James Smith Academy Website and Services Terms

These terms and conditions (General Terms) govern your use of the www.jamessmithacademy.com website (Website), the James Smith Academy app (JSA App) and all other services made available to you through the Website and JSA App (Services). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE www.jamessmithacademy.com WEBSITE AND THE JAMES SMITH ACADEMY APP.  

If you are a user of subscription, membership or other paid services, the Subscription, Membership and Paid Services Terms and Conditions (Member Terms) (set out below in the section headed: “Subscription, Membership and Paid Services Terms and Conditions”) apply in addition to these General Terms.

By using or accessing the Website, JSA App or the Services, you agree to be bound by these General Terms, which constitute a contract between you and James Smith Academy Pty Ltd ACN 621 129 511 (James Smith Academy, JSA, us, our and/or we). If you do not agree to all of the provisions contained in these General Terms, do not use the Website or the JSA App.

We reserve the right to revise and update these General Terms at any time in accordance with clause 6. If these General Terms are updated, we will give you notice in accordance with clause 1.3. We encourage you to read any updated General Terms carefully. By continuing to use the Website and/or the JSA App after the date set out in clause 6.1, you agree to be bound by any revised General Terms as set out in that clause.

You must be at least 18 years old to use the Website and the JSA App. If you are under 18 years old, you must not create an account, use the Website or use the JSA App.

By agreeing to these General Terms, you also agree to be bound by our:

• Privacy Policy, which is available at https://www.jamessmithacademy.com/privacy/; and
• Cookies Policy, which is available at https://www.jamessmithacademy.com/cookies-policy/.

Disclaimer regarding purchases made through the Apple App Store or Google Play Store

If you download the JSA App from the Apple App Store and/or the Google Play Store, or other third party app store, you acknowledge and agree that your purchase is governed by the terms and conditions of the Apple App Store and/or the Google Play Store or other third party app store, including:

• Apple App Store (Apple’s End User License Agreement available at https://www.apple.com/legal/internet-services/itunes/dev/stdeula/ and Apple’s Media Services Terms and Conditions available at https://www.apple.com/legal/internet-services/itunes/au/terms.html#APPS); and
• Google Play Store (Google Play's Terms of Service available at https://play.google.com/intl/en_au/about/play-terms.html),

in addition to the terms set out in these General Terms, which apply to your use of the JSA App.

Requests for refunds for purchases of the JSA App through the Apple App Store, Google Play Store or other third party app store, including in app purchases, are handled in accordance with our refunds policy set out at clause 4 of the Member Terms.

For avoidance of doubt, nothing in this disclaimer limits any right or obligation that a Customer has under the Australian Consumer Law, to the extent that it cannot lawfully be excluded or limited.

1. For Australian users: For avoidance of doubt, nothing in this disclaimer limits any right or obligation that you have under the Australian Consumer Law (ACL), to the extent that it cannot lawfully be excluded or limited.

   GENERAL

   1. Definitions: In these General Terms,

      Access Mechanism has the meaning given in clause 2.2(b).

      Affiliates means James Smith Academy Pty Ltd ACN 621 129 511 and any subsidiary, holding company or other related body corporate (within the meaning of the Corporations Act 2001 (Cth)) of James Smith Academy Pty Ltd.

      Claim means in respect of any person, any claim, action or proceeding, judgment, damage, loss, cost, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, injunction, specific performance, expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

      content includes information, software, photographic material, video, text, graphics, music, sounds, comments, messages, feedback, and all other content of any kind.

      JSA App means the James Smith Academy app available on the Apple App Store, Google Play Store or other third party app store.

      Login Details has the meaning given in clause 2.2(b).

      Prohibited Act has the meaning given in clause 2.3.

      Protected Content has the meaning given in clause 3.1.

      Services means all services made available to you through the Website or the JSA App.

      Member Terms means the Subscription, Membership and Paid Services Terms and Conditions set out below which apply to subscription, membership and other paid services offered by us.

      Membership Area has the meaning given in clause 2.7.

      Uploaded Content has the meaning given in clause 3.3(a)(i).

      User Account has the meaning given in clause 2.1.

      User Account Only Areas has the meaning given in clause 2.1.

      User Account Details has the meaning given in clause 2.2(a).

      Third Party Content has the meaning given in clause 4.1(e).

      Website means www.jamessmithacademy.com and all sites or pages hosted at or through www.jamessmithacademy.com.

   2. Interpretation: Unless otherwise stated in these General Terms:- (a) words importing the singular include the plural and vice versa; and any gender includes the other gender; (b) if a word or phrase is defined, cognate words and phrases have corresponding definitions; (c) a reference to a person or a party includes that person’s or party’s legal personal representative, executors, administrators, successors and permitted assigns; (d) a right includes a benefit, remedy, discretion, authority or power; (e) an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation; (f) where there are two or more persons bound or to be bound by any agreement or obligation, such agreement or obligation binds each of those persons severally and any two or more of them jointly; (g) a reference to a document or agreement, including these General Terms, includes a reference to that document or agreement as novated, altered or replaced from time to time; (h) a reference to any thing includes the whole or part of that thing and a reference to a group of things or persons includes each thing or person in that group; and (i) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these General Terms.

   3. Notices: We will give notice and provide communications to you by email, by posting on the JSA App, Website, or other reasonable electronic means. Any such notices will be deemed to have been received by you at the time of sending or posting, regardless of whether or not you have actually read the notice. You must give notice to us in writing via email to support@jamessmithacademy.com or as otherwise expressly provided. Please report any violations of these General Terms to support@jamessmithacademy.com.

   4. Electronic communications: You consent to receiving communications from us in electronic form, and agree that, to the fullest extent permitted by law, all terms and conditions, agreements, notices, documents, disclosures, and other communications that we send or provide to you electronically satisfy any legal requirement for a document or notice in writing

   5. No third party beneficiaries: You understand and agree that, except as otherwise expressly provided in these General Terms, there shall be no third party beneficiaries to these General Terms.

   6. Governing law and jurisdiction: You agree that the General Terms and Member Terms and any contractual relationship between you and JSA, are to be governed by the laws of the State of New South Wales, Australia. The parties agree to the non-exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts. For avoidance of doubt, this clause does not limit the application of any laws of another jurisdiction to the extent that they cannot be limited or excluded.

   7. Assignment: Neither party may assign their rights or obligations under the General Terms or Member Terms without the other party’s prior written consent. Nothing in this clause is intended to prevent us from assigning our rights or benefit for the purposes of debt collection.

   8. Delay and waiver: Any delay or failure by JSA to exercise or enforce any right or provision of these General Terms or the Member Terms will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set out in writing, signed by us, nor will any such waiver of any breach or default constitute a waiver of any subsequent or similar breach or default.

   9. Severability: If for any reason a provision of these General Terms or the Member Terms is, or is held to be, unenforceable (whether in whole or in part), that provision is to be read down to the minimum extent necessary so as to give full effect to the intent of the parties, and the remainder of these General Terms or the Member Terms will continue in full force and effect.

   10. Survival: All provisions that by their nature survive expiration or termination of these General Terms and Member Terms shall so survive, including without limitation, clauses 3, 4, 5, 9 and 10 of the General Terms and clauses 6, 7, 10 and 11 of the Member Terms, all other limitations on liability explicitly set out in these General Terms and Member Terms and our proprietary rights in and to the JSA App, Website, content provided by us, and the Services.

2. USER ACCOUNT, ACCESS TO, AND USE OF WEBSITE, JSA APP AND SERVICES

   1. In order to access certain areas of the Website and JSA App, you must create a user account (User Account). Such areas are referred to in these General Terms as “User Account Only Areas”. You must not access any User Account Only Area without a valid User Account.

   2. In creating a User Account, you warrant and agree that:

      1. any information you provide as part of your user account, including (without limitation) your name, address and other identifying information is accurate, current and complete (User Account Details);

      2. you will keep confidential and not provide to any person all login details, including (without limitation) any username, password, and/or password hint(s) chosen by you or assigned to you by us (Login Details), and any other mechanism for accessing or logging on to the Website, JSA App, User Account or User Account Only Area (Access Mechanism);

      3. you will not allow any other person to use your Login Details to access the Website, JSA App, your User Account or the Services;

      4. we may rely on your User Account Details being accurate, complete and current unless and until you notify us that your User Account Details are no longer accurate, complete or current (as the case may be);

      5. you are solely responsible for all the activities that occur under your User Account, whether or not engaged in by:

         1. you; or
         2. anyone that you allow to use your User Account, or that you give your Login Details to (whether or not contrary to these General Terms or Member Terms); or
         3. anyone who gains access to your User Account through you or because of your negligence.

         We are entitled treat any of use of your User Account as use by you unless: (a) you have previously notified us that your User Account Details and/or Login Details have been compromised; (b) we are (or reasonably ought to be) aware that your User Account is likely to have been compromised without your knowledge or consent; (c) the use was with our prior knowledge, authorisation or consent; or (d) the use was caused by our negligence and was unauthorised by you (but only to the extent caused by our negligence).

      6. you will comply with all reasonable conditions, usage restrictions or other requirements in respect of the Login Details (including any directions to use or stop using, temporarily or indefinitely, the Login Details) as notified or disclosed to you by us or any of our Affiliates or authorised representatives from time to time;

      7. you will immediately cease using any Login Details or Access Mechanism if we or any of our Affiliates or authorised representatives notify you (on reasonable grounds) or, if you become aware, that your permission to use those Login Details or Access Mechanism has been withdrawn or expires;

      8. you will immediately notify us if you become aware or suspect that the security of the Login Details or Access Mechanism has been compromised for any reason, or if you suspect someone else has used or is using your Login Details; and

      9. you must keep your User Account Details up to date during so long as your User Account remains active; and

      10. you have no proprietary interest of any kind in your User Account, Login Details or any Access Mechanism;

   3. Prohibited Acts: You must not use the Website, JSA App, Services or your User Account (and you must not allow your User Account to be used) to do any of the following (each a Prohibited Act):

      1. post offensive, defamatory, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, illegal, inappropriate, false or misleading, content of any kind;

      2. post content of any kind that poses, or may pose, a risk to any person;

      3. threaten, harass, humiliate or ridicule any person, or otherwise engage in unlawful conduct;

      4. post or disseminate material of which you are not the lawful owner or without the lawful owner’s permission, or breaches any obligation of confidentiality;

      5. post personal information about a person without their prior consent or breach any privacy law;

      6. misuse personal or sensitive information (including but not limited to another person’s username, or contact details or health information) obtained through the JSA App, Website or Services to send unlawful, unsolicited or unwanted communications to any person, or for any purpose other than the legitimate purpose for which that information was provided, without the person’s prior express consent;

      7. infringe another person’s copyright, trade mark or any other intellectual property right; or

      8. access another person’s User Account or Login Details;

      9. knowingly transmit or use any virus, worm, trojan, or other malicious or unauthorised code or disabling feature to or via the Website, JSA App or the Services;

      10. interfere with or disrupt the proper and intended operation of the Website, JSA App or the Services, or use any means of automatically searching or mining data from the Website; or

      11. reproduce, duplicate, copy, sell, resell or exploit any portion of the JSA App, Website and/or Services, or otherwise use or access the JSA App, Website and/or Services, for any purposes other than for which they are provided, without our express prior written consent (which we may give or withhold in our sole and absolute discretion); or

      12. attempt to do, or facilitate or encourage or assist another person to do, any Prohibited Act.

