Prescribed Investments Pty Ltd (trading as HealthLab Australia, ABN 92 169 233 916) and/or each of its subsidiaries (as applicable), including Healthlab Online Limited (Company Number 10616389) of East Witheridge Penn Road, Knotty Green, Beaconsfield, Buckinghamshire, United Kingdom, HP9 2TW (together and separately, the Company, us, our, we) provide health, nutrition and fitness programs, which may consist of online information, diet plans, recipes, exercises, forums and professional in-person training and consultation (Programs). Such Programs include the iFast-12 and The Blood Sugar Diet. Participation in a Program including use of any online services, is subject to these Terms of Service. These Terms apply to each of the Programs and the Websites operated by the Company (Websites) including www.cleverguts.com, http://www.ifast12.com, www.ifast12online.com; https://www.thebloodsugardiet.com.au, and any other URL operated by the Company.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Service.
(b) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in both Perth, Australia and London, England.
(c) Dexa Scan means a dual-energy X-ray absorptiometry scan of bone mineral density, total body composition and fat content.
(d) EHR(Electronic Health Record) means the record of a Participant’s Health Information in an Online Service.
(e) Fee means a fee charged by the Company for use of, or participation in a Program.
(f) Forum means an online discussion forum accessible within an Online Service.
(g) Health Information has the same meaning as in the Privacy Act 1988 (but generally refers to information about the physical or mental health, injury or a disability of a User at any time) and includes “health records” under the Data Protection Act 1998 (UK) (as applicable).
(h) iFast-12 means:
ii Any iFast-12 Program Materials; and/or
iii Any iFast-12 mobile application.
(i) 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.
(j) Online Service means any webpage, mobile application, online service or feature of a Program accessible via a Website, including (without limitation) the following Programs which are available on a paid basis:
i http://www.ifast12.com; and
(k) Participant means a registered participant in a Program that uses the features associated with a Participant account.
(l) Professional means a qualified personal trainer, physiotherapist, exercise physiologist or similar health professional that provides Professional Services independent of the Company.
(m) Professional Services means any services provided by a Professional to a Participant as part of a Program, including:
i Interpreting a Participant’s Dexa Scan (if available);
ii Providing tailored advice and training to a Participant;
iii Monitoring the Participant’s progress through the Program; and
iv Any other services the Professional may provide to the Participant in relation to their participation in the Program.
(o) Privacy Law means (i) as applicable in Australia, the Privacy Act 1988(Cth), and (ii) as applicable in the United Kingdom, the Data Protection Act 1998, and (iii) as applicable in the European Union, the General Data Protection Regulation (GDPR) from 25 May 2018.
(p) Program means any health, fitness or nutrition program including CleverGuts, iFast-12 and The Blood Sugar Diet (or any other similar program the Company may offer from time-to-time), and may consist of:
i Online Services;
ii Program Material.
(q) Program Material means any written, video or audio material for use by Participants as part of a Program which may include (without limitation):
ii Diet Plans and recipes;
iii Exercise plans (videos, text + podcasts)
iv Online forum;
v Educational content (in form of videos, handouts, podcasts);
ix Discussions and interviews; and
x Any other information the Company may make available.
(r) Program Period means the period of time over which a Program is conducted, as advertised by the Company.
(s) Session means Program Material of a guided exercise session delivered via an Online Service.
(t) Terms of Service means the terms and conditions of using a Website or a Program, as updated from time-to-time, which can be found at:
(u) The Blood Sugar Diet means:
ii Any The Blood Sugar Diet Program Materials; and/or
iii Any The Blood Sugar Diet mobile application.
(v) User means any registered Participant or Professional that uses an Online Service.
(w) User Content means images, information, documents or other data that is uploaded or input into an Online Service by the User or that forms part of the User’s Intellectual Property.
1 Programs and Online Services
Each User must read and hereby accepts our Medical Disclaimer, which explains that our Websites and Programs contain general information about medical conditions, nutrition, health and diets. The information is not medical advice and each User should consult a health professional before starting any diet and/or Program.
(a) The User agrees that all use of any Website and any participation in, or use of a Program, is subject to these Terms of Service.
(b) In order to take part in a Program, the Participant must first log into the relevant Online Service and have set up their account.
(c) Programs are only available to Users over the age of 18, in Australia and/or the United Kingdom.
(d) Participant are responsible for ensuring they meet the conditions set out in the checklist and medical disclaimer.
(e) The Participant shall be responsible for paying the Fees for each Program.
