Terms and Conditions

By purchasing any of the services, you hereby declare that you have read and accepted the terms and conditions of Equalution Pty Ltd as set out below.

1. Purpose and Agreement
The purpose of this Deed is to set out and formalise the terms and conditions upon which the Client will be provided with the Services by Equalution, which the Parties have agreed to be essential, including the:
a. consideration payable to Equalution by the Client for the Services;
b. nature and extent of the product and / or service that Equalution will provide to the Client;
c. ownership of any Intellectual Property relating to the Services, or any Intellectual Property that may arise through the working relationship of the Parties, and the terms upon which this can and cannot be used by the Parties;
d. way in which personal information is collected, stored and distributed in connection with the provision of the Services;
e. conduct which is expressly prohibited in connection with the use of the Services; and
f. allocation of various liabilities or potential liabilities and corresponding releases and indemnities.

2. Warranties
a. Before entering into this Deed, the Client has obtained, or has had the opportunity and has elected not to obtain, separate and independent legal, accounting and financial advice as to the terms of this Deed and as to the Client’s obligations, rights and liabilities under this Deed. Equalution relies on this warranty and representation given by the Client.
b. All Parties intend for this Deed to be binding.
c. The Client understands that this Deed continues to operate despite the death of the Client, and operates in favour of, and is binding on, the legal personal representative of that Party.
d. The Parties have entered this Deed with the intention that it will still apply with a binding effect to the fullest extent possible notwithstanding any material change in the circumstances of any Party.
e. No Party has entered this Deed as the result of any undue influence, unconscionable conduct, duress or similar circumstances of pressure, necessity or unequal bargaining power and all Parties were fully cognisant of the advantages and disadvantages of so entering at the time of making an informed choice in the affirmative.
f. The Client will do all things reasonably necessary, including but not limited to the execution and lodgement of any requisite documents, to give effect to the provisions of this Deed.
g. The Client will refrain from doing anything, including but not limited to the execution of a last will and testament with inconsistent provisions to this Deed, that may potentially jeopardise the operation or effect of any of the provisions of this Deed, and the Client acknowledges and agrees that any such act will be void or voidable at the discretion of Equalution.
h. The Client specifically warrants to Equalution that the Client understands, acknowledges and accepts the provisions of this Deed, and in particular, clauses 4 to 8 inclusive herein.

3. Consideration
a. In consideration for the right to use the Services, the Client must pay the Price upfront in advance.
b. A breach of this clause on the part of the Client gives Equalution an immediate right to terminate this Deed and cancel the Client’s access to the Services.
c. To the extent permitted by law, Equalution retains a discretion as to whether or not to provide a refund(s) to the Client, and retains the right to refuse a refund in circumstances where:
i. The Services have been provided to the Client; or
ii. The Client changed its mind.
However, in the event that the Client wishes to delay the provision of the Services after a payment has been made by the Client to Equalution, Equalution will not unreasonably withhold consent to same.

4. Privacy
a. The Client warrants to Equalution that the Client has familiarised itself, or will familiarise itself at the first available opportunity, with the Privacy Law, and that it is not the responsibility of Equalution to do so, in any way whatsoever, and that Equalution will not do so.
b. The Client warrants to Equalution that the Client has read Equalution’s Privacy Policy.
c. The Client accepts the terms of Equalution’s Privacy Policy.
d. The Client acknowledges and agrees that it will not, under any circumstances whatsoever, use the Services in any way that may bring Equalution into an actual or potential breach of the Privacy Law or Equalution’s Privacy Policy.
e. The Client hereby consents and gives express permission for Equalution to use the Client’s personal information and any information or Intellectual Property the Client provides to Equalution the following manners:
i. To register the Client’s account with Equalution;
ii. To ensure the Client’s compliance with clause 4 herein;
iii. To disclose if required to do so by law; and
iv. To contact the Client for marketing and promotional purposes.
f. The Client understands that, notwithstanding that Equalution takes the most appropriate measures possible in the circumstances to ensure against such occurrences, advertisers and third party marketers with whom Equalution deals, or hackers or other cyber criminals, may use the Client’s information or content in a manner that breaches the Privacy Law or Equalution’s Privacy Policy or this clause. The Client purchases and uses the Services knowing and accepting that this is a risk that the Client assumes in full, and the Client hereby forever releases and indemnifies in full Equalution for any such occurrence or any similar or like occurrence.
g. Any act inconsistent with this clause on the Part of the Client, including but not limited to a breach or the pursuit of a Claim in relation to the Client’s personal information or the Privacy Law, gives Equalution an immediate right to terminate this Deed and cancel the Client’s account with Equalution.

