Terms and Conditions
1 Your acceptance
1.1 https://training.fairwayperformance.com/ and
https://www.fairwayperformance.com/ (separately and together, the Website) are operated by Fairway Performance Pty Ltd (ABN 22 658 175 565) (Fairway Performance, us, we, our).
1.2 You agree to these terms and conditions (Terms) when you do any of the following:
1.2.1 Access, browse or use the Website;
1.2.2 Purchase or use our golf fitness or other products (Products), including through the Website;
1.2.3 Purchase or use our golf fitness or other services (Services), including through the Website;
1.2.4 Otherwise provide your agreement to the Terms.
1.3 Some of our Products and Services are made available or accessed via a third party application or other third party software (Third Party Software). Where this applies, you must also accept any user terms and conditions applicable to the Third Party Software to be able to use our Product or Service. It is a condition of the use of our Products and Services that you comply with any applicable Third Party Software user terms and conditions.
1.4 By purchasing or using our Products or Services, you represent and warrant that you are at least 18 years old (or the age of majority in your jurisdiction, if it is not 18) and, if you are registering on behalf of a minor, that you are their legal guardian.
1.5 If you purchase a Product or Service on behalf of a minor, it is your responsibility to inform them of their obligations under these Terms and ensure their and your compliance with these Terms.
1.6 You must at all times comply with applicable laws.
2 Payment and changes to products, services and pricing
2.1 Provision of any Products or Services is subject to your payment of the applicable fees for those Products or Services.
2.2 Payment is to be made as notified to you in writing at the time of purchase, for example on our Website.
2.3 For Products and Services purchased on a subscription basis:
2.3.1 Payments will be debited from your nominated payment method at the frequency of the subscription, as notified to you in writing at the time of purchase (e.g. monthly);
2.3.1.1.1 You will not receive notice on each occasion a payment is deducted. You are responsible for ensuring you have sufficient
funds available in or on your nominated payment method
before the payment is due to be deducted.
2.3.1.1.2 You expressly authorise us to make automatic debits from your nominated payment method in accordance with these Terms.
2.3.1.1.3 If we are unable to process a payment in accordance with this clause, we reserve the right to re-attempt to process the
payment at a later date and/or cancel your subscription.
2.4 We may use a third party payment gateway or platform to facilitate your payments. You agree that we will not be held liable for any loss you incur arising from your use of any payment method unless caused by our fraud or the fraud of our employees.
2.5 Unless expressly stated otherwise, fees and charges are in AUD and inclusive of GST.
2.6 All fees are non-refundable, except as expressly stated in these Terms. 2.7 We may modify prices and Product and Service offerings at our discretion for any reason. Our current prices, Products and Services are as set out on the Website or otherwise notified to you in writing.
3 Health and fitness requirements
3.1 We do not provide medical advice and are not a substitute for professional medical diagnosis, treatment or advice. The Website, our Products or Services may contain general information relating to health. Such information is provided for informational purposes only and is not a substitute for advice provided by a qualified medical practitioner.
3.2 You require a moderate level of fitness to follow the exercise programs and other physical activities we provide through our Products and Services. 3.3 Prior to participating in any program, exercise, activity, workout, treatment discussed in or associated with the Website, or made available as part of our Products or Services, if you have any pre-existing health issues, medical conditions or other health risk factors, you must obtain the advice and clearance of your medical professional. Failure to do so could result in adverse health outcomes.
3.4 You are responsible to make your own inquiries and seek independent advice from a healthcare professional before acting on any information or material made available to you through our Website, Products or Services.
3.5 Physical activity and exercise undertaken in connection with the Website or our Products and Services is your responsibility and must be performed in a safe environment (including free of obstructions) and within your capabilities. Undertaking activities in an unsafe environment or outside your capabilities is a risk to your health and safety.
3.6 You must cease participation in any exercise or activity immediately if you experience negative health effects. You must get clearance from your medical professional before continuing.
3.7 Application or reliance on the techniques, advice, ideas, and suggestions of any person associated with the Website, our Products or Services are at your sole discretion and risk.