   4. Suspension or termination of your User Account: We may disable, suspend or terminate your (or any other) User Account, Login Details and/or any Access Mechanism at any time:

      1. without notice if:

         1. you notify us that you wish to terminate or suspend your User Account, for the purpose of carrying out that request;

         2. your User Account becomes inactive for more than12 consecutive months or you do not have a valid Membership with us after a period of more than 12 consecutive months, we may terminate or otherwise delete your User Account (including, without limitation, your User Account Details and Login Details);

         3. we suspect that your User Account Details or Login Details are out of date or inaccurate or that your Account, Login Details or the Access Mechanism have been compromised;

         4. we believe that you have engaged in, are engaging in, or are likely or intend to engage in a Prohibited Act, or your User Account has been, is being, or is likely to be, used to engage in a Prohibited Act;

         5. we consider it is necessary in order to comply with any law or to protect the safety of any person; or

      2. after giving you reasonable notice (except in urgent circumstances, in which case we are not required to give prior notice), to the extent that it is reasonably necessary for us to carry out any maintenance, updates, security measures or business operations.

   5. You agree that we will not be liable to you or any other party for any Claim arising out of any:

      1. disabling, suspension or termination of your access to the JSA App, Website and/or Services, or deletion of your User Account or your content; or

      2. modification or discontinuance of the JSA App, Website and/or Services,

      that occurs in accordance with these General Terms, except to the extent specifically set out in these General Terms or to the extent that liability cannot be lawfully excluded or limited.

      If your User Account is disabled, suspended or terminated, you will no longer have access to any content (for example, Training Program or Membership Content) provided as part of any valid membership or subscription you had purchased. Suspension or termination of your User Account, Login Details and/or any Access Mechanism will in no way modify, change or void any payment obligations you have incurred through your use of the JSA App, Website and/or any Services, whether such obligation is to JSA (or our Affiliates) or a third party, provided that where the suspension or termination was not a result of your breach of these General Terms, the Member Terms or any other agreement between you or us or because of any other wrongful act by you, we will refund on a pro rata basis any amounts that you have paid for our Services and are unable to use for the period of the suspension or following the termination (including any loss of access to any Training Program or Membership Content as defined in the Member Terms).

   6. Removal and moderation of content: We may remove from the Website, JSA App and/or the Services at any time, without notice, content of any kind (whether or not posted by you) which we consider offensive, defamatory, harmful, insulting, intimidating, menacing, harassing, discriminatory, unlawful, false or misleading or otherwise inappropriate or illegal, or otherwise for any reason in our sole and absolute discretion. If you have been provided with any content (including any Training Program or Membership Content) as part of a valid membership or subscription you have purchased and such content has been removed by us in accordance with this clause 2.6, we will refund to you on a pro rata basis any amounts that you have paid for that content and are unable to use or access for the remaining paid period following such removal.

   7. Your content, User Account Information and other material: Except to the extent required under privacy law, our Privacy Policy, or as expressly set out in these General Terms, you agree that we have no obligation to store, retain or destroy your User Account, User Account information or any other content uploaded or posted by you to, or through the Website, JSA App or the Services, whether your User Account is active or has been suspended, terminated or otherwise.

   8. Membership Areas: Certain areas of the Website and JSA App may only be accessed with a valid subscription or membership with us or an Affiliate that authorises access to that area (Membership Area). You must not access any Membership Area without a valid applicable subscription or membership. You may also be required to have a valid User Account. For avoidance of doubt, any Training Program created during, or as part of your Membership, forms part of the Membership Area.

3. CONTENT AND INTELLECTUAL PROPERTY

   1. Limited licence to use content: Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access the Website, JSA App, the Services and the content available for your personal, non-commercial use, provided that you comply fully with these General Terms and Member Terms (Protected Content). You acknowledge that nothing in these General Terms, Member Terms or your use of the Website, JSA App or the Services grants you:

      1. any proprietary interest or right to sublicense any of Protected Content or any content you obtain from the Website, JSA App, the Services or your use of them, including (without limitation) when it is downloaded to your computer or other device; or

      2. any right or licence to access or use any content other than through the JSA App, Website or Services.

   2. You acknowledge that the Website, JSA App and Services contain content that is or may be protected by copyright, patents, trademarks or other intellectual property rights. You must not modify, publish, transmit, distribute, perform, purport to sell, create derivative works of, or in any way exploit, any Protected Content, whether in whole or in part, without our prior written consent.

   3. Content posted or uploaded by you, or other users and third parties:

      1. You are solely responsible for all content that you post, upload or otherwise make available on the JSA App, Website or Services. You grant to us, our Affiliates and our and their successors and assigns, to the fullest extent permitted by law:

         1. a perpetual, irrevocable, non-exclusive right and license, including the right to sublicense and consent to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform, enter into commercial rental arrangements in respect of and display any content you post or upload to the Website, JSA App or using the Website, JSA App or the Services (Uploaded Content), whether in whole or in part and with or without the use of your name, worldwide and/or to incorporate the Uploaded Content in other works in any form, media, or technology now known or later developed, for the full term of any copyright, trademarks and other intellectual, personal and proprietary rights that may subsist in such content, for any purpose, whether commercial, advertising or otherwise;

         2. your irrevocable and unconditional consent to us, our Affiliates, or any person authorised by us or them, using, disclosing, reproducing, copying, adapting, publishing, performing, exhibiting, communicating or transmitting the Uploaded Content or any adaptation of it (or any part of it or of any such adaptation) anywhere in the world: (a) in whatever form and in whatever circumstances we think fit, including the making of any distortions, additions or alterations to the Uploaded Content or any adaptation of it (or any part of it or of such adaptation); and (b) without identifying you as the author or otherwise identifying you in respect of the Uploaded Content

         in order to provide the JSA App, Website and/or our Services, or to give effect to the objective purpose for which the content was posted, uploaded or otherwise made available, or for reasonable marketing or promotional purposes.

      2. Nothing in this clause 3 allows us to publish, use or disseminate any Uploaded Content that contains your personal information (including any photos of yourself you have uploaded to the JSA App or Website) without us first obtaining your consent to us doing so. For avoidance of doubt, you are solely responsible for all content (including any of your personal information) that you choose to publish, post, upload or make available to other users on the JSA App, Website or Services.

      3. You warrant that:

         1. you are the owner of all copyright and all other intellectual property rights (if any) subsisting in any Uploaded Content, or are otherwise authorised to deal with the Uploaded Content and grant the rights and consents set out in this clause 3.3; and

         2. your use of the Uploaded Content, and our use of the Uploaded Content, including (without limitation) the hosting of the Uploaded Content on the Website or JSA App, will not infringe the copyright or other intellectual property rights of any person or entity;

         3. the depiction or identification of any person in any Uploaded Content is with that person’s prior consent, which has not been revoked;

         4. you will not upload or post images of, or content about or relating to, any person under the age of 18.

   4. Feedback, Reputation and Reviews: By using the JSA App, Website or our Services and posting feedback (including a review or any ratings) (User Feedback), you grant us an unrestricted, worldwide, royalty-free, sub-licensable licence to use, reproduce, publish, communicate to the public, modify, and adapt your User Feedback posted on the JSA App, Website or any third party sites for the purpose of publishing that User Feedback on the JSA App, Website or third party sites and as otherwise permitted by these General Terms. In respect of User Feedback:

      1. You may use any User Feedback that is about you provided that you use it in a way that is not misleading or deceptive and is in accordance with our policies as posted on the JSA App and/or Website from time to time.

      2. You agree and acknowledge that our coaches and other users may use User Feedback that you post that is about them.

      3. You acknowledge that the content of User Feedback is that user’s opinion and does not constitute any representation by us.

      4. You agree that in submitting any User Feedback you will act honestly and fairly and that you will not do anything which might unfairly damage the reputation of any user or our coaches or undermine the operation of any ratings system (for example, submitting or causing or allow others to submit illegitimate or inauthentic ratings or reviews). We reserve the right to remove any User Feedback which we consider inappropriate, deceptive, unlawful or in breach of these General Terms, but without giving rise to any duty to, or representation that we will, do so.

   5. Injunctions
      You acknowledge that any breach by you of this clause 3 may cause damage to us which cannot adequately be remedied by damages and that if you breach or act in a way which threatens to breach this clause 3, we may seek injunctive relief against you.

   6. Copyright Complaints
      If you believe that your work has been copied, reproduced or used in a way that constitutes copyright infringement or are aware of another person doing so, please contact our designated copyright representative: James Shaw, 11 Wembley Road, Moss Vale, NSW - support@jamessmithacademy.com. For avoidance of doubt, nothing in these General Terms or Member Terms requires us to investigate or pursue a copyright complaint by you against another person or to act on your behalf in respect of any copyright complaint.

4. DISCLAIMER, LIMITATION OF WARRANTY, AND LIMITATION OF LIABILITY (users outside of Australia)

   This clause 4 applies to persons to the extent that they do not obtain or purchase our products or services within Australia or otherwise as “consumers” or a “small business” within the meaning of the Australian Consumer Law.

   1. Disclaimer:

      1. a. The opinions, information and other content contained on the Website, JSA App and the Services are for informational and entertainment purposes only, are not intended as medical advice, physiotherapy or other specialised advice and are not a substitute for professional advice, diagnosis or treatment of any disease or condition. We do not guarantee any nutritional, fitness and/or training program provided by our coaches or through the Website, JSA App or Services is suitable for your personal circumstances, including any medical condition, allergies, physiological or other needs or will provided any specific result. You should consult your physician or other health care professional before starting any nutrition and/or fitness program to determine if it is appropriate for you.

