1.1 Welcome to Flex (the ‘Application‘). The Application facilitates interactions between:

• personal trainers (the ‘Trainer‘); and
• clients and prospective clients of personal trainers (the ‘Trainee‘);
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(collectively ‘you’, ‘your’)

making it easier for Trainers and Trainees to locate, communicate, arrange payment and deliver the Trainers’ personal training services in a fast and secure manner. This functionality of the Application is referred to in this document as the ‘Services‘. To be clear, the Services do not include the services of the Trainers listed on the Application.

1.2 The Application is operated by Flex Pty Ltd (ACN 653 362 317) (‘we’, ‘us’, ‘our’). Please read these terms and conditions (the ‘Terms‘) carefully. By using, browsing and/or reading the Application, 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 Application, or any of its Services, immediately.

1.3 We reserve the right to review and change any of the Terms by updating this page at our sole discretion. When we update the Terms, we will use reasonable endeavours to provide you with notice of updates of the Terms, such as by (but not limited to) sending you an email or triggering a notification on your mobile phone. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

You accept the Terms by using or browsing the Application. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by the Application in the user interface.

3.1 In order to access the Services, both the Trainee and the Trainer are required to register for an account through the Application (the ‘Account‘).

3.2 As part of the registration process, or as part of your continued use of the Services, you will be required to provide personal information about yourself (such as identification or contact details), including your:

• full name;
• email address;
• telephone number;
• bank account (Trainers only);
• credit card (Trainees only);
• biographical details (Trainers only);
• qualifications (Trainers only);
• Apple, Facebook, or other third-party online profile details (if using single sign-on feature via Apple or Facebook or another third-party online platform); and
• any other information that the Application may request.

3.3 You warrant that any information you give to us while completing the registration process will always be accurate, correct and up to date.

3.4 Once you have completed the registration process, you will be a registered member of the Application (‘Member‘) and agree to be bound by the Terms.

3.5 You may become a Member as a Trainer or as a Trainee. You make this choice at the time of registering an Account. In this document, a Member who is registered as a Trainer will be referred to as a Trainer Member, whereas a Member who is registered as Trainee will be referred to as a Trainee Member.

3.6 You may not use the Services and may not accept the Terms if:

• you are not of legal age to form a binding contract with; or
• you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
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4.1 As a Member, you agree to comply with the following:

• you will not share your profile with any other person;
• you will use the Services only for purposes that are permitted by:
  • the Terms; and
  • any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
• you have sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
• any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify us of any unauthorised use of your password or email address or any breach of security of which you have become aware;
• you must not expressly or impliedly impersonate another Member or use the profile or password of another Member at any time;
• any content that you broadcast, publish, upload, transmit, post or distribute on the Application (‘Your Content‘) will always be accurate, correct and up to date and you will maintain reasonable records of Your Content.
• you agree not to harass, impersonate, stalk, threaten another Member of the Application (where interaction with other Members is made available to you);
• access and use of the Application is limited, non-transferable and allows for the sole use of the Application by you for the purposes of providing the Services;
• you will not use the Services or the Application in connection with any commercial endeavours unless you are a Trainer Member, in which case the commercial endeavours you are permitted to engage in are limited to personal training services;
• you will not use the Services or Application for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Application;
• you agree that commercial advertisements, affiliate links and other forms of solicitation may be removed from Member profiles without notice and may result in termination of the Services. Legal action may be taken by us for any illegal or unauthorised use of the Application, and we may report illegal use of the Application to law enforcement authorities; and
• you acknowledge and agree that any automated use of the Application or its Services is prohibited.
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5.1 At all times all Trainer Members must:

• obtain and maintain insurance policies including:
  • public liability insurance of at least $20 million per claim event;
  • professional indemnity insurance; and
  • any other insurance which a prudent personal trainer would be expected to obtain;
• comply with any licensing or registration requirements to work as a personal trainer, including but not limited to a current Working With Children Check;
• provide to us, on request, copies of your formal qualifications as a personal trainer, insurance certificates of currency, Working With Children Check number, and evidence of other information you supply during the membership registration process and under this clause; and
• inform us if you are convicted of an indictable criminal offence, or are subject of a creditor’s or debtor’s petition, or are declared bankrupt under the Bankruptcy Act 1966 (Cth).

5.2 You acknowledge that your approval as a Trainer Member is at our sole discretion, exercised reasonably. Without limiting our discretionary right, we would be taken to have reasonably refused approval if:

• you were previously a Member who had breached any provision of the Terms (as they existed at the time of the breach); or
• you fail to comply with clause 5.1(c).

