Terms and Conditions

These terms and conditions (“EMP T&Cs”), together with our Privacy Policy and Code of Conduct apply to your use of Elliot Matthews Performance (“EMP”, “we”, “our” or “us”) located at www.emperformance.com.au.

By using or purchasing any EMP Feature, making a Booking or accessing or using the Site or any EMP premises, you agree to these EMP T&Cs, together with our Privacy Policy and Code of Conduct (collectively, the “Terms”). If you do not agree with the Terms, you must not access EMP or any of our sites.

We reserve all rights to alter the Terms at our discretion. Each time you use EMP or the Site, it is your responsibility to ensure that you are aware of our current Terms as published on the Site. Your continued use of EMP or Site following the publication of changes to these Terms is taken to be your acceptance of those changes. The Terms, as amended by us from time to time, continue to apply for as long as you use EMP  and/or Site or until terminated in accordance with the Terms. Definitions in these EMP T&Cs are set out at the end.

EMP is an inclusive environment.  You must respect all people and all bodies in EMP and our Premises, and if it is found that you have verbally or physically made anyone feel uncomfortable, we have the right to request you leave the premises and to refuse entry and/or service at any time.

You must follow all instructions given to you by EMP staff and you acknowledge that any failure to do so will be at your own risk and may cause injury.

You must not:

Use EMP or any EMP Feature other than for its intended purpose; Obstruct or interfere with any of the entrances or common areas of EMP; Engage in any unsafe or dangerous behaviour; Damage any of the equipment, furniture or any other property associated with EMP or its sites. Prior to use of any of EMP Features, you must have been examined by a qualified medical practitioner within the past six months and have been found by such practitioner to be in good physical health and physically able to sustain a level of activity required to bowl. Certain EMP Features may be physically strenuous and you voluntarily participate in them with full knowledge that there is risk of personal injury, property loss or death. See the liability provisions below in the Liability clause. We are not liable for the security or loss of your property. We recommend that valuable items are left at home.

We will communicate with Members and Guests primarily via email, phone call or text message/SMS/iMessage. It is your responsibility to therefore ensure that the correct contact details are provided and that the nominated email address is regularly checked for correspondence.

Bringing illicit substances into EMP and any EMP Premises is strictly prohibited. Bringing alcohol into EMP and any EMP Premises is strictly prohibited unless authorised by EMP or Premises managers.  Members or Guests under the influence of alcohol or drugs may be refused entry to EMP and any EMP Premises.

You must advise at time of making a Booking if you are suffering from or affected by any medical conditions that might be complicated or exacerbated by your use of EMP Features, or which may necessitate increased supervision or a priority medical response, including: Conditions involving high fever, Extreme hypertension, Malignant tumours and cancerous conditions, Liver, kidney and circulation disorders, Conditions presenting the high risk of haemorrhaging, Anaemic conditions, Congestive heart failure, recent stroke, or recent heart attack, Pregnancy, Diabetes.

Memberships or subscriptions cannot be shared or transferred and must only be used by the individual who has entered the relevant membership or subscription plan. Any Member found to be sharing their membership or subscription will be denied service by EMP, denied entry into our Premises, and may have their Membership or subscription cancelled.

Subscriptions may be purchased as a gift.

We do not offer refunds, transfers, suspensions, or extensions on the Founding Membership for change of mind, injury, illness, change of address or any other reason. We accept no responsibility if a membership or subscription is lost, stolen, destroyed, or used without your permission. 

EMP memberships, subscriptions and other products can be purchased via Elliot Matthews Performance through the Setmore and Stripe extensions.  A surcharge may apply to payments made by credit card depending on the credit card used.  The terms and conditions of Setmore or Stripe and any third-party biller form a binding component of these Terms. They can be found at Setmore, Stripe, and the third-party biller’s website respectively. You agree and acknowledge that we will treat an electronic instruction as authentic and are under no obligation to investigate the authenticity or authority of persons issuing or transmitting such electronic instructions, or to verify the accuracy and completeness of such electronic instructions.

