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Liability waiver
Hi!
Welcome to Ninja Jungle and the Synergy Performance Institute! we are really looking forward to having you visit us and have lots of fun.
As want everyone to have a great time with us, we need to make sure everyone that comes to play with us understands the importance of all the safety elements. By attending our Ninja Jungle centre and Synergy Performance gym you are bound to the following:
(Release and Waiver)
1. Definitions and Interpretation
Definitions
1.1. The following definitions apply to this Release and Waiver:
(a) Agreement: means the agreement for the provision of goods and services as modified by this document.
(b) Australian Consumer Law: has the meaning given to it under the Competition and Consumer Act 2010 (Cth).
(c) Claim: includes any claim, action, demand, application, proceeding, judgment, injunction, court order, enforcement hearing and enforcement order.
(d) Goods: means goods supplied under our Agreement with you.
(e) Inherent Risk: means a risk that cannot be avoided by the exercise of reasonable care and skill.
(f) Loss: includes any personal injury, death, aggravation or acceleration of injury or disease, psychological harm, economic loss, consequential loss, liability, tax, prohibition, penalty, fine, expense or cost.
(g) Obvious Risk: means a risk to a person that suffers harm which, in the circumstances, would have been obvious to a reasonable person in the position of that person, and may include:
(i) matters of common knowledge;
(ii) things that may have a low probability of occurring; or
(iii) things that are not prominent, conspicuous, or physically observable.
(h) Services: means any past, present, or future services (including recreational activities) that are supplied under our Agreement with you which carry Inherent Risks and Obvious Risks.
(i) We/us/our: means Ninja Jungle Australia Pty Ltd (ACN 649497790) and Forest Glen Adventures (ACN 649498117) and McIntosh Family Trust No 1 (ABN 27565358799) and as the context requires, includes our employees, officers, agents, contractors, subcontractors, and invitees.
(a) You/your: means:
(i) the person who has engaged us to provide the Goods and Services under this Agreement;
(ii) any other person for whom you are legally responsible who is to receive the benefit of Goods and Services supplied; or
(iii) any other person who is not a party to this Agreement but whom is to receive the benefit of Goods and Services supplied.
Interpretation
1.2. In this Agreement unless the context otherwise requires:
(a) any other defined terms have the corresponding meaning given to it in other parts of this Agreement;
(b) words importing a gender include any other gender;
(c) words in the singular include the plural and vice versa;
(d) all dollar amounts refer to Australian currency;
(e) a reference to any legislation includes any subordinate legislation made under it and any legislation amending, consolidating, or replacing it;
(f) a reference to an individual or person includes a corporation or other legal entity;
(g) clause headings have been included for convenience only and are not intended to affect the meaning or interpretation of this Agreement;
(h) if any expression is defined, other grammatical forms of that expression will have corresponding meanings;
(i) if a party includes two or more persons, this Agreement will bind them jointly and each of them severally;
(j) if there is inconsistency between the different parts of this Agreement, this release and wavier will prevail to the extent of any inconsistency; and
(k) if any part of this release and waiver is found to be invalid, unlawful, or unenforceable for any reason:
(i) the offending term, clause or subclause will be severed; and
(ii) the remaining terms, clauses and subclauses will continue to be valid and enforceable.
2. Warning of Risk 2.1. To the extent that it is necessary, clause 2 is a warning under the Civil Liability Act 2003 (Qld) and equivalent legislation in other jurisdictions.
2.2. You acknowledge that there are Obvious Risks and Inherent Risks connected with:
(a) any form of physical exercise or physical exertion;
(b) the normal, correct, safe, incorrect, accidental, or reckless use of our exercise facilities and equipment;
(c) the normal, correct, safe, incorrect, accidental, or reckless use or completion of any obstacle, object or apparatus that is on our Ninja Jungle course and any equipment or instructions provided on exercise at the Synergy Performance Institute;
(d) any other form of parkour, boxing, martial arts, climbing, swinging, trampolining, dodgeball, swimming, water activity, class made available by us as part of the Goods and Services provided to you under the Agreement; or
(e) any other recreational or adventure activities.
