Effective Date 1 August 2016
1. Summary
1.1 This section summarizes the VARLAH offer only and does not replace any section of the full agreement.
1.2 Access to VARLAH body transformation programs is given for only a monthly, pre-paid fee. The fee is dependent on your location. Australian users will pay $7.99 AUD, New Zealand users will pay $7.99 NZD, all other locations will pay $4.99 USD. Access starts as soon as the registration form, including entering a valid credit or debit card, is filled out.
2. Overview
2.1 VARLAH provides access to fitness videos and other audio-visual content (“Content”) via an online video-on- demand service to its customers. The service (“Service”) is streamed over the internet to internet-enabled devices. The supported internet-enabled devices are: smart TV, smart phones, tablets and personal computers and laptops (“Supported Device”).
2.2 The service is accessed via the websites Varlah.com (“Website”).
2.3 Varlah Pty Ltd (ABN 11 613 452 958) (“we”, “us” or “our”).
3. Agreement
3.1 This Agreement governs your use of the Service. By creating an account to access the Service (“Account”) you are agreeing to be bound by this Agreement and its terms.
3.2 The following items are incorporated in this Agreement:
(a) these terms and conditions;
(b) our Privacy Policy;
(c) your Account details;
3.3 The terms of this Agreement may be changed by us at any time. You will be bound by the terms operating at the time that you created your Account.
3.4 To obtain a copy of the current version of the Agreement you can contact us at any time via [email protected].
4. Access and Eligibility
4.1 To create an Account which allows you to purchase access to the Service you must:
(a) be at least 18 years of age;
(b) provide us with the details of a valid debit/credit card (“Valid Card”);
(c) provide us with a valid email address.
4.2 In order to access the Service, you must:
(a) set up an Account;
(b) have a Supported Device that is connected to the internet; and
(c) subject to the specific terms of any Promotional Offer (as defined below), pay the product Transaction Fee (as defined below) in accordance with clause 5 below.
4.3 In order to ensure optimum performance of the Service, you will require an internet line speed of 3.0Mbps at a minimum.
5. Payment
5.1 By providing us with the details of your Valid Card when you create an Account, you authorize us to charge your Valid Card at the then current rate for the Service in accordance with this clause 5.
5.2 Your access to the Service may include a free trial period or other promotional discount or benefit (“Promotional Offer”). We reserve the right to offer, withdraw, change, cancel or determine your eligibility for any Promotional Offer in our absolute discretion. Promotional Offers may be subject to terms and conditions which shall apply in addition to, and prevail to the extent of any inconsistency with, this Agreement. We may charge for Promotional Offers based on the then current rate for the Service if we consider that the Promotional Offer has been abused.
5.3 You must only use the Service (and view any Content on the Service) in accordance with our reasonable instructions and all applicable laws, rules, regulations and other applicable restrictions.
5.3 If your Account begins with a free trial period:
(a) it is your responsibility to know when your free trial period ends; and
(b) you will be billed an upfront Service fee for the determined access period, unless you cancel your Account before the end of the free trial period.
5.4 The Service fees will be charged to your Valid Card in advance of each period. Your access period starts when you:
(a) create your Account, or if your Account begins with a free trial period, immediately after expiry of your free trial period; and
(b) pay your Service fee from your Valid Card.
5.5 Unless stated otherwise, all Service fees are inclusive of tax. In order to ensure that your Valid Card is not being used fraudulently, we may validate your Valid Card with an $1 authorization transaction. These funds are held by your card issuer and are not received by us. This will result in the available funds of your Valid Card account being reduced by the authorization amount. Depending on your card issuer, it may take some days for the authorization amount to be returned to your available funds on your Valid Card account.
5.6 It is your responsibility to ensure that the details of our Valid Card remain accurate and up to date. You can change your Valid Card details by signing in to your personalized member area.