(f) The Company may suspend the account or restrict the access of any User that breaches the terms of this Agreement.
(a) Program Features.A Program may allow a Participant to:
i Access the Online Service;
ii Use any Program Materials;
iii Use any other Intellectual Property the Company makes available as part of a Program or Websites.
(b) Online Service Features.An Online Service may allow a User to:
i Access Program Material;
ii Access a Forum to discuss matters related to the Program with Professionals and other sports scientists.
1.4 Accessing an Online Service. In order to access an Online Service a Participant must either:
(a) Purchase a licence directly from the Company and create their Participant account; or
(b) Create a Participant account by providing an access code provided by a Professional when the Participant purchased their licence.
2 Program Participation
(a) Each Program has been designed in consultation with qualified professionals in order to assist Participants to improve their health, fitness and/or nutrition. However the Company cannot guarantee particular outcomes for individual Participants.
(b) All participation in a Program requires accessing the Online Services on a regular basis throughout the Program Period, in order to access (among other information and features) diet plan and exercise prescriptions.
(c) A Program may be designed to take place over a specific Program Period. The Company shall make the Online Services available to the Participant over for the duration of the Program Period. Whether the Online Services will remain accessible following the Program Period (and for how long) will depend on the scope of services and inclusions advertised by the Company in relation to that Program.
(d) Individual results may vary depending on:
i The Participant’s health, injuries or health conditions;
ii Environmental factors, including access to the internet or ingredients;
iii Other matters particular to the Participant or otherwise outside of the Company’s control.
(e) Each Program may provide the Participant with general medical advice. The Company does not provide personalised medical advice to any Participant as part of a Program. The Company recommends the Participant consult a qualified medical practitioner such as a general practitioner (GP) if they have any concerns about their health or the content of a Program as it relates to them personally.
2.2 Professional Services
(a) The Company has relationships with qualified professionals for the provision of in-person consultation and training, tailoring the Program for the Participant, in order to achieve best results. We are not responsible for services provided by a Professional to any Participant outside of the Program and our Websites.
(b) The parties agree that any Professional is an independent contractor to the Participant. Each Professional and Participant is responsible to each other with respect to Professional Services. The parties acknowledge and agree that:
i The Professional is not an employee or subcontractor of the Company, and the Professional does not provide any services to Participants on behalf of the Company;
ii The Professional is not an employee of the Participant or the Company; and
iii The Company is not an agent of the Participant.
(c) The Company accepts no responsibility for Professional Services.
(d) The Company makes no representation as to the credentials or quality of service provided by a Professional.
(e) The Participant must comply with any additional terms of business that a Professional may impose on Professional Services, in addition to complying with this Agreement. In the event of a conflict between this Agreement and a Professional’s terms of business, this Agreement shall prevail.
(f) Any dispute in relation to Professional Services is to be dealt with between the Professional and the Participant.
2.3 Dexa Scans
(a) A Dexa Scan allows a Professional to evaluate the body composition and fat content of a Participant, and tailor Professional Services to achieve best results for the Participant.
(b) Notwithstanding the appropriateness of undertaking a Dexa Scan for the Participant’s medical circumstances, taking into account any clinical assessment of potential risks, the Company generally recommends each Participant obtain a Dexa Scan and have that Dexa Scan evaluated by a Professional.
(c) Dexa Scans can be obtained from third-party providers. The Participant is responsible for obtaining a Dexa Scan and providing it to a Professional for evaluation as part of the Professional Services at their own cost.
3 Program Material
(a) A Participant may perform exercises to improve their health and/or general wellbeing by selecting a Session within an Online Service.
(b) The Participant is responsible for ensuring that they correctly follow the instructions for each exercise in a Session. The Company shall not be responsible for any injury or death of an individual, or damage to property caused by a Participant failing to correctly follow instructions.
(c) Sessions are not intended to replace personalised consultations with suitably qualified professionals in the fields of health science (including Professionals).
(d) If a Participant experiences any pain or discomfort while participating in any physical exercise, while following any instructions in a Session, the Participant is advised to immediately cease the exercise and consult a doctor or physiotherapist (as may be appropriate).
3.2 Diet Plans
(a) The Company may make diet plans and recipes available to Participants via an Online Service.
(b) The Participant is responsible for correctly following each diet plan and recipe.
