Subscription Agreement and Membership Agreement
THIS AGREEMENT is made on the date specified in Item 1, Schedule A.
BETWEEN: HumanFusion - Dance for Fitness Pty Ltd ABN 88 150 587 250 having its registered office at Lot 1, 2 Geary Crescent, Molendinar QLD 4214 (HF).
AND: The person named in Item 2, Schedule A (the “Member”).
HF has the exclusive right, in its territory, to offer HumanFusions’ forms of exercise routines to music including the routines listed in Item 5, Schedule A.
HF has agreed to teach persons nominated by the Member to conduct the Exercise Routines at the location in Item 4,
The Member has agreed to engage only persons who have been certified by HF as Instructors to conduct classes of the Exercise Routines on the terms specified in this Agreement.
IT IS AGREED
In this Agreement unless the context otherwise requires:
“Additional Exercise Routine” means the Exercise Routine indicated in column two of Item 5 of Schedule A.
“Agreement” means this document between HF and the Member, (as amended from time to time in accordance with clause 22) and includes its schedules and any attachments.
“Consumer Price Index” (CPI) means the consumer price index (all groups) for Australia published from time to time by the Australian Bureau of Statistics.
“Exercise Routines” means the Exercise Routines listed in Item 5, Schedule A.
“First Exercise Routine” means the Exercise Routine indicated in column one of Item 5 of Schedule A.
“Instructor” means a person qualified and certified by HF to instruct an Exercise Routine to attendees of an Exercise Routine class.
“Instructor’s Deed” means the deed of understanding set out in Annexure A or such other form of agreement offered in writing by HF from time to time.
“Intellectual Property” means all intellectual property rights, including but not limited to, the following rights:
(a) patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a).
“Location” means the Location listed in Item 4, Schedule A.
“Material” means any documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, marketing materials, training materials, instructions, sound, video and digital recordings, and the subject matter of Intellectual Property.
“Monthly Membership Fee” means the fees payable per month as set out in Item 6, Schedule A.
“Notice” means a notice, demand, consent, approval or communication issued under this Agreement.
“Representative” means an authorised representative of HF or the Member.
“The Member” is the person or organisation specified in Item 2, Schedule A.
“Trainee” is a person currently undergoing training to become an Instructor.
The Member will nominate a person/s (the “Trainee/s”) to be instructed in methods for teaching and conducting HumanFusion classes in accordance with Material supplied by HF.
Subject to the Instructor signing the Instructor’s Deed, HF will train them in a professional and competent manner to perform and teach the classes.
When the Trainee, in the reasonable opinion of HF, is capable of conducting the Exercise Routines HF will certify the Trainee as a qualified Instructor in that Exercise Routine.
The Instructors engaged by the Member will keep up to date with all new releases as exactly provided by HF. via the Instructor Portal. Continuing education is necessary to ensure all Modules conducted by the Member are to the standard required by HF and are at all times in accordance with the routines currently in use.
The cost (if any) of attending workshops will be at the sole expense of the Instructor or Member.
Assistance to Member
If the Member requests HF to provide a representative at the Location to provide any assistance to the Member, then the Member will pay to HF:
all reasonable travel and accommodation expenses incurred by the representative; and
a daily rate to be agreed between the parties.
daily rate is excluded if included in the guarantee period of 3 months and in relation to marketing and program support.
Subject to the Member’s security requirements, HF may at any time attend the Location to inspect;
the classes of the Exercise Routines conducted by the Member or its Instructor(s); and
compliance with other requirements under this Agreement or the applicable Instructor’s Deed.
The Member nor Instructor will not conduct the HF Exercise Routines, other than as described in (b) below, outside the Location without the prior written consent of HF (which may be withheld in HF’s absolute discretion).
HF encourages Members to conduct external exhibitions and/or promotions of its programs and permits this activity under this Agreement.
Supply of Materials and Instructions
a. HF will make available for use;
at HF’s discretion, Materials such as, but not limited to, POS, digital graphics, video or digital video disc (DVD) recordings; and
instructions deemed necessary by HF to enable the Member’s Instructor(s) to conduct the Exercise Routine.
b. The Member or the Instructor must pay the applicable fee (if any) for the relevant materials or instructions as determined by HF from time to time, together with any postage charges.
c. The Member’s right to use such Materials and instructions is non-exclusive.
Use of Materials
The Member will not, and will endeavor to ensure that each of its employees, Instructors, Trainees, servants or agents will not, reproduce any of the recordings or literature or other Material provided by HF or use any of them other than for the purpose of the Member conducting the HF Exercise Routines in accordance with this Agreement.
The Member will require each of its Instructors to enter into an Instructor’s Deed to give effect to this clause.
The Member will pay to HF on the date agreed upon in full for the annual Subscription or monthly Subscription as agreed.
The Member agrees to the Membership Fee being paid by direct debit or electronic funds transfer from the Member’s nominated bank account or credit card.
Conduct of Classes
The Member will ensure that each of the Exercise Routine classes it conducts will be conducted by a Trainee or Certified HF Instructor.
The Member will ensure that Instructors only conduct the HF Exercise Routine classes in accordance with the program specifications set down in the authorised training manual for HF.
The Member will, in providing HF classes, maintain the highest standards and conduct them in a professional and business-like manner so as to not in any way denigrate from and/or undermine the reputation and goodwill of HF or the goodwill associated with the Intellectual Property of HumanFusion - Dance for Fitness Pty Ltd.