3.8 Our Products and Services do not include any supervision or monitoring of your activity, and we are not responsible for any injuries or other health condition or consequence that you may suffer as a result of following any exercise program or regime or undertaking any other activity involving our Products and Services.
4 Risk warning
4.1 Participation in any physical activities pursuant to our Products and Services (the Recreational Activities) involves physical exertion and risks, including the risk of personal injury and death. Particular risks include:
4.1.1 sprains, strains, dislocations, cardiovascular episodes and other injuries; and
4.1.2 injuries from the failure or improper use of equipment.
4.2 Before you participate in the Recreational Activities, you must ensure that you are aware of, and properly understand, all of the risks involved in the Recreational Activities, and that those risks will include any particular risks associated with any health condition from which you suffer.
4.3 You acknowledge, agree and understand that:
4.3.1 you are aware the Recreational Activities you will participate in may require a moderate or higher degree of effort;
4.3.2 your participation in the Recreational Activities may involve risks generally and the particular risks described above;
4.3.3 it is not possible for us to make these Recreational Activities completely safe;
4.3.4 you are personally responsible for your preparation prior to, your concentration and attention during, and your rest and recovery after Recreational Activities;
4.3.5 you engage or participate in the Recreational Activities voluntarily and at your own risk;
4.3.6 the risk warning(s) above constitutes a 'risk warning' for the purposes of relevant legislation, including for the purpose Section 5M of the Civil Liability Act 2002 (NSW) and equivalent legislation in other Australian States and Territories.
5 Waiver of rights and limitation of liability
5.1 You acknowledge, agree and understand that, to the full extent permitted by law (including by section 5N of the Civil Liability Act 2002 (NSW), equivalent legislation in other Australian States and Territories and section 139A of the Competition and Consumer Act 2010 (Cth)):
5.1.1 your rights (and the rights of any person on whose behalf you are acquiring Products or Services) to bring any claim against Fairway Performance, its related entities, agents and representatives, in relation to the Recreational Activities if the Recreational Activities or associated services were not provided to you in accordance with any express or implied term, warranty or guarantee that Fairway Performance’s
services will be provided with reasonable care and skill or will be reasonably fit for purpose, are excluded, restricted or modified as set out below; and
5.1.2 you (and any person on whose behalf you are acquiring Products or Services) release Fairway Performance, its related entities, agents and representatives, from all liability for a failure to comply with any express or implied term, warranty or guarantee that our Products or Services will be provided with reasonable care and skill or will be reasonably fit for purpose.
5.2 You acknowledge, agree and understand that, to the fullest extent permitted by law, the liability of Fairway Performance, its related entities, agents and representatives in relation to recreational services (as that term is defined in the Competition and Consumer Act 2010 (Cth)) and recreational activities (as that term is defined in the Civil Liability Act 2002 (NSW)) for any:
5.2.1 death;
5.2.2 physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);
5.2.3 the contraction, aggravation or acceleration of a disease; 5.2.4 the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs:
5.2.4.1.1 that is or may be harmful or disadvantageous to you or the community;
5.2.4.1.2 that may result in harm or disadvantage to you or the
community;
5.2.4.1.3 that may be suffered by you (or a person for whom or on whose behalf you are acquiring the services) resulting from the
supply of recreational services or recreational activities,
is excluded, except to the extent that such liability is in respect of a significant personal injury caused by the reckless conduct of Fairway Performance.
5.3 Without limiting the above, to the extent we are liable to you in connection with these Terms, our Products or Services provided, our liability will, to the extent permitted by law, be limited, at our option:
5.3.1 in the case of goods, to the replacement, repair or payment of the cost of replacing the goods; and
5.3.2 in the case of services, to the resupply of the services or payment of the cost of having the services supplied again.
5.4 To the extent permitted by law:
5.4.1 all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded;
5.4.2 without limiting any non-excludable consumer rights you may have, in no event will we (or our employees, agents and subcontractors) be liable to you for indirect, special or incidental, punitive, exemplary or
consequential loss, costs, expenses and damages (or any loss of
revenue, loss of data, loss of profits or loss of opportunity whether the losses be direct or indirect), suffered or incurred by you and arising out of or in connection with your access to or use of the Website, any linked website, your reliance on any information obtained through the
Website, or your use of any Products or Services, regardless of whether liability is based on any breach of contract, tort (including negligence) or warranty, arises under statute, or any other basis of liability.
