Terms of Use

About the Website

Welcome to www.higherfunction.com.au (the ‘Website’). The Website provides you with an opportunity to browse and purchase online video exercise classes (Products) as well as book clinical exercise and gym classes, physiotherapy and exercise physiology services (Services) that have been listed on the Website. The Website provides this service by way of granting you access to the content on the Website (the ‘Purchase Services’).
The Website is operated by Higher Function Physio and Pilates Pty Ltd (ACN: 161 878 619) (‘Higher Function’). Access to and use of the Website, or any of its associated Products and Services is provided by Higher Function. Please read these terms and conditions (the ‘Terms’) carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
Higher Function reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Higher Function updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication.

Acceptance of the Terms

You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Higher Function in the user interface.

Booking and Purchase of Services

Higher Function requires all bookings for the Services to be made via telephone on (02) 6262 9664 or via the booking system provided (the ‘Booking System’).
If you choose to create an account with the Booking System, you acknowledge and agree to be bound by the Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Booking System.
In using the Purchase Services to purchase a Service through the Website, you will agree to the payment of the purchase price listed on the Website for the Service (the ‘Purchase Price’).
Payment of the Purchase Price may be made through the available payment methods (the ‘Payment Gateway Providers’)
Once you have made a booking for the Services, if the Services are delivered via Telehealth, you will be sent an email with details of the purchase price (Purchase Price) and how to make payment via Stripe or other payment method as advised from time to time. For Telehealth bookings payment of the Purchase Price must be made prior to your appointment. In the case of Services delivered in person, payment of the Purchase Price must be made at the time of the relevant appointment, session or class.
When purchasing Clinical Exercise Class Packages payment of the Purchase Price must be made in full at the time of purchase. Clinical Exercise Class Packages must be used within 12 months of purchase and will otherwise expire 12 months after purchase. Refunds are not provided for unused portions of Clinical Exercise Packages.
Unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are GST exclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, exclusive amounts. Where the services are provided outside Australia, GST is inapplicable.
In using the Purchase Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Providers.
Following payment of the Purchase Price being confirmed by Higher Function, you will be issued with a receipt to confirm that the payment has been received and Higher Function may record your purchase details for future.
In the event that any payment under these Terms is not made in full on the due date, Higher Function is entitled to charge you interest at the rate of 5% per annum, calculated daily.
You agree that if you default on any payments due and payable under these Terms, any costs incurred by Higher Function for steps taken to enforce payment terms will be recoverable and payable by you.

Cancellation and Refunds for Services

You must notify Higher Function of an intention to cancel the Services as soon as practicable through e-mail to [email protected] or telephone to (02) 6262 9664 and abide by the following (‘Cancellation Policy’).
Higher Function understands that things change, and therefore if you need to cancel or reschedule your booking time you agree to provide at least 24 hours’ notice. Unfortunately, if you have to make changes within 24 hours of your scheduled session, you will forfeit 50% of the Fees.
A minimum of 12 hours notice is required when cancelling or rescheduling a class or independent gym session. Failure to provide sufficient notice will result in a non-attendance fee equal to the cost of attendance. Make-up classes can only be organised if sufficient notice of absence has been provided.
Higher Function does not provide change of mind refunds. Please keep this in mind when making a purchase.

Purchase of Products

Higher Function sells Products via Vimeo. In purchasing the Products via Vimeo, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by Vimeo.

Refunds and Returns of Products

Higher Function does not provide change of mind refunds. Please keep this in mind when making a purchase.

Delivery of Products

The Products are delivered via the Higher Function Vimeo channel.

Warranty

Products

Higher Function Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure (the ‘Warranty’). A major failure with a product under Australian Consumer Law includes but is not limited to where the product is significantly different from the description shown to you, or the goods are unsafe or unfit for their normal purpose.
If you have received a Product that you believe is faulty or defective, please contact [email protected] with photographic proof.

Services

The Services do come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled to cancel these Terms with Higher Function, and you are entitled to a refund for the unused portion, or to compensation for its reduced value. A major failure with a service is defined by the Australian Consumer Law and includes but is not limited to severe situations where a service is unfit for the purpose it is sold or creates an unsafe situation.

Products Disclaimer

Higher Function will maintain standards established by the Australian Health Practitioner Regulation Agency (AHPRA), the Physiotherapy Board of Australia, the Australian Physiotherapy Association and Exercise and Sports Science Australia (ESSA).
You agree that when you purchase a Product, you are solely responsible for creating and implementing your own physical, mental and emotional well-being, decisions, choices, actions and results arising out of or resulting from Higher Function’s relationship with you, its educational materials and interactions with you. As such, you agree that Higher Function is not and will not be liable or responsible for any actions or inaction, or for any direct or indirect result of any Products it provides.
You understand that the Products are not a substitute for medical attention, examination, diagnosis or treatment. It is your exclusive responsibility to seek such independent professional guidance as needed.
You agree to release and discharge Higher Function from and against all claims arising out of or in connection with provision of the Products. This release includes but is not limited to any claim for personal injury, damages and death of any participant which has received a Product from Higher Function.

Services Disclaimer

Higher Function will maintain standards established by the Australian Health Practitioner Regulation Agency (AHPRA), the Physiotherapy Board of Australia, the Australian Physiotherapy Association and Exercise and Sports Science Australia (ESSA).
You agree that when you purchase the Services, you are solely responsible for creating and implementing your own physical, mental and emotional well-being, decisions, choices, actions and results arising out of or resulting from Higher Function’s relationship with you, its educational materials and interactions with you. As such, you agree that Higher Function is not and will not be liable or responsible for any actions or inaction, or for any direct or indirect result of any Services it provides.
You understand that the Services are not a substitute for medical attention, examination, diagnosis or treatment. It is your exclusive responsibility to seek such independent professional guidance as needed.
You agree to release and discharge Higher Function from and against all claims arising out of or in connection with provision of the Services and any techniques employed. This release includes but is not limited to any claim for personal injury, damages and death of any participant which has received Services from Higher Function.