5.7 If we are unable to collect the Service fee from your Valid Card for any reason, including, without limitation, expiration or insufficient funds, you remain responsible for any uncollected amounts and we may suspend or cancel your access to the Service without notice.
5.8 Varlah Pty. Ltd. offers a money back guarantee on certain programs. This excludes free trial offers which do not incur a product charge until after at least 7 days. Your money back guarantee or free trial period begins on the day you have been granted online access. Varlah Pty. Ltd. may offer various money back guarantee durations on selected products at its discretion and subject to change without notice. Under the money back guarantee, Varlah Pty. Ltd. will reimburse you the cost of your product within the first three months of being granted access if you do not see results after completing the program, doing all the workouts according to the workout calendar and following the nutrition guide, including completing the body progress forms, taking progress photos and doing the fit tests. Refunds can be obtained by submitting all of your completed program paperwork to our Customer Support Team [email protected] or by using the contact page on the home page.
6. Usage
6.1 The Service and Content that you view via the Service are for non- commercial, personal use only. We grant you a limited, non-exclusive, personal and non-transferable license to access the Service and view Content through the Service on a streaming only basis.
6.2 Excepting a temporary buffer required to overcome variations instream bandwidth, you must not download, modify, copy, distribute, transmit, re-transmit, reproduce, display, perform, publish, license, decompile, reverse engineer, create derivative works from or offer for sale or use (except as expressly authorized under the terms of this Agreement) any Content or any works, subject matter, data, information or other material contained on, comprising , or obtained from or through the Service or Websites excepted as expressly permitted, without our express written consent.
6.3 You must only use the Service (and view any Content on the Service) in accordance with our reasonable instructions and all applicable laws, rules, regulations and other applicable restrictions.
6.4 Except for the limited license granted under clause 6.1 of this Agreement, all rights in the Content are reserved by us.
6.5 You must not attempt to circumvent, remove or alter the digital rights management and anti-piracy measures employed by the Service.
6.6 You can only watch Content on one Supported Device at a time.
6.7 You can view and change your Account details, including information about billing and payment by signing in to your personalized member area.
6.8 You are responsible for all access, data and other costs associated with your internet and mobile usage in accessing and using the Service. Please contact your internet service provider or mobile telecommunications provider for details of your account access fees, data charges and other costs.
6.9 The quality of the display of Content, and the time it may take to commence or resume watching Content, may vary from time to time and between Supported Devices, based on factor including (but not only) your location, internet speed or bandwidth and the type of Supported Device. We make no warranties or representations about the quality of your viewing experience or the time it may take to commence or resume viewing, nor that your viewing experience will be seamless or uninterrupted.
6.10 You must keep your Account details private and must not share these details. If you suspect your Account details have been compromised, you must notify us immediately and must change your Account details as soon as practical.
6.11 We may undertake maintenance or upgrades to the Websites from time to time and there may be unplanned outages to the Websites. Such maintenance, upgrades or outages may affect your ability to access the Service. We will endeavor, within reason, to limit such incidents.
6.12 You must not remove any proprietary notice from the Content or Websites.
6.13 The Service contains software that may track and capture information about your activity (including information about your viewing habits, information about type of Supported Device you use, unique device numbers, internet protocol addresses, your operating system and other information derived from hardware configuration of such devices) and will send this information to us. We use this information for purposes including confirming your right to use the Service and otherwise enhance and improve the Service. By using the Service, you consent to the transmission of this information.
7. Suspension and Cancellation
7.1 We may cancel this Agreement or your Account at any time. Except as set out in clause 7.2 below, if we cancel this Agreement or your Account, you will be unable to access the Service or your Account, in which case, we will cancel your Account and your access to the Service immediately.
