TERMS OF SERVICE
Last Updated: December 2024
These Terms of Service ("Terms") apply to your access to and use of the websites, applications and other products and services, including email services, training programs, coaching services, marketing communications, and community platforms (collectively, our "Services") provided by Brooks Performance ("Brooks Performance", "we", "us", or "our"). By clicking to indicate your acceptance of these Terms, or otherwise accessing or using the Services, you agree to these Terms, and to use our Services in accordance with our Acceptable Use Policy, which is incorporated by reference into these Terms. If you do not agree to these Terms, do not access or use our Services.
In addition to these Terms, we may ask you to accept additional terms that apply to specific features, products or services. To the extent any additional terms conflict with these Terms, the additional terms govern with respect to your access to or use of the applicable feature, product or service.
If you have any questions about these Terms or our Services, please contact us at [email protected].
1) Eligibility and Authority
You must be at least 18 years of age or older to access or use our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorised to accept these Terms on that person or entity's behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
2) Accounts; Account Security; Electronic Communications
You will need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account, not share your account credentials, and promptly notify us if you discover or suspect that someone has accessed your account without your permission.
By creating a Brooks Performance account and providing your contact details, you consent to receive electronic communications from Brooks Performance, including:
Email Communications:
Account notifications (e.g., payment authorisations, password changes, transactional information)
Program updates and instructions
Coaching call reminders
Promotional offers and content
SMS/Text Messages:
Appointment confirmations and reminders
Program updates and check-ins
Coaching notifications
Important account information
Your Consent:
You confirm that the phone number and email address provided are yours and that you are authorised to receive communications at these contact points.
You understand that message and data rates may apply for SMS messages.
You may opt-out of SMS messages at any time by replying STOP to any message.
You may opt-out of promotional emails by clicking the unsubscribe link in any email.
Opting out of SMS or promotional emails will not affect transactional messages related to your account or program access.
You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
3) Privacy
Please refer to our Privacy Policy (https://www.brooksperformance.com.au/privacy-policy) for information about how we collect, use and disclose information about you.
4) Our Services; Licence
Our Services may allow you and other users to create, post, store and share content, including, but not limited to, training logs, progress photos, messages, and other materials (collectively, "User Content"). Except for the licence you grant below, you retain all rights in and to your User Content, as between you and Brooks Performance. You grant Brooks Performance a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable licence to use, reproduce, adapt, publish, translate, distribute, and display your User Content to the recipients or audience designated by you or otherwise in accordance with the settings you specify in the Services.
As a part of the Services, we may view, copy, and internally use User Content to help us train and improve the Services, including their functionality and effectiveness for you and your training programs, as well as to assist us in detecting issues. You may not create, post, store or share any User Content that violates these Terms, including our Acceptable Use Policy, or for which you do not have all the rights necessary to grant us the licence described above.
When using the Services, you may provide data, including personally identifiable information ("Personal Data"). We view and use Personal Data only to provide Services to you, at your direction and, as part of the Services, to ensure their proper functioning. We do not disclose Personal Data to third parties, except as follows:
We may share Personal Data with our third party service providers to provide our Services or administer the site.
If any portion of Brooks Performance is sold, Personal Data may be part of the business assets we transfer. Personal Data also may be disclosed if Brooks Performance is considering or completes the financing, securitisation, insuring, sale, assignment or other transfer of all or part of the company.
We may disclose Personal Data as we reasonably believe is necessary to comply with any judicial or governmental subpoenas, warrants or orders.
We reserve the right to use, disclose and share your information and Personal Data to investigate, prevent or take action with respect to any potential or actual fraud, illegal activities, circumstances which threaten the physical safety of any person, violations of these Terms of Service or as otherwise required by law.
5) Prohibited Conduct
5.1) Prohibited Activities on the Services
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. When you access or use our Services, you will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Impersonate any person or entity, including without limitation, any Brooks Performance official, employee, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
Use or attempt to use another user's account without authorisation from that user and Brooks Performance;
Access the Services by any means other than through the standard industry-accepted or Brooks Performance-approved application program interfaces;
Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
Delete or revise any material, including User Content, posted by another person or entity;
Delete or modify any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
Register, subscribe, attempt to register or subscribe, unsubscribe or attempt to unsubscribe, any party for any Brooks Performance product or Service if you are not expressly authorised by such party to do so;
Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorised to access;
Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
Bypass or ignore instructions contained in our robots.txt file that controls automated access to portions of our Services; or
Use our Services for any illegal or unauthorised purpose, or engage in, encourage or promote any activity that violates these Terms.