6 Indemnity
6.1 To the extent permitted by law, you indemnify Fairway Performance, its related entities, agents and representatives against all losses and liabilities they incur directly or indirectly caused by, or resulting from:
6.1.1 your breach of these Terms;
6.1.2 your use of or access to the Website;
6.1.3 any wrongful, wilful or negligent act or omission by you; or 6.1.4 your failure to comply with applicable law,
except that this indemnity will be reduced proportionally to the extent that such losses or liabilities were directly caused or contributed to by any negligent or wilful act or omission by us.
7 Information provided
7.1 We derive our information from sources which we believe to be accurate and up to date as at the date of publication. We may update any information at any time but, due to constant advances in technology, health and fitness, and other factors, you acknowledge that the information on the Website, our Products or Services may not be the most current knowledge. You are to confirm the validity and accuracy of any information provided with other sources before relying on it.
7.2 To the extent permitted by law, we do not make any representations or warranties that any information we provide is reliable, accurate or complete and we make no guarantees of any specific result from use of this Website, our Products or Services.
7.3 To the extent permitted by law, we are not liable for any loss arising from any action taken or reliance by you on any information or material available on or through the Website, any Product or Service.
8 Security of information
8.1 We do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.
8.2 If any of our Products or Services requires you to use a user name and password, not disclose them to anyone else or allow anyone else to use your account and password. You are entirely responsible for any access to your account, and acknowledge that any access to or use of your account by means of the password associated with that account is deemed to be access or use by you.
9 Intellectual property
9.1 All intellectual property rights, including copyright, in the Website, our Products and Services are owned or licensed by us or our related entities. You must not copy, modify, distribute or transmit any part of the information, materials or other content provided through our Website or any part of our Products or Services and must only use such information, content or materials in accordance with these Terms and for personal and non-commercial purposes.
9.2 All information, materials and other content provided as part of our Products or Services is provided for your benefit only. You must not provide, share or otherwise distribute such information, materials or other content to any third party and we disclaim all liability arising from any such provision, sharing or distribution by you.
10 User content
10.1 The Website, our Products or Services may allow you to post information, photos, videos, content, user submissions and/or upload materials (including features such as live chat and forums), whether through external websites, platforms or otherwise (User Content) and may also allow you to see User Content submitted by other persons.
10.2 You are responsible for any User Content you post or display and we are entitled to treat any User Content as non-confidential and non-proprietary. 10.3 You warrant that all User Content that you post or display does not infringe the intellectual property rights of any third party.
10.4 You must not post or display any User Content that you did not create or do not have permission to post or display, or content which is offensive, inappropriate, unlawful or for commercial purposes (such as advertising material), or content which contains or transmits viruses or other malware.
10.5 We may, but are not required to, delete or edit any User Content in our discretion without notice, including if we consider it to be offensive or inappropriate.
10.6 We do not verify the accuracy or authenticity of any User Content and make no representations or warranties in relation to any User Content.
10.7 We cannot guarantee, and do not warrant, that any functionalities that allow you to control whether or not other users are able to view your content (Access Controls) are error free. To the extent permitted by law, we are not liable for any loss or damage that you may incur as a result of any incorrect implementation of Access Controls that you select.
11 Third party software
11.1 This clause 11 applies where any of our Products or Services are made available or accessed via Third Party Software.
11.2 You acknowledge and agree that the Third Party Software provider may change from time to time at our discretion.
11.3 We are not responsible for, and have no liability in connection with, the hosting, operation, availability, safety or security of, or access to, any Third Party Software, nor any act of the provider of the Third Party Software.