7.2 We may immediately suspend, restrict or cancel your Account or access to the Service:
(a) where reasonably necessary for security, technical, copyright, anti-piracy or operational reasons;
(b) if you use the Content or the Service other than for private, non-commercial use or in a way that is inconsistent with this Agreement;
(c) if you breach any term of this Agreement; or
(d) if we have reasonable grounds to suspect that your Account details are incorrect, there has been unauthorized access to your Account, or that you have committed or may be committing any illegal or fraudulent activity in connection with your Account.
8. Intellectual Property
8.1 All content on or available through the Service (including the Content, and all other works, subject matter and other material comprising or available on the Websites) is our property. That property is protected by, and your use of the Service is subject to, all relevant intellectual property laws.
8.2 We take the infringement of copyright and other intellectual property rights very seriously. We reserve the right to take all steps necessary to prevent the unauthorized copying, distribution, reproduction, transmission, communication or exploitation of the Content or Service.
8.3 Varlah’s graphics and logos (including the graphics and logos of individual programs or Content) are for sole use by Varlah Pty Ltd. Varlah’s graphics and logos may not be used in conjunction with any product or service other than the Service outlined in this Agreement. All other trademarks that appear on the Websites that are not owned by Varlah Pty Ltd are the property of their respective owners.
8.4 We may permit you to post or upload content, information or other material to your personalized member area or in connection with the Service. You may not post or upload anything which is illegal, obscene, threatening, defamatory, which infringes any person’s rights (including without limitation intellectual property rights) or is otherwise objectionable to us. By posting any such material, you grant us a non- exclusive, perpetual, irrevocable, royalty-free license to use, copy, display, sub-license, modify, adapt and communicate that material to the public.
9. Liability
9.1 To the maximum extent permitted by law but subject to clause 9.2
(a) the Service and all Content and any other features or functions associated with the Service, are provided “as is” and “as available” with all faults and without warranty;
(b) we do not make any promises or assurances to you about the Service or the Content, including without limitation that your use of the Service will be uninterrupted or error-free;
(c) we make no representations or warranties in relation to the accuracy or completeness of the information, advice or other content available on or via the Service or Websites and we do not accept any liability in relation to your reliance on such information, advice or other content;
(d) all other terms, conditions and warranties, whether express or implied by legislation or the common law or otherwise relating to the provision by us of the Service or otherwise in connection with this Agreement are expressly excluded;
(e) we will not be liable for any loss or damage (including indirect or consequential loss or damage, loss of profit, loss of revenue, loss of data or loss of opportunity) however caused which may be suffered or incurred or which may arise directly or indirectly in respect of the use by you of the Service (including the Websites).
9.2 Nothing in this Agreement excludes, restricts or modifies any rights that you have under existing laws or regulations and codes, including the Competition and Consumer Act 2010 (Cth) and fair trading laws. The Service comes with statutory guarantees under consumer protection laws that cannot be excluded
9.3 You are responsible for all acts and omissions of any person who uses your Account to access and use the Service.
9.4 You indemnify us and our shareholders, directors, officers, employees, suppliers and content partners (each an “indemnified party”) from and against any loss, damage, liability, costs, expenses or other liability the indemnified party suffers or incurs arising out of or in connection with any claim or demand against us by you or any person other than you, which arises from or is connected with:
(a) our supply, suspension, restriction or cancellation of the Service or your Account;
(b) your use of the Service, including in connection with any content, information or other material posted on the Websites from your Account, or any other information you provide to us, unless the loss, damage, liability, cost, expense or other liability is caused by the relevant indemnified party’s willful default, negligence or breach of this Agreement.
10. Privacy
10.1 We collect, store, use and disclose personal information in accordance with our Privacy Policy. By creating an Account, you consent to us collecting, storing, using and disclosing your personal information in accordance with our Privacy Policy.
11. General
11.1 We may transfer any or all of our rights and/or obligations under this Agreement to any person, firm or company provided such transfer does not detrimentally affect your rights under this Agreement.
11.2 You must no transfer any or all of your rights and/or obligations under this Agreement to any other person.
11.3 This Agreement is governed by the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.