2.3. These activities may result in:
(a) physical harm or personal injury including broken bones, soft tissue injuries, joint injuries, organ damage, permanent injury, permanent disability, or death; and
(b) psychological harm or injury.
2.4. Injury may occur through:
(a) you or others causing or being involved in an accident involving yourself and/or other invitees;
(b) you or others observing someone else causing or being involved in an accident;
(c) damage to equipment or facilities made available in connection with the Goods and Services;
(d) any failure to maintain equipment or facilities made available in connection with the Goods and Services;
(e) the incorrect use of equipment or facilities;
(f) a failure by you or others follow our reasonable instructions or directions;
(g) your negligent acts and omissions;
(h) our negligent act and omissions;
(i) the negligent actions, omissions of other invitees or third parties;
(j) any loss or damage arising through a failure avoid other people or hazards;
(k) any failure to use appropriate protective equipment;
(l) any failure to observe or obey all signs, warnings, and other rules (including those rules that relate to height and weight that may otherwise affect the safe use of any facilities or equipment); or
(m) the use of alcohol, tobacco, recreational drugs, or any other prescribed or legal drug that adversely affect cognitive or motor function – all of which are strictly prohibited while using our facilities and equipment. 2.5. The list of potential injuries in clause 2.4 is not exhaustive and there are other unknown or anticipated risks that may result in injury, illness, or death.
2.6. While every attempt is made to ensure that the Goods and Services provided under this Agreement are safe, there are Obvious Risks and Inherent Risks involved.
2.7. You acknowledge and agree that:
(a) you are participating voluntarily at their own risk;
(b) an adequate warning has been provided with respect to those risks;
(c) those risks are being voluntarily assumed by you;
(d) you are physically fit and have no condition or injury that could be affected by the Goods and Services supplied under the Agreement;
(e) we may administer or coordinate the administration of medical treatment which may be considered necessary by us in the event of injury or illness that arises during the receipt of Goods and Services under the Agreement; and (f) you will indemnify us for the cost of any medical treatment to which paragraph 2.7(e) applies.
3. Limitation of Liability
Limitation of Liability
3.1. To the extent allowed by law, we exclude and you hereby release and waive, any right to make any actual or contingent Claim against us, for all or any Loss that arises from:
(a) any Obvious Risks that are directly or indirectly connected with the Goods and Services;
(b) any Inherent Risks that are directly or indirectly connected with the Goods and Services;
(c) any negligence by us or our employees, officers, agents, contractors, and subcontractors in connection with the Goods and Services;
(d) the negligence of any other invitees or third party;
(e) any breach of any express or implied term of this Agreement;
(f) any failure to follow our instructions or directions in connection with the Goods and Services;
(g) any damage, fault or defect connected with any equipment or facilities made available under this Agreement;
(h) any failure to maintain equipment or facilities made available under this Agreement;
(i) any failure to notify you of any damage, fault or defect connected with any equipment or facilities made available under this Agreement;
(j) any loss or damage to any personal property belonging to you;
(k) any loss or damage that arises through a failure to avoid other people or hazards;
(l) any failure to use appropriate protective equipment;
(m) any failure to observe or obey all signs, warnings and other rules;
(n) the use of alcohol, tobacco, recreational drugs, or any other prescribed or legal drug that adversely affect cognitive or motor function by you while using the Goods and Services;
(o) any wilful damage;
(p) any unlawful act or omission by you; or
(q) any unlawful act or omission by us.
