Terms and Conditions

Last updated: 27th March 2023

Please read these terms and conditions carefully before subscribing to use Our Service.
These terms and conditions only apply to Subscriptions purchased after 25/02/2024.

1. Interpretation and Definitions

Interpretation

The words of which the initial letter is capitalised have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.

Unless otherwise set out on the Website when purchasing a Subscription, a reference to an amount of money is a reference to the amount in US Dollars (USD).

Definitions

For the purposes of these Terms and Conditions:

Account means a unique account created for You to access Our Service or parts of Our Service.

Affiliate means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.

Annual Subscription has the meaning given to the term in clause 3 of these Terms.

Country refers to: Queensland, Australia

Company (referred to as either "the Company", "We", "Us" or "Our" in this Agreement) refers to The Waterbaby Family Pty Ltd, PO BOX 72, GYMPIE QLD AUSTRALIA 4570.

Feedback means feedback, innovations or suggestions sent by You regarding the attributes, performance or features of our Service.

Monthly Subscription has the meaning given to the term in clause 3 of these Terms.

Promotions refer to contests, trade promotions, sweepstakes or other promotions offered through or in connection with the Service.

Renewal Date has the meaning given to the term in clause 3 of these Terms.

Service refers to the survival swimming online course provided by the Company.

Subscription Date means the date on which you purchase your Subscription.

Subscription Fees means the advertised fee for Subscriptions at the time You subscribe to the Service.

Subscriptions refer to subscriptions to access and view the Service offered by the Company to You.

Terms and Conditions (also referred as to "Terms") mean these Terms and Conditions that, together with the information set out on the checkout page when you purchase a Subscription (such as whether you purchase a Monthly Subscription or an Annual Subscription, the relevant Subscription Fees and the inclusions of your Subscription) form the entire agreement between You and the Company regarding the use of the Service.

Third-party Social Media Service means any services or content (including data, information, products or services) provided by a third-party that may be displayed, included or made available by the Service.

Website refers to the website accessible via http://www.thewaterbabyfamily.com.

You means the individual subscribing to, accessing or using the Service.

2. Acknowledgment

These are the Terms and Conditions governing the use of the Service and the agreement that operates between You and the Company in relation to Your Subscription. These Terms and Conditions set out the rights and obligations of all users regarding the use of the Service.

Your access to and use of the Service is conditioned on Your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all users and others who access or use the Service.

By purchasing a Subscription, You warrant and agree that You are a natural and individual person (not a body corporate or other legal entity), and that You agree to be bound by these Terms and Conditions. If You disagree with any part of these Terms and Conditions then You may not access the Service.

You represent that you are over the age of 18. The Company does not permit those under 18 to use the Service.

Your access to and use of the Service is also conditioned on Your acceptance of and compliance with the Privacy Policy of the Company. Our Privacy Policy describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Service or the Website and tells You about Your privacy rights and how the law protects You. Please read Our Privacy Policy carefully before using Our Service.

3. Subscribing to the Service

By subscribing to the Service, You warrant that You are legally capable of entering into binding contracts. You cannot gain any access to the Service without purchasing a Subscription.

Your Information

If You wish to subscribe to use the Service, You may be asked to supply certain information including, without limitation, Your name, Your email, Your phone number, Your address and Your credit card number and the expiration date of Your credit card.

You represent and warrant that: (i) You have the legal right to use any credit or debit card(s) or other payment method(s) in connection with your Subscription; and that (ii) the information You supply to us is true, correct and complete.

By submitting such information, You agree that the information can be used to process payments of Your Subscription Fees as and when they fall due for payment.

Service content

The content covered in the Service is as noted on the Website from time to time. The Service content is subject to change as may be necessary to make improvements or updates to the Service or any Service content from time to time.

All of the content included in the Service as part of your Subscription will be accessible by You on the date on which You purchase a Subscription and create an Account. You may access any part of the Service at Your own pace for so long as You continue to maintain a Subscription.