‍

If your nominated payment method triggers our internal suspect transaction protocols, we may contact you to confirm additional details, or rescind the transaction.

All prices listed on the Site and in the Membership Plan are in Australian Dollars and include GST (unless otherwise specified).All prices displayed on the Site and Stripe are subject to change without notice. Promotional discount codes may be given at our sole discretion on terms and conditions notified at the time of the relevant promotional offer or discount. To the maximum extent permitted by law, we reserve the right to refuse a sale to any person. 

You acknowledge that we or our licensors are the owners of all Intellectual Property Rights in the Site and in all Material published on the Site, and we retain all rights, title and interest in the Site and Material (including Intellectual Property Rights contained therein) irrespective of any licence we may grant to you to access and use the Site. You may access and use the Site (including Intellectual Property Rights contained therein) for your personal and non-commercial use only. You must not in any form or by any means reproduce, modify, distribute, store, transmit, publish, use or display the Material on another website or create derivative works from any part of the Site or the Material or commercialise any information obtained from any part of the Site or Material without our prior written consent.

By uploading, posting, transmitting or otherwise making available any content or material via the Site (“Your Content”), you: grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and sub-licensable licence to use, publish, reproduce and otherwise exploit Your Content in any form for any purpose and unconditionally waive any moral rights that you might have in respect of Your Content; and(b)  represent and warrant that you either own the Intellectual Property Rights in Your Content or have the necessary permission to upload, post, transmit or otherwise make available Your Content via the Site. We reserve the right to terminate any licence granted to you under the Terms and/or remove any of Your Content from the Site, at any time, for any reason and without notice to you. You agree that you will not modify or copy the layout or appearance of the Site nor any computer software or code contained in the Site, and that you will not decompile, disassemble, reverse engineer or otherwise attempt to discover, interfere with or access any source code related to the Site. 

By participating in exercise under the supervision of Elliot Matthews and/or Elliot Matthews Performance ("EMP") you are aware of the risk associated with participating in personal training or coaching as well as associated travel. You warrant that you are physically and medically competent to undertake an exercise program and that such exercise program is undertaken at you own risk.  You recognize that you trainer is not able to provide you with medical or individualized nutrition advice and that any related or relevant information is used as a guideline to the limitations of your ability to exercise.

In the event that you should require medical care or treatment, you agree to be financially responsible for any costs incurred as a result of such treatment. You are aware and understand that you should carry my own health insurance. In the event that any damage to equipment or facilities occurs as a result of your or your family's wilful actions, neglect or recklessness, you acknowledge and agree to be held liable for any and all costs associated with any actions of neglect or recklessness.

To the full extent permitted by law, you agree to waive and release all claims that you have or may have against EMP, its employees and agents for any injury, illness or death resulting from you participation in the programme. You have carefully read these Terms and Conditionings and agree that such a waiver and release is reasonable and proper based on the nature of services provided by EMP.

You consent to the use by EMP of all photographs, videos or other images or recordings that EMP has taken of you or in which you may be included, for all purposes, in any and all media including the internet and social media.

You agree to indemnify us and our officers, directors, employers or contractors (collectively, the “Indemnified”) and to keep indemnified and hold harmless the Indemnified from and against any and all actions, claims, demands, losses, damages, taxes, liabilities, costs and/or expenses that may be incurred by, or sustained by, the Indemnified arising out of, or in connection with, your access to, and use of, EMP, EMP Features, EMP Premises, Materials, Site, any breach by you of these Terms, or your or anyone else’s use of EMP or EMP Features or Premises.  This indemnity survives termination of the Terms.

To the maximum extent permitted by law, we exclude all: Conditions, guarantees or warranties expressed or implied by law; and any liability to you or to any third person however arising (and whether arising under statute, negligence or otherwise) for any personal injury or death to you or any third person, or for any special, direct, indirect or consequential loss or damage (including, but not limited to, loss of income or revenue, loss or interruption of business, loss of profits, revenue or contracts, loss of anticipated savings, loss of data, loss of use, loss of privacy or loss of goodwill), arising out of, or in connection with, any person’s access and/or use of EMP, EMP Features, EMP Products, EMP Premises, Materials, or Site.