Consumer Liability
3.2. If this Agreement is a supply of Goods and Services under Australian Consumer Law, then under section 139A of the Competition and Consumer Act 2010 (Cth), sections 64 of the Australian Consumer Law is excluded with respect to the supply of recreational services, but the exclusion is limited to liability for:
(a) death;
(b) physical or mental injury of an individual (including aggravation, acceleration, or recurrence of such an injury of the individual);
(c) the contraction, aggravation, or acceleration of a disease of an individual (including Covid-19);
(d) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstances, occurrence, activity, form of behaviour, conduct, or situation in relation to an individual that:
(i) may be harmful or disadvantage to the individual or community; or
(ii) may result in harm or disadvantage to the individual or community.
3.3. To the extent that is Agreement involves a supply of any other Goods and Services that are not recreational services:
(a) nothing contained in this Agreement excludes or modifies any condition, warranty, or other obligation in relation to this Agreement where it is unlawful to do so; and
(b) if allowed by law, our sole liability for breach of any such condition, warranty or obligation is limited to:
i. the replacement of the goods or the supply of equivalent goods, or payment of the cost of replacing or acquiring equivalent goods;
ii. the repair of the goods or payment of the cost of having the goods repaired;
iii. the supply of the Services again; or
iv. the payment of the cost of having the Services supplied again.
3.4. If this Agreement is not a supply of Goods or Services to a consumer under Australian Consumer Law then if allowed by law, our liability in connection with:
(a) the supply; or
(b) any failure to supply,
the Goods and Services is limited to the amount (or the aggregate of the amounts) payable by you under the Agreement. 3.5. You also acknowledge that this clause 3 is reasonable and designed to protect our legitimate interest
Terms and Conditions
1 Background
1.1 We own and operate a business which is a Ninja Gym and Exercise Gym.
1.2 This document sets out the terms under which we will provide our Goods and Services to you. You accept these terms and conditions and agree to comply with them.
2 Definitions and Interpretation
Definitions
2.1 The following definitions apply:
(a) Agreement: means this document, any schedules and attachments to it, and any documents incorporated into it by reference.
(b) Australian Consumer Law: has the meaning given to it under the Competition and Consumer Act 2010 (Cth).
(c) Business Day: means any day that is not a Saturday, Sunday or public holiday in Forest Glen, Queensland.
(d) Business Hours: excluding public holidays means 5:00am and 11:00pm every day of the week.
(e) Claim: includes any action, demand, application, proceeding, judgment, enforcement hearing and enforcement order.
(a) Confidential Information: means any information which by its nature is confidential, is received on the express or implied understanding that it is confidential or is marked as being confidential. Confidential Information may include:
(i) information about processes and policies, commercial operations, financial arrangements, or affairs; or
(ii) records,
but does not include:
(iii) information that is publicly known for reasons other than as a result of a breach of this Agreement;
(iv) any other information that is received through a third party and which is not governed by an obligation of confidence;
(v) information belonging to a member that is inadvertently left on any allocated desk or computer screens and which has not been securely stored; or
(vi) telephone calls that are overheard by other members within the co-working space.
(f) Facility Rules: means our ninja gym rules and general gym rules that apply to all people who enter and use the Premises, facilities, and equipment.
(b) Force Majeure Event: means an act, omission, cause, or circumstances outside a party’s reasonable control including fire, storm, earthquake, explosion, accident, epidemic, pandemic, enemy acts, war, sabotage, labour dispute, mechanical breakdown and act or omission of a third party.
(c) GST: means Goods and Services tax imposed through GST Law.
(d) GST Law: means A New Tax System (Goods and Services Tax) Act 1999 (Cth), any regulations passed under that Act or any rulings or determinations made by the Australian Tax Office about its interpretation.
(e) Goods: means any goods that are sold or supplied under our Agreement with you.
(g) Inherent Risks: means a risk that cannot be avoided by the exercise of reasonable care or skill.
(h) Law: means any applicable:
i. common law or the law of equity; or
ii. Federal, State or Local Government statute, regulation, ordinance that is in force.
(i) Lease: means the lease between (a) Ninja Jungle Australia Pty Ltd and McIntosh Family Trust No 1 and (b) Forest Glen Adventures and McIntosh Family Trust No 1.