      2. Use of JSA App, Website and/or Services at your sole risk: We make no representation that any information on the Website and JSA App is in every respect accurate, current, or complete or has been verified by JSA. To the fullest extent permitted by law, we assume no responsibility for any error or omission in any content or information published on or available through the Website, JSA App or the Services, or that it is suitable for your personal circumstances. You are encouraged to confirm any such information with other sources and make your own assessment of its reliability and suitability for your individual circumstances.

      3. External and Third Party Links and Sites: The Website, JSA App and Services may contain links to external websites, and you may be offered a number of automatic links to other websites that may interest you (External and Third Party Links and Sites). We accept no responsibility for, or liability in respect of, and make no warranty whatsoever as to, the content, security, privacy practices, accessibility, or terms and conditions of External and Third Party Links and Sites. You agree and acknowledge that if you access, use, or rely upon any External and Third Party Links and Sites you do so entirely at your own risk.

      4. Third Party Content: Other users of the Website, JSA App and Services, third party advertisers and other third parties may from time to time post or publish information or content (including advertising material) on the Website (including without limitation Recipes, Nutrition Guidance, and the James Smith Academy forum), JSA App or through the Services (Third Party Content). We make no representation whatsoever as to the accuracy, quality or otherwise in respect of any Third Party Content. You agree and acknowledge that any use or or reliance upon any Third Party Content is entirely at your own risk.

      5. No duty to warn or advise: There are risks associated with any health, exercise and nutritional activity. You agree and acknowledge that the warnings set out on the Website, JSA App, in the Services and these General Terms are not advice or a comprehensive statement of risk and are not intended to be relied upon as such. To the fullest extent permitted by law, you agree that nothing in any warning or other information set out or communicated in or through the Website, JSA App or the Services, these General Terms or Member Terms shall give rise to any duty to warn of any risk or any other matter, duty to advise or other duty of care.

      6. Social media and member forum: Other users of the Website, JSA App and Services or other third parties may from time to time establish social media groups, pages, forums or websites. These groups, pages, forums or websites are not in any way affiliated with James Smith Academy. We do not endorse, curate or authorise any of those groups, pages, forms or websites, or any content contained or posted on them. We make no representation and give no warranty (whether as to accuracy, quality, completeness or otherwise), and accept no responsibility or liability for, the conduct or content of any such groups, pages, forums, posts websites or content.

   2. Limitation of warranty: To the fullest extent permitted by law, and except as otherwise expressly specified, neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers give any warranty of any kind, whether express or implied, about the Website, the JSA App, the Services or any content, material or representations posted on, through or with respect to the Website, JSA App or the Services, or about any External and Third Party Links and Sites or Third Party Content. Without limiting the scope of this disclaimer, James Smith Academy disclaims and excludes any warranties:

      1. as to any matter, including but not limited to including quality, merchantability, fitness for a particular use or purpose, non infringement, operability, condition, quiet enjoyment, value, accuracy of data, system integration and device compatibility of the JSA App, Website and/or Services;

      2. that the JSA App, Website and/or Services will meet your specific or individual requirements or your device requirements;

      3. that the JSA App, Website and/or Services will be accurate, reliable, uninterrupted, secure or error-free;

      4. that the JSA App, Website, Services or the server that makes it available, will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;

      5. as to the results that may be obtained from the use of the JSA App, Website and/or Services; and

      6. that defects in the JSA App, Website and/or Services will be corrected.

   3. Release: To the fullest extent permitted by law, you release and forever waive any and all Claims you may have against us, our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers for any loss, damage, expense or injury (including any Claim) you sustain arising out of or in connection with your access to (or inability to access) or use of the Website, JSA App or the Services or any External and Third Party Links and Sites or any Third Party Content.

   4. Limitation of liability:

      To the fullest extent permitted by law you agree that:

      1. neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers will be liable to you or any person for any Claim resulting from or arising out of:

         1. your use or inability to use the Website, JSA App or the Services, including (without limitation) their unavailability at any time or for any period, whether or not by reason of matters within our control or within the control of any vendor providing software or services support to us;

         2. unauthorised access or alterations of your transmissions to or from the Website or JSA App by a third party;

         3. any viruses or other malicious code or software created by a third party that may infect your computer equipment or other property whether by reason of your access to or use of the Website, JSA App or Services, or otherwise;

         4. activities resulting from the loss or misuse of your User Account Details, Login Details or other Access Mechanism;

         5. statements or conduct of any third party;

         6. any act or omission of any user, including any breaches of these General Terms, or any contravention of any law or rights of a third party by any user;

         7. any of your content and/or information that you submit, post or transmit through the JSA App, Website and/or Services;

         8. any indirect or consequential loss, or any economic loss; or

         9. any other matter relating to the Website, JSA App or the Services, except to the extent resulting from our gross negligence or wilful default;

         Each of the limitations in clauses 4.4(a)(i)-(ix) is a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability; and

      2. to the extent our liability and the liability of any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers, is not otherwise excluded, or is unable to be excluded, that liability, howsoever arising (including any breach of these General Terms or other agreement with you) and of whatever kind (whether based on breach of contract, tort, strict or product liability, breach of warranty or otherwise), shall be:

         1. limited to the re-supply of the relevant goods and/or services or the payment of the cost of having the relevant goods and/or services re-supplied; or

         2. limited to direct damages up to the amount (if any) you have paid us or our Affiliates for the use of the Website, JSA App or the Services in the immediately preceding six (6) months, or $2,000 (whichever greater); and

         3. is reduced to the extent that the liability arises out of the negligent or wrongful act or omission by you, any other user or any third party,

         and each of the above limitations are a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

   5. The limitations on and exclusion of liability for damages in these General Terms shall apply regardless of whether the liability is based on breach of contract, tort, strict or product liability or breach of warranty, statute or otherwise.

   6. You acknowledge that your use of the Website, JSA App and Services are entirely at your own risk, and you are responsible for taking all precautions you deem necessary or advisable to protect you against any Claim, risk, hazard, loss or damage that may arise from your use of the Website, JSA App or the Services.

5. INDEMNITY (users outside of Australia)

   This clause 5 applies to persons to the extent that they do not obtain or purchase our products or services within Australia or otherwise as “consumers” or a “small business” within the meaning of the Australian Consumer Law.

   1. To the fullest extent permitted by law, you agree to indemnify, defend and forever hold harmless us, our Affiliates, and our and their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers from and against all Claims, including reasonable legal costs, resulting from any breach of these General Terms by or any activity related to your User Account or use of the Website, JSA App or the Services (including, without limitation, infringement of any third party’s copyright, trade mark, patent or other intellectual property rights anywhere in the world or any negligent or wrongful conduct) by you and any liability for any Claim, whether direct, indirect, incidental, special and/or consequential, including loss of profits or income, suffered by us, any of our Affiliates or you, or claims made against us or any of our Affiliates, or any of our or their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers or you which result from your breach of these General Terms, or your use of the Website, JSA App or the Services.

   2. Each of the indemnities in clause 5.1 is a separate obligation by you to us. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

6. AMENDMENT, VARIATION OR ADDITION TO THESE TERMS

   1. We may amend, vary, revise, or modify (including by deleting or adding terms) these General Terms from time to time. We will notify you of any updates, changes or amendments to these General Terms by posting them on the JSA App and/or Website and/or by email or other direct electronic communication. The amended or updated terms will take effect (unless we specify a later date):

      1. upon your express agreement to any updated General Terms; or

      2. for new users or for any Services that you purchase from us after the updated General Terms are posted or notified to you, from the date of posting or notification (whichever earlier); or

      3. for existing users (other than for any Services that you purchase after the updated General Terms are posted or notified to you), 7 days after we send you notification (for email or other direct electronic communication) that the General Terms have been updated.

   2. By continuing to use the JSA App, Website and/or Services after the applicable date set out above, you agree to the terms of the updated General Terms.

   3. If you are an existing user and do not wish to agree to updated General Terms (other than in the case of an insubstantial, minor or typographical or formatting amendment that does not substantially and adversely affect your rights or use of the JSA App, Website or Services), then you must notify us within 7 days of being notified of the updated General Terms. Such a notification may be treated by JSA as a request to terminate all Services and other access to the JSA App, Website or Services that these General Terms apply to. If the effect of that termination is to materially reduce or change the nature of a membership, subscription, service or product that you have purchased from us, we will offer to do one or more of the following:

      1. continue to provide you the membership, subscription, service or product for the remaining period that you have paid for on the General Terms or Member Terms without the amendment or update. This may result in you being unable to use or access new or updated features, services or products; or

      2. refund to you a pro rata amount for the remaining period that you have paid for in respect of that membership, subscription, service or product.

   We may choose (in our sole and absolute discretion) which of these are offered to you.

7. PRIVACY

   1. 1. When you provide us with personal information to complete a transaction, verify your credit card, subscribe to membership or to use any feature of the JSA App, you are consenting to our collection and use of information provided for the specific purpose for which it is provided. Your personal information and any health information will be handled in accordance with our Privacy Policy at https://www.jamessmithacademy.com/privacy/. You may withdraw your consent at any time by contacting support@jamessmithacademy.com.

   2. We may disclose your personal information if required to do so by law or otherwise in accordance with our Privacy Policy.

   3. We use and store cookies in accordance with our Cookies Policy at https://www.jamessmithacademy.com/cookies-policy/.

8. FORCE MAJEURE

   Neither we nor our licensors or Affiliates are liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, acts of god, pandemic, COVID 19, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.

Additional provisions for Australian users

The following clauses 9 and 10 apply to persons who obtain or purchase our products or services within Australia or otherwise as “consumers” or a “small business” within the meaning of the Australian Consumer Law.

Important note: Under the Australian Consumer Law, consumer goods or services may be subject to consumer guarantees which cannot be excluded or limited, including (but not limited to) guarantees that that they will be of acceptable quality, fit for purpose (in certain circumstances), that services will be performed with due care and skill and provided within a reasonable time.

In addition, the Australian Consumer Law grants certain rights and protections to consumers and other persons in relation to misleading and deceptive conduct by businesses.

Nothing in these terms is intended to limit or exclude any rights that you have under the Australian Consumer Law to the extent that they that cannot be limited or excluded.