The inclusions in Your Subscription will be as noted on the checkout page when purchasing Your Subscription.

You acknowledge and agree that the information set out on the Service is for your own information, and does not provide you with any level of qualification or certification to teach children or others water safety or how to swim.

Any certificates provided on completion of the modules set out on the Service will be a certificate of completion only.

Subscription Period

When you purchase a Subscription, your Subscription will continue:

1. if you select a month-to-month Subscription - on a recurring month-to-month basis (which automatically renews on the monthly anniversary of the Subscription Date on the same Terms unless You provide the Company with at least one day’s notice prior to the automatic monthly renewal of Your intention to cancel your Subscription), from the Subscription Date until the date on which your Subscription is terminated, by either You or the Company, as contemplated herein (“Monthly Subscription”); or

 

2. if you select an annual Subscription – on a recurring annual basis from the Subscription Date until the date which is one calendar year after the Subscription Date, and will automatically renew on the annual anniversary of the Subscription Date (“Renewal Date”) unless You terminate Your Subscription at least one (1) day prior to the Renewal Date or the Company terminates Your Subscription as contemplated herein (“Annual Subscription”).

If You purchase an Annual Subscription, the Company will send You a notice of Your impending Annual Subscription renewal at least one month prior to the Renewal Date each year until your Subscription is cancelled by either You or the Company as contemplated herein.

Our Subscription Cancellation Rights

We reserve the right to refuse or cancel Your Subscription at any time for certain reasons including but not limited to if:

• we suspect fraud or an unauthorised or illegal transaction in connection with your Subscription;
• we cease to offer the Service, in which case we will provide you with at least 30 days notice of the cancellation of your Subscription and, if you have an Annual Subscription, we will refund to you a proportion of the annual Subscription Fee paid by you for which you will be unable to continue to access the Service;
• Your Subscription Fees are in arrears by more than 60 days;
• You, at any time, make (or threaten to make) any of the course information available through the Service publicly available, or available to any third party;
• You materially breach an essential term of the agreement set out in these Terms and fail to remedy the breach within 14 days of our request to do so.

 

Our termination of the agreement set out in these Terms does not affect any rights accrued by Us prior to termination or any rights which continue to survive termination of this Agreement, as contemplated herein.

 

If we cancel your Subscription, You will cease to have access to the Service upon cancellation.

Your Subscription Cancellation Rights

You may cancel your subscription at any time by providing us with:

1. at least one (1) day notice if you have a Monthly Subscription, in which case Your Subscription (and Your access to the Service) will cease at the end of that monthly period for which you have already paid Your Subscription Fee and You will not be charged any further Subscription Fees thereafter; or

 

2. at least one (1) day notice prior to the Renewal Date if you have an Annual Subscription, in which case your Subscription (and your access to the Service) will cease on the Renewal Date and you will not be charged any renewal Subscription Fees on the Renewal Date.

Your termination of the agreement set out in these Terms does not affect any rights accrued by You prior to termination or any rights which continue to survive termination of this Agreement, as contemplated herein.

Availability and Improvements

We may from time to time update the information and resources available on the Service without notice to you. We may also remove content and replace content with other related or updated content from time to time in order to add to or improve the Service.

You acknowledge and agree that the Service or parts of the Service may be unavailable intermittently as we attend to updates or improvements and that such intermittent unavailability will not warrant any refund of your Subscription Fees provided that the Service is not unavailable for more than 48 hours in any given month.

Subscription Fees

You agree to pay the monthly or annual Subscription Fee advertised at the time on which you purchase Your Subscription, as noted on the checkout page when purchasing your Subscription, or any amount as varied under these Terms, which will be charged to Your selected method of payment for the Subscription Fee, either monthly or annually, as selected by you at the time of purchase. 

You will be billed in advance on a recurring and periodic basis (either monthly or annually), depending on the type of Subscription you select when purchasing the Subscription.