(c) Recipes may include ingredients that the Participant is allergic to, or otherwise does not eat. The Participant is advised not to include those ingredients in such circumstances. In order to find a suitable alternative to the ingredient or recipe, the Participant may:
i Consult the authorised Professional with whom they are undertaking the Program;
ii Ask one of the Company’s health professionals for a recommended alternative within a Forum.
(d) The Company cannot guarantee any particular outcomes of following a Diet Plan for a Participant, as individual results may vary depending on the Participant’s circumstances and other matters outside the Company’s control.
(a) The Company may provide a Forum accessible via an Online Service where Users can discuss matters related to the Program, and ask general questions from health professionals engaged by the Company and Professionals.
(b) All Users are expected to use the Forum in a way that is consistent with the values of tolerance and mutual respect.
(c) The Company reserves the right to monitor and suspend the account of any User that the Company determines, in its sole discretion, posts or otherwise communicates with other users in a way that:
i Promotes hate or intolerance towards an individual or class of people;
ii Promotes violence;
iii Promotes hateful or negative User Content; or
iv Promotes any other negative or antisocial behaviour.
(d) Only general medical advice is permitted to be discussed in the Forum. No User (including Professionals the Company’s health professionals) may provide, or purport to provide, personal medical advice to any other individual within the Forum.
3.4 Conduct. The User acknowledges and accepts that:
(a) The Company accepts no responsibility for the conduct of any User of an Online Service.
(b) The Company accepts no responsibility for any interaction between Users, whether that interaction occurs via an Online Service or not (including a personal meeting).
(c) The Company makes no warranty or representation as to the accuracy of any information provided by any User.
(d) The Company makes no warranty as to the character or credentials of any User.
3.5 Lodging a Complaint.
(a) If a User believes that another user’s behaviour is threatening, discriminatory, or deliberately offensive, the User may lodge a complaint to the Company via email at firstname.lastname@example.org.
(b) The Company may suspend or delete the account of any User that the Company determines conducts itself inappropriately.
(c) The Company will advise the User of a suspended or deleted account of the decision to do so, but is under no obligation to identify a complainant.
(d) The Company’ decision whether or not to suspend or remove a User account is at its absolute discretion. The Company’ decision shall be final and not subject to review.
4 Participant Terms
4.1 The Participant agrees and accepts that:
(a) The Participant uses, or takes part in a Program at its own risk. To the extent permitted by law, the Company shall not be liable for any injury, illness or death of any person, or damage to property resulting from the use of the Program. It is the Participant’s responsibility to follow the instructions in a Session, or provided by a Professional and correctly perform each exercise;
(b) The Participant indemnifies the Company against all costs, claims damages and expenses for any injury or damage caused to the person or property of a third party as a result of the Participant’s use of a Program;
(c) The Company may share the EHR and other personal information of the Participant with any Professional authorised by the Participant;
(d) Any information shared by the Company with a Professional authorised by the Participant may be retained by that Professional for the purpose of updating their administrative records;
(e) Any consent made by a Participant through an Online Service is valid and binding unless and until revoked by the Participant, and other Users may rely on a consent made through an Online Service without any need to further verify the veracity of that consent;
(f) All information about a Participant is used and controlled by the Participant, not the Company;
(g) All information input to an Online Service about a Participant is provided with that Participant’s consent;
5 Fees, payments & refunds
(a) Each Fee applies in accordance with such features and/or services subscribed for by the Participant in accordance with the pricing described on the Online Service, or as otherwise agreed with the Company.
(b) The Participant agrees to make payment in advance for all Fees due at such frequency, or on such dates as the Participant has subscribed for.
(c) All payments for a Program consisting of Online Services only shall be made via the online payment gateway within the Online Service, or in such other manner as the Company may direct on the Website. Surcharges may apply for certain payment methods.
(d) The Participant agrees that it has no right to access a Program if it fails to make payments when due.
(e) The Company reserves the right to introduce or change any Fees by updating the pricing on the Website of the Program from time-to-time. Any new or changed Fees will apply to all new enrolments for a Program.
Fees are quoted in either Australian dollars or British Pounds, however transactions may be processed in an equivalent foreign currency (such as Euros or US Dollars).
5.3 GST & VAT.
(a) Unless expressly stated otherwise, all amounts payable under these Terms are specified exclusive of sales and other value added taxes or duties (including GST and/or VAT, as applicable), which shall only be added subject to applicable mandatory laws.
(b) If any payment pursuant to this Agreement constitutes the whole or any part of the consideration for a taxable or deemed taxable supply to recipient, the supplier shall increase that payment by an amount equal to the tax which is chargeable in respect of the taxable or deemed taxable supply, provided that the recipient shall have delivered a valid tax invoice. You are solely responsible for your compliance with applicable tax laws.
