Terms & Conditions of Use
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO YOUR USE OF OUR WEBSITE CAREFULLY. By using our Website, you agree to these Terms and Conditions of Use ("Terms & Conditions"). We reserve the right, in our sole discretion, to change, modify, add or remove portions of these Terms & Conditions at any time. You should check these Terms & Conditions periodically for changes. By using this Website after we post any changes to these Terms & Conditions, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to these Terms & Conditions, you should not use our Website and, if applicable, you should arrange to cancel your community user account(s) or subscription with us.
1. Scope of Terms & Conditions
Unless we indicate otherwise, these Terms & Conditions apply to your use of the Australia and New Zealand websites which are owned or operated by Weight Watchers Services Pty Ltd (ABN 11 116 578 708) (referred to herein as "WeightWatchers.com.au") and our Affiliates (collectively, "we", "us" or "our"), including, without limitation, this website and any other Australian or New Zealand website that we may own or operate currently or in the future (collectively, our "Website"). For purposes of these Terms & Conditions, "Affiliates" shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, WeightWatchers.com.au, including, without limitation, WeightWatchers.com, Inc. ("WeightWatchers.com"), Weight Watchers International, Inc. ("Weight Watchers International"), Fortuity Pty Ltd (ABN 55 007 148 683), Weight Watchers New Zealand Limited and their respective subsidiaries and affiliates. This Website and these Terms & Conditions are specifically directed to residents of Australia and New Zealand and the Website is for use only by residents of Australia and New Zealand.
2. Terms & Conditions - In General
By using this Website, you agree to be legally bound and to abide by these Terms & Conditions, just as if you had signed an agreement containing these Terms & Conditions. If you do not comply with these Terms & Conditions at any time, we reserve the right, if applicable, to cancel or terminate your password, user account, and/or access to this Website (or any part thereof). In our sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the Website, including, but not limited to, (i) restricting the time the Website is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user's right to use the Website. You agree that any termination or cancellation of your access to, or use of, the Website may be effected without prior notice to you. If you do not abide by the provisions of these Terms & Conditions, except as we may otherwise provide from time to time, you agree that we may immediately deactivate or delete your user account and/or all related information and files in your user account and/or bar any further access by you to such information and/or files, or our Website (or part thereof). Further, you agree that we shall not be liable to you or any third party for any termination or cancellation of your access to, or use of, our Website. From time to time, we may supplement these Terms & Conditions with additional terms and conditions pertaining to specific content, activities or events ("Additional Terms"). Such Additional Terms may be placed on the Website to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that any such Additional Terms are hereby incorporated by reference into these Terms & Conditions.
3. Restrictions on Use of Materials
Unless otherwise specified, we grant you a non-exclusive, non-transferable, limited right to access, use and display this Website and the material provided hereon for your personal, non-commercial use, provided that you comply fully with the provisions of these Terms & Conditions. You acknowledge that this Website contains information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (collectively, "Content") that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under applicable copyright laws including Australian, New Zealand and United States copyright laws (and, if applicable, similar laws in other jurisdictions), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on this Website are trademarks of their respective owners. WEIGHT WATCHERS is the trade name and the registered trademark and service mark of Weight Watchers International. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on this Website. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale of, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment, is strictly prohibited unless you receive our prior written consent.
4. Becoming a Community User
There is no cost to become a community user of our Website. You do not have to become a community user to use this Website. However, if you do not register, you may be precluded from using certain products, offerings, features, or resources of our Website. You must register in accordance with instructions that you will find on this Website to participate in, and to contribute to, any “Community Area” of our Website. A "Community Area" means any blog, personal page, group page, message board, bulletin board, recipe swap, or similar activity where you can communicate with other users of our Website or post your own Content.
If you elect to become a community user of our Website, you agree to provide us with true, accurate and complete information about yourself ("Community User Data"), and to maintain and promptly update the Community User Data and any other information you provide to us, to keep it accurate. Without limiting any other provision of these Terms & Conditions, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your user account and refuse any and all current or future use of our Website (or any portion thereof). You agree not to assign, transfer or sublicense your rights as a community user of this Website. You further agree not to register for more than one account, create an account on behalf of someone else, or create a false or misleading identity on this Website.
If your registration is revoked for any reason, you agree not to register or subscribe again with our Website using another user name or through any other means. If we have reason to suspect, in our sole discretion, that your account has previously been terminated, we reserve the right to terminate any new accounts you have registered without any notice to you, or to exercise any other remedies available to us under these Terms & Conditions or by law.
