THE NURTURE PROJECT PTY LTD

ABN 51 633 307 847

TERMS OF SERVICE

INTRODUCTION

The Company provides “The Nurture Project” online health management program which consists of online information, meditation plans, diet plans, recipes and exercises. Use of The Nurture Project is subject to these Terms of Service.

definitions

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

      1. ABN means Australian Business Number.
      2. Account means a registered account on The Nurture Project created by the User.
      3. Agreement means the agreement formed between the User and the Company under, and on the terms of, these Terms of Service.
      4. Assessment means any exercise, quiz or task released with each Module, to be completed by the Member.
      5. Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
      6. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
      7. Commencement Date means the date the Program commences, as determined by the date of which Program Fees are paid by the Member.
      8. Company means The Nurture Project Pty Ltd ABN 51 633 307 847.
      9. Confidential Information has the meaning given to it in clause 5.10.
      10. Diagnostic Quiz means the initial questionnaire completed by the User.
      11. Facebook Group means the Company’s private Facebook group, only accessible to Members.
      12. Fee means a fee charged by the Company to participate in the Program and is as notified to the User in writing.
      13. GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
      14. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
      15. Initial Program means the initial 12-week Program provided by the Company.   
      16. Member means any User who holds a registered Account and pays the Fees.
      17. Module means a part of the Program that is released weekly to the Member via The Nurture Project over the Program Duration.
      18. Nurture App means the Company’s application developed by the Company and downloadable from mobile application marketplaces from time-to-time
      19. The Nurture Project means together the Nurture App and the Site, plus any other of the Company’s suite of applications and services, known together as “The Nurture Project”, licensed to the User under these Terms of Service.
      20. Ongoing Program means the Program accessible to the Member upon completion of the Initial Program subject to the Fees.
      21. Program shall mean together the Initial Program and the Ongoing Program.
      22. Program Duration means 12 weeks from the Commencement Date.
      23. Program Materials means all content and materials relating to the Program provided to the Member via The Nurture Project.
      24. Privacy Law means:
        1. Privacy Act 1988 (Cth).
        2. EU General Data Protection Regulation 2016/679.
      25. Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.
      26. Site means the website found at http://thenurtureproject.com or such other URL used by the Company from time-to-time.
      27. Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
      28. Terms of Service means the terms and conditions of participating in the Program, as updated from time-to-time, which can be found at the Site.
      29. User means any user that uses The Nurture Project.
      30. User Data shall mean any responses, images, information, documents or other such data that is uploaded or input into The Nurture Project and/or Facebook Group by the User or that forms part of the User’s Intellectual Property.
  1. general
    1. Use of The Nurture Project is subject to the User’s ongoing acceptance and adherence to these Terms of Service and Privacy Policy.
    2. A User may use The Nurture Project to:
      1. Download the Nurture App;
      2. Complete the Diagnostic Quiz and Assessments; and/or
      3. Participate in the Program and gain access to the Facebook Group.
    3. The Company may suspend an Account or restrict the access of any User that breaches these Terms of Service.
    4. Users under the age of 18 must not enrol in the Program without their parent or legal guardian’s consent.
    5. The Member shall be responsible for paying the Fees for each Program.
    6. The Company makes no representation that the User will achieve particular results from use of The Nurture Project.
  2. PROGRAM
    1. In order to participate in a Program and become a Member, a User must:
      1. Create an Account; and
      2. Pay the agreed Fees.
    2. Upon the Member successfully creating an Account and paying the agreed Fees, the Company will additionally provide the Member:
      1. Access to the Assessments;
      2. Exercise and diet recommendations;
      3. Access to the Facebook Group; and
      4. Access to individual Modules (subject to completion of prior Modules).
    3. The Member acknowledges that the Program Material is generated based on the Member’s responses to the Diagnostic Quiz during the on-boarding process and/or Assessments.
    4. The Company may send a reminder to the Member to prompt the completion of an Assessment.
    5. The Member accepts that upon completion of the Initial Program, the Member will not be able to access the Program Materials unless they pay the relevant Fees to join the Ongoing Program.
    6. The Company may provide the results of an Assessment or part thereof to the Member or an authorised medical professional upon the written request of the Member, otherwise it is at the Company’s discretion whether or not the Assessment results should be made available to the Member.
  3. PROGRAM MATERIALS
    1. The Member acknowledges that the Program Materials are for the benefit of the Member only and the Member shall not copy, reproduce, vary, distribute or otherwise exploit the Program Materials without the Company’s express prior written consent, or permit any third party to do so.
    2. The Company may add, vary and/or remove the Program Materials at its complete discretion without prior notice.
    3. The Program Materials have been designed by qualified exercise professionals and dieticians in order to assist Members to improve their health, fitness and/or nutrition. However, the Company makes no warranty or representation as to the accuracy of any information provided on The Nurture Project.
    4. The Member must not allow access to their Account and the Program Materials by any third party. The Member is solely responsible for the security of its username and password for access to The Nurture Project and shall notify the Company as soon as it becomes aware of any unauthorised access of its Account.
  4. User DATA AND CONDUCT
    1. The Company agrees to treat all User Data as Confidential Information under these Terms of Service.
    2. The Company will endeavour to moderate all User Data uploaded into The Nurture Project and/or Facebook Group.
    3. The User acknowledges and accepts that the Company shall have no liability for:
      1. The conduct of any User;
      2. The accuracy of any User Data; or
      3. Any interactions between Users, whether that interaction occurs via The Nurture Project, the Facebook Group or any other forms of communication.
    4. The Company may suspend accessibility to, remove or edit User Data that the Company determines is illegal, offensive, indecent or objectionable in its sole discretion.
    5. The Company may terminate this Agreement if it has reason to believe that the User has provided false information.
    6. The User warrants that all User Data uploaded to The Nurture Project is accurate, and uploaded by the User personally, not by any other third party.
  5. disclaimerS
    1. The User agrees and acknowledges that any recommendations provided on The Nurture Project may not be the appropriate solution for their particular situation, and that use of The Nurture Project is not a substitute for an in-person examination with a licensed health professional.
    2. The User acknowledges that use of The Nurture Project is not appropriate if:
      1. Their personal safety is at risk;
      2. They require immediate medical treatment; and/or
      3. They do not have symptoms of anxiety.
    3. The Company shall have no liability to the User for any decision made in reliance on any User Data or Program Material.
    4. Any content or Program Material published on The Nurture Project is strictly for informational and educational purposes only.
  6. Fees, payments & refunds
    1. Fees
      1. Each Fee applies in accordance with such features and/or services subscribed for by the Member in accordance with the pricing described on The Nurture Project, or as otherwise agreed with the Company.
      2. The Member agrees to make payment in advance for all Fees due at such frequency, or on such dates as the Member has subscribed for.
      3. The Company reserves the right to introduce or change any Fees from time-to-time. Any new or changed Fees will not apply for any Member that has already commenced the Program.
      4. All payments shall be made via the online payment gateway on The Nurture Project or in such other manner as the Company may direct from time-to-time.
      5. The Member agrees that it has no right to access the Program if it fails to make payments when due.
      6. Where the Member elects to pay the Program Fees in monthly or weekly instalments, the Member must provide credit card details and authorise the Company to direct debit their account on a weekly or monthly basis until the Program Fee is paid in full.
      7. The Member authorises the Company to charge their credit or debit card (or debit their bank account, as relevant) for any Program Fees as notified to the Member in writing.
    2. Refunds