9. DISCLAIMER, LIMITATION OF WARRANTY, AND LIMITATION OF LIABILITY (users within Australia)

   1. Disclaimer

      1. The opinions, information and other content contained on the Website, JSA App and the Services are for informational and entertainment purposes only, are not intended as medical advice, physiotherapy or other specialised advice and are not a substitute for professional advice, diagnosis or treatment of any disease or condition. We do not guarantee any nutritional, fitness and/or training program provided by our coaches or through the Website, JSA App or Services is suitable for your personal circumstances, including any medical condition, allergies, physiological or other needs or will provided any specific result. You should consult your physician or other healthcare professional before starting any nutrition and/or fitness program to determine if it is appropriate for you.

      2. Use of JSA App, Website and/or Services at your sole risk: We make no representation that all information on the Website and JSA App is in every respect accurate, current, or complete or has been verified by JSA, or that the information is suitable for your personal circumstances. To the fullest extent permitted by law, we assume no responsibility for any error or omission in any content or information published on or made available through the Website, JSA App or the Services:

         1. by you, another user or a third party, except to the extent (and only to the extent) of any representation by us that we have verified and endorse that content or information as true and accurate; or

         2. that is made available for free.

         You are encouraged to confirm any such information with other sources and make your own assessment of its reliability and suitability for your individual circumstances.

      3. External and Third Party Links and Sites: The Website, JSA App and Services may contain links to external websites, and you may be offered a number of automatic links to other websites that may interest you (External and Third Party Links and Sites). We accept no responsibility for, or liability in respect of, and make no warranty whatsoever as to, the content, security, privacy practices, accessibility, or terms and conditions of External and Third Party Links and Sites. You agree and acknowledge that if you access, use, or rely upon any External and Third Party Links and Sites you do so entirely at your own risk.

      4. Third Party Content: Other users of the Website, JSA App and Services, third party advertisers and other third parties may from time to time post or publish information or content (including advertising material) on the Website (including without limitation Recipes, Nutrition Guidance, and the James Smith Academy forum), JSA App or through the Services (Third Party Content). We make no representation whatsoever as to the accuracy, quality or otherwise in respect of any Third Party Content. You agree and acknowledge that any use or reliance upon any Third Party Content is entirely at your own risk.

      5. No duty to warn or advise: There are risks associated with any health, exercise and nutritional activity. You agree and acknowledge that the warnings set out on the Website, JSA App, in the Services and these General Terms are not advice or a comprehensive statement of risk and are not intended to be relied upon as such. To the fullest extent permitted by law, you agree that nothing in any warning or other information set out or communicated in or through the Website, JSA App or the Services, these General Terms or Member Terms shall give rise to any duty to warn of any risk or any other matter, duty to advise or other duty of care.

      6. Social media and member forum: Other users of the Website, JSA App and Services or other third parties may from time to time establish social media groups, pages, forums or websites. These groups, pages, forums or websites are not in any way affiliated with James Smith Academy. We do not endorse, curate or authorise any of those groups, pages, forms or websites, or any content contained or posted on them. We make no representation and give no warranty (whether as to accuracy, quality, completeness or otherwise), and accept no responsibility or liability for, the conduct or content of any such groups, pages, forums, posts websites or content.

   2. Limitation of warranty: To the fullest extent permitted by law, and except as otherwise expressly specified, neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers give any warranty of any kind, whether express or implied, about the Website, the JSA App, the Services or any content, material or representations posted on, through or with respect to the Website, JSA App or the Services, or about any External and Third Party Links and Sites or Third Party Content. Without limiting the scope of this disclaimer, James Smith Academy disclaims and excludes any warranties:

      1. as to any matter, including but not limited to including quality, merchantability, fitness for a particular use or purpose, non infringement, operability, condition, quiet enjoyment, value, accuracy of data, system integration and device compatibility of the JSA App, Website and/or Services;

      2. that the JSA App, Website and/or Services will meet your specific or individual requirements or your device requirements;

      3. that the JSA App, Website and/or Services will be accurate, reliable, uninterrupted, secure or error-free;

      4. that the JSA App, Website, Services or the server that makes it available, will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;

      5. as to the results that may be obtained from the use of the JSA App, Website and/or Services.

      This clause does not affect or limit: (i) any consumer guarantee under the Australian Consumer Law; (ii) any other warranty to the extent that it cannot lawfully be excluded or limited.

   3. Release: To the fullest extent permitted by law, you release and forever waive any and all Claims you may have against us, our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers for any loss, damage, expense or injury (including any Claim) you sustain arising out of or in connection with: (a) your access to (or inability to access) or use any External and Third Party Links and Sites or any Third Party Content; or (b) any act or omission of any user (other than an employee, officer, contractor or agent of JSA acting on our behalf) or other third party. For avoidance of doubt, nothing in this clause 9.3 releases any Claims that you may have against us for any breach of the Australian Consumer Law, including under the consumer guarantees, or for a breach of these General Terms by us.

   4. Limitation of liability:

      To the fullest extent permitted by law you agree that:

      1. neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers will be liable to you or any person for any Claim resulting from or arising out of:

         1. your use or inability to use the Website, JSA App or the Services, including (without limitation) their unavailability at any time or for any period;

         2. unauthorised access or alterations of your transmissions to or from the Website or JSA App by a third party;

         3. any viruses or other malicious code or software created by a third party that may infect your computer equipment or other property whether by reason of your access to or use of the Website, JSA App or Services, or otherwise;

         4. activities resulting from the loss or misuse of your User Account Details, Login Details or other Access Mechanism;

         5. statements or conduct of any third party;

         6. any act or omission of any user, including any breaches of these General Terms, or any contravention of any law or rights of a third party by any user;

         7. any of your content and/or information that you submit, post or transmit through the JSA App, Website and/or Services;

         8. any indirect or consequential loss, or any pure economic loss based on a claim of negligence; or

         9. any other matter relating to the Website, JSA App or the Services, except as set out in clause 9.4(b);

         Each of the limitations in clauses 9.4(a)(i)-9.4(a)(ix) is a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

      2. Nothing in clause 9.4(a) limits or excludes our liability for any loss or damage that you suffer to the extent that the loss or damage was caused by: (a) our breach of these General Terms or any other contract between us and you; (b) our negligence (but excluding any duty to moderate the conduct or content of other users or third parties); (c) our breach of the Australian Consumer Law or the consumer guarantees under the Australian Consumer Law.

      3. To the extent our liability and the liability of any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers, is not otherwise excluded, or is unable to be excluded, that liability, howsoever arising (including any breach of these General Terms or other agreement with you) and of whatever kind (whether based on breach of contract, tort, strict or product liability, breach of warranty or otherwise), shall be:

         1. limited to the re-supply of the relevant goods and/or services or the payment of the cost of having the relevant goods and/or services re-supplied unless the liability is for breach of a warranty or consumer guarantee that cannot be remedied by re-supply or covering the cost of re-supply, or that the Australian Consumer Law requires that we offer you a refund or other remedy; or

         2. limited to direct damages up to the greater of: (a) the amount (if any) you have paid us or our Affiliates for the use of the Website, JSA App or the Services in the immediately preceding six (6) months; (b) $2,000; or (c) the total amount of compensation that we are liable to pay you under the Australian Consumer Law in respect of the Claim (if applicable); and

         3. is reduced to the extent that the liability arises out of the negligent or wrongful act or omission by you, any other user or any third party,

         and each of the above limitations are a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

   5. The limitations on and exclusion of liability for damages in these General Terms shall apply regardless of whether the liability is based on breach of contract, tort, strict or product liability or breach of warranty, statute or otherwise.

   6. You acknowledge that, apart from any rights that you may have under the Australian Consumer Law, your use of the Website, JSA App and Services are entirely at your own risk, and you are responsible for taking all precautions you deem necessary or advisable to protect you against any Claim, risk, hazard, loss or damage that may arise from your use of the Website, JSA App or the Services.

   7. Consumer guarantees and Australian Consumer Law: For avoidance of doubt, nothing in this clause 9 or these General Terms is intended to limit any rights that you may have under the Australian Consumer Law (including the consumer guarantees) or any other law to the extent that they cannot be lawfully excluded or limited.

10. INDEMNITY

    1. Indemnities given by you: To the fullest extent permitted by law, you agree to indemnify, defend and forever hold harmless us, our Affiliates, and our and their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers from and against all Claims, including reasonable legal costs, resulting from:

       1. any breach of these General Terms by you; or

       2. any activity through or under your User Account that you are responsible for under clause 2.2(e); or

       3. any content or information uploaded, posted or otherwise made available by you on the JSA App and/or Website (including, without limitation, infringement of any third party’s copyright, trade mark, patent or other intellectual property rights anywhere in the world or any negligent or wrongful conduct); and

       4. any liability for any Claim, whether direct, indirect, incidental, special and/or consequential, including loss of profits or income, suffered by us, any of our Affiliates or you, or Claims made against us or any of our Affiliates, or any of our or their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers or you, to the extent that that liability or Claim is a result of your breach of these General Terms or your negligent act or omission.

    2. Each of the indemnities given by you in clause 10.1 is to be reduced in respect of any liability or Claim to the extent that the liability or Claim is the result of our breach of these General Terms or any other contract between us and you, or was caused or contributed to by our negligence (excluding any duty to control the acts or content of other users or third parties).

    3. Each of the indemnities in clause 10.1 is a separate obligation by you to us. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

Subscription, Membership and Paid Services Terms and Conditions

These terms and conditions (Member Terms) govern your use of the subscription, membership and other paid services (Paid Services) offered by James Smith Academy Pty Ltd ACN 621 129 511 James Smith Academy, JSA us, our and/or we). By ticking the box which contains the following or similar words, “I acknowledge that I have read and agree to be bound by JSA’s Terms of Service and Privacy Policy” or otherwise subscribing to or using the Paid Services, you agree to be bound by these Member Terms.

These Member Terms apply in addition to the James Smith Academy Website and Services Terms (General Terms) set out above which govern your use of the Website, JSA App and Services to the extent not otherwise provided for in these Member Terms.

We reserve the right to revise and update these Member Terms from time to time in accordance with clause 9. If these Member Terms are updated, we will give you notice in accordance with clause 9. We encourage you to read any updated Member Terms carefully. By continuing to use the Website and/or the JSA App after the date set out in clause 9, you agree to be bound by any revised Member Terms as set out in that clause.

You must be at least 18 years old to use a Membership or other Paid Services.