Subscription Fee Changes

The Company, in its sole discretion and at any time, may modify the Subscription Fees provided that the Company will provide You with at least 30 days prior notice of any change in Subscription Fees to give You an opportunity to terminate Your Subscription before such change becomes effective.

Any Subscription Fee change will become effective at the end of the then-current Subscription period (being the month you are then in if you have a Monthly Subscription, or the year you are then in if you have an Annual Subscription).

Your continued use of the Service after the Subscription Fee change comes into effect constitutes Your agreement to pay the modified Subscription Fee amount as notified to You.

Billing

You shall provide the Company with accurate and complete billing information including Your full name, address, state, post or zip code, telephone number, and a valid payment method information. You agree to contact the Company to update any information if it changes during the term of your Subscription.

Should automatic billing fail to occur for any reason at any time during the term of your Subscription, the Company will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.

Refunds

Except when required by law, or pursuant to the Company’s money back guarantee policy set out herein, Subscription Fees are non-refundable once paid by You.

Certain refund requests for Subscription Fees may be considered by the Company on a case-by-case basis and granted at the sole discretion of the Company.

Social Media Groups

Your Subscription may from time to time provide You with access to social media groups administered or managed by the Company on third party operated social networking sites, to connect Service participants and to share various content.

If the Company provides You with access to any such social media groups, You agree to abide by the rules of any such group and to comply with the terms and conditions of the social networking site on which the group is administered.

You acknowledge and agree that You may be removed from any or all social media groups set up in connection with the Service, without any reimbursement of Subscription Fees paid by You, if You fail to abide by the group rules, if you breach the social networking site terms and conditions, or if You cancel your Subscription.  

4. 14-Day Free Trial Period

The following terms and conditions will apply if You have a Free Trial Period for the Service:-

The Free Trial shall last for a period of 14 days only. After the 14 day free trial, the regular price for the subscription to the service will be charged.

All customers signing up for the free trial will be required to submit payment card details as part of the process, to allow automatic payments once the free trial period finishes.

Customers not wishing to continue subscription to the service once the free trial ends must cancel the subscription by sending an email to [email protected], or by cancelling manually in Your billing info located in Settings under Your profile pic in the subscription before the 14 day trial period ends.

Offer can be used only once per Customer.

Notice will be sent if payment fails for any reason. It is the Your responsibility to make sure payment details are correct to allow successful renewal payments.

We reserve the right to remove or cancel the free trial offer at any time.

We reserve the right to change the features of the free trial offer at any time.

General Terms and Conditions of this Website and Service apply.

We reserve the right to deny or cancel a Customer’s free trial at any time and for any reason.

5. Promotions

Any Promotions made available through the Service may be governed by rules that are separate from these Terms.

If You participate in any Promotions, please review the applicable rules as well as our Privacy policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will apply.

6. User Accounts

When You create an account with Us, You must provide Us information that is accurate, complete, and current at all times. Failure to do so constitutes a material breach of an essential term of this Agreement, which may result in immediate termination of Your account and your Subscription.

You are responsible for safeguarding the password that You use to access the Service and for any activities or actions under Your password, whether Your password is with Our Service or a Third-Party Social Media Service.

You agree not to disclose Your password to any third party or allow any third party to access the Service through your Subscription. You must notify Us immediately upon becoming aware of any breach of security or unauthorised use of Your account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorisation, or a name that is otherwise offensive, vulgar or obscene.

The Company utilises technology and third party owned platforms in order to provide the Service. The Company will not be liable for any delay in providing the Service to You which is caused or contributed to by a technical issue or discontinuance of a platform outside of the Company’s reasonable control. If a third-party platform becomes unavailable for an extended period of time, the Company will take reasonable steps to migrate the Service to another platform and notify You of the migration and anything needed to access Service on the new platform.

7. Intellectual Property

The Service and its original content (excluding content provided by You or other users), features and functionality are and will remain the exclusive property of the Company and its licensors.