5.2) Compliance with Laws
You represent and warrant that your access to and use of the Services will comply with all applicable laws, rules and regulations, including but not limited to the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), and the Australian Consumer Law. You further represent and warrant that you have a lawful basis for processing and sending communications to your contacts, whether through legally appropriate consents or otherwise.
5.3) Reporting Abuse
If you think anyone using the Services is violating any of these Terms, please notify us immediately at [email protected].
6) Terms of Sale
6.1) Subscriptions
When you sign up for our Services, you agree to a recurring subscription contract with Brooks Performance on a weekly, monthly, quarterly, or other temporal basis that you select when signing up for the Services. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) BROOKS PERFORMANCE (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORISED TO CHARGE YOU ON A WEEKLY, MONTHLY, QUARTERLY, OR OTHER BASIS AS APPLICABLE FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES IN ACCORDANCE WITH THESE TERMS.
6.2) Cancellation
You may cancel your subscription at any time by logging into your account and following the instructions on your account dashboard for cancellation or by contacting us at [email protected]. Inactivity does not constitute automatic cancellation, so unless you cancel your account in accordance with this section, you will continue to be charged for subscription to the Services. All cancellation requests will take effect at the end of the then-current subscription period in which the cancellation request is made, and you will be responsible for all fees and any applicable taxes and other charges rendered up through the cancellation date.
In the event you cancel your subscription, please note that we may still send you promotional communications about Brooks Performance, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
6.3) Refunds
Brooks Performance offers a 90-day money-back guarantee for qualifying members who complete the program as designed (minimum 80% compliance with training, nutrition, and coaching call attendance). Refund requests must be submitted in writing to [email protected] with supporting documentation of program compliance. Refunds will be processed within 14 business days of approval.
Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement.
6.4) Free Trials
From time to time, to the extent legally permitted, we may offer free trials of certain subscriptions for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration. We reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion.
6.5) Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorised to use the designated payment method. In addition, you authorise us (or our third party payment processor) to charge your payment method for the total amount of your subscription fees (and applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your account may be suspended until your payment is processed. You must resolve any problem we encounter in order to proceed.
You acknowledge that the amount billed may vary due to promotional offers, changes to your subscription or changes in applicable taxes or other charges, and you authorise us (or our third party payment processor) to charge your payment method for the corresponding amount.
All prices are displayed in Australian Dollars (AUD) unless otherwise stated.
7) Limited Licence; Copyright and Trademark
Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the "Brooks Performance Content") are owned by or licensed to Brooks Performance and are protected under both Australian and foreign laws. Except as explicitly stated in these Terms, Brooks Performance and our licensors reserve all rights in and to our Services and the Brooks Performance Content.
You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable licence to access and use our Services and Brooks Performance Content for your own personal use. However, such licence is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Brooks Performance Content; (b) copy, reproduce, distribute, publicly perform or publicly display Brooks Performance Content, except as expressly permitted by us or our licensors; (c) modify the Brooks Performance Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Brooks Performance Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Brooks Performance Content other than for their intended purposes.
Any use of our Services or Brooks Performance Content other than as specifically authorised herein, without our prior written permission, is strictly prohibited and will terminate the licence granted herein.
8) Third Party Content and Services
We may display content, advertisements and promotions from third parties through the Services ("Third Party Content"). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
We may also provide you with access to certain services, features or functionality offered by a third party in connection with the Services. Use of any such services, features or functionality will be subject to separate terms of service between you and such third party, and not these Terms. The third party provider, and not Brooks Performance, will be solely responsible for providing you with such services, features or functionality.