5.3 You must not make any comment or engage in any conduct related to us, the Application, or the Service, that may bring us, the Application, or the Service into disrepute.

5.4 You agree that we may terminate these Terms and your status as a Member by written notice to you with immediate effect, if:

• you are in breach of any of provision in these Terms;
• you are convicted of an indictable offence;
• we receive notice from any other Member that you have bullied, harassed, or acted threateningly or violently against another Member;
• you bully, harass, or act threateningly or violently against any of our directors, employees, or agents; or
• you are the subject of a creditor’s or debtor’s petition or are declared bankrupt under the Bankruptcy Act 1966 (Cth).

5.5 In the event that these Terms and your status as a Member are terminated pursuant to clause 5.4 or 13, you agree that we are not liable for any damage or loss that you may incur as a result of the termination.

5.6 You agree that in consideration of the Services, you will not canvass, solicit, or accept custom from any Trainee Member outside of the Application whilst you are a Trainer Member. Breach of this sub-clause may result in termination of these Terms and removal of your access to the Application.

6.1 You acknowledge the risks and dangers associated with the strenuous exercise that forms part of the services provided by the Trainers who are on the Application. These risks and dangers include but are not limited to bodily injury, and in extreme cases, death. You assume all such risks and responsibility for damages, liabilities, losses, or expenses which you may incur as a result of your participation.

6.2 Each time you use this Application to engage a Trainer, you must ensure that you are in good physical condition and know of no medical or other reason why you should not participate in the exercise activity. If you have any doubts or reason to doubt your suitability to participate in exercise, you should not proceed to engage any Trainer in exercise sessions until you have been advised by appropriately qualified medical practitioner that you fit to participate in the relevant exercise activity.

6.3 You acknowledge that any pre-exercise screening provided by a Trainer or within this Application is no substitute for qualified medical advice.

6.4 You represent that information you give us will be true and accurate and not misleading in any way. You must not use the Website if you are suffering from any illness, disease, injury, or other condition that could be a risk to your health or safety, or that of other Members. We may suspend or cancel your Account if we have reason to suspect that you have not complied with this clause or these Terms generally.

6.5We make no guarantee, warranty, representation or promise of any health outcomes associated with your use of the Application. The opinion and advice of any Member, including Trainer Members, are entirely their own and should not be construed as our opinion or advice. We do not endorse any opinion or advice of any Member, including Trainer Members.

6.6 The Services are provided in consideration for fees payable to us (‘In-App Fees’). You acknowledge and agree that our In-App Fees are added to the fees nominated by the Trainer with respect to a booked session and charged to the Trainee.

7.1 Since we are only a facilitator in introducing the Trainee to the Trainer and providing a system for making payments safely, you acknowledge that we are not liable to the Trainee for any failure by the Trainer to provide their services to an acceptable quality or in a manner that is fit for purpose, and the Trainee is not entitled to receive any refund from us for a Trainer’s services.

7.2 Notwithstanding the above clause:

• if a Trainee is unsatisfied with the services provided by the Trainer or believes that they may be entitled to a refund, then the Trainee must contact us through the ‘Contact Us‘ section of the Application outlining why you believe you are entitled to a refund;
• upon receiving a notification pursuant to 7.2(a) above, we reserve the right to withhold any payment due to the Trainer in relation to the service complained of;
• we shall notify the Trainer of any notification pursuant to 7.2(a) above, and the Trainer must provide us with a written response within 7 days as to whether they agree or disagree with the complaint and the basis for their response. If the Trainer fails to respond within 7 days, it may be taken to mean that the Trainer agrees with the complaint; and
• we reserve the right to determine at our sole discretion whether to refrain charging the Trainee, or if the Trainee has already been charged, withhold payment to the Trainer and provide a refund to the Trainee.

7.3 The Trainee acknowledges and agrees that we are entitled to deduct our costs of processing the refund request, from the gross amount of the refund.

7.4 Cancellation or no-show by Trainee:

• A Trainee may cancel a booked session by giving minimum of 12 hours’ advance notice of the cancellation via the Application, in which case the Trainee shall not be charged for the session fee.
• If a Trainee does not comply with the notice requirement set out at (a) above or does not attend the booked session, then the Trainee forfeits the fees for the session and irrevocably authorises us to process payment of the full fee to the Trainer.