(j) Loss: includes any loss, liability, tax, prohibition, penalty, fine or expense.
(k)
(i) Ninja Gym: means the Ninja Jungle which is located on our Premises and includes a wide array of facilities, equipment and obstacles – the completion of which comes with Inherent Risks and Obvious Risks.
(ii) Gym: means the Synergy Performance Institute (except as per above when gym is used in conjunction with the word “ninja” to signify the Ninja Jungle) which is located on our Premises and includes a wide array of facilities, equipment and obstacles – the completion of which comes with Inherent Risks and Obvious Risks.
(l) Obvious Risk: means a risk to a person that suffers harm which, in the circumstances, would have been obvious to a reasonable person in the position of that person, and may include:
i. matters of common knowledge;
ii. things that may have a low probability of occurring; or
iii. things that are not prominent, conspicuous, or physically observable.
(m) Personal Information: has the meaning given to it in our Privacy Policy.
(n) Premises: means the businesses which are located within 35 Owen Creek Road, plus access to any common areas within the building and land in which the Premises are located.
(o) Privacy Policy: means the Privacy Policy (as amended from time to time) which can be found at the premises.
(p) Services: means entry and use of the premises and all facilities and equipment that are within the premises.
(q) We/us/our: means Ninja Jungle Australia Pty Ltd (ACN 649497790) and Forest Glen Adventures (ACN 649498117) and McIntosh Family Trust No 1 (ABN 27565358799)and as the context requires, includes our employees, officers, agents, contractors, subcontractors, and invitees.
(r) You/your: means:
(i) the person who has engaged us to provide the Goods and Services under this Agreement;
(ii) any other person for whom you are legally responsible who is to receive the benefit of Goods and Services supplied; or
(iii) any other person who is not a party to this Agreement but whom is to receive the benefit of Goods and Services supplied.
Interpretation
2.2 In this Agreement unless the context otherwise requires:
(a) words importing a gender include any other gender;
(b) words in the singular include the plural and vice versa;
(c) all dollar amounts refer to Australian currency;
(d) a reference to any legislation includes any subordinate legislation made under it and any legislation amending, consolidating, or replacing it;
(e) a reference to an individual or person includes a corporation or other legal entity;
(f) a reference to “consent” means prior written consent;
(g) as the context requires, the terms “member benefits” and “Goods and Services” may be used interchangeably;
(h) clause headings have been included for convenience only and are not intended to affect the meaning or interpretation of this Agreement;
(i) if any expression is defined, other grammatical forms of that expression will have corresponding meanings;
(j) if a party includes two or more persons, this Agreement will bind them jointly and each of them severally;
(k) any reference to ‘notice’ under this Agreement means written notice; and
(l) if there is any inconsistency between this Agreement and the Code of Practice, the Code of Practice prevails to the extent of any inconsistency.
3 Term
3.1 The term of this agreement begins on the date you activate your ticket to enter the premises and ends on the when you rescind the agreement
4 Goods and Services
4.1 Goods and Services include:
(a) entry into the premises;
(b) ese of common areas and wet areas within the Premises.
5 Additional Goods and Services 5.1 In addition to the Goods and Services provided under clause 4, we may also provide additional Goods and Services.
5.2 For any additional Goods and Services that we supply, you agree that:
(a) these will be subject to separate fees and charges; and
(b) the provision of those additional Goods and Services will be governed by these terms and conditions (to the extent they are applicable).
6 Payment
Payment 6.1 Subject to clause 7 (GST) and in consideration for the Goods and Services provided under this Agreement, you agree to pay:
(a) the fee we charge for access to the premises; and (b) for any additional Goods and Services to which clause 5 applies, the applicable fee or charge for those Goods and Services as set by us.
Method of Payment
6.2 Fees and charges must be paid by you:
(a) at the times, intervals and in the manner acceptable to us; or
(b) at the time they are purchased.