No refunds are offered on Fees other than as required by law, in particular the Australian Consumer Law, unless otherwise agreed by the Company in its sole discretion.

    1. Currency

All Fees are quoted in Australian dollars however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).

    1. GST

Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Member with a Tax Invoice for any payments.

    1. Non-Payment.
      1. If the Member does not pay the Fees as required, the Company reserves the right to:
        1. Limit the Members access to certain functions available on The Nurture Project;
        2. Suspend the Member’s access to the Facebook Group; and/or
        3. Suspend all Member access to The Nurture Project for that Account.
      2. If Fees are not brought out of arrears within 7 days of becoming overdue, the Company may terminate the Member’s Account without notice, and end this Agreement.
      3. The Member agrees that the Company shall not be responsible or liable in any way for:
        1. Interruptions to the availability of The Nurture Project or User Data in the event of (a);
        2. Loss of User Data in the event of (b).
  1. General conditions
    1. Licence
      1. By accepting these Terms of Service, the Member is granted a limited, non-exclusive and revocable licence to access and use The Nurture Project, in accordance with these Terms of Service.
      2. The Company may issue the licence to the Member on the further terms or limitations as it sees fit.
      3. The Company may revoke or suspend the Member’s licence in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in these Terms of Service by the Member.
    2. Modification of Terms
      1. The terms of these Terms of Service may be updated by the Company from time-to-time.
      2. Where the Company modifies the terms, it will provide the Member with written notice, the Member will be required to accept the modified terms in order to continue using The Nurture Project at the commencement of their next billing period.
    3. Technical Support
      1. The Company provides online support for the Member via the Site or within the App.
      2. The Company shall endeavour to respond to all support requests within 3 Business Days.
    4. Use & Availability
      1. The Member agrees that it shall only use The Nurture Project and Facebook Group for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
      2. The Member agrees that the Company shall provide uninterrupted access to The Nurture Project and Facebook Group to the best of its abilities, however:
        1. Access to The Nurture Project and/or Facebook Group may be prevented by issues outside of its control; and
        2. It accepts no responsibility for ongoing access to The Nurture Project and/or Facebook Group.
    5. Privacy
      1. The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Law for personal data that it collects about its Members.
    6. Data
      1. Security.  The Company takes the security of The Nurture Project and the privacy of its Users very seriously.  The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
      2. Transmission.  The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.  It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
      3. Storage. Data that is stored by the Company shall be stored according to accepted industry standards.
      4. Data. The Company may use de-identified, aggregated data or other statistical information generated by The Nurture Project to further improve The Nurture Project or for research purposes. Such data shall not qualify as Confidential Information for the purposes of this Agreement.
    7. Intellectual Property
      1. Trade marks.  The Company has moral and registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
      2. Proprietary Information.  The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.  The User warrants that it shall not infringe on any third-party rights through the use of the App.
      3. The Nurture Project. The User agrees and accepts that The Nurture Project is the Intellectual Property of the Company and the User further warrants that by using The Nurture Project the User will not:
        1. Copy The Nurture Project or Program Materials for the User’s own commercial purposes; and
        2. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in The Nurture Project or any documentation associated with it.
      4. Content.  All content (excluding User Data) submitted to the Company, whether via The Nurture Project or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User with respect to the Program.
    8. Third Party Dependencies