5. Defamatory, Offensive Use and other Tortious Actions
a. The Client warrants to Equalution that the Client has familiarised itself, or will familiarise itself at the first available opportunity after requesting the Services, with the Defamation Law, and that it is not the responsibility of Equalution to do so, in any way whatsoever, and that Equalution will not do so.
b. The Client hereby warrants to Equalution that it will not use the Services or any content or communications provided by Equalution in any way whatsoever that gives rise to an actual or potential breach or contravention of the Defamation Law.
c. Any act inconsistent with this clause on the Part of the Client, including but not limited to a breach or the pursuit of a Claim in relation to the Defamation Law, gives Equalution an immediate right to terminate this Deed and cancel the Client’s access to the services.
d. The provisions of this clause apply in full, mutatis mutandis, with respect to other applicable Tortious Actions, as the case may be.

6. Intellectual Property
a. The Client warrants to Equalution that the Client has familiarised itself, or will familiarise itself at the first available opportunity after requesting the Services, with the Intellectual Property Law, and that it is not the responsibility of Equalution to do so, in any way whatsoever, and that Equalution will not do so.
b. The Client hereby assigns to Equalution in full any and all title or right, whether legal or equitable, and whether existing or registered or not, in or to or in relation to, any Intellectual Property in any and all content that may come into existence during the working relationship between Equalution and the Client.
c. The Client acknowledges and agrees that Equalution holds in full any and all title or right, whether legal or equitable, and whether existing or registered or not, in or to or in relation to, any Intellectual Property relating to the Business.
d. The Client understands that the effect of this clause is that the Client surrenders any Claim it would or may have otherwise had against Equalution, or the advertisers or third party marketers with whom Equalution deals, in relation to the Intellectual Property Law, and the Client hereby forever releases and indemnifies in full Equalution in relation to any such Claim brought against Equalution or the advertisers or third party marketers with whom Equalution deals.
e. The Client also acknowledges and agrees that the Business itself, all content connected with the Business, the processes and functions employed by the Business, the concepts and ideas behind the Services and any and all marks, trademarks, slogans or similar used in connection with the Business are the sole and exclusive property of Equalution and must not, under any circumstances whatsoever, and whether in exact or modified form, be used by the Client or an associated entity of the Client for commercial gain of whatever nature.
f. Any act inconsistent with this clause on the Part of the Client, including but not limited to a breach or the pursuit of a Claim in relation to the Intellectual Property Law, gives Equalution an immediate right to terminate this Deed and cancel the Client’s access to the Services.

7. Non-Commercial Use and Tortious Actions
a. The Client warrants to Equalution that the Client has familiarised itself, or will familiarise itself at the first available opportunity after purchasing and prior to requesting the Services, with the Consumer Law, and that it is not the responsibility of Equalution to do so, in any way whatsoever, and that Equalution will not do so.
b. The Client warrants that it will not, under any circumstances whatsoever, use the Services for its own commercial purposes without the prior written consent of Equalution, including but not limited to generating meal plans for other people or providing advice as to nutrition or exercise, in any form.
c. The Client hereby warrants to Equalution that it will not use the Services or any content connected with the Services in any way whatsoever that gives rise to an actual or potential breach or contravention of the Consumer Law.
d. For the avoidance of doubt, the Client must not, under any circumstances whatsoever, use the Services or conduct itself in any way mentioned in the following non-exhaustive list:
i. Mislead or falsely represent, whether intention, negligent or inadvertent;
ii. Assert a right to payment;
iii. Take advantage of another with lesser bargaining power or a disability;
iv. Strike an unfair bargain;
v. Make an unsolicited supply;
vi. Harass or coerce;
vii. Make a guarantee with respect to any matter in relation to a goo or service or the supply of a good or service;
viii. Provide any warranty or make any statement with respect to the quality or safety of a good or service; or
ix. Deal in any way with a good or service that has been banned or recalled or is known to be defective.
e. The Client understands that, notwithstanding that Equalution takes the most appropriate measures possible in the circumstances to ensure against such occurrences, other users of the Services, advertisers and third party marketers with whom Equalution deals, or hackers or other cyber criminals, may use the Client’s information or content in a manner that breaches the Consumer Law or this clause. The Client accepts the benefit of the Services knowing and accepting that this is a risk that the Client assumes in full, and the Client hereby forever releases and indemnifies in full Equalution for any such occurrence or any similar or like occurrence.
f. Any act inconsistent with this clause on the Part of the Client, including but not limited to a breach or the pursuit of a Claim in relation to the Consumer Law, gives Equalution an immediate right to terminate this Deed and cancel the Client’s access to the services.
g. The provisions of this clause apply in full, mutatis mutandis, with respect to other applicable Tortious Actions, as the case may be.