9) Feedback
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Brooks Performance or our products or Services (collectively, "Feedback"), is non-confidential and will become the sole property of Brooks Performance. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
10) Publicity
You agree to be identified as a customer of Brooks Performance and that Brooks Performance may refer to you by name, and may describe your results or transformation (with your consent), in our marketing or publicity materials, on our website, and in press releases or other public statements. You hereby grant Brooks Performance a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable licence to use your name, testimonials, and transformation photos (with your consent) pursuant to this Section 10. You may withdraw this consent at any time by contacting us at [email protected].
11) Copyright Complaints
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, please contact us at [email protected].
12) Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Brooks Performance, our parent, subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the "Brooks Performance Parties") from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services.
You agree to promptly notify Brooks Performance Parties of any third party Claims, cooperate with Brooks Performance Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, legal fees). You also agree that Brooks Performance Parties will have control of the defence or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Brooks Performance or the other Brooks Performance Parties.
13) Disclaimers
To the extent permitted by law, we do not control, endorse or take responsibility for any User Content, Third-Party Content or Third-Party Services made available on or linked to by our Services. Your use of our Services is at your sole risk.
Our Services are provided "as is" and "as available" without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, except where such warranties cannot be excluded under Australian Consumer Law.
In addition, Brooks Performance does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Brooks Performance attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components.
Nothing in these Terms excludes, restricts or modifies any guarantee, right or remedy you may have under the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement.
14) Limitation of Liability
To the extent permitted by law, Brooks Performance and the other Brooks Performance Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, strict liability or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Brooks Performance or the other Brooks Performance Parties have been advised of the possibility of such damages.
The total liability of Brooks Performance and the other Brooks Performance Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Services in the 12 months preceding the claim.
The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Brooks Performance or the other Brooks Performance Parties or for any other matters in which liability cannot be excluded or limited under applicable law, including the Australian Consumer Law.
15) Release
To the fullest extent permitted by applicable law, you release Brooks Performance and the other Brooks Performance Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
16) Transfer and Processing Data
By accessing or using our Services, you consent to the processing, transfer and storage of information about you in and to Australia and other countries, where you may not have the same rights and protections as you do under local law. We will take reasonable steps to ensure your data is treated securely and in accordance with our Privacy Policy.
17) Health and Fitness Disclaimer
The Services provided by Brooks Performance are for informational and educational purposes only and are not intended as medical advice. You should consult with a qualified healthcare professional before beginning any exercise program, diet plan, or supplement regimen, particularly if you have any pre-existing medical conditions, injuries, or health concerns.
Brooks Performance is not responsible for any injuries or health issues that may arise from following our training programs or nutritional guidance. You acknowledge that participation in physical exercise carries inherent risks and that you participate in our programs at your own risk.
Results may vary and are not guaranteed. Individual results depend on many factors including, but not limited to, adherence to the program, individual physiology, starting fitness level, and lifestyle factors.
18) Dispute Resolution
18.1) Informal Resolution
If you have a dispute with us, you agree to first contact us at [email protected] and attempt to resolve the dispute informally. We will try to resolve the dispute by communicating with you via email within 30 days.
18.2) Mediation
If we cannot resolve the dispute informally, you agree to participate in mediation before commencing any court proceedings (except for urgent interlocutory relief). The mediation will be conducted by a mediator agreed upon by both parties, or failing agreement, a mediator appointed by the Resolution Institute (Australia).
18.3) Court Proceedings
Nothing in this section prevents either party from seeking urgent interlocutory relief from a court of competent jurisdiction.
19) Governing Law and Venue
These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of New South Wales, Australia. Any dispute between the parties that cannot be resolved through the dispute resolution process in Section 18 will be resolved in the courts of New South Wales, Australia.
20) Changes to these Terms
We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the "Last Updated" date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
21) Termination
We reserve the right, without notice and in our sole discretion, to terminate or suspend your right to access or use our Services for any material breach of these Terms. We are not responsible for any loss or harm related to your inability to access or use our Services following termination in accordance with these Terms.
22) Severability
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
23) Miscellaneous
These Terms constitute the entire agreement between you and Brooks Performance relating to your access to and use of our Services. The failure of Brooks Performance to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. These Terms may not be assigned or transferred by you except with our prior written consent.
24) Contact Us
If you have any questions about these Terms of Service, please contact us at:
Brooks Performance Email: [email protected] Website: www.brooksperformance.com.au