Terms & Conditions

SET APART STRETCHING

‘The Stretch Start’

TERMS AND CONDITIONS

These Terms and Conditions (Terms) apply to your membership for the Set Apart Stretching programme(s) provided by Coluccio Film and Fitness Limited trading as Set Apart Stretching (SAS or we, us, our) and you as Member (you, your) agree to be bound by them.

By participating in the Set Apart Stretching Programme, acknowledging your acceptance by checking the tick-box during the registration process, or accessing the Set Apart Stretching Portal you are agreeing to the following Terms. If you do not understand or do not accept these Terms, please do not access any of SAS’s proprietary materials and immediately contact us at admin@setapartstretching.com or write to us at P.O.Box 259114, Botany, Auckland, New Zealand, 2163.

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions: In this Agreement, unless the context otherwise requires:

Agreement means these Terms and includes any other terms set on SAS’s website.

Business Day means a day on which registered banks are open for business in Auckland, New Zealand, excluding Saturdays, Sundays and public holidays.

Confidential Information means any information and other material (including trade secrets (such as design, creative, marketing, sales, operating, performance, know how, business and process information), and any Intellectual Property):

(a) of a confidential or proprietary nature which the disclosing party makes available to the receiving party including anything that the receiving party derives from this information and material;

(b) relating to the terms of this Agreement;

(d) disclosed by a party to another on the express basis that such information is confidential; or

(e) which might reasonably be expected by a party to be confidential in nature,

provided that where information relates exclusively to one party, nothing in this Agreement will require that party to maintain confidentiality in respect of that information.

Programme means the stretching, mobility or flexibility programme provided by SAS in which you have purchased the right to participate, and have access to related materials.

Force Majeure Event refers to any event caused by circumstances beyond the reasonable control of SAS and includes, but is not limited to, acts of God, legislative, regulatory or judicial requirements, war, riot, strikes, labour disputes, natural disaster, fire, flood, pandemic, epidemic, failure of equipment, earthquake or other natural disaster.

Intellectual Property means all statutory, common law and proprietary rights and interests, including patents, designs, plant varieties, trademarks, copyright works, layout designs, know-how and other information, whether registered or unregistered (including applications for such rights) as may exist anywhere in the world at any time.

Membership Fee means the amount payable by Member to SAS in respect of access to modules, video tutorial library, pdf downloads and participation in each Programme as set out on SAS’s website at www.setapartstretching.com or in respect of each Programme’s respective website, when registering for Programme.

Portal means the website at www.members.setapartstretching.com through which Member can select, order and access Programme(s), modules or Products advertised by SAS.

Products means any merchandise, equipment, digital products, e-books, pdf downloads and online content for purchase or otherwise available to Member.

1.2 General interpretation: In this Agreement, unless the context requires otherwise:

(a) Including: means including, without limitation to the generality or specificity of the surrounding words; and

(b) Plural: any words referred to in this Agreement in the singular, where the context permits, shall be deemed to include the plural and vice versa.

(c) Statutes and regulations: reference to an enactment or any regulations is a reference to that enactment or those regulations as amended, or to any enactment or regulations substituted for that enactment or those regulations.

1.3 Construction: This Agreement may not be construed adversely to a party just because that party prepared, or procured the preparation of, this Agreement.

2. MEMBERSHIP

2.1 SAS Services: SAS will, subject to the terms of this Agreement, provide you access to participate in the Set Apart Stretching Programme(s) (Services).

(a) Each Programme includes:

(i) Access to 9 Online Modules (including an introductory module);

(ii) Access to the learning materials shared on the Portal;

(iii) Access to customisable programming, including guided tutorials for programming; and

(iiii) Access to Set Apart Stretching private online forum

(Membership)

2.2 Any additional services offered by SAS to Member may require additional fees and signing of a separate agreement to be discussed and agreed upon by the parties. This includes any one-on-one sessions, intensives, or live events.

2.3 Service Standards: SAS will have authority to enter into this Agreement and provide the Services, and will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.

2.4 Member duties: The Member:

(a) acknowledges that they:

(i) are physically fit and healthy; and

(ii) has reviewed the description(s) of the Programme,

(b) acknowledges they should consult their physician/doctor/GP prior to starting an exercise and diet programme, particularly if they have a personal or family history of high blood pressure, heart disease, chest pain, smoking, high cholesterol, obesity, bone or joint problems, or if they are pregnant.

(i) If you have any concerns or questions regarding your health you should always contact your doctor. If you experience faintness, dizziness, pain or shortness of breath at any time you must stop the physical activity immediately and contact your doctor before resuming.