The User agrees and acknowledges that The Nurture Project and Facebook Group has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

    1. Confidentiality
      1. For the purposes of this Agreement, Confidential Information means:
        1. All User Data;
        2. Any information expressed as confidential under this Agreement; and
        3. Is personal information within the meaning of the Privacy Law.

but does not include information that a party can establish:

        1. Was in the public domain at the time it was given to that party;
        2. Became part of the public domain, without that party’s involvement in any way, after being given to the party;
        3. Was in party’s possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
        4. Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
      1. To the extent permitted by law, User Data received by the Company shall not be deemed as Confidential Information for the purposes 8.6(d) above.
    1. Liability & Indemnity
      1. The User agrees that it uses The Nurture Project and the Facebook Group at its own risk.
      2. The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
      3. The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with The Nurture Project, Facebook Group or Program, including any breach by the User of these Terms of Service.
      4. The Company make no representations, warranties or guarantees, whether express or implied, that the User will achieve particular results from the Program.
      5. In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Member’s access to, or use of, or inability to use The Nurture Project, Facebook Group or Program, in particular any decision made in reliance on Program Materials, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise.
      6. Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
        1. The re-supply of services or payment of the cost of re-supply of services; or
        2. The replacement or repair of goods or payment of the cost of replacement or repair.
    2. Suspension and Termination
      1. The Company may, without penalty or liability to the Member, suspend the Member’s access to The Nurture Project, Facebook Group and/or Program if it has reasonable grounds to believe that the Member is in breach of these Terms of Service, until such time as the matter is appropriately determined.
      2. The Member may terminate immediately by giving the Company written notice, which will also be deemed to be given when the Member cancels its Account.
      3. The Company may terminate this Agreement if the Member is in breach of these Terms and:
        1. That breach is not capable of remedy;
        2. The breach is material, wilful, reckless or repetitious;
        3. The breach compromises the Intellectual Property Rights of the Company; and/or
        4. The breach can be remedied but is not remedied within 10 Business Days of being given notice of that breach by the Company.
      4. Termination is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination, in particular the Member’s obligation to pay Fees.
    3. Dispute Resolution
      1. If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
        1. Includes or is accompanied by full and detailed particulars of the Dispute; and
        2. Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
      2. Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
      3. Subject to clause (d), a party must not bring formal proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
      4. Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
      5. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
    4. Electronic Communication, Amendment & Assignment
      1. The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
      2. The Member can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service.
      3. The Company will send the Member notices and other correspondence via The Nurture Project, to the details that the Member submits to the Company, or that the Member notifies the Company of from time-to-time. It is the Member’s responsibility to update its contact details as they change.
      4. A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
      5. Notices must be sent to the parties’ most recent known contact details.
      6. The User may not assign or otherwise create an interest in these Terms of Service.
      7. The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the Member.
    5. General
      1. Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
      2. Relationship.  The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
      3. Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
      4. Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service.
      5. Governing Law.  This Agreement is governed by the laws of Victoria, Australia.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
      6. Severability.  Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
      7. Interpretation. The following rules apply unless the context requires otherwise:
        1. Headings are only for convenience and do not affect interpretation.
        2. The singular includes the plural and the opposite also applies.
        3. If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
        4. A reference to a clause refers to clauses in these Terms of Service.
        5. A reference to legislation is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it.
        6. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
        7. A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
        8. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
        9. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

END TERMS OF SERVICE