6. Community Standards and Conduct Guidelines
You acknowledge that all Content posted, emailed, or otherwise transmitted to or on this Website, whether posted at our request or voluntarily, and whether publicly posted or privately transmitted (collectively, the "Postings"), are the sole responsibility of the person who made such Postings. This means that you are entirely responsible for all Postings that you post, email or otherwise transmit to this Website. We do not control the Postings posted, emailed or otherwise transmitted on our Website by others and, as such, you agree that we have no responsibility for the accuracy, integrity or quality of such Postings. Although we have adopted community standards and conduct guidelines for the users of our Website (as described below), you understand that by using this Website, you may be exposed to Postings that are offensive or objectionable. Except for Postings created by us (as to which you agree that liability shall rest with the entity which created the relevant Content and shall be governed by these Terms & Conditions), under no circumstances will we be liable in any way for any Postings, including, but not limited to, for any errors or omissions in any Postings (other than for Content developed by us), or for any loss or damage of any kind incurred as a result of the use of any Postings posted, emailed or otherwise transmitted to or through this Website.
You agree not to use this Website (including any Community Areas) to do, or attempt to do, any of the following (as to which you agree to accept us as sole arbiter in our absolute discretion):
a. Upload, post, email or otherwise transmit any Postings or other materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, defamatory, invasive of another's privacy, hateful, or racially, ethnically, religiously, sexually or otherwise objectionable;
b. Harm, wrongly influence or threaten children in any way, or solicit or otherwise attempt to gain any information from a minor;
c. Impersonate any person or entity, including, but not limited to, any user of this Website, a director, officer, employee, shareholder, agent or representative of WeightWatchers.com.au, our Affiliates or any other person or entity, or falsely state or otherwise misrepresent an affiliation with us or any other person or entity;
d. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to, on or through this Website;
e. Upload, post, email or otherwise transmit any Postings or other materials that are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
f. Upload, post, email or otherwise transmit any Postings or other materials that infringe upon any patent, trademark, trade secret, moral right, copyright, right of privacy or publicity or other proprietary rights of any party;
g. Upload, post, email or otherwise transmit any unsolicited or unauthorised advertising or promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of commercial solicitation or promotion, except in those areas, if any, that are specifically designated for such purpose;
h. Upload, post, email or otherwise transmit any Postings or other materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy, limit or divert the functionality of any computer software or hardware or telecommunications equipment;
i. Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of a Community Area (or other portion of this Website) are able to type, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of this Website ;
j. Interfere with or disrupt this Website or servers or networks connected to this Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website;
k. Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any law and/or regulations having the force of law;
l. "Stalk" or otherwise harass another user of this Website or employee of WeightWatchers.com.au or any of our Affiliates; or
m. Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Website (including user names or passwords) or about any other third party; or
n. Access or attempt to access another user’s account without his or her consent;
Your privilege to use this Website (including the Community Areas) and contribute to discussions on the Community Areas depends on your compliance with the community standards and conduct guidelines set forth above. We may revoke your privileges to use all or a portion of this Website and/or take any other appropriate measures to enforce these community standards and conduct guidelines if violations are brought to our attention. Further, if you fail to adhere to our community standards and conduct guidelines, or any of these Terms & Conditions, we may terminate, in our sole discretion, your use of, or participation in, any Community Area.
If, at our request or on your own, you send, email, post or otherwise transmit to us or this Website any Content (collectively, the "Submissions"), you grant us and our successors and assigns (despite any moral rights you may have, which you hereby waive) a royalty-free, perpetual, irrevocable, non-exclusive right and license, including the right to sublicense, (as well as consent) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform, enter into commercial rental arrangements in respect of and display any Submissions (in whole or in part and with or without the use of your name) worldwide and/or to incorporate the Submissions in other works in any form, media, or technology now known or later developed, for the full term of any copyrights, trademarks and other intellectual, personal and proprietary rights (collectively, the "Rights") that may exist in such Submissions, for any purpose, commercial, advertising or otherwise.
You also hereby irrevocably and unconditionally consent, to the fullest extent permitted by law (either present or future), to us or any person authorised by us, using, disclosing, reproducing, copying, adapting, publishing, performing, exhibiting, communicating or transmitting the Submissions or any adaptation of the Submissions (or any part of the Submissions or of any such adaptation) anywhere in the world (a) in whatever form and in whatever circumstances we think fit, including the making of any distortions, additions or alterations to the Submissions or any adaptation of the Submissions (or any part of the Submissions or of such adaptation) and (b) without making any identification of you in relation to them.
This Website is not for use by children and is not directed to children. This Website is for use and access by individuals who are eighteen (18) years or older.
These Terms & Conditions apply only to this Website, and not to the websites of any other person or entity. We may provide, or third parties may provide, links to other websites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse (and are not responsible or liable for) any content, advertising, products, or other materials, goods or services on or available from such websites or resources. You further acknowledge and agree that, under no circumstances, will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, advertisements, products or other resources, goods or services available on any other website (regardless of whether we directly or indirectly link to such content, advertisements, products or other resources). You should direct any concerns with respect to any other website to that website's administrator or webmaster.
10. Third Party Products and Services
You may order services, merchandise or other products through our Website from other parties (collectively, the "Third Party Sellers"). All matters concerning the services, merchandise and other products promoted by or available from the Third Party Sellers, including, but not limited to, purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Party Sellers. We make no warranties or representations whatsoever with regard to any services, merchandise and other products provided by the Third Party Sellers. You will not consider us (and we will not be construed as) a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable to you or any other person for any costs or damages arising out of or relating to, either directly or indirectly, such transactions.