(ii) The content of our Programme and SAS is not intended to replace or be a substitute for professional medical advice diagnosis or treatment. All content of our Programme, Site, and SAS has been created for information purposes only.

(c) acknowledges that the Programme is subject to protection under the Copyright Act 1994 and any sharing of the Programme constitutes a breach of this Agreement and will result in your immediate deactivation as a Member, without prejudice to any of our other rights or remedies under this Agreement or at law;

(d) acknowledges that there is risk of injury and Member accepts all risks involved (also including by way of example only, Member’s own abilities or equipment), and agrees to participate in the Programme at their own risk;

(e) releases SAS (including where applicable their officers, sponsors, agents, contractors, volunteers and employees) to the maximum extent permitted by law from all liability for any loss (direct or indirect loss), or injury (including liability for negligence and/or recklessness) arising out of or in connection with Member’s (or any third party with whom the Member shares the Programme with, notwithstanding clause 2.4(c)) intended or actual participation in a Programme;

(f) confirms they are 18 years of age or over, and where the Member is below the age of 18, the Member agrees to have this Agreement viewed, signed, or otherwise agreed by their guardian, and guardians of children confirm the Member is fit to enter and participate in the Programme (and otherwise confirms and acknowledges on behalf of the child where required under this Agreement);

(g) acknowledges that they will not remove any proprietary notices, branding, labels, or marks on the Product(s) or any accompanying documentation;

(h) acknowledges they may use the Programme, Portal, and Membership for lawful purposes only. You shall not post or transmit through the Portal any material which violates or infringes the rights of others;

(i) acknowledges that in the event that Member engages in abusive or otherwise unprofessional behaviour as outlined above in (g) the community forum or Portal, towards representatives of SAS or other members, SAS reserves the right to cancel Member’s Membership and terminate access to the Membership on notice. No refund will be provided in the event that this takes place.

(j) acknowledges that the information presented in the Programme does not constitute therapeutic, mental health, or medical advice. All of the information provided throughout the Membership and Services including the resources delivered via phone/video conference, e-mail, in the online forum, live events including webinars and video/audio recordings are resources for educational and informational purposes only and should not take the place of hiring a licensed professional and Member understands that SAS does not and will not provide any form of diagnosis.

(k) acknowledges that Member’s success or benefit in the Programme is dependent upon Member’s level of participation in the Programme. In order to get the most out of the Programme, Member must also work to participate in the Programme, implement the tools and strategies learned throughout the Programme, and make considerable efforts toward Member’s own development on Member’s own time. Member is responsible for requesting support from SAS when needed.

(l) agrees that the right to participate in a Programme is not transferable (to other people, or to another Programme).

3. PAYMENT:

3.1 Membership Fee: Member agrees to pay the Membership Fee of USD $297 inclusive of taxes, plus any applicable fee payable to PayPal as set out on SAS’s website or other elected payment provider, for the Membership (in respect of each Programme) which shall commence on the date of payment and continues until otherwise terminated in accordance with the terms of this Agreement.

3.2 Afterpay: If Member purchases each Programme through Afterpay, Member acknowledges that they have read and understood the Afterpay Terms of Service (found here https://www.afterpay.com/en-NZ/terms-of-service). Afterpay is not a service provided by SAS.

(a) Afterpay offers instalment plans with payments made over 4 fortnightly, interest free, equal payments. The first payment may be required at the time of purchase.

(b) To be eligible for payment of the Membership Fee to be paid via Afterpay, Member must first register for an Afterpay account (if not an account holder already), and Member must be over 18 years of age, have a valid credit or debit card, be a resident of a country offering Afterpay, and otherwise meet Afterpay’s eligibility criteria in their terms and conditions.

(c) Member acknowledges that SAS will not be responsible for any failure by you to comply with the Afterpay terms including any late payment fee(s) where payment is not made in accordance with Afterpay’s payment schedule.

3.3 Refunds: Without limiting any other rights Member may have with respect to the Consumer Guarantees Act 1993, SAS will offer a full refund if Member changes their mind within two weeks of signing up for the Programme.

4. PURCHASE OF PRODUCT:

4.1 SAS reserves the right to modify or change Product specifications (in the case of physical Products) from time to time on the Portal as required in order to improve our Product range and availability. We recommend you immediately inspect any Product upon delivery to you to ensure that you are completely satisfied with the Product.

4.2 Title and risk of tangible Products pass to you on receipt or delivery of the Product to the nominated address.

5. TERMINATION:

5.1 You may give seven days’ notice to us at any time that you no longer wish for us to provide Product and/or Services to you. If this occurs, you must immediately pay all fees, for any Product which may have already been dispatched, and any other charges incurred, up until the date of termination.

