- These terms (“Agreement”) apply to your use of Kelly Mac Mobility Limited (“KM”)’s website and app (collectively the “Website”) and all KM products, content and services, whether made available via the Website, a third party or social networking site or otherwise (collectively the “Services”).
Acceptance of Terms - By using the Services, you agree to be bound by this Agreement. If you do not accept the terms of this Agreement, you should immediately discontinue your use of the Services.
Account, Password and Security - By using the Services you agree to provide true, accurate, and complete information about yourself and promptly advise KM of any changes to that information. You are representing that you are 18 years of age or older and that you are legally able to enter into this Agreement.
- If you register as a user on the Website, you may be required to choose a password and username, and you may be asked for additional information regarding your account, such as your e-mail address. You are responsible for maintaining the confidentiality of your password and account information and are fully responsible for all activities that occur under your password or account. You agree to immediately notify KM of any unauthorised use of your password or account or other breach of security. Each registration is for a single user only unless otherwise expressly provided.
Responsibility for Content - You are responsible for all content that you post, email, transmit or otherwise make available via the Services. KM does not control the content posted by third parties and does not guarantee the accuracy, integrity or suitability of such content and under no circumstances will KM be liable for any loss or damage of any kind incurred at any time as a result of the use of any content posted or otherwise made available via the Services. You agree not to use the Services to post or otherwise transmit information or data or other materials that interferes with or disrupts the Service, violates any intellectual property or other proprietary rights of any third party, is illegal, or is otherwise contrary to the interests of KM. You warrant that you have the necessary licences, rights and permissions to use and upload all content uploaded or shared by you to the Website, either from your own computer, mobile device another source.
- The Services may refer to or share links to other sites owned by third parties (i.e. advertisers, affiliate partners, strategic partners, or others). KM does not warrant, endorse, guarantee, or assume responsibility for any product or service offered by a third party and does not guarantee the security or accuracy of any information contained in a third party website or its fitness for any particular purpose.
Proprietary Rights - All intellectual property rights (registered and unregistered) in all content relating to the Services which is the property of KM including, without limitation, videos, images, documents, data, ideas, concepts, exercises, methodologies, names, logos, trademarks, text, Website, domain names, graphics, software and other content available in connection with the Services shall at all times remain vested in KM. You acknowledge and agree that unless otherwise provided in writing, all Services are made available to you for limited, non-commercial, personal use only but does not confer on you any licence or proprietary rights whatsoever. No part of any of the Services may be copied, reproduced, republished, sold, downloaded, modified or distributed in any way, or otherwise used for any purpose other than for personal non-commercial use as contemplated by this Agreement by any person or entity without KM’s prior express written permission.
Subscriptions and Billing - The prices for our Services are as set out in the relevant quote or, in the absence of any such quote, as set out on our Website.
- To access our Services via our Website, you will be required to create an account and choose a subscription option. KM offers the following auto-renewing subscription options:
(a) No fixed term: NZD $29.99 per month
(b) 3 month term: NZD $27.50 per month
(c) 6 month term: NZD $25.00 per month
(d) 12 month term: NZD $22.50 per month
(e) 24 month term: NZD $20.00 per month
- When subscribing to the Services, you agree to immediately pay the applicable price upon confirmation of purchase. You must pay the subscription price in advance via credit card or such other payment method agreed from time to time. You authorise KM to charge to the credit card and/or withdraw from the bank account details you provide payment for the Services on an ongoing basis on each payment date/subscription renewal date until your subscription ends or this Agreement is otherwise terminated.
- Your chosen subscription will automatically renew and your account will be charged unless cancelled via the Website at least 24 hours before the end of the relevant subscription period. Once purchased, no refunds will be issued for any unused portion of the subscription or Services.
- Except where this Agreement is terminated under clause 18, you will have access to the Services you have purchased access to until the end of the relevant period for which you have paid.
- It is your responsibility to manage your subscription, keep your billing details up to date and pay any taxes or other charges in relation to your use of or payment for the Services. KM will not be responsible for any fees charged by your bank, currency conversion fees, taxes, levies, or other payments which you incur relating to your use of or payment for the Services.
- KM may increase prices for all or any Services at any time. KM will endeavour to give you at least fourteen (14) days' notice of any increase to prices. If the increase is not acceptable to you, you may choose to discontinue your use of the Services. Your ongoing use of the Services and/or the renewal of your subscription will indicate your acceptance of any changes to prices for the Services.
- Unless otherwise stated, payments for all Services are due monthly in advance on the 20th day of each month. If you fail to pay any amount in full by the due date, the overdue amount will bear default interest until the date on which payment of the overdue amount is made in full at a rate of 12% per annum accruing on a daily basis.