The Member will not sell any clothing, equipment or promotional articles bearing the words “HumanFusion” or any other HumanFusion names or Intellectual Property of HF unless:
supplied to the Member by HF; or
the Member has obtained prior written approval from HF.
Except as expressly specified in this Agreement, the Member acknowledges that nothing in this Agreement vests in the Member any Intellectual Property relating to Materials, routines, choreography or performances.
The Member will not use any names, logos or trade marks associated with the Exercise Routines or other Intellectual Property of HF for any purpose whatsoever without the prior written consent of HF. However, the Member may use the names or trade marks “HumanFusion®” and the trade marks relevant to the Exercise Routines in any advertisements promoting the conduct of the Exercise Routines classes at the Location, during the term of this Agreement.
The Member will immediately notify HF of any suspected breach of HF’s Intellectual Property by any third party.
The Member will comply with any direction from HF concerning the use of names, logos and trade marks associated with the Program.
Responsibility and Indemnity
The Member is solely responsible for all claims for loss or damage arising directly or indirectly from the acts or omissions of the Member, its agents, employees or contractors (including the Trainees and Instructors), in connection with the conduct of the HF Exercise Routines, except where such claims are the result of negligent acts or omissions of HF or its employees, agents and/or contractors.
Claims in sub-clause (a) will include, but are not limited to, claims for loss or damage to property or injury to or death of a person involved in training, instructing or participating in the Exercise Routines.
The Member must indemnify HF against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against HF) that HF may sustain or incur as a result, whether directly or indirectly, of:
any breach of this Agreement by the Member including, but not limited to, a breach in respect of which HF exercises an express right to terminate this Agreement;
any infringement of any Intellectual Property in or relating to the Materials or HF’s business arising from any act or omission by the Member, agents, employees or contractors (including a Trainee or Instructor); and
any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or willful misconduct of the Member or its employees, agents or contractors (including a Trainee or Instructor);
except to the extent that any negligent act or omission of HF or its employees, agents and/or contractors contributed to the relevant liability.
The Member must have and maintain during the term of this Agreement valid and enforceable insurance policies for the relevant insurances such as Public Liability, Professional indemnity and/or Workers’ Compensation.
The Member must give evidence of the insurance policies required under this clause 14 if requested by HumanFusion®.
15. The rights granted to the Member under this Agreement are non-exclusive. HF may either itself conduct or allow other current Member/s others to conduct the Exercise Routines at any locations whatsoever with exception to the initial 3 month, exclusivity offered within a 2km radius of the Member from the start date on this agreement unless otherwise indicated in writing by HumanFusion - Dance for Fitness Pty Ltd.
16. HF may assign to an entity capable of performing the obligations of HF under this Agreement, any of its rights and obligations under this Agreement.
The Member will not assign any of its rights or obligations under this Agreement without the prior written approval of HF and such consent will not be unreasonably withheld.
17. Either party (if not in default) may terminate this Agreement by giving 1 months Notice in writing to the other party of its intention to terminate.
HF may, by written Notice to the Member emailed, posted or delivered to the Member’s address in this Agreement, terminate this Agreement immediately if:
the Member is in breach of this Agreement and has failed within 7 days of written notification by HF of such breach to rectify it; or
HF, other than as a result of its own default, is no longer able to provide the Exercise Routines to the Member, without giving rise to any right in the Member to compensation or damages.
Termination of this Agreement does not affect the parties’ rights in respect of prior breaches.
All obligations of the Member which are to be performed in whole or part after the termination of this Agreement will survive termination.
From the termination of this Agreement, the Member will not:
conduct any of the Exercise Routine classes or part thereof or any exercise programs using techniques or choreography which are substantially similar to the Exercise Routines;
use any names or trade marks associated with or part of the Membership.
18. If any dispute arises under this Agreement then the aggrieved party may give to the other party Notice in writing, giving full particulars of the dispute.
If the dispute is not resolved by the parties within 14 days of service of the Notice, then the parties may appoint an independent arbitrator to resolve the dispute.
If the parties cannot agree on an independent arbitrator, then either party may request the President of the Law Society to nominate an arbitrator.
The parties agree to be bound by the decision of the arbitrator.
Unless the arbitrator otherwise decides, the parties will share equally the fees and expenses of any arbitration but will otherwise bear their own costs in relation to the dispute.
Either party may make submissions either orally or in writing to the arbitrator and in making a determination the arbitrator will have regard to those submissions and will provide the parties with a statement of reasons in writing for reaching the determination.
19. This Agreement is governed by the laws of Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland.
20.If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
21.Except where this Agreement refers to other documents or provisions of other documents this Agreement represents the entire Agreement between HF and the Member and supersedes all prior negotiations, representations or agreements, either written or oral.
22.This Agreement may be amended only by agreement in writing signed by HF and the Member. Changes to the selected Exercise Routines must be varied by completing a variation schedule. A completed variation schedule signed by HF and the Member will be legally binding and form part of this Agreement.
23.Waiver of any provision of or right under this Agreement:
(a) must be in writing signed by the party entitled to the benefit of that provision or right; and
(b) is effective only to the extent set out in any written waiver.
24. If a party consists of more than one person this Agreement binds them jointly and each of them severally.
25. The provisions of this Agreement are for the benefit of and are binding upon the parties and their respective representatives’ successors and assignors.
26. Each party will bear its own legal costs in relation to the negotiation, preparation and execution of this Agreement.
Government Taxes and Charges
27. In this clause 27, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 has the meaning given to it in that Act.
GST is applicable on all fees and charges..
d. The Subscription Fee is net of any inter-country taxes, fees and charges.