The Service is protected by copyright, trademark, and other laws of both the Country and foreign countries.

Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of the Company.

In consideration of the payment of Your Subscription Fees, the Company provides You with a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license during the term of your Subscription to access and use the Service for your own personal (non-commercial) use to learn about survival swimming techniques.  

You agree not to make any of the information available on the Service, including, but not limited to, any printable or downloadable content, publicly available, or available to any third party, either during the term of your Subscription or following its termination, and you agree that this clause 7 survives termination or completion of the agreement set out in these Terms.

You acknowledge and agree that You have no right to modify, edit, copy, sell, distribute, duplicate, lease, reproduce, create derivative works from, reverse engineer, alter, enhance or in any other way exploit any part of the Service or any materials provided in connection with the Service in any way.

8. Your Feedback to Us and use of your user generated content

You assign all rights, title and interest in any Feedback You provide the Company. If for any reason such assignment is ineffective, You agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction.

You agree that if you share any video or still image content (“UGC”) with the Company or any of its representatives at any time, you immediately grant to the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify, edit, combine with other materials and exploit the UGC for the purpose of advertising the Company, the Service or Your involvement or results achieved through use of the Service, including, but not limited to, by publishing the UGC on the Company’s website or social media accounts, without attributing credit to You or any third party.

You warrant in favour of the Company that you will own all intellectual property rights in the UGC at the time of providing the UGC to the Company, and that you will have the authority to provide the Company with the abovementioned license. You further agree to indemnify the Company from any loss, cost, liability or expense incurred by the Company which arises out of or in connection with any third-party claim that the Company’s use of the UGC as contemplated above infringes on their intellectual property rights or their moral or other rights.

You agree that this clause 8 survives completion or termination of the agreement set out in these Terms.

9. Links to Other Websites

Our Service may contain links to third-party web sites or services that are not owned or controlled by the Company.

The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.

We strongly advise You to read the terms and conditions and privacy policies of any third-party web sites or services that You visit.

10. Liability

You acknowledge and agree that the instructions, advice and opinions set out in the information available through the Service are dependent on any limitations, qualifications or exclusions set out anywhere in the information on the Service. Your implementation of any of the advice or opinions set out in the information on the Service is at Your own risk, and You should ensure that You follow applicable safety information and apply reasonable judgement when teaching children to swim. To the maximum extent permissible by law, You agree to release Us, defend Us and hold Us harmless from any loss, cost, liability or expense that You, or any third party, suffer or incur as a result of Your own acts or omissions which are inconsistent with the full and complete instructions, advice or opinions set out in the information available through the Service.

The information available through the Service is general in nature and does not consider any of Your or Your children’s specific medical or psychological circumstances. If You are unsure if the information available through the Service is appropriate for Your specific circumstances, You should seek specific advice prior to implementing any of the information available through the Service.

You acknowledge and agree that there are inherent risks in teaching children to swim, and that You are not required to implement any of the information set out in the Services. By choosing to implement any of the information set out in the Services, You accept the inherent risks of which a prudent person is, or ought to be aware of when participating in an activity of that kind.

The Company does not represent or provide any warranties that Your implementation of the instructions, advice or opinions set out in the Service will result in Your child achieving any specific level of water safety or swimming competency, and you acknowledge and agree that any number of factors may impact on Your child’s level of water safety or swimming competency which may be outside of the Company’s control.

To the maximum extent permissible by law, You hereby irrevocably:

1. a) release and discharge the Company and its officers, contractors and personnel from any and all liability associated with, or arising out of, Your implementation of any of the information set out in the Services;
2. b) assume full liability for any harm that You or any third party suffers arising out of an obvious risk associated with Your implementation of any of the information set out in the Services; and
3. c) agree to hold harmless, defend and indemnify the Company and its officers, contractors and personnel from and against all direct, indirect or consequential liabilities, loss or damage (howsoever caused, including through negligence), cost or expense incurred by You or any other party as a result of any proceedings, demands or claims taken or made by You or Your heirs, executors or administrators, and / or made by any third party arising out of or resulting from Your implementation of any of the information set out in the Services, including, but not limited to in relation to personal injury or death of any person.

