should be and remain accredited;
  • (c) you made all the decisions in relation to the operation and management of your fitness business and you are responsible for those decisions; and
  • (d) successful FAQA assessments, audit outcomes, or accreditation are not representations by us that in carrying on your fitness business, you comply with all applicable laws, standards and codes of conduct.

10.3       Limitation of liability

  • (a) Any condition, warranty or guarantee that any statute applies to the supply by us to you of any goods or services under this agreement is taken to be included in this agreement, if that statute renders void or prohibits contractual provisions which:
    • (i) exclude, restrict or modify; or
    • (ii) which have the effect of excluding, restricting or modifying,

the application of, exercise of a right conferred by, or any liability under, such condition, warranty or guarantee (Non-excludable Guarantee).

  • (b) Except for Non-excludable Guarantees, we exclude all terms, conditions, warranties and guarantees implied by custom, the general law or statute, or that statute applies to the supply of goods and services to you.
  • (c) We exclude all liability to you, in tort, contract or otherwise for any:
    • (i) loss of profits, opportunity, revenue, data, goodwill, business or anticipated savings, pure economic loss, loss of value of equipment, (other than cost of repair) or expectation loss; or
    • (ii) any indirect, consequential, special, punitive, or exemplary loss or damage,

even if such loss or damage was reasonably foreseeable, arose naturally or was in the contemplation of the parties.

10.4       Indemnity

You will be solely responsible for, and will indemnify us and keep us indemnified in respect of:

  • (a) any claims or demands made or any legal proceedings commenced by any person which arises out of your conduct in the accredited fitness business or your relationship with your customers, suppliers and other persons with whom you deal; and
  • (b) any loss and expense suffered or incurred by us arising directly or indirectly from any breach of this agreement by you,

unless caused by us or our Personnel.

11. Fees

11.1       Fees and charges

  • (a) You agree to pay us the fees and charges that are specified in your Application, or as otherwise published by us in the FAQA Handbook or elsewhere from time to time.
  • (b) The fees and charges referred to in clause 11.1(a) must be paid on time and in the manner specified by us.
  • (c) The fees and charges referred to in clause 11.1(a) are non-refundable unless otherwise prevented by law, or permitted under another clause in this agreement.

11.2       Consequences

You acknowledge and agree that: 

  • (a) we will not consider your Application;
  • (b) we will not grant accreditation to your fitness business; and
  • (c) we may suspend or revoke accreditation,

if you do not pay the fees and charges in accordance with this agreement.

12. GST

12.1       Definitions

In this clause:

  • (a) ‘GST’ means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time (GST Act) or any replacement or other relevant legislation and regulations; and
  • (b)          words used in this clause which have a particular meaning in the ‘GST law’ (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires.

12.2       Taxable supply

Unless GST is expressly included, the consideration expressed to be payable under any other clause of this agreement for any supply made under or in connection with this agreement does not include GST.

12.3       Assistance

Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this agreement.

12.4       Registered for GST

Each party warrants to the other party that it is registered for GST at the time this agreement is entered into and will promptly notify the other party if this ceases to be the case.

13. Changes to this agreement

13.1       Changes

  • (a) Unless otherwise prevented by law, we may, by at least 30 days’ notice to you, alter or vary this agreement.
  • (b) You may terminate this agreement if you are not satisfied with any variation under clause 8.2.
  • (c) If you terminate this agreement under clause 8.2, clause 8.4 (except for paragraph (g)) applies.  We may refund the whole or part of the fees and charges we consider reasonable having regard to your particular circumstances.

14. General Provisions

14.1       Waiver

No waiver or breach of this agreement will be effective unless such waiver is in writing and signed by the party or parties against whom such waiver is claimed.  No waiver of any breach will be deemed to be a waiver of any other or subsequent breach. 

14.2       Assignment or novation by us

We may, without the need to obtain your consent, transfer all or any part of our rights, interests, obligations or liabilities under the Agreement by assignment or by novation.

14.3       Further Assurances

Each party from time to time and at all times after the execution of this document at the cost and expense of that party must make do and execute or cause to be made done or executed all such acts, instruments, assurances and writings whatsoever as may be necessary or desirable to perfect or give effect to the transactions contemplated by this document.

14.4       Severance

If any provision contained in this agreement is or becomes legally ineffective, under the general law or by force of legislation, the ineffective provision shall be severed from this document which otherwise continues to be valid and operative.

14.5       Assignment

Except as expressly permitted under this document no party may assign, transfer or deal in any other manner with any right or interest that party has under this agreement.