Fee Review
6.3 We also reserve the right to review and increase our fees for Goods and Services at any time.
7 GST
7.1 Terms used in this clause have the meaning given to them in GST Law and all amounts payable under this Agreement are including GST.
7.2 Where the Goods and Services provided under this Agreement are:
(a) a taxable supply; and
(b) the consideration for that supply excludes GST,
the recipient must pay an amount equal to the GST in addition to the consideration payable for the supply.
7.3 The amount of GST will be calculated at the prevailing GST rate.
7.4 If the GST rate is varied, the consideration payable for any supply under this Agreement will be varied to reflect the change of rate and any reduction in any other tax, duty or statutory charge connected with the rate change.
7.5 Where GST applies to a supply made under this Agreement, the supplier will deliver to the recipient a valid tax invoice or adjustment note at, or before the time payment for the supply is required.
7.6 If an adjustment event occurs in connection with any taxable supply made under this Agreement:
(a) the amount payable by the recipient will be recalculated to reflect the adjustment event; and
(b) payment for the adjustment event will be made by the recipient to the supplier or by the supplier to the recipient (as the case requires).
7.7 Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed will be the sum of:
(a) the amount of the expense or outgoing less any input tax credits for the expense or outgoing to which the other party is entitled; and
(b) if the payment or reimbursement is subject to GST, an amount equal to that GST.
8 Your Obligations
Permitted Use
8.1 You must only use the Premises, and any furniture, fixtures, fittings facilities and equipment:
(a) safely;
(b) for the purpose for which they were designed and intended;
(c) in accordance with manufacturer’s instructions and recommendations; and
(d) where reasonable directions have been provided, in accordance with those reasonable directions (particularly those that relate to health and safety).
8.2 You must:
(a) use your best endeavours not to disturb other invitees or occupants;
(b) not damage any of our furniture, fixtures, fittings, facilities, and equipment;
(c) not do or participate in anything illegal on the Premises; and
(d) not use the Premises, facilities, or equipment while under the influence of illegal drugs, alcohol, or any other drug that adversely affects cognitive or motor function.
Your Warranties
8.3 You also acknowledge, agree and warrant that:
(a) Health Conditions: to the best of your knowledge, you do not have any underlying health issues, injury, disease, or other conditions that may be affected or aggravated by physical exercise, or the use of our Premises, facilities, and equipment;
(b) Medical Clearance: if you do have any underlying health issues or conditions known to you that may be affected or aggravated by physical exercise or the use of our Premises, facilities, and equipment, you:
i. have received a medical clearance to exercise;
ii. will not undertake or participate in any activities that are inconsistent any advice you have received;
(c) Health Information: any information you provide to us about your health and fitness during any pre-exercise questionnaire we ask you to complete is accurate, truthful, and not misleading; and
(d) Outside Providers: while we may recommend or have business relationships with certain outside service providers who are not employees like personal trainers, coaches, physiotherapists, masseurs, you acknowledge and agree that:
i. many of these outside service providers are independent contractors;
ii. under no circumstances are we liable or responsible for the conduct or services provided by any independent contractor; and
iii. any contract that you enter into with any independent contractor is between you and the independent contractor.
Facility Rules
8.4 It is:
(a) a condition of this Agreement; and
(b) a condition of entry into our Premises,
that all people who enter comply with the Facility Rules whenever they are:
(c) accessing and using the Premises; or
(d) using any of the Goods and Services, furniture, fixtures, fittings, facilities, and equipment that are supplied under this Agreement.
8.5 If you do not comply with the Facility Rules, we may:
(a) refuse to allow you to enter the Premises; and
(b) eject you from the Premises without notice.
8.6 In accordance with the Code of Practice, we also reserve the right to update, modify and the Facility Rules at our discretion, subject to us:
(a) providing two months prior notice of the change; and
(b) displaying the proposed change in a conspicuous way that is clearly visible to any person who enters the Premises.