8. Indemnification
The Client expressly acknowledges and agrees that:
a. Equalution may be relying on representations made and / or warranties given by other Parties in this Deed and that, as such, Equalution may, and may continue to, assume considerable risk, including but not limited to through the fulfilment of Equalution’s obligations in reliance upon the Client’s warranties, that Equalution may not otherwise have endeavoured to assume in absence of the Parties’ execution of this Deed;
b. The Client acknowledges that, in the event of a breach, derogation from, inability, unwillingness or refusal of the Client to comply with the terms of this Deed, Equalution would have relied upon the Client’s representations and / or warranties to its detriment and that, as such, the Client will indemnify Equalution for any reasonable costs or expenses, whether direct or indirect, present or future, incurred by Equalution in connection with this Deed;
c. Subject to Equalution acting in breach or outside the scope of the provisions of this Deed, the Client specifically indemnifies Equalution against the following occurrences:
i. Any and all Claims arising in relation to the Client’s use of the Services;
ii. Any and all Claims arising in relation to the use by third parties of the Services that may affect or relate in any way whatsoever to the Client and that may have a bearing on Equalution; and
iii. Any ancillary loss or damage, suffered by the Client or any third party.
d. Without limiting any other right or obligation which a Party may have under this Deed or a covenant herein or otherwise, the Client indemnifies Equalution and will keep Equalution indemnified for any Claims or other loss or damage suffered as a result of a breach by Equalution or a third party or the Client of this Deed or a contravention of any law, regulation, by-law or order of any relevant competent authority or the covenants of this Deed; and
e. Any indemnity under this Deed will be independent of any other obligation of any Party and is irrevocable and will continue despite expiration or termination of this Deed. Equalution may enforce any indemnity without or before incurring any actual expense or suffering any actual loss or damage.

9. No Advice or Medical Warranty
The Client acknowledges and agrees that, while Equalution has taken all reasonable measures to ensure that the most accurate, credible and current nutritional and exercise science has been incorporated into the methods employed in delivering the Services:
a. Equalution are not medical practitioners and do not profess to be medical practitioners;
b. The Services may not take into account all of the Client’s personal attributes, medical condition or circumstances, and may therefore not be accurate for each specific Client;
c. Equalution does not under any circumstances whatsoever guarantee a specific result for the Client;
d. The Services are not, and should not be considered as being, specific or even general medical or nutritional advice;
e. The Client hereby warrants that it takes full responsibility for obtaining its own specific medical and nutritional advice, and releases Equalution from any Claim with respect to medical or nutritional issues, whether past, present or future; and
f. The Client will not use the Services during any period in which the Client is pregnant, suffering from a dietary or body dysmorphic disorder (including but not limited to anorexia or bullemia), or use of performance enhancing substances (including but not limited to steroids, growth hormones or peptides).

10. Relationship of the Parties
Nothing in this Deed, and nothing in relation to the Services, is to be construed as constituting the Parties as partners, or as creating between the Parties the relationship of employer and employee, master and servant, or principal and agent, and no Party has (and must not represent that it has) any power, right or authority to bind the other, unless the contrary intention is expressed in the provisions of this Deed.