Without limiting the generality of the foregoing, you agree that in no event shall our maximum aggregate liability exceed the total amounts you have paid to us in the past 6 months.  

You acknowledge and agree that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties. To the maximum extent permitted by law, all typographical, clerical or other errors or omissions in sales literature, quotations, price lists, acceptances or offers, invoices or other documents or information issued by us will be subject to correction without any liability on our part.

Sometimes events happen that are out of our control. These may include strikes, lockouts, accidents, fire or the delay, failure in development, production, or supply by third parties of equipment or services, or unforeseen changes to laws or regulations applicable to EMP’s premises or operations.

Such events may prevent us from providing you with access to EMP Products EMP Features, or Premises in whole or in part.

In such cases, both parties agree that we will not be liable for any delay or failure in performing our obligations while such events persist.If the delay or failure referred to in this clause 15 continues for a period of two calendar months or more, then you may terminate your Membership by giving written notice to us. 

We are committed to protecting your privacy and personal information. Please see our Privacy Policy for further details about our practices relating to the collection, use, disclosure and storage of your personal information.

You warrant and represent that your access to, or use of, the Site is not unlawful or prohibited by any laws which apply to you. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate authorities.We may, in our absolute discretion, restrict your access to the Site (temporarily or permanently) where you have breached the Terms or for any other reason and at any time in our absolute discretion. Under these circumstances, you may be prevented from accessing all or parts of the Site. We will not be liable to you or any third party if this occurs. We may impose limits or restrictions on the use you may make of the Site. Further, we may, for any reason, at any time and without notice to you, withdraw the Site, or change or remove Site functionality.

The Site may contain links to third party websites. Any links to such websites provided on the Site are for convenience only. We do not represent that we have any relationship with any linked websites nor recommend or endorse any goods, services or third-party content appearing on, or via, other websites linked to this Site. We are not responsible for any loss or damage that may arise from your access to, and/or use of, third party websites, products and services. Additionally, we are not responsible for the content or privacy practices associated with linked websites. You should make your own enquiries before using and/or accessing third party websites.

You may not use the Site other than for its intended purpose. You agree that you will not engage in any activity that interferes with or disrupts the Site or the servers and networks that host the Site. You agree not to, circumvent, disable or otherwise interfere with security-related features of the Site or attempt to do so or otherwise interfere with, or restrict, any person or visitor from accessing or using the Site.

Unless otherwise expressly stipulated in the Terms, you must not copy, adapt, distribute, display, reproduce or transmit any content displayed or published on the Site. 

You must take your own precautions to ensure that the telecommunications equipment and computer systems used by you to access and use the Site does not expose your telecommunications equipment and computer systems to any viruses, malicious computer code or other forms of interference which may damage your computer system. We accept no responsibility for any loss or damage to you or anyone else which may arise out of, or in connection with, your access to, and use of, the Site.

You must not establish a link to the Site in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

Cancellation and Rescheduling is not permitted within 12 hours of the appointment time. If you do wish to cancel or reschedule within 12 hours of the appointment time you will be required a Late Cancellation Fee or Late Rescheduling Fee. 

A Missed Appointment also requires a Missed Appointment Fee to be paid.

Late Cancellation Fee: 60% of the fee for the relevant original service.

Late Rescheduling Fee: 30% of the fee for the relevant original service.

Missed Appointment Fee: 100% of the fee for the relevant original service.

This fee must be paid and settled prior to your next appointment.

EMP reserves the right to refuse service if you do not abide by this policy.

We reserve the right to make changes to these Terms without notice to you. Any such amendments will have immediate effect from the time that they are published on the Site.

Although we do our best to provide the most up-to-date information on the Site as this becomes available, we cannot warrant the accuracy or completeness of the information provided.

Any provision of the Terms which is void or unenforceable may be severed without affecting the enforceability of other provisions.• A failure or delay by us to exercise a power or right under the Terms does not operate as a waiver of that power or right, and the exercise of a power or right by us does not preclude our future ability to exercise that or any other power or right.