5.2 Without prejudice to any of our other rights or remedies under this Agreement or at law, if you fail to pay any amount owing to us, or you breach this Agreement and if the breach is not capable of remedy within seven days, or you become insolvent, commit an act of bankruptcy, enter into or are likely to enter into any arrangement with your creditors or in the case of a company do any act that would render it liable to be liquidated, or if a resolution is passed or proceedings commenced for the liquidation or voluntary administration of you or if a receiver is appointed in respect of all or part of your assets, then:

(a) we may immediately cancel this Agreement and cease the delivery and/or provision of Products and/or Services; and

(b) any amounts payable by you to us whether due for payment or not, will become immediately due and payable.

6. PRIVACY

6.1 You agree that SAS may collect, retain and use information about you (such as name email, physical address, phone number) (collected directly from you, and from others where you have authorised, for the purposes of:

(a) processing customer service requests, responding to inquiries, complaints or requests for our Services, Programme and/or Product;

(b) conducting our business or providing our Services and/or Product, and communications with you regarding our business;

(d) sending invoices to you and to recover money owed to us, associated companies or contractors in connection with the provision of our Services and/or Product;

(e) marketing to you Services and/or Product available from us which we believe may be useful to you, unless you tell us not to; and

(f) exercising or enforcing any right that we have under this Agreement or at law.

6.2 If you choose not to provide us with personal information, we may not be able to provide our Services to you.

6.3 You authorise SAS to disclose any information obtained for the purposes set out in clause 6.1, to those parties required by us to carry out the Services to you, including sharing it with our service providers (including accountants, solicitors, computer systems, data services providers, and with debt collection agencies), associated companies and contractors. In general, the third party providers we will use will only use your information to the extent necessary to allow them to perform the services to us.

6.4 We may also disclose your information where we believe we are required to do so by law.

6.5 You may ask to see any information held by SAS as long as it is readily retrievable and you may ask for any details that are wrong to be corrected by contacting us at admin@setapartstretching.com.

6.6 SAS is required to ensure personal information is protected (by security safeguards as are reasonable) against loss, misuse or unauthorised disclosure, and SAS will not keep personal information for longer than necessary for the purpose of which it was collected.

6.7 Notwithstanding the above clauses 6.1 to 6.6, Member acknowledges that SAS may use Member’s name, likeness, and images in media for marketing and promotional purposes of SAS’s Services before, during, or after the Programme(s).

6.8 Recordings. SAS reserves the right to record all one-on-one trainings, Instagram Live feeds, and audio-visual tutorials and meetings (including those via software such as Zoom). Member may access these recordings via the online forum or other means provided by SAS. Member agrees and consents to the recording of any calls, meetings, or conversations which take place as part of this Agreement.

6.9 Member understands and acknowledges that Member’s details will be added to the SAS database and may be contacted in regard to upcoming Programmes and promotions. Member acknowledges that they may opt out at any time by unsubscribing or otherwise contacting SAS.

7. CONFIDENTIALITY

7.1 Confidential Information: Each party (Recipient) receiving Confidential Information belonging to the other party will treat, and will ensure that it will treat such Confidential Information with confidence and will not use or disclose such Confidential Information for any purpose other than as is permitted by, or otherwise required to, comply with this Agreement.

7.2 For the avoidance of doubt, Member agrees not to disclose, reveal or make use of any Confidential Information or any transactions, during discussions, on the SAS Facebook group or otherwise. Member will keep SAS’s Confidential Information in strictest confidence and shall use the best efforts to safeguard the Confidential Information and to protect it against disclosure, misuse, loss and theft.

7.3 Return of Confidential Information: Upon termination of this Agreement, the disclosing party may request the destruction or return of any Confidential Information and the Recipient will promptly destroy or return (at the disclosing party’s sole discretion) all Confidential Information (whether documents, reports, exhibits and other papers, and whether on paper or in any electronic information storage and retrieval system or in any other storage medium), in the Recipient’s possession or control to the disclosing party.

8. INTELLECTUAL PROPERTY

8.1 Existing Intellectual Property: The Parties agree to the following ownership arrangements for Intellectual Property:

(a) Existing Intellectual Property used for the purposes of this Agreement, including techniques, knowledge, information, practices (Existing IP), will remain the property of its current owner.

(b) For the avoidance of doubt, many of SAS’s Products and Programme content are intangible and may come in the form of ebooks, PDF downloads, resource material, videos or online content. All of these Products are subject to copyright protection.