5.4 Online Services & Refunds Policy.
(c) Each User is provided with access to the Online Services and/or Program via the Website by the specified due date (and prior to commencing any Program) and the Company is not required to provide any physical delivery or further services of any nature whatsoever.
(d) No refunds of Fees are offered other than as required by law to consumers.
(e) In the event that a Participant is entitled to a refund for a Program that included Professional Services, the Participant must seek the refund from the Professional that it paid for the Program.
(f) In the event that the Participant is entitled to a refund for a Program consisting only of Online Services, the Participant may seek the refund from the Company directly.
(g) The Company reserves the right to decide whether or not to make a refund, arrange re-performance or provide a service credit. Any refund may be made up to 30 days after notice is given.
(h) This refund policy does not affect your rights at law, including under the Consumer Protection Act 1987, which cannot be excluded or limited.
(i) The User shall be responsible for determining all relevance and suitability of any Online Services, specifications and requirements of each Program.
(j) You agree to communicate within 24 hours of any payment of Fees, any and all complaints or grievance relating to any Program to us and comply with any policies on the Website.
5.5 Late Payment.
(a) If the Participant does not pay the full Fees as required, the Company may suspend all User access to Online Services for that Account.
(b) If Fees are not brought out of arrears within 7 days of becoming overdue, the Company may terminate the Participant’s account in an Online Service without notice, and end this Agreement.
(c) The User agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of an Online Service or User Content in the event of (a);
ii Loss of User Content in the event of (b).
6 General conditions
(a) By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use a Program for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
(b) The Company may issue the licence to the User on the further terms or limitations as it sees fit.
(c) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.
6.2 Modification of Terms
(a) The terms of this Agreement may be updated by the Company from time-to-time.
(b) Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using a Program.
(a) The User agrees and accepts that the Websites and all Online Services are:
i Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
ii Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to an Online Service is available to the User unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter an Online Service.
(a) The Company provides user support for a Program via the email address email@example.com.
(b) The Company shall endeavour to respond to all support requests within 2 Business Days.
6.5 Use & Availability
(a) The User agrees that it shall only use a Program 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.
(b) The User is solely responsible for the security of its username and password for access to an Online Service. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Online Service account.
(c) The User agrees that the Company shall provide access to a Program to the best of its abilities, however:
i Access to features or components of a Program may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to all or part of a Program.
(a) Security. The Company takes the security of Online Services 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.
(b) 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.
(d) Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.
6.8 Intellectual Property
(a) Trademarks. The Company has moral & 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.
(b) 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 a Program.
(c) Programs. The User agrees and accepts that each Program is the Intellectual Property of the Company and the User further warrants that by using a Program the User will not:
i Copy a Program, Program Materials or the services that it provides for the User’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in an Online Service or any documentation associated with it.
(d) Content. All content submitted to the Company, whether via an Online Service or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to a Program.
(a) The User acknowledges that a Program is dependent on third-party services, including but not limited to:
i Banks, credit card providers and merchant gateway providers;
ii Professional Services (if applicable);
iii Telecommunications services;
iv Hosting services;
v Email services; and
vi Analytics services.
(b) The User agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of a Program due to third-party services; or
ii Information contained on any linked third party website.
6.10 Liability & Indemnity
(a) The User agrees that it uses any component or feature of a Program at its own risk.
(b) 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.
(c) 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 a Program, including any breach by the User of these Terms of Service.
(d) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, illness or death, 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 User’s access to, or use of, or inability to use HealthLab Australia’s services, 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, personal injury, illness or death, or business interruption of any type, whether in tort, contract or otherwise.
(e) Certain rights and remedies may be available under applicable consumer law, including the Competition and Consumer Act 2010(Cth) (Australia) and the Consumer Protection Act 1987 (UK), and similar legislation of other countries, States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded or limited, the Company excludes 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:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
(a) Either party may terminate this Agreement by giving the other party 1 month’s written notice.
(b) Termination of this agreement 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.
(c) Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 6.9, 6.12and 6.13survive termination of this Agreement.
6.12 Dispute Resolution
(a) If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) 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.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.13 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth)have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(g) The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
(b) Prevalence.To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.
(c) 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 this Agreement.
(d) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
(e) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
(g) Governing Law. This Agreement is governed by the laws of Western Australia, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.