By agreeing to these Member Terms, you also agree to be bound by our Privacy Policy (available at https://www.jamessmithacademy.com/privacy/) and Cookies Policy (available at https://www.jamessmithacademy.com/cookies-policy/).

1. GENERAL

   1. Definitions: In these Member Terms,

      Affiliates has the meaning given in the General Terms.

      Claim has the meaning given in the General Terms.

      Coach Support has the meaning given in clause 2.5.

      content has the meaning given in the General Terms.

      Paid Services means any paid services offered by us or our Affiliates.

      Membership means a membership or subscription to use Paid Services, including without limitation any weekly, monthly or quarterly subscription or membership plan and/or subscription or membership block (being a non-recurring and one-off time limited subscription or membership plan).

      Membership Access means access to the Membership Only Areas as set out in clause 2.1 of these Member Terms.

      Membership Content means the content in the Membership Only Areas as set out in clause 2.3 of these Member Terms (and includes Training Programs).

      Membership Only Areas means the subscription and/or membership only areas of the Website and JSA App.

      Training Programs has the meaning given in clause 2.5 of these Subscriber Terms.

      User Account and User Account Details have the meaning given in the General Terms.

   2. Interpretation: Unless otherwise stated in these Member Terms:- (a) words importing the singular include the plural and vice versa; and any gender includes the other gender; (b) if a word or phrase is defined, cognate words and phrases have corresponding definitions; (c) a reference to a person or a party includes that person’s or party’s legal personal representative, executors, administrators, successors and permitted assigns; (d) a right includes a benefit, remedy, discretion, authority or power; (e) an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation; (f) where there are two or more persons bound or to be bound by any agreement or obligation, such agreement or obligation binds each of those persons severally and any two or more of them jointly; (g) a reference to a document or agreement, including these Member Terms, includes a reference to that document or agreement as novated, altered or replaced from time to time; (h) a reference to any thing includes the whole or part of that thing and a reference to a group of things or persons includes each thing or person in that group; (i) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Member Terms; and (j) a reference to a provision or clause is a reference to that provision or clause in these Member Terms.

2. SUBSCRIPTIONS

   1. When you enter into a Membership (including any membership or subscription plans and/or blocks) with us, you will be granted access to the applicable Membership Only Areas of the Website and JSA App (Membership Access) for the term of your Membership, subject to the terms of your Membership, these Member Terms and the General Terms.

   2. Your Membership will continue until terminated in accordance with these Member Terms. You may terminate a weekly, monthly, quarterly or block subscription or membership any time through your User Account. To learn how to terminate your subscription or membership, please contact us on support@jamessmithacademy.com. Any such termination will take effect at the end of the current subscription or membership period as specified on the JSA App (and/or the Website, as applicable).

   3. Your Membership Access constitutes a non-exclusive, non-transferable, limited right to access, use and display on your personal devices the content published in the Membership Only Areas, including coaching videos, nutrition posts and recipes by other users (Membership Content) during the term of the Membership. Upon termination of your Membership, you will no longer have access to any applicable Membership Content, including without limitation any Training Programs. If as a result of the cessation of access, you are unable to use the remaining pre-paid period of a service or subscription, you may be entitled to a refund as set out in clause 8.

   4. The Membership Content is for your personal, non-commercial use only. You may not assign, transfer or sublicense any of these rights or publish, share, any Membership Content to any other person or third party or modify any Membership Content, or attempt to do any of these things. If you fail to comply with the restrictions in this clause 2.4, we may revoke your Membership Access and/or suspend, cancel or terminate your Membership and/or User Account without prior notice to you. If your Membership Access or Membership has been revoked and/or you are unable to use or access your Membership or any Paid Services as a result of any suspension, cancellation or termination by us you may be entitled to a refund as set out in clause 8.

   5. Coach Support and Training Programs: Your Membership Access includes access to the “Coach Support” section of the Website (or JSA App, as applicable) through which you can ask our coaches questions relating to your training and fitness (Coach Support), and the “Training Programs” section of the Website (or JSA App, as applicable) through which you can request a customised training program from one of our coaches (Training Programs). Your access to Coach Support and Training Programs are subject to the following limitations:

      1. Any Coach Support and Training Programs are not intended to constitute medical advice, physiotherapy or other specialised advice and are not a substitute for professional advice, diagnosis or treatment of any disease or condition. We do not guarantee any nutritional, fitness and/or training program provided by our coaches (including Coach Support and Training Programs) or through the Website, JSA App or Services is suitable for your personal circumstances, including any medical condition, allergies, physiological or other needs or will provided any specific result. You should consult your physician or other health care professional before starting any nutrition and/or fitness program to determine if it is appropriate for you.

      2. Without limiting anything in clause 2.5(a), persons subject to a medical or health condition, pregnant women or who suffer from a disability or impairment are strongly urged to seek professional medical advice prior to commencing any form of exercise, training or nutritional program.

      3. (c) You must provide true, accurate and complete information regarding your health and ability to undertake any workout, training, exercise or program. We may refuse to provide access to Coach Support, Training Programs or other similar services if we or one of our coaches believe that training or exercise may pose a risk or hazard to your health or safety, or that you have provided inaccurate or incomplete information regarding your health or ability to undertake training or exercise.

      4. By using the Coach Support and/or Training Programs you warrant and represent that you are able to undertake them safely and are not subject to any medical or other condition which may affect your ability to undertake them, or any part of them, safely, or have been approved by a properly qualified medical professional to do so despite that condition.

   6. Our Membership and Paid Services, including Coach Support and Training Programs are not intended for persons under 18 years of age. If you are under 18 years old, you must not use the Website, JSA App, or any of our Paid Services By continuing to use the Subscriptions and Paid Services after the Renewal Date, you agree to their renewal.

   7. By continuing to use the Memberships and Paid Services after the date that your Membership or Paid Services is renewed, you agree to their renewal. If your Membership or subscription is for an automatically renewing term of 3 or more months (per renewal), you may let us know within 14 days after each automatic renewal if you change your mind and do not wish to renew. In that case, we will cancel the renewal and refund any Membership or subscription fee that you have been charged for renewed period. You may request a cancellation of an automatic renewal by emailing us at support@jamessmithacademy.com within 14 days of the automatic renewal date.

3. GENERAL AVAILABILITY OF SERVICES

   1. The availability of our services, including (without limitation) the Website, JSA App, Membership Content, Membership Only-Areas, Coach Support and Training Programs, may be limited based on demographic, geographic, health or other criteria we from time to time determine. You agree and acknowledge that we may make unavailable any Membership Content and/or Paid Services or terminate your Membership, at any time based on these criteria. We may also withdraw any Paid Services from our offerings at any time without prior notice to you. In the event of such unavailability, termination and/or withdrawal, to the extent that it is applicable, we will refund any applicable fees and charges for the remaining term of your Membership or other Paid Services.

   2. Coach Support, Training Programs, and other services involving access to our coaches or other interactive access or communication are subject to coach availability and are limited to a maximum of 10 minutes per session. Sessions (including any non realtime session, chat or other communication) may be terminated by our coaches at any time for any reason they consider appropriate. Coach Support, Training Programs and any other services involving our coaches are ordinarily provided between 9 am and 5 pm (AEST) Monday to Friday. However, this is an indication only and actual times may vary. We may withdraw Coach Support or Training Programs from our offerings at any time and without prior notice to you. If, during the term of your Membership, you are unable to use or access any Coach Support or Training Programs that you have purchased as a result of any unavailability, termination or withdrawal by us in accordance with this clause 3.2, we may refund on a pro rata basis any amounts that you have paid for our Services (including any membership fees or part of) and are unable to use for the period of the unavailability or following the termination provided that any unavailability or termination was not a result of your breach of these Member Terms, the General Terms or any other agreement between you or us or because of any other wrongful act by you.

   3. You agree and acknowledge that interruptions may occur to our services, including (without limitation) the Website, JSA App, Membership Content, Membership Only-Areas, Coach Support and Training Programs, from time to time, whether or not due to matters within our control. You agree that we are not responsible and have no liability for any temporary interruption to our services, whether or not due to matters within our control.

4. PRICING AND PAYMENT

   1. No refund or exchange except as required by law or otherwise provided in Member Terms or General Terms: Subject to any statutory or other rights which cannot by law be excluded or limited, and except as otherwise expressly set out in these Member Terms or the General Terms, all fees and charges, including purchases for digital downloads and subscriptions from the Website and JSA App, are non-refundable and non-exchangeable.

      For avoidance of doubt, if your purchase is covered by the consumer guarantees under the Australian Consumer Law, including but not limited to fitness for purpose or that our products and services will be of acceptable quality, nothing in this clause is intended to limit your rights under the consumer guarantees.

   2. Pricing: By purchasing a Membership or other Paid Services, you agree to pay the price for that Membership or those Paid Services specified by us at the time of ordering (Price). We will charge your payment method for the Price for the relevant Membership and/or Paid Services along with any additional amounts relating to applicable taxes, bank fees and currency fluctuations as set out in clause 4.4.

   3. Changes in pricing: We may increase or vary the fees and charges for Memberships or Paid Services, or institute new fees or charges, at any time in our sole and absolute discretion by publishing them on the Website or JSA App or by such other means we consider appropriate. Any increase in charges or fees, or new charges or fees, will take effect from the date of your next renewal or purchase of the Membership or Paid Services to which those charges or fees apply, provided that in the case of automatic renewal, we have given you 7 days’ written notice of the change.

   4. Currency and GST: Pricing and currency may vary depending on the location from which our Paid Services are purchased and may be subject to local taxes and charges. For customers in:

      1. For customers in Australia: Prices are in Australian dollars (AUD) and include GST.

      2. For customers in the United Kingdom: Prices are in British pounds (GBP) and include VAT.

      3. For customers in the United States or outside of Australia and the United Kingdom: Prices are in US dollars (USD).

   5. Payment:

      1. You must have a valid, accepted payment method on file in order to purchase any Paid Services.

      2. All payments to us are processed by a third party payment processing provider (Third Party Payment Service). By purchasing a Membership or other Paid Services, you agree to be bound by any terms and conditions of that Third Party Payment Service in addition to these Member Terms. The Third Party Payment Service or your bank or other financial institution may require you to pay processing fees or other fees and charges. Any such fees and charges are your sole responsibility and are not included in the price of your Membership or other Paid Services unless otherwise specified. We accept no responsibility for your use of any Third Party Payment Service.