Lease
8.7 You must also:
(a) comply with the terms of our Lease (to the extent they are applicable to your occupancy); and
(b) not do anything that puts us in breach of the terms of our Lease.
Personal Property and Other Valuables
8.8 You are responsible for securing, storing, and insuring any personal property or other valuables in your possession or control that are brought onto the Premises by you, or for you by any third party.
8.9 You also agree that we are not liable for, and do not accept responsibility in connection with, any loss, damage or theft to any personal property or valuables belonging to you that occurs while using the Premises or any common areas.
Guests
8.10 You agree that guests can only enter the Premises:
(a) with our prior consent; and
(b) only after they have signed a visitor’s log for the Premises.
9 Confidentiality
9.1 Parties must ensure that Confidential Information is kept confidential and is not disclosed to any person except:
(a) to its employees, officers, agents, contractors, and sub-contractors to the extent needed for the performance of this Agreement;
(b) where disclosure is authorised or required by Law; or
(c) with the disclosing party’s consent.
9.2 Each party must:
(a) ensure that all Confidential Information is kept reasonably secure;
(b) ensure that all Confidential Information is only used for purposes for which it is originally disclosed; and
(c) immediately notify the other party if it becomes aware of any breach of this clause or if disclosure of Confidential Information is required by law.
10 Privacy and Personal Information
10.1 This Agreement includes our Privacy Policy, and it is a condition of it that all parties comply with our Privacy Policy.
10.2 It is your responsibility to review and familiarise yourself with your rights and obligations under our Privacy Policy.
10.3 When managing, maintaining, storing, and transferring information (including Personal Information), we agree that we will:
(a) do all things reasonably necessary to ensure the Personal Information is kept secure; and
(b) notify you if there has been a breach of data security; and
(c) do all things reasonably necessary to remedy the breach. 10.4 Despite clauses 10.1 - 10.3 you acknowledge and consent to the fact that we use audio and video surveillance equipment to monitor the Premises (excluding bathrooms and fitness assessment rooms) and that you may be:
(a) captured by these recording; and
(b) used and disclosed for security and other law enforcement purposes.
11 Corporate Identity
11.1 You must do all things to ensure you preserve our corporate identity and business reputation, including:
(a) not using our business name or corporate logo without our prior consent;
(b) not making public representations about any form of business relationship we might share without our prior consent; and
(c) doing all things to ensure that you do not denigrate us or tarnish our business reputation.
12 Australian Consumer Law
Australian Consumer Law
12.1 If this Agreement is a supply of Goods and Services under Australian Consumer Law, then under section 139A of the Competition and Consumer Act 2010 (Cth), sections 64 of the Australian Consumer Law is excluded with respect to the supply of recreational services, but the exclusion is limited to liability for:
(a) death;
(a) physical or mental injury of an individual (including aggravation, acceleration, or recurrence of such an injury of the individual);
(b) the contraction, aggravation, or acceleration of a disease of an individual (including Covid-19);
(c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstances, occurrence, activity, form of behaviour, conduct, or situation in relation to an individual that:
(i) may be harmful or disadvantage to the individual or community; or
(ii) may result in harm or disadvantage to the individual or community.
12.2 If this Agreement involves a supply of any Goods and Services that are not recreational services under Australian Consumer Law:
(a) nothing contained in this Agreement excludes or modifies any condition, warranty, or other obligation in relation to this Agreement where it is unlawful to do so; and
(b) if allowed by law, our sole liability for breach of any such condition, warranty or obligation is limited to:
i. the replacement of the goods or the supply of equivalent goods, or payment of the cost of replacing or acquiring equivalent goods;
ii. the repair of the goods or payment of the cost of having the goods repaired;
iii. the supply of the Services again; or
iv. the payment of the cost of having the Services supplied again.
12.3 If this Agreement is not a supply of Goods or Services to a consumer under Australian Consumer Law then to the extent allowed by law, then:
(a) liability in connection with the supply, or any failure to supply the Goods and Services is limited to the amount (or the aggregate of the amounts) payable by you under this Agreement; and
(b) we will not be liable for any consequential loss resulting from negligence, breach of contract or any other theory of liability.