14.6       Subcontract

We may subcontract the performance of the whole or any part of our obligations under this agreement.

14.7       Relationship

This Agreement does not create a relationship of employment, agency or partnership between the parties.

14.8       Governing Law and Jurisdiction

  • (a) This Agreement must be construed and applied and will take effect as a contract made in New South Wales, Australia.
  • (b) The parties hereby submit to the non-exclusive jurisdiction of the courts of the state or territory determined in accordance with clause 14.8(a).

14.9       Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15. Dictionary and interpretation

15.1       Definitions

In this agreement:

accreditation date means the effective date that we grant accreditation under clause3.3(a).

accreditation period has the meaning ascribed to that term in clause 4.2.

Agreement has the meaning ascribed to that term in clause1.2.

Application has the meaning ascribed to that term in clause 2.2(a).

assessment period has the meaning ascribed to that term in clause 2.4(a).

audit has the meaning ascribed to that term in clause 5.

Authority means any statutory government, industry or regulatory body.

Confidential Information of a party means any information of or relating to the party that:

  • (a) is by its nature is confidential;
  • (b) is designated as confidential; or
  • (c) the other party knows or ought to know is confidential,

and includes

  • (d) information comprised in or relating to any intellectual property of the party or its related bodies corporate;
  • (e) information relating to the business, financial position, operations or affairs of the party or its related bodies corporate; and
  • (f) information relating to the Personnel, policies and strategies of the party or its related bodies corporate.

FAQA assessment has the meaning ascribed to that term in clause 3.1(c).

FAQA assessor means a person endorsed by us to perform FAQA assessments.

FAQA Brand means the words, tagline and logos set out in the FAQA Handbook.

FAQA Handbook means the document titled ‘FAQA Handbook’ containing any other requirements, policies and procedures in applying for, renewing and maintaining accreditation, as prescribed and amended by us from time to time.

FAQA Improvement Program means the program for accredited fitness business developed by us.

FAQA Intellectual Property includes:

  • (a) the trade marks, trade names or logos owned or licensed by us which we authorise you to use as an accredited fitness business;
  • (b) all intellectual property rights in the corporate name “Fitness Australia”;
  • (c) any registered or unregistered product or service names owned or licensed by us;
  • (d) all copyright in the materials, documents, programs or other items provided to you as an accredited fitness business or as part of the FAQA Brand;
  • (e) all trade mark, copyright, designed or other intellectual property rights owned or licensed by us relating to an accredited fitness business;
  • (f) our website and domain name; and
  • (g) all inventions and discoveries made by us.

FAQA Program means the program that you must participate to be granted accreditation.

fitness business is a business that is providing fitness and healthy living services in accordance with all applicable laws.

Insolvency Event means:

  • (a) being an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth) (Corporations Act));
  • (b) having a controller (as defined in the Corporations Act) appointed;
  • (c) being in receivership, in receivership and management, in statutory management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent);
  • (d) being otherwise unable to pay debts when they fall due; or
  • (e) having something with the same or a similar effect happen under the laws of any jurisdiction.

Fitness Industry National Quality Framework means the document titled ‘Fitness Industry National Quality Framework’ containing the criteria for accreditation, as prescribed and amended by the Australian Fitness Industry Standards Council from time to time.

Personal Information means all information about a person that is ‘personal information’ as defined in the Privacy Act 1988 (Cth) which is collected or held by any of the parties in connection with this agreement or the Service.

Personnel of a party are the employees, officers, consultants, contractors, representatives and agents of the party.

Privacy Laws means the Privacy Act 1988 (Cth) and any other laws that regulate the collection and use of Personal Information in Australia.

Privacy Policy means our Privacy Policy that is published on our website which is amended from time to time.

Service has the meaning ascribed to that term in clause 4.3.

you, your or derivatives of any of those terms, means the applicant set out in an Application.

we, us, or derivatives of any of those terms, means Fitness Australia Limited (ABN 51 131 422 403) of PO Box 6453 Alexandria NSW 2015, New South Wales.

15.2       Interpretation

  • (a) A reference to any legislation or statutory instrument or regulation in this agreement is a reference to that legislation or statutory instrument or regulation as amended or replaced from time to time.
  • (b) No provision of this agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision.
  • (c) If a party consists of more than 1 person, this agreement binds each of them separately and any 2 or more of them jointly.
  • (d) An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly.
  • (e) A party, which is a trustee, is bound both personally and in its capacity as a trustee.