- You agree to reimburse KM (on a full indemnity basis) for all costs incurred by KM (including legal and/or collection agency costs) in recovering and/or attempting to recover from you any overdue amounts.
- All payments are non-refundable (including upon any suspension or termination), unless otherwise agreed at KM’s sole discretion or required by applicable law.
Termination - KM may suspend your access to the Services or immediately terminate this Agreement if:
(a) any amount payable by you under this Agreement is not paid or becomes overdue for payment; or
(b) KM believes you have committed or will commit an act of bankruptcy, have had or are about to have a receiver or liquidator appointed, or are declared insolvent;
(c) KM believes that you have otherwise breached the terms of the Agreement.
- Either party may terminate this Agreement by giving the other party one (1) months' notice in writing.
- Upon termination of this Agreement:
(a) Your rights to access and use the Services shall cease;
(b) You must pay KM any outstanding payments for the Services together with any other amounts payable under this Agreement. Unless otherwise agreed, you will not be entitled to a refund of any payment for the Services paid in advance.
(c) Following termination, any clauses in this Agreement intended to survive termination will remain in full force and effect.
(d) The termination will be without prejudice to either party’s rights and remedies in respect of any breach of this Agreement by the other, where the breach occurred before the termination.
Health Disclaimer - The Services are associated with physical activity. By using the Services, you represent that you understand that physical activity carries the risk of injury. Accordingly, you are advised to seek the advice of a physician before using the Services or any equipment suggested or promoted by the Services. All suggestions and comments relating to the use of equipment, poses, moves and instruction are not required to be performed by you and are carried out at your own risk. Nothing contained in the Services should be construed as any form of such medical advice or diagnosis. You expressly waive and release any claim that you may have at any time for an injury or loss of any kind against KM, or any person or entity involved with KM, including without limitation its directors, principals, instructors, independent contractors, employees, agents, contractors, affiliates and representatives.
Indemnity - You agree to release and indemnify KM, its subsidiaries, directors, employees, consultants, representatives and agents, from and against any and all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands arising out of or in connection with your use of and access to KM Services, your breach of any term of this Agreement or your breach of any third party right in using the Services. This clause will survive termination of this Agreement.
Limitation of Liability - To the maximum extent permitted by law, KM and its officers, directors, employees, and agents disclaim all warranties, express or implied, in connection with the Services and the Website and your use thereof. You agree that your use of the Services and Website shall be at your sole risk and are provided “as is” and without warranties of any kind, either express or implied. KM makes no warranties or representations in relation to the Services or the Website including but not limited to accuracy of content, security of servers and/or any and all personal information and/or financial information stored therein, reliability of transmission, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available or in relation to personal injury, death or property damage of any nature whatsoever resulting from your access to and use of the Services.
- In no event shall KM, its officers, directors, employees, or agents, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from any matters in connection with the Services or use of the Services, whether based on warranty, contract, tort (including negligence), or any other legal theory. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
- In the event that KM is found to be liable to you, you agree that KM’s liability will be limited to the actual amount that you have paid KM for the Services.
Assignment - You may not assign or transfer your interest in this Agreement. KM may assign its interest at any time and for the purposes of this Agreement, KM shall include any person or organisation to which KM has licensed or assigned its rights and obligations to under this clause.
Entire Agreement - This Agreement together with KM’s Privacy Policy (which is available on the Website and expressly incorporated into and forms part of this Agreement) shall constitute the entire agreement between you and KM concerning the Services and governs your use of the Services, superseding any prior agreement between the parties.
No Waiver - The failure of KM to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Severability - If any term of this Agreement is determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any country or area in which these terms are intended to be effective, then to the extent and within the jurisdiction in which that term is illegal, invalid or unenforceable, it shall be severed and deleted from this Agreement and the remaining terms shall survive and continue to be binding and enforceable.
Governing Law and Jurisdiction - This Agreement shall be governed by and interpreted in accordance with the laws of New Zealand which shall have exclusive jurisdiction over any disputes.
- By using the Services, you agree that:
(a) the Services shall be deemed solely based in New Zealand; and
(b) the Services shall be deemed a passive website or service that does not give rise to personal jurisdiction over KM, either specific or general, in jurisdictions other than New Zealand.
- Notwithstanding the above, you agree to comply with all local rules and applicable laws regarding your use of the Services, online conduct and the transmission of technical data in the jurisdiction in which you access the Services.
Amendments to Terms - KM will post a notification on the Website in the event of any material changes to this Agreement. Such changes, whether in the form of modifications, additions, or deletions, shall be effective when specified in the relevant notification or, if the change is immaterial, immediately upon appearing on the Website. Your continued use of KM’s Services following our posting of any changes to this Agreement means that you accept those changes.