12 Privacy
12.1 You consent to your personal information or personal data (as that term, or substantially similar term, is defined under applicable privacy laws) (including information about your health) being used, handled, processed and disclosed by us:
12.1.1 as provided under these Terms;
12.1.2 in order to provide you with any Products or Services you have purchased;
12.1.3 to communicate with you regarding any purchase by you of our Products or Services or any other interactions you have with us;
12.1.4 for any purpose notified to you by us at the time you provide the personal information;
12.1.5 to provide marketing materials to you when you have consented to receive them; and/or
12.1.6 as otherwise provided in our Privacy Policy, as updated from time to time and accessible at
https://fairwayperformance.fitterapp.app/privacy-policy (Privacy Policy). 12.2 Where you provide us with the personal information or personal data of another person, you warrant that the person is aware of and has consented to the use of their personal information or personal data in accordance with these Terms
12.3 Where you agree with us in advance, we may communicate directly with your nominated health professional in relation to certain of your purchased Products and Services (e.g. exercise programs), with the intention of improving outcomes for you. This may involve the passing of your personal information to and/or from your nominated health professional. You may notify us at any time in writing that you no longer wish for us to deal directly with your nominated health professional. You are solely responsible for the information provided to us by your nominated health professional and we are entitled to rely on such information as if it were provided by you directly. You indemnify us (including our related entities and representatives) in respect of all claims, losses or liabilities we may incur as a result of or in connection with our reliance on information provided to us by your nominated health professional or any other person on your behalf.
12.4 We respect your privacy. You have certain legal rights to access and deal with your personal information and personal data that you provide to us. Further information on how you may do this is set out in our Privacy Policy.
13 Linked websites and third party content
13.1 The Website, our Products or Services may contain links to other websites. We have not reviewed all such third party websites linked and are not responsible for, and will not be liable in respect of, their content or accuracy (including websites linked through advertisements). We provide those links as a convenient means of searching for third party goods and services on the internet and not as an endorsement, support or sponsorship of those websites, their operators, the goods, services or content that they describe.
13.2 If you choose to access third party linked sites, you do so at your own risk. We are not responsible for and will not be liable in respect of the content or operation of those websites or any of the goods, services or content that they describe. We are not responsible for and will not be liable in respect of any incorrect link to an external website.
13.3 We are not responsible for the products, services, advice, information, actions or failure to act of any third parties referenced on the Website, in our Products or Services (including User Content of other users). Where the information made available over the Website, our Products or Services contain opinions or judgements of third parties (including advertisers), we do not purport to endorse the contents of that opinion or advice, nor do we guarantee the accuracy or completeness of that content, and we will not accept liability for loss or damage arising from your reliance upon any information obtained through this service. It remains your responsibility to evaluate the accuracy, completeness and usefulness of any such information.
14 Termination
14.1 We may, in our sole and absolute discretion, refuse provision of a Product or Service, suspend access to or terminate the provision of a Product or Service, or access to the Website, at any time for any reason, such termination being subject to a pro-rata refund of fees, unless you are in breach of any of the Terms, in which case, to the extent permitted by law, no refund will be provided.
14.2 Unless otherwise notified to you in writing by us at the time of purchase, you may cancel a subscription-based Product or Service at any time. Such cancellation will take effect following the end of the then-current payment period (e.g. end of the current month, if it is a monthly subscription), unless your cancellation is made within 2 business days of the end of the payment period, in which case we cannot ensure that our systems will process the cancellation in time to prevent a further payment being taken. In the event of a cancellation by you, you will not receive a refund of any fees paid.
15 Survival
15.1 The following clauses survive termination or expiry of these Terms: clause 4 ‘Risk warning’, clause 5 ‘Waiver of rights and limitation of liability’, clause 6 ‘Indemnity’ and clause 9 ‘Intellectual property’, as do any provisions which, by their nature, are intended to survive termination or expiry.
16 Severance
16.1 If a provision of Terms is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other terms.
17 Governing law and jurisdiction
17.1 These Terms are governed by the law of New South Wales, Australia, and parties submit to the exclusive jurisdiction of the courts of that State.
18 Changes
18.1 We reserve the right to change these Terms at any time by updating the Terms posted on this Website or in any Third Party Software through which we provide Products or Services to you. You are responsible for regularly reviewing the Terms posted on this Website or in any Third Party Software through which we provide Products or Services to you to obtain timely notice of such changes. Your continued use of this Website, or our Products or Services (beyond the then current payment period for a subscription-based Product or Service), after changes are posted constitutes your acceptance of these Terms as modified by the posted changes.