      3. Except in the case of recurring services (such as a weekly or monthly subscription), payment must be made at the time of purchasing your Membership or other Paid Services. In the case of recurring services, you will be charged on a recurring basis at the commencement of each monthly (or other specified) period.

   6. Keeping your information up to date: You agree that you are solely responsible for providing accurate payment details to the Third Party Payment Service and keeping your account and other information including your email address and payment details up to date so that we can process payment, complete your purchase(s), and contact you as needed in connection with your purchases or account.

   7. Incidental charges and expenses: In addition to any fees or charges payable to us, you agree that you remain responsible for all charges, fees or expenses that you incur associated with signing up for, using and connecting to the Memberships and other Paid Services, including (without limitation) travel costs, telephone or internet access and charges, computer or other equipment.

   8. Termination for incorrect or invalid payment details: If your payment is declined or fails for any reason, we may cancel your Membership or Paid Services immediately without prior notice to you.

5. JAMES SMITH ACADEMY WEBSITE AND SERVICES TERMS

   The General Terms apply to your use of the Website, JSA App and the Services (as defined in the General Terms), except to the extent otherwise provided in these Member Terms. To the extent that these Member Terms do not provide for a particular matter, the General Terms apply to that matter as if a reference to “Services” included a reference to Memberships or Paid Services.

6. DISCLAIMER, LIMITATION OF WARRANTY, AND LIMITATION OF LIABILITY (users outside of Australia)

   This clause 6 applies to persons to the extent that they do not obtain or purchase our products or services within Australia or otherwise as “consumers” or a “small business” within the meaning of the Australian Consumer Law.

   1. Disclaimer:

      1. The opinions, information and other content contained in or on, or provided through, the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services are for informational and entertainment purposes only, are not intended as medical advice, physiotherapy or other specialised advice and are not a substitute for professional advice, diagnosis or treatment of any disease or condition. We do not guarantee any nutritional, fitness and/or training program provided by our coaches or through the Website, JSA App or Services is suitable for your personal circumstances, including any medical condition, allergies, physiological or other needs or will provided any specific result. You should consult your physician or other health care professional before starting any nutrition and/or fitness program to determine if it is appropriate for you.

      2. Use of JSA App, Website and/or Services at your sole risk: We make no representation that any information on the website is in every respect accurate, current, or complete. To the fullest extent permitted by law, we assume no responsibility for any error or omission in any content or information published on or available through the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, or that it is suitable for your personal circumstances. You are encouraged to confirm any such information with other sources and make your own assessment of its reliability and suitability for your individual circumstances.

      3. External and Third Party Links and Sites: The Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services may contain links to external websites, and you may be offered a number of automatic links to other websites that may interest you (External and Third Party Links and Sites). We accept no responsibility for, or liability in respect of, and make no warranty whatsoever as to, the content, security, privacy practices, accessibility, or terms and conditions of External and Third Party Links and Sites. You agree and acknowledge that if you access, use, or rely upon any External and Third Party Links and Sites you do so entirely at your own risk.

      4. Third Party Content: Other users of the Website, JSA App, third party advertisers and other third parties may from time to time post or publish information or content (including advertising material) on the Website or JSA App (including without limitation Recipes, Nutrition Guidance, and the James Smith Academy forum) or through the Paid Services (Third Party Content). We make no representation whatsoever as to the accuracy, quality or otherwise in respect of any Third Party Content. You agree and acknowledge that any use or or reliance upon any Third Party Content is entirely at your own risk.

      5. No duty to warn or advise: There are risks associated with any health, exercise and nutritional activity. You agree and acknowledge that the warnings set out or provided on, in or through the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services are not advice or a comprehensive statement of risk and are not intended to be relied upon as such. To the fullest extent permitted by law, you agree that nothing in any warning or other information set out or communicated in or through the Website, JSA App or the Memberships and other Paid Services, these Member Terms or General Terms shall give rise to any duty to warn of any risk or any other matter, duty to advise or other duty of care.

      6. Social media and member forum: Other users of the Website, JSA App and Services or other third parties may from time to time establish social media groups, pages, forums or websites. These groups, pages, forums or websites are not in any way affiliated with James Smith Academy. We do not endorse, curate or authorise any of those groups, pages, forms or websites, or any content contained or posted on them. We make no representation and give no warranty (whether as to accuracy, quality, completeness or otherwise), and accept no responsibility or liability for, the conduct or content of any such groups, pages, forums, posts websites or content.

   2. Limitation of warranty: To the fullest extent permitted by law, and except as otherwise expressly specified, neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers give any warranty of any kind, whether express or implied, about the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services or any content, material or representations posted on, through or with respect to the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, or about any External and Third Party Links and Sites or Third Party Content. Without limiting the scope of this disclaimer, James Smith Academy disclaims and excludes any warranties:

      1. as to any matter, including but not limited to including quality, merchantability, fitness for a particular use or purpose, non infringement, operability, condition, quiet enjoyment, value, accuracy of data, system integration and device compatibility of the JSA App, Website and/or Services;

      2. that the JSA App, Website and/or Services will meet your specific or individual requirements or your device requirements;

      3. that the JSA App, Website and/or Services will be accurate, reliable, uninterrupted, secure or error-free;

      4. that the JSA App, Website, Services or the server that makes it available, will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;

      5. as to the results that may be obtained from the use of the JSA App, Website and/or Services; and

      6. that defects in the JSA App, Website and/or Services will be corrected.

   3. Release: To the fullest extent permitted by law, you release and forever waive any and all Claims you may have against us, our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers for any loss, damage, expense or injury (including any Claim) you sustain arising out of or in connection with your access to (or inability to access) or use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services or any External and Third Party Links and Sites or any Third Party Content.

   4. Limitation of liability:

      To the fullest extent permitted by law you agree that:

      1. neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers will be liable to you or any person for any Claim resulting from or arising out of:

         1. your use or inability to use the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, including (without limitation) their unavailability at any time or for any period, whether or not by reason of matters within our control or within the control of any vendor providing software or services support to us;;

         2. unauthorised access or alterations of your transmissions to or from the Website or JSA App by a third party;

         3. any viruses or other malicious code or software created by a third party that may infect your computer equipment or other property whether by reason of your access to or use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, or otherwise;

         4. activities resulting from the loss or misuse of your User Account Details, Login Details or other Access Mechanism (as defined in the General Terms set out above);

         5. statements or conduct of any third party;

         6. any act or omission of any user, including any breaches of these Member Terms, or any contravention of any law or rights of a third party by any user;

         7. any of your content and/or information that you submit, post or transmit through the JSA App, Website and/or Services;

         8. any indirect or consequential loss, or any economic loss; or

         9. any other matter relating to the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, except to the extent resulting from our gross negligence or wilful default;

         Each of the limitations in clauses 6.4(a)(i) to (ix) is a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

      2. to the extent our liability and the liability of any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers, is not otherwise excluded, or is unable to be excluded, that liability, howsoever arising (including any breach of these Member Terms or other agreement with you) and of whatever kind (whether based on breach of contract, tort, strict or product liability, breach of warranty or otherwise), shall be:

         1. limited to the re-supply of the relevant goods and/or services or the payment of the cost of having the relevant goods and/or services re-supplied; or

         2. limited to direct damages up to the amount (if any) you have paid us or our Affiliates for the use of the Website or for the applicable Membership or Paid Services in the immediately preceding six (6) months, or $2,000 (whichever greater); and

         3. is reduced to the extent that the liability arises out of the negligent or wrongful act or omission by you, any other user or any third party,

         and each of the above limitations are a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

   5. The limitations on and exclusion of liability for damages in these Member Terms shall apply regardless of whether the liability is based on breach of contract, tort, strict or product liability or breach of warranty, statute or otherwise.

   6. You acknowledge that your use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services are entirely at your own risk, and you are responsible for taking all precautions you deem necessary or advisable to protect you against any Claim, risk, hazard, loss or damage that may arise from your use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services.

7. INDEMNITY (users outside of Australia)

   This clause 7 applies to persons to the extent that they do not obtain or purchase our products or services within Australia or otherwise as “consumers” or a “small business” within the meaning of the Australian Consumer Law.

   1. To the fullest extent permitted by law, you agree to indemnify, defend and forever hold harmless us, our Affiliates, and our and their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers from and against all Claims, including reasonable legal costs, resulting from any breach of these Member Terms by or any activity related to your User Account or use of the Website, JSA App or the Services or Paid Services (including, without limitation, infringement of any third party’s copyright, trade mark, patent or other intellectual property rights anywhere in the world or any negligent or wrongful conduct) by you and any liability for any Claim, whether direct, indirect, incidental, special and/or consequential, including loss of profits or income, suffered by us, any of our Affiliates or you, or claims made against us or any of our Affiliates, or any of our or their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers or you which result from your breach of these Member Terms, or your use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services.

   2. Each of the indemnities in clause 7.1 is a separate obligation by you to us. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

8. TERMINATION AND CANCELLATION

   1. We may revoke your Membership Access and/or terminate your Membership and any Paid Services at any time without prior notice to you if, or if we reasonably suspect that:

      1. you have materially breached these Member Terms or the General Terms and have failed to remedy the breach within 7 days of us notifying you of the breach, or if the breach is incapable of remedy;

      2. you have committed any breach of clause 2.5 of these Member Terms, or clauses 2.1, 2.2, 2.3, 2.7 or 3.3(c) of the General Terms;

      3. you are not within a geographical area to which the Memberships and Paid Services are available as set out in clause 3.1 of these Member Terms;

      4. a person other than you is using your Membership or Paid Services, or your User Account;

      5. you commit any breach of clause 4 of these Member Terms or if we are unable to process a payment for any Membership or Paid Services or any other amount payable by you to us under these Member Terms.

   2. If a Membership or Paid Services is terminated by us under clause 8.1 or otherwise, you will, to the maximum extent permitted by law:

      1. not be entitled to receive any refund (subject to any statutory rights you may have, including under the Australian Consumer Law, or any express right to a refund under these terms) for services or products received up to and including the date of termination;

      2. remain liable to pay any subscription fees or charges for the remaining term of the Membership or Paid Services that have not been cancelled or terminated;

      3. in addition to any rights we may have under the general law, including for breach of contract, you must compensate us for any reasonably foreseeable loss we suffer as a result of the early termination or cancellation of your Membership or the Paid Services;

      4. we will refund to you on a pro rata basis any amount that you have pre-paid for a Membership for the remaining period of that Membership, less any loss that we have suffered and any costs (including legal costs) that we have reasonably incurred as a result of your breach or the early termination or cancellation of your Membership or the Paid Services.