(c) Member agrees that the Programme contains proprietary content that is owned solely by SAS and/or its licensors and is protected by copyright, trademark, and any other applicable intellectual property laws. SAS retains the sole right to use, reproduce, and distribute the Intellectual Property worldwide in any and all mediums.

8.2 Use or provision of Intellectual Property: Where either party (Provider) agrees to provide, or provides, Intellectual Property, whether owned by the Provider or not, for use by the other party (User) under this Agreement the Provider will ensure that it has all necessary rights to use and provide the Intellectual Property and will licence the User to use the Intellectual Property for the intended use under this Agreement. In relation to Member, this being solely for Member’s own non-commercial purposes. Member agrees that it has no right to create derivatives of, share, reproduce, distribute, modify, translate, post, license, sell, loan, or otherwise exploit the Intellectual Property, whether commercially or non-commercially.

8.3 For the avoidance of doubt, Member agrees not to:

(a) create any derivative products, blog posts, websites, guides, worksheets, tool kits, videos, audio recordings, or the like based on SAS’s Intellectual Property (including any and all content) or that in any way violates SAS’s Intellectual Property, without SAS’s written consent. Any registered or common law trademark, service mark, logo, or tagline used in conjunction with the Programme is property of SAS. Member may not use such trademarks or service marks for any purpose except with written permission by SAS.

(b) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Programme (including training materials), use of the Programme, or access to the Programme.

(c) share access to the Programme or materials with others. This includes parties that have not purchased access to the Programme, or any other third-party that SAS has not authorized access to.

8.4 Infringements: Member will notify SAS of any actual or potential infringement of any Intellectual Property right and of any claim by a third party that the use of the Product or SAS’s Intellectual property infringes the rights of any other person, as soon as that infringement or claim comes to Member’s attention. Member will do all things that may reasonably be required by SAS to assist SAS in pursuing or defending any proceedings in relation to any such infringement or claim.

9. LIABILITY

9.1 Product liability: To the maximum extent permitted by law and subject to clauses 9.2 to 9.4, the liability of SAS (whether in contract, equity, tort (including negligence) or otherwise) for any defect in or non-compliance of the Product (or parts), is limited, at the option of SAS, to either replacement or repair of such defective or non-complying items, or damages not exceeding the price paid by Member to SAS for such defective or non-complying items.

9.2 Total liability: To the maximum extent permitted by law, the liability of SAS arising from any:

(a) breach of any of SAS obligations under or in connection with this Agreement;

(b) negligence, misrepresentation or other act or omission on the part of SAS, its employees, agents or contractors; or

will not exceed the Membership Fee(s) paid by Participant to SAS under this Agreement.

9.3 Exclusions: To the maximum extent permitted by law and notwithstanding any other provision of this Agreement, under no circumstances will the measure of damages against SAS for any breach of this Agreement, equity, tort (including negligence), or other action or contravention of any statute, include special, incidental, consequential or indirect loss or any consequential economic damage, loss of or damage to data, lost profits, business, revenue, goodwill, or anticipated savings, nor will SAS be liable for:

(a) any breach to the extent that such breach is attributable to the prior default, negligence, misconduct or breach by Member;

(b) damage or loss resulting from:

(i) the intended or actual participation in the Programme by Member;

(ii) a Force Majeure Event;

(i) the intended or actual participation in the Programme by Member; or

(ii) contravention of any laws by Member or any other person,

whether or not SAS was aware, or should have been aware, of the possibility of such loss or damage, personal injury, harm or death.

9.4 Indemnity: Member hereby indemnifies and holds harmless SAS, its employees, agents and contractors from and against any and all claims or liabilities asserted against any or all of them in connection with the provision of Services and Product supplied under this Agreement arising in whole or in part, out of or by reason of the:

(a) failure by member to follow instructions, warnings or recommendations furnished by SAS in connection with such Product or Services;

(b) negligence of Member; or

10. GUARANTEES

10.1 Outcomes: We cannot guarantee the outcome of access to the Portal and/or participation in the Programme. We make no guarantees other than that the SAS Services described in 2.1 shall be provided to you in accordance with this Agreement. Member acknowledges that SAS cannot guarantee any results of the Programme as such outcomes are based on subjective factors (including, but not limited to, Member’s participation) that cannot be controlled by SAS.

10.2 Any testimonials or reviews shared by SAS are not a representation of guaranteed results, only possible results.

11. REFERRALS AND AFFILIATES:

11.1 Referrals: From time to time, and upon Member’s request, SAS and/or its representatives may provide Member with recommendations or referrals for third-party service providers. SAS in no way guarantees the quality of service provided by any third party and bears no liability with respect to such service or experience.