 

11. Variation
While the Client may not vary the terms of this Deed under any circumstances, Equalution may vary this Deed from time to time, provided always that such variation does not amount to a material departure from the terms of this Deed. 12. Assignment
a. The Client may not assign its rights or obligations under this Deed under any circumstances whatsoever.
b. In the event that Equalution incorporates, transfers its intellectual property to another entity, sells the Business, or on the occurrence of a similar or like event, the rights and obligations of Equalution will automatically be assigned and subrogated to the relevant new entity, as the case may be.

13. Acceptance and Agreement
a. The Client acknowledges and agrees that the Client was made aware of the terms of this Deed, and accepted those terms, as a condition precedent to the Services being made available to the Client.
b. This Deed will be deemed to be accepted, and agreement therefore reached between the Parties, when the Client confirms purchase of the Services via the Equalution Website.

14. Document to Enure
Subject to any express terms of this Deed evincing a contrary intention, all of the clauses of this Deed survive the termination of this Deed for any reason and continue to be binding upon the Parties and enure for the benefit of the Parties.

15. Entire Agreement
This Deed embodies the entire agreement between the Parties relating to the subject matter of this Deed, the Business, and the Services, and this Deed supersedes and replaces any prior and / or contemporaneous agreements and understandings between the Parties in that regard.

16. Governing Law and Jurisdiction
a. This Deed is governed by the law of New South Wales and the Parties:
i. submit to the jurisdiction of its courts or tribunals and courts of appeal from those courts or tribunals ; and
ii. will not object to the exercise of jurisdiction by those courts or tribunals on any basis.
b. For the avoidance of doubt, clause 16a above is intended to have the effect that any litigious dispute should be heard and determined by a court or tribunal in New South Wales, Australia, and according to the laws applicable in New South Wales, Australia.

17. Dispute Resolution
a. If a dispute arises out of or relates to this Deed (including any dispute as to the meaning, performance, validity, subject matter, breach or termination of the Deed or as to any claim in tort, in equity or pursuant to any statute) (“Dispute”) a Party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the Party seeks urgent interlocutory relief.
b. A Party claiming that a Dispute has arisen under or in relation to this Deed must give written notice to the other Party specifying the nature of the Dispute.
c. On receipt of that notice by the other Party, the Parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
d. If the Parties do not agree within seven (7) days of receipt of the notice (or such further period as agreed in writing by them) as to:
i. The dispute resolution method and/or procedures to be adopted;
ii. The timetable for all steps in those procedures; and
iii. The selection and compensation of the independent person required for such technique;
iv. The Parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales and the President of the Law Society of New South Wales or the President's nominee will select the mediator and determine the mediator's remuneration.
e. In the event the Dispute is not resolved by mediation within fourteen (14) days of written notice by one Party to the other of the Dispute (or such further period agreed in writing between the Parties), either Party may refer the Dispute to arbitration. The arbitrator shall be agreed between the Parties within ten (10) days of written notice of the referral by the referring Party to the other, or failing agreement such as appointed by the President of the Law Society of New South Wales or the President’s nominee. In either case the arbitrator shall not be a person who has participated in an informal resolution procedure in respect of the Dispute.

18. Severance
a. In the event of any covenant or other provision of this Deed being declared invalid, illegal, unlawful or otherwise being incapable of enforcement, all other covenants and provisions of this Deed shall nevertheless prevail and remain in full force and effect.
b. In the event of any such provision being severed the Parties must endeavour to agree upon provisions in substitution for the severed provision that are not illegal and that substantially express the meaning of the severed provision.

19. Independent Advice
a. The Client acknowledges and represents to Equalution that the Client has obtained, or has had the opportunity to obtain and has elected not to obtain, separate and independent legal, accounting and / or financial advice as to the terms of this Deed and as to any obligations, rights or liabilities that may arise under this Deed.
b. Equalution relies on the acknowledgement and representation given in this clause by the Client.

20. Absolute bar This Deed may be pleaded and tendered by any Party as an absolute bar and defence to any proceeding or Claim brought in breach of the terms of this Deed or otherwise in relation to this Deed.