These Terms are goVerned by, and must be construed according to, the laws of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts exercising jurisdiction there.

“Access Hours” means days and times in which the EMP will be open and available for Members and Guests to make Bookings, including times for various EMP Features.

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth);

“EMP Premises” means The Performance Centre, located at 381 Fitzroy Street, Fitzroy Victoria Australia 3065 and/or Fitzroy Swimming Pool 160 Alexandra Parade, Fitzroy Victoria Australia 3065;

“EMP Access” means access to the communally accessible spaces and facilities at EMP;

“EMP Features” include, but are not limited to, the following: EMP Training; EMP Access; Classes; Workshops; and Events, both at the Premises and at other locations

“EMP T&Cs” means these terms and conditions;

“Booking” means a booking for a EMP Feature;

“Cancellation” means the action of cancelling any booked or organised EMP Feature.

“Class” means any class held in EMP or run by EMP;

“Consumer Guarantee” has the meaning given in Division 1 of Part 3-2 of the Australian Consumer Law;

“Direct Debit Membership” means a Membership under which a recurring Membership Amount is paid fortnightly via direct debit and includes Founding Memberships;

“Event” means any event held at EMP;

“Gift Cards” means a card that can be used to make certain Bookings in accordance with the Gift Card clause;

“Guest” means any a person who is not a Member;

“Intellectual Property” means all present and future intellectual or industrial property rights (whether or not registered) throughout the world, including, without limitation, in respect of patents, copyright, moral rights, trade names, trademarks, logos, systems, circuit layout, designs, software, plant breeder’s rights, domain names, trade secrets and confidential information;

“Late Cancellation” means the action of cancelling any booked or organised EMP Feature within 12 hours of the commencement of the Feature.

“Late Cancellation Fee” means 50% of the Fee for the relevant EMP feature.

“Late Rescheduling” means the action of rescheduling any booked or organised EMP Feature to an alternative date, time and/or Premises within 12 hours of the commencement of the Feature.

"Late Rescheduling Fee" “Late Cancellation Fee” means 50% of the Fee for the relevant EMP feature.

“Material” means any information, data, source codes, drawings, content, text or images in any form (whether visible or not), audio recordings, video recordings, lists, sound, video, links, layout, look and feel, control features and interfaces contained on the Site, or otherwise displayed, uploaded or published on, or via, the Site;

“Member” means a member of EMP, who has entered into a Membership Plan paid any applicable Joining Fee and “Membership” has the corresponding meaning;

“Membership Amount” means a recurring fortnightly payment amount applicable to a Membership as set out in a Membership Plan;

“Membership Plan” means the terms entered by Members on Shopify that detail the particulars of their Membership, including the relevant Start Date, Joining Fee and Membership Amount;

“Missed Appointment” means any booked or organised EMP Feature or that is not attended, kept or cancelled.

"Missed Appointment Fee" means 100% of the Fee for the relevant EMP feature.

“Privacy Policy” means our privacy policy available at https://www.emperformance.com.au/privacy-policy.

“Session” means a time period in which a member or Guest has made a Booking for EMP Access; 

“Rescheduling” means the action of rescheduling any booked or organised EMP Feature or Service to an alternative date, time and/or Premises.

“Site” means the website located at www.emperformance.com.au

 “EMP” means Elliot Matthews Performance

“EMP Product” means any EMP item offered for sale through the Site, Setmore, and Stripe including, but not limited to, Memberships, Subscriptions and Gift Cards.

“Start Date” means the date on which a Membership or Subscription  will commence, as listed in the relevant subscription plan

“Terms” means these EMP T&Cs together with our Privacy Policy and the terms stipulated in Setmore or Stripe

“Workshops” means and workshops offered at EMP or by EMP;

And “you" or "your" means the person or entity accessing, using EMP or Site and includes, when applicable, Members and Guests.  

Any reference in these Terms to the singular includes the plural, to any gender includes all genders, to any act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations both corporate and incorporated and vice versa.

Paragraph headings are for reference purposes only and all references to clauses are to clauses in these Terms unless otherwise specified.