Nothing in this Agreement limits, excludes or modifies any warranties or guarantees for which it is unlawful under the Australian Consumer Law or any other applicable law to exclude (Non-Excludable Term). If it is legally permitted to do so, where the Company is liable for a breach of any such Non-Excludable Term, then the Company limits its liability to the following:

1. in the case of goods, one or more of the following at the Company’s discretion:
2. the replacement of the goods or the supply of the equivalent goods;
3. the repair of the goods;

iii.    the payment of the cost of replacing the goods or of acquiring equivalent goods; or

1. the payment of having the goods repaired; and
2. in the case of services:
3. the supplying of the services again; or
4. the payment of the cost of having the services supplied again.

To the maximum extent permitted by applicable law, in no event shall the Company or its officers, representatives or agents be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption or for personal injury, arising out of or in any way related to the use of or inability to use the Service, acts or omissions by You or third parties after You have viewed the information available through the Service, Your use of third-party software and/or third-party hardware used with the Service, or otherwise in connection with any provision of these Terms).

Except as otherwise required by law, the Company gives no warranties with respect to any aspect of the Service or any materials related thereto or offered in connection with the Service and to the maximum extent permissible by law, disclaims all implied warranties.

You agree to indemnify the Company for any loss, cost, liability or expense the Company suffers or incurs (including any loss of profits or opportunity, and legal costs on a full indemnity basis) as a result of, in connection with, or arising out of, You making any information available through the Service publicly available, or available to any third party, by any means.

You acknowledge and agree that this clause 10 survives completion or termination of the agreement set out in these Terms.

11. "AS IS" and "AS AVAILABLE" Disclaimer

To the maximum extent permissible by law, the Service is provided to You "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Without limiting the foregoing, neither the Company nor any of the company's provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

12. Governing Law

The laws of the Country, excluding its conflicts of law rules, shall govern these Terms and Your use of the Service.

13. Disputes Resolution

If You have any concern or dispute about the Service, You agree to first try to resolve the dispute informally by contacting the Company.

You and the Company agree to use reasonable endeavors to resolve any dispute that arises in connection with the agreement set out in these Terms by mediation before bringing a legal claim or starting legal proceedings against the other.

Nothing in the agreement set out in these Terms prevents either party from seeking any urgent equitable relief in relation to rights under the agreement set out in these Terms.

14. For European Union (EU) Users

If You are a European Union consumer, you will benefit from any mandatory provisions of the law of the country in which you are resident in.

15. United States Federal Government End Use Provisions

If You are a U.S. federal government end user, our Service is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101.

16. United States Legal Compliance

You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.

17. General

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under these Terms shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.

Electronic communication

You consent to communicating with the Company electronically (including electronic execution of this Agreement) and acknowledge that electronic transmissions can be corrupted or intercepted, may not be delivered and may contain viruses.

Notices

A notice or other communication by the Company to You or by You to the Company must be in writing and delivered to that party by email to their email address, when it will be treated as received when it enters the recipient’s information system. The email addresses for service of notices pursuant to these Terms will be as follows:

1. if You are sending a notice to the Company – to [email protected]; or
2. if the Company is sending a notice to You – to the email address noted as Your email address when You purchase Your Subscription.
   

    

18. Translation Interpretation

These Terms and Conditions may have been translated if We have made them available to You on our Service. You agree that the original English text shall prevail in the case of a dispute.

 

19. Changes to These Terms and Conditions

We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material We will make reasonable efforts to provide at least 30 days' notice prior to any new terms taking effect.

By continuing to access or use Our Service after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, you may cancel your Subscription and the Company will return to You a proportion of the Subscription Fees which correspond with any period following the date of termination for which you have pre-paid.