7.5 Cancellation or no-show by Trainer:

If a Trainer cancels a booked session for any reason, the Trainee will not be charged for the cancelled session, or if the Trainee has already been charged, will be refunded with a full refund for the fees that were paid for the cancelled session.

8.1  The Application, the Services and all of the related products of ours are subject to copyright. The material on the Application is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Application (including but not limited to text, graphics, logos, button icons, video images, audio clips, Application, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by us or our contributors.

8.2  All trademarks, service marks and trade names are owned, registered and/or licensed by us, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:

• use the Application pursuant to the Terms;
• copy and store the Application and the material contained in the Application in your device’s cache memory; and
• print pages from the Application for your own personal and non-commercial use, if you are a Trainee Member, or your business record-keeping purposes if you are a Trainer Member.

8.3 We do not grant you any other rights whatsoever in relation to the Application or the Services. All other rights are expressly reserved by us.

8.4 We retain all rights, title and interest in and to the Application and all related Services. Nothing you do on or in relation to the Application will transfer any:

• business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
• a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
• a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),

to you. 

8.5 You may not, without our prior written permission 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 Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to any material on the Application that are already in the public domain for reasons other than the breach of these Terms.

8.6 Where you broadcast, publish, upload, transmit, post or distribute Your Content on the Application, then you grant to us a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content.

We take your privacy seriously and any information provided through your use of the Application and/or Services are subject to our Privacy Policy, which is available on the Application and at our website (currently: https://www.flexapp.com.au/).

10.1 Nothing in the 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.

10.2 Subject to this clause, and to the extent permitted by law:

• all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
• we 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 Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

10.3 Use of the Application and the Services is at your own risk. Everything on the Application and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of our affiliates, directors, officers, employees, agents, contributors, and licensors make any express or implied representation or warranty about the Services or any products or services (including the products or services of the Trainers, and third-party service providers whose services are used by the Application) referred to on the Application. This includes (but is not restricted to) loss or damage you might suffer because 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 Application, the Services, or any of its Services related products (including third party material and advertisements on the Application);
• costs incurred as a result of you using the Application or the Services; and
• the Services or operation in respect to links which are provided for your convenience.

10.4 You acknowledge that the Application is only intended to facilitate the interactions between the Trainee and the Trainer and does not offer any services other than the Services, and we have no liability to you as a result of any conduct of the Members or the misuse of Your Content by any party (including other Members).

If you are in the business of providing similar Services for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are our competitor. Our competitors are not permitted to use or access any information or content on our Application. If you breach this provision, we will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.

12.1 Our total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.

12.2 You expressly understand and agree that we, our affiliates, employees, agents, contributors, 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 ground 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.

12.3 You acknowledge and agree that we hold no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing Your Content to the Application.

13.1 Either party may terminate these Terms for any reason whatsoever (or for no reason), by removing the Member’s account using the “remove account” function within the Application, or if we are the party terminating these Terms, by providing you with 7 days’ of notice in writing via email.

13.2 We may at any time, terminate the Terms with you by written notice with immediate effect, if:

• you have breached any provision of the Terms or intend to breach any provision;
• we required to do so by law;
• we transitioning to no longer providing the Services to Members in the country, or state or territory of Australia, in which you are resident or from which you use the Service; or
• our provision of the Services to you is, in our sole opinion, no longer commercially viable.

13.3 Subject to local applicable laws, we reserve the right to discontinue or cancel your membership at any time and may suspend or deny, at our sole discretion, your access to all or any portion of the Application or the Services without notice if:

• you breach any provision of the Terms or any applicable law;
• if your conduct impacts our name or reputation or violates the rights of those of another party; or
• we are required to do so by law.

13.4 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and us have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force), or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

You agree to indemnify us, our 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 Your Content;
• any direct or indirect consequences of you accessing, using or transacting on the Application or attempts to do so; and
• any breach of the Terms.

15.1 Compulsory:

If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

15.2 Notice:

A party to the Terms claiming a dispute (‘Dispute‘) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

15.3 Resolution:

On receipt of that notice (‘Notice‘) by that other party, the parties to the Terms (‘Parties‘) must:

• Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
• If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the South Australia Small Business Commissioner or his or her nominee;
• The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
• The mediation will be held in Adelaide, South Australia.

15.4 Confidential:

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

15.5 Termination of mediation:

If 14 have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

The Services offered by the Application are intended to be used by residents of Australia. In the event of any dispute arising out of or in relation to the Application, you agree that the exclusive venue for resolving any dispute shall be in the courts of South Australia.

The Terms are governed by the laws of South 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 South 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.

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.

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.