Information Disclaimer

Higher Function does not guarantee specific results or experiences through the use of the Products. Any information, advice, content or documentation provided through the Products, including in any Eproducts, in our Insights, on the Website or on any other related platform do not constitute medical, professional, psychological or other advice, and are provided for general information and guidance purposes only.
All care is taken in the preparation of the information and published materials including in the Products, in the associated Insights, on the Website or on any other related platform. Higher Function does not make any representations or give any warranties about its accuracy, reliability, completeness or suitability for any particular purpose.
To the extent permissible by law, Higher Function will not be liable for any expenses, losses, damages (including indirect or consequential damages) or costs which might be incurred as a result of the information being inaccurate or incomplete in any way and for any reason or your reliance on the information, advice or documentation in the Products, associated Insights, on the Website or on any other related platform.

Copyright and Intellectual Property

You acknowledge that the Website, the Purchase Services, the Products, Higher Function’s name, Services, and any logos, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation, any copyrights, patents, trademarks, proprietary or other rights arising thereof, are owned by Higher Function or its affiliates, licensors, or suppliers whether displayed on the Website, social media accounts, blog or on any other related platform (‘the Content’).

You hereby indemnify and agree to keep indemnified Higher Function against all liability, losses or expenses incurred by Higher Function in relation to or in any way directly or indirectly connected with any breach of intellectual property rights of Higher Function or any third party by you or your agents.

You may not, without the prior written permission of Higher Function and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.

For any services which enable you to use any software, content, equipment or other physical or non-physical materials owned or licensed by Higher Function, Higher Function grants you a limited, revocable, non-exclusive, non-sub licensable, non-transferable license to access and use the specific services, and any related software, content, equipment or other materials for your specific, non-commercial use only.

Privacy

Higher Function takes your privacy seriously and any information provided through your use of the Website and/or the Purchase Services are subject to Higher Function’s Privacy Policy.

General Disclaimer

You acknowledge that Higher Function does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products and Services other than provided for pursuant to these Terms.
Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
Subject to this clause, and to the extent permitted by law:
1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
2. Higher Function will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Purchase Services or these Terms (including as a result of not being able to use the Purchase Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
3. Use of the Website, the Purchase Services, and any of the Products and Services of Higher Function is at your own risk. Everything on the Website, the Purchase Services, and the Products of Higher Function, are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Higher Function make any express or implied representation or warranty about its Content or any products or Purchase Services (including the Products or Purchase Services of Higher Function) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
the accuracy, suitability or currency of any information on the Website, the Purchase Service, or any of its Content related products (including third party material and advertisements on the Website);
costs incurred as a result of you using the Website, the Purchase Services or any of the Services;
the Content or operation in respect to links which are provided for your convenience;
any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

User Generated Content

If you choose to contribute any content to the Website or any other platform operated by Higher Function, you are solely responsible for it. This includes comments, reviews, tweets, posts, photos, pictures, images, videos, materials or other user-generated content or information (‘Your Content’).
By contributing content to the Website, you grant Higher Function a royalty-free, non-exclusive license to use Your Content in any way that it chooses. This may include the use of your photos or video on other parts of the Website, advertising, promotions or social media accounts held by Higher Function.
Additionally, if you post Your Content with any personal information including identifying information such as location or name, you agree Higher Function can use that information with Your Content for advertising and promotional purposes, or any other business purpose
You confirm you own or have the right to use any copyright material included in Your Content (including replies to Higher Function social media posts, reviews, music, photos, quotes and excerpts of audio or video), that you have permission of anyone appearing or performing in Your Content and that you are not infringing any third-party rights by submitting Your Content to Higher Function. You also confirm you have, where appropriate, sought the consent of the parent or guardian of any person under the age of 18 who is featured in Your Content.
Please ensure you keep your own copies of Your Content as Higher Function may not archive, store or back-up Your Content nor continue to make Your Content accessible online.
Higher Function will endeavour to provide you with an appropriate credit when using Your Content on Higher Function platforms, though you understand and agree this may not always be possible.
Higher Function reserves the right to remove Your Content at any time. Your Content must not be malicious, libellous, false, inaccurate, threatening, abusive, obscene, defamatory or racially, sexually, religiously or otherwise objectionable and offensive.

Mailing List and SMS List Registration

You will be given the option to register for the Higher Function Mailing List (the ‘Mailing List’) and SMS List (the ‘SMS List’).
As part of the registration process, you may be required to provide personal information about yourself (such as identification or contact details), including:
1. Email address
2. Name and address
3. Mobile phone number
4. If you choose to register for the Mailing List or SMS List, you agree to receive promotional material, updates and other content from Higher Function.

Limitation of Liability

Higher Function’s total liability arising out of or in connection with the Purchase Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then the total liability of Higher Function is the resupply of information or Purchase Services to you.
You expressly understand and agree that Higher Function, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
Higher Function is not responsible or liable in any manner for any site content (including the Content and Third Party Content) posted on the Website or in connection with the Purchase Services, whether posted or caused by users of the website of Higher Function, by third parties or by any of the Purchase Services offered by Higher Function.

Indemnity

You agree to indemnify Higher Function, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:

all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any Content you post through the Website;
any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so and any breach by you or your agents of these Terms; and/or
any breach of the Terms.

Venue and Jurisdiction

The Purchase Services offered by Higher Function are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of the Australian Capital Territory, Australia.

Governing Law

The Terms are governed by the laws of the Australian Capital Territory, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of the Australian Capital Territory, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

Independent Legal Advice

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.