   3. You may terminate or cancel your Membership or any Paid Services via our Website, the Apple App Store (if applicable) or by sending us an email at support@jamessmithacademy.com:

      1. if we materially breach these Member Terms and fail to remedy the breach within 7 days of you notifying us of the breach, or if the breach is incapable of remedy; or

      2. without cause, any time prior to the expiry of the current term of your Membership or Paid Services, in which case the termination will take effect from the expiry of the current term. You will retain access to any Membership Content from the time you cancel until the start of the next billing period and, unless otherwise expressly indicated these Member Terms, you will not receive a refund or credit for any remaining days in your current billing period.

9. AMENDMENT, VARIATION OR ADDITION TO THESE TERMS

   1. We may amend, vary, revise, or modify (including by deleting or adding terms) these Member Terms from time to time. We will notify you of any updates, changes or amendments to these Member Terms by posting them on the JSA App and/or Website and/or by email or other direct electronic communication. The amended or updated terms will take effect (unless we specify a later date):

      1. upon your express agreement to any updated Member Terms; or

      2. for new users or for any Paid Services (including Memberships) that you purchase from us after the updated Member Terms are posted or notified to you, from the date of posting or notification (whichever earlier); or

      3. for existing users (other than for any Paid Services that you purchase after the updated Member Terms are posted or notified to you), 7 days after we send you notification (for email or other direct electronic communication) that the Member Terms have been updated.

   2. By continuing to use the JSA App, Website and/or Services after the applicable date set out above, you agree to the terms of the updated Member Terms.

   3. If you are an existing user and do not wish to agree to updated Member Terms (other than in the case of an insubstantial, minor or typographical or formatting amendment that does not substantially and adversely affect your rights or use of the JSA App, Website or Services), then you must notify us within 7 days of being notified of the updated Member Terms. Such a notification may be treated by JSA as a request to terminate all Services (including any Membership) and other access to the JSA App, Website or Services that these Member Terms apply to. If the effect of that termination is to materially reduce or change the nature of any Membership or Paid Services that you have purchased from us, we will offer to do one or more of the following:

      1. continue to provide you the membership, subscription, service or product for the remaining period that you have paid for on the General Terms or Member Terms without the amendment or update. This may result in you being unable to use or access new or updated features, services or products; or

      2. refund to you a pro rata amount for the remaining period that you have paid for in respect of that Membership and/or Paid Service.

      We may choose (in our sole and absolute discretion) which of these are offered to you.

Additional provisions for Australian users

The following clauses 10 and 11 apply to persons who obtain or purchase our products or services within Australia or otherwise as “consumers” or a “small business” within the meaning of the Australian Consumer Law.

Important note: Under the Australian Consumer Law, consumer goods or services may be subject to consumer guarantees which cannot be excluded or limited, including (but not limited to) guarantees that that they will be of acceptable quality, fit for purpose (in certain circumstances), that services will be performed with due care and skill and provided within a reasonable time.

In addition, the Australian Consumer Law grants certain rights and protections to consumers and other persons in relation to misleading and deceptive conduct by businesses.

Nothing in these terms is intended to limit or exclude any rights that you have under the Australian Consumer Law to the extent that they that cannot be limited or excluded.

10. DISCLAIMER, LIMITATION OF WARRANTY, AND LIMITATION OF LIABILITY (users within Australia)

    1. Disclaimer:

       1. The opinions, information and other content contained in or on, or provided through, the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services are for informational and entertainment purposes only, are not intended as medical advice, physiotherapy or other specialised advice and are not a substitute for professional advice, diagnosis or treatment of any disease or condition. We do not guarantee any nutritional, fitness and/or training program provided by our coaches or through the Website, JSA App or Services is suitable for your personal circumstances, including any medical condition, allergies, physiological or other needs or will provided any specific result. You should consult your physician or other health care professional before starting any nutrition and/or fitness program to determine if it is appropriate for you.

       2. Use of JSA App, Website and/or Services at your sole risk: We make no representation that any information on the Website and JSA App is in every respect accurate, current, or complete or has been verified by JSA, or that the information is suitable for your personal circumstances. To the fullest extent permitted by law, we assume no responsibility for any error or omission in any content or information published on or made available through the Website, JSA App or the Services:

          1. by you, another user or a third party, except to the extent (and only to the extent) of any representation by us that we have verified and endorse that content or information as true and accurate; or

          2. that is made available for free.

          You are encouraged to confirm any such information with other sources and make your own assessment of its reliability and suitability for your individual circumstances.

       3. External and Third Party Links and Sites: The Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services may contain links to external websites, and you may be offered a number of automatic links to other websites that may interest you (External and Third Party Links and Sites). We accept no responsibility for, or liability in respect of, and make no warranty whatsoever as to, the content, security, privacy practices, accessibility, or terms and conditions of External and Third Party Links and Sites. You agree and acknowledge that if you access, use, or rely upon any External and Third Party Links and Sites you do so entirely at your own risk.

       4. Third Party Content: Other users of the Website, JSA App, third party advertisers and other third parties may from time to time post or publish information or content (including advertising material) on the Website or JSA App (including without limitation Recipes, Nutrition Guidance, and the James Smith Academy forum) or through the Paid Services (Third Party Content). We make no representation whatsoever as to the accuracy, quality or otherwise in respect of any Third Party Content. You agree and acknowledge that any use or reliance upon any Third Party Content is entirely at your own risk.

       5. No duty to warn or advise: There are risks associated with any health, exercise and nutritional activity. You agree and acknowledge that the warnings set out or provided on, in or through the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services are not advice or a comprehensive statement of risk and are not intended to be relied upon as such. To the fullest extent permitted by law, you agree that nothing in any warning or other information set out or communicated in or through the Website, JSA App or the Memberships and other Paid Services, these Member Terms or General Terms shall give rise to any duty to warn of any risk or any other matter, duty to advise or other duty of care.

       6. Social media and member forum: Other users of the Website, JSA App and Services or other third parties may from time to time establish social media groups, pages, forums or websites. These groups, pages, forums or websites are not in any way affiliated with James Smith Academy. We do not endorse, curate or authorise any of those groups, pages, forms or websites, or any content contained or posted on them. We make no representation and give no warranty (whether as to accuracy, quality, completeness or otherwise), and accept no responsibility or liability for, the conduct or content of any such groups, pages, forums, posts websites or content.

    2. Limitation of warranty: 1. To the fullest extent permitted by law, and except as otherwise expressly specified, neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers give any warranty of any kind, whether express or implied, about the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services or any content, material or representations posted on, through or with respect to the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, or about any External and Third Party Links and Sites or Third Party Content. Without limiting the scope of this disclaimer, James Smith Academy disclaims and excludes any warranties:

       1. as to any matter, including but not limited to including quality, merchantability, fitness for a particular use or purpose, non infringement, operability, condition, quiet enjoyment, value, accuracy of data, system integration and device compatibility of the JSA App, Website and/or Services;

       2. that the JSA App, Website and/or Services will meet your specific or individual requirements or your device requirements;

       3. that the JSA App, Website and/or Services will be accurate, reliable, uninterrupted, secure or error-free;

       4. that the JSA App, Website, Services or the server that makes it available, will be uninterrupted, timely, secure, free of viruses, errors or other harmful components;

       5. as to the results that may be obtained from the use of the JSA App, Website and/or Services; and

       6. that defects in the JSA App, Website and/or Services will be corrected.

    3. Release: To the fullest extent permitted by law, you release and forever waive any and all Claims you may have against us, our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers for any loss, damage, expense or injury (including any Claim) you sustain arising out of or in connection with: (a) your access to (or inability to access) or use any External and Third Party Links and Sites or any Third Party Content; or (b) any act or omission of any user (other than an employee, officer, contractor or agent of JSA acting on our behalf) or other third party. For avoidance of doubt, nothing in this clause 10.3 releases any Claims that you may have against us for any breach of the Australian Consumer Law, including under the consumer guarantees, or for a breach of these Member Terms by us.

    4. Limitation of liability:

       To the fullest extent permitted by law you agree that:

       1. neither we, nor any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers will be liable to you or any person for any Claim resulting from or arising out of:

          1. your use or inability to use the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, including (without limitation) their unavailability at any time or for any period, by reason of matters that are not directly within our control or within the control of any vendor providing software or services support to us;

          2. unauthorised access or alterations of your transmissions to or from the Website and/or JSA App by a third party;

          3. any viruses or other malicious code or software created by a third party that may infect your computer equipment or other property whether by reason of your access to or use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, or otherwise;

          4. activities resulting from the loss or misuse of your User Account Details, Login Details or other Access Mechanism (as defined in the General Terms set out above);

          5. statements or conduct of any third party;

          6. any act or omission of any user, including any breaches of these Member Terms, or any contravention of any law or rights of a third party by any user;

          7. any of your content and/or information that you submit, post or transmit through the JSA App, Website and/or Services;

          8. any indirect or consequential loss; or

          9. any other matter relating to the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services, except as set out in clause 10.4(b),

          Each of the limitations in clauses 10.4(a)(i) to (ix) is a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

       2. Nothing in clause 10.4(a) limits or excludes our liability for any loss or damage that you suffer to the extent that the loss or damage was caused by: (a) our breach of these Member Terms or any other contract between us and you; (b) our negligence (but excluding any duty to moderate the conduct or content of other users or third parties); (c) our breach of the Australian Consumer Law or the consumer guarantees under the Australian Consumer Law or the consumer guarantees under the Australian Consumer Law.

       3. To the extent our liability and the liability of any of our Affiliates, officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers, is not otherwise excluded, or is unable to be excluded, that liability, howsoever arising (including any breach of these Member Terms or other agreement with you) and of whatever kind (whether based on breach of contract, tort, strict or product liability, breach of warranty or otherwise), shall be:

          1. limited to the re-supply of the relevant goods and/or services or the payment of the cost of having the relevant goods and/or services re-supplied unless the liability is for breach of a warranty or consumer guarantee that cannot be remedied by re supply or covering the cost of re-supply, or that the Australian Consumer Law requires that we offer you a refund or other remedy; or

          2. limited to direct damages up to the greater of: (a) the amount (if any) you have paid us or our Affiliates for the use of the Website, JSA App or the Services in the immediately preceding six (6) months; (b) or $2,000; or (c) the total amount of compensation that we are liable to pay you under the Australian Consumer Law in respect of the Claim (if applicable); and

          3. is reduced to the extent that the liability arises out of the negligent or wrongful act or omission by you, any other user or any third party,

          and each of the above limitations are a separate limitation of liability. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

    5. The limitations on and exclusion of liability for damages in these Member Terms shall apply regardless of whether the liability is based on breach of contract, tort, strict or product liability or breach of warranty, statute or otherwise.