13 No Warranties for Fitness
13.1 To the extent allowed by law, we do not warrant or guarantee that the provision of Goods and Services under this Agreement:
(a) are fit for any particular purpose; or
(b) will meet your needs.
14 Termination
14.1 You may terminate this Agreement with us by giving written notice to you if:
(a) we breach any essential term of this Agreement that cannot be remedied;
(b) we breach any other term of this Agreement that is not remedied within 14 days of us receiving written notice from you about the breach;
(c) we:
i. become bankrupt or insolvent;
ii. become subject to any form of external administration;
iii. enter into an arrangement with any creditors or otherwise takes advantage of any laws in force in connection with insolvent debtors; or
iv. are wound up either voluntarily or involuntarily.
14.2 We may terminate this Agreement by giving written notice to you if:
(a) you breach any essential term of this Agreement that cannot be remedied;
(b) you breach any other term of this Agreement that is not remedied within 14 days of you receiving written notice from us about the breach;
(c) you:
i. become bankrupt or insolvent;
ii. become subject to any form of external administration;
iii. enter into an arrangement with any creditors or otherwise takes advantage of any laws in force in connection with insolvent debtors; or
iv. are wound up either voluntarily or involuntarily.
14.3 Termination of this Agreement will not:
(a) affect any claim or action either party may have against the other by reason of any prior breach of this Agreement; or
(b) relieve either party of any obligation under this Agreement which survives its early termination or expiry.
15 Complying with Laws
15.1 Each party must comply with all Laws that are relevant to the provision of Goods and Services.
16 Force Majeure
16.1 If we cannot meet any obligation under this Agreement because of a Force Majeure Event, we may extend those obligations by a period equal to the period of delay, subject to the us:
(a) giving you notice of the Force Majeure Event within 5 Business Days of its occurrence;
(b) continuing to perform any obligations under the Agreement that are unaffected by the Force Majeure Event; and
(c) using our best endeavours to overcome the effects of the Force Majeure Event as soon as possible.
17 Assignment
Assignment by you
17.1 Your rights and obligations under this Agreement are personal and cannot be assigned.
Assignment by us
17.2 We are free to assign any of our rights, title, interest, or obligations subsisting under this Agreement at any time to any third party without consent, subject to providing written notice.
18 Miscellaneous
Notices
18.1 Any notice under this Agreement must be in writing and served by hand delivery or by courier with tracking capabilities or by facsimile (as confirmed by receipt of the original) to the address or facsimile number of the relevant party. 18.2 Subject to clause 18.1, a notice will be deemed to be given:
(a) if delivered - on the date of delivery;
(b) if faxed - on the date the sender’s facsimile machine notes a complete and successful transmission; or
18.3 Any fax that is received after 5:00 pm will be deemed to be given on the next Business Day.
Variation
18.4 This Agreement may only be varied in writing and subject to it being signed by both parties.
Severance
18.5 If any part of this Agreement is determined to be invalid, unlawful, or unenforceable for any reason, then to the extent allowed by Law:
(a) the offending provision will be severed from the rest of the Agreement; and
(b) the remaining terms and conditions will continue to be valid and enforceable.
Applicable law
19 This Agreement is governed by the laws of Queensland, Australia, and you unconditionally submit to the jurisdiction of the courts in that State.
Waiver
19.1 A party does not waive a right, power, or remedy if it:
(a) fails to exercise the right, power, or remedy; or
(b) is delayed in exercising the right, power, or remedy.
19.2 A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that right, power, or remedy.
19.3 A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Entire agreement
19.4 This Agreement constitutes the entire agreement between you and us.
20 Clauses Surviving Termination
20.1 The following clauses will survive termination or expiry of this Agreement:
(a) Confidentiality; and
(b) Privacy.
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