11.2 Affiliate Links. SAS may provide Member with affiliate links through which SAS may be compensated monetarily. SAS in no way guarantees the quality of service provided by any third party and bears no liability with respect to such service or experience.

12. DISPUTE RESOLUTION

12.1 Negotiation: If any dispute arises between the parties in connection with the interpretation or application of the provisions of this Agreement, its breach or termination, the validity of any documents provided by either party pursuant to the provisions of this Agreement, or any other matter arising out of or in connection with this Agreement (Dispute), then the following will apply:

(a) either party may, by written notice (Dispute Notice), require the other party to meet and attempt to resolve the Dispute;

(b) the Dispute Notice will state the nature and subject matter of the Dispute and set a time and date (not to be later than five Business Days from the date of the Dispute Notice) for the parties to meet (whether by telephone, videoconference or physical meeting) to attempt to resolve the Dispute; and

12.2 Referral to mediation: If the Dispute remains unresolved after the expiry of ten (10) Business Days from the date of the original Dispute Notice (Negotiation Due Date), any party may refer the Dispute to the mediation of one mediator. Failing agreement as to an appropriate mediator within three Business Days of the Negotiation Due Date, the mediator will be appointed at the request of any party by the chairperson or any other similar office holder for the time being of the New Zealand chapter of the Resolution Institute, or the nominee of such chairperson or other office holder. The guidelines which will govern the mediation will be set by the parties. Failing agreement within three Business Days after the date of appointment of the mediator, any party may request the mediator to set the guidelines (whether or not in conjunction with that party) which will govern the mediation.

12.3 Termination of mediation: If the Dispute is not resolved within ten (10) Business Days of the date of commencement of the mediation, any party may:

(a) terminate the mediation by giving written notice to the other party; and

(b) commence court or other proceedings in respect of the Dispute.

12.4 Interim relief: The provisions of this clause 12 will not preclude either party from obtaining interim relief on an urgent basis from a court of competent jurisdiction.

13. GENERAL

13.1 Force Majeure: Notwithstanding any other provision of this Agreement, non-performance by SAS of any of its obligations under this Agreement will be excused, without liability for non-performance, during the time and to the extent that performance is prevented, wholly or substantially, by a Force Majeure Event affecting SAS to such an extent that SAS is unable to perform its relevant obligations. SAS will promptly advise Member, of its inability to perform any of its obligations and the likely duration of such non-performance.

13.2 Assignment: SAS may subcontract, assign or transfer all or any part of SAS’s rights or obligations under this Agreement. Member must not subcontract, assign or transfer any of their rights or obligations under this Agreement to any other person without Member’s consent. If Member is unable to participate in the Programme, Member is not to transfer Member’s participation in the Programme to anyone else unless Member has obtained SAS’s prior written approval.

13.3 Notices:

(a) All notices or other communications to be given under this Agreement will be given at your last known email address or by sending the notice to your last known postal address.

(b) All notices, requests, demands, and other communications under this Agreement shall be in writing and properly addressed to SAS as follows:

Coluccio Film and Fitness Ltd.

P.O.Box: 259114, Botany, Auckland, New Zealand, 2163

E-mail: admin@setapartstretching.com

(c) Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address.

13.4 Entire agreement: To the maximum extent permitted by law, this Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all prior agreements, or representations between the parties relating to such matters.

13.5 Amendment: No amendment to this Agreement will be effective unless it is in writing and signed by both parties.

13.6 Severance: To the extent permitted by law, any unlawful or voidable provision in this Agreement will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from this Agreement without affecting the validity, legality or enforceability of the remaining provisions, provided that the reading down or severing does not materially affect the purpose of or frustrate this Agreement.

13.7 Waiver: No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by either party in respect of any breach of the other party’s obligations under this Agreement is to:

(a) operate as a waiver or prevent the subsequent enforcement of that obligation; or

(b) be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of, or a waiver of, any subsequent or other breach.

13.8 Electronic signatures: The parties agree that electronic signatures are acceptable provided that the parties have complied with section 226 of the Contract and Commercial Law Act 2017, or any other applicable provisions of that Act or any Regulations referred to in that Act.

13.9 Counterparts: This Agreement may be executed in two or more counterparts (including by way of an email exchange of signed and scanned PDF copies) each of which will be deemed an original, but all of which together will constitute one and the same instrument.

13.10 Governing law: This Agreement is governed by and will be construed in accordance with the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.