    6. You acknowledge that, apart from any rights that you may have under the Australian Consumer Law, your use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services are entirely at your own risk, and you are responsible for taking all precautions you deem necessary or advisable to protect you against any Claim, risk, hazard, loss or damage that may arise from your use of the Website, JSA App, Membership Content, Coach Support, Training Programs and the Memberships and other Paid Services.

    7. Consumer guarantees and Australian Consumer Law: For avoidance of doubt, nothing in this clause 10 or these Member Terms is intended to limit any rights that you may have under the Australian Consumer Law (including the consumer guarantees) or any other law to the extent that they cannot be lawfully excluded or limited.

11. INDEMNITY (users within Australia)

    1. Indemnities given by you: To the fullest extent permitted by law, you agree to indemnify, defend and forever hold harmless us, our Affiliates, and our and their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers from and against all Claims, including reasonable legal costs, resulting from:

       1. any breach of these Member Terms by you; or

       2. any activity through or under your User Account that you are responsible under clause 2.2(e) of the General Terms;

       3. any content or information uploaded, posted or otherwise made available by you on the JSA App and/or Website (including, without limitation, infringement of any third party’s copyright, trade mark, patent or other intellectual property rights anywhere in the world or any negligent or wrongful conduct); and

       4. any liability for any Claim, whether direct, indirect, incidental, special and/or consequential, including loss of profits or income, suffered by us, any of our Affiliates or you, or claims made against us or any of our Affiliates, or any of our or their officers, directors, employees, agents, partners, information providers, contractors, advertisers, licensors and suppliers or you, to the extent that that liability or Claim is a result of your breach of these Member Terms, or your negligent act or omission.

    2. Each of the indemnities given by you in clause 11.1 is to be reduced in respect of any liability or Claim to the extent that the liability or Claim is the result of our breach of these Member Terms or any other contract between us and you, or was caused or contributed to by our negligence (excluding any duty to control the acts or content of other users or third parties).

    3. Each of the indemnities in clause 11.1 is a separate obligation by you to us. To the extent any of them is held to be void or unenforceable, it and any other provisions shall be read down or severed to the extent necessary to cure the invalidity or unenforceability.

Terms and Conditions for Coupons and Vouchers

These terms and conditions (Coupon and Voucher Terms) apply to coupons (Coupons) and vouchers (Vouchers) ( issued by James Smith Academy Pty Ltd ACN 621 129 511 (James Smith Academy, JSA, us, our and/or we) or any Affiliates or Distribution Partners. 

Coupons and vouchers may be redeemed in accordance with these Coupon and Voucher Terms and any express terms set out in the Coupon and Voucher.   By redeeming or attempting to redeem any Coupon or Voucher, you (Customer) agree to be bound by these Coupon and Voucher Terms.

In these Coupon and Voucher Terms:

Affiliate means James Smith Academy Pty Ltd ACN 621 129 511 and any subsidiary, holding company or other related body corporate (within the meaning of the Corporations Act 2001 (Cth)) of James Smith Academy Pty Ltd.

Distribution Partner means any third party provider JSA or any of its Affiliates uses to distribute Coupons and Vouchers as contemplated by these Coupon and Voucher Terms.

Coupon and Voucher Terms

1. Distribution of Coupons and Vouchers: JSA may, in its sole and absolute discretion, create and distribute Coupons and Vouchers. The Coupons and Vouchers may be distributed by JSA and/or by any Affiliate and/or Distribution Partner.

2. Intended purpose: Coupons and Vouchers must only be used for their intended purpose (being the purpose set out on the Coupon or Voucher or that is otherwise apparent from its terms) (Intended Purpose).

3. Improper use of Coupons and Vouchers: The Customer is not entitled to a refund of any membership or service in order to redeem or attempt to redeem a Coupon or Voucher (Improper Use).

4. Redemption period: Coupons and Vouchers may specify a period of time for redemption (Redemption Period).

5. Types of Coupons and Vouchers: JSA, and/or any Affiliates and/or any Distribution Partners may distribute Coupons or Vouchers that:

   1. have a unique coupon or voucher code (Time Insensitive Coupon or Voucher); and/or

   2. do not have a unique or voucher coupon code (Time Sensitive Coupon or Voucher).

6. Duration and expiry of Coupons and Vouchers: Coupons and Vouchers are valid up until the date of expiry specified in the Coupon or Voucher. If no date is specified on a:

   1. Time Insensitive Coupon or Voucher, then that coupon or voucher will automatically expire within 12 months of the date of issue; and

   2. Time Sensitive Coupon or Voucher, then that coupon or voucher will automatically expire within 1 month of the date of issue.

7. Conditions of redemption: Coupons and Vouchers can be redeemed only if all of the following conditions are satisfied (except where the Coupon or Voucher expressly provides otherwise):

   1. at the time the Coupon or Voucher is redeemed, the Customer does not hold an active JSA membership or subscription;

   2. the Coupon or Voucher has not expired and/or is not outside the Redemption Period (if applicable);

   3. no other Coupon or Voucher is being used or redeemed by the same Customer;

   4. the Coupon or Voucher is being used for its Intended Purpose and not for any Improper Use; and

   5. all applicable terms and conditions set out on or referred to in or on the Coupon or Voucher (if any) are satisfied;

   (together, Conditions of Redemption).

8. Limit on number of redemptions:   Unless otherwise specified on the Coupon or Voucher:

   1. only one Coupon or Voucher may be used at a time; and

   2. a Coupon or Voucher cannot be used in conjunction with any other Coupon or Voucher.

9. Cancellation of Coupons and Voucher, redemptions and membership:   JSA may, without limiting any other rights that it has:

   1. cancel or refuse to accept any Coupon or Voucher, coupon or voucher code or redemption of any Coupon/Voucher or coupon/voucher code that it reasonably believes or suspects does not comply with these Coupon and Voucher Terms;

   2. at any time, in its sole discretion and without prior notice to any person, cancel or revoke any membership, subscription or service that it reasonably believes or reasonably suspects to have been acquired through an Improper Use of a Coupon/Voucher or otherwise materially in breach of these Coupon and Voucher Terms; and

   3. at any time, in its sole discretion, and without prior notice to any person, cancel or revoke any Coupons/Vouchers or coupon/voucher code which have not been redeemed.

   You agree and acknowledge that subject to your rights as set out in clause 10 of these Coupon and Voucher Terms, JSA shall not be liable to compensate you or any other person as a result of any termination, cancellation or revocation of any Coupon/Voucher, membership or service under this clause, provided that we will refund to you on a pro rata basis any amount that you have pre-paid to us for a subscription, membership or service for the period following termination of that subscription, membership or service.

10. Consumer and other statutory rights not affected

    Nothing in these Coupon and Voucher Terms limits any right or obligation that the Customer has under the Australian Consumer Law, including any consumer guarantee or right to refund, or any other right you have under any law, to the extent that it cannot lawfully be excluded or limited.

11. Non-transferrable, non-refundable: Coupons and Voucher are non-transferable, non-refundable, and cannot be sold or exchanged for cash.   You must not attempt to duplicate, transfer, sell or exchange any Coupon or Vouchers without our express written permission.   JSA may, in its sole discretion, cancel any Coupon or Voucher it suspects has been duplicated, transferred, sold or exchanged in breach of this clause.   Subject to clause 10 of these Coupon and Voucher Terms, JSA will have no liability in respect of any cancellation of a Coupon or Voucher under this clause.

12. Security:   The Customer is solely responsible for the security of their Coupon(s) and Voucher(s), including any unique coupon or voucher code or other means of redemption provided to the Customer.   JSA accepts no responsibility or liability for any misuse of the Customer’s Coupon or Voucher by any person.

13. Lost, stolen and damaged/destroyed Coupons and Vouchers: JSA has no obligation to replace any lost, stolen, damaged or destroyed Coupons or Voucher.

14. Verification of Coupons and Vouchers: JSA reserves the right, at any time, to verify the validity of any Coupon/Vouchers or compliance with these Coupon and Voucher Terms and to cancel any Coupon or Voucher for breach of, or failure to comply with, these Coupon and Voucher Terms. Mere errors and omissions in relation to validity or compliance with these Coupon and Voucher Terms or a Coupon or Voucher will be determined at JSA’s sole discretion. Failure by JSA to enforce any of its rights at any stage does not constitute a waiver of those rights.

15. Terms of service: By redeeming a Coupon or Voucher, you agree to be bound by our terms of service at https://www.jamessmithacademy.com/terms/ (Terms of Service).

16. Inconsistency with these Coupon and Voucher Terms:   In the event of any inconsistency between these Coupon and Voucher Terms, the specific terms set out in or on a Coupon or Voucher and our Terms of Service, any terms (whether set out in or on the Coupon or Voucher, in these Coupon and Voucher Terms or in our Terms of Service) that:

    1. limit the scope or amount of the Coupon or Voucher;

    2. limit our liability or obligations under or in connection with the Coupon or Voucher;

    3. limit how the Coupon or Voucher can be redeemed (including by imposing additional requirements for redemption);

    4. shorten the expiry or Redemption Period, or provide for additional ways in which the Coupon or Voucher may expire or be cancelled; or

    5. provide for additional identification, security or fraud prevention requirements,

17. Privacy

    JSA collects personal information in order to redeem, honour and verify Coupons and Voucher, and may, for this purpose, disclose such personal information to third parties, including but not limited to agents, contractors, service providers, suppliers and, as required, to Australian regulatory authorities. Acceptance or redemption of Coupons and Voucher is conditional on you providing this personal information. JSA will also use and handle your personal information in accordance with its privacy policy (Privacy Policy), which can be accessed at https://www.jamessmithacademy.com/privacy/ . In addition to any use that may be outlined in the Privacy Policy, JSA may also, for an indefinite period, unless otherwise advised, use the personal information for promotional, marketing, publicity, research and profiling purposes, including sending electronic messages or telephoning you. You should direct any request to opt out, access, update or correct your personal information to JSA and direct any complaints regarding treatment of your personal information in accordance with the Privacy Policy.