11. Copyright Complaints
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstance and in our discretion, terminate the rights of any user to use our Website (or any part thereof) who infringes the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact our designated agent for notice of claims of copyright infringement: Jeffrey A. Fiarman, General Counsel, Weight Watchers International, Inc., 11 Madison Avenue, 17th Floor, New York, NY 10010, or by e-mail to email@example.com.
12. Password and User Account Security
If you are a community user of this Website, you are entirely responsible for maintaining the confidentiality of your password and user account information. You agree to notify us immediately in the event of any known or suspected unauthorised use of your user account, or any known or suspected breach of security, including loss, theft, or unauthorised disclosure of your or anyone else's password. You are entirely responsible for any and all activities which occur under your user account. You agree to immediately notify us of any unauthorised use of your user account or any other breach of security known to you.
13. Relationship with Weight Watchers International
WeightWatchers.com.au is an affiliate of WeightWatchers.com and Weight Watchers International, and is authorised to use under licence the WEIGHT WATCHERS brand and intellectual property on the Internet. WEIGHT WATCHERS is the trade name and the registered trademark and servicemark of Weight Watchers International, as are certain other trademarks and servicemarks used by WeightWatchers.com.au on this Website under Weight Watchers International's control.
14. Health Disclaimer
This Website provides weight loss management and information applications and content published over the Internet and is intended only to assist users in their personal weight loss efforts. WeightWatchers.com.au is not a medical organisation and our staff cannot give you medical advice or diagnosis. Nothing contained in this Website should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for medical consultation, evaluation, or treatment by a qualified doctor. You are urged and advised to seek the advice of a medical doctor before beginning any weight loss effort or regime. This Website is intended for use only by healthy adult individuals. The Website is not intended for use by children, pregnant women, or individuals with any type of health condition. Such individuals are specifically warned to seek professional medical advice prior to initiating any form of weight loss effort or regimen. For more information, you should review our Health Notice, which is incorporated into these Terms & Conditions by this reference.
15. Disclaimers of Warranties
Please note the following important disclaimers of warranties, each of which applies to the extent permitted by law:
Subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any, the products, offerings, content and materials on this website are provided "as is" and without warranties of any kind, either express or implied. subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any, we disclaim all warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, title, compatibility, security, accuracy or non-infringement.
Neither weightwatchers.com.au, any of our affiliates, nor any of our or their respective licensors, licensees, service providers or suppliers warrant that this website or any function contained in this website will be uninterrupted or error-free, that defects will be corrected, or that this website or the servers that make this website available are free of viruses or other harmful components.
Subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any, any product, offering, content and material downloaded or otherwise obtained through the use of this website is done at your sole risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such product, offering, content or material.
Subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any, neither weightwatchers.com.au, any of our affiliates, nor any of our or their respective licensors, licensees, service providers or suppliers warrant or make any representations regarding the use or the results of the use of the products, offerings, content and materials in this website in terms of their correctness, accuracy, reliability, or otherwise.
Subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any, no advice or information, obtained by you from our personnel or through this website shall create any warranty not expressly provided for in these terms & conditions.
16. Limitation of Liability
Subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any, you expressly understand and agree that we and our affiliates shall not be liable for any direct, indirect, incidental, special, consequential exemplary or punitive damages, or any other damages whatsoever, or for any damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), arising out of, or resulting from, (a) the use or the inability to use this website; (b) the use of any content or other material on this website or any website or websites linked to this website; (c) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from this website; (d) unauthorised access to or alteration of your transmissions or data; (e) statements or conduct of any third party on our website; or (f) any other matter relating to our website. where your loss is not or cannot by law be excluded by these terms and conditions then (subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any or any other applicable law that cannot be excluded):
a. In no event shall our total liability to you for all damages, losses and causes of action (whether in contract, tort (including, but not limited to, negligence), or otherwise) exceed the amount paid by you, if any, for accessing our website; and
b. Our liability in relation to any loss or damage directly or indirectly related to any warranty or condition which is not excluded by these terms and conditions is limited to, at our election:
1. In the case of goods, any one or more of the following: (a) the replacement of the goods or the supply of equivalent goods; (b) the repair of the goods; (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (d) the payment of the cost of having the goods repaired; or
2. In the case of services: (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again.
If you are dissatisfied with any portion of our website, or with any of these terms & conditions, your sole and exclusive remedy (subject to the rights you may have under the Australian consumer law (as enshrined within schedule 2 of the competition and consumer act 2010 (cth)) and/or the new Zealand consumer guarantees act 1993, if any) is the discontinuation of your use of this website. if any portion of this limitation of liability is found to be invalid, liability is limited to the fullest extent permitted by law.
You agree to indemnify, hold harmless and, at our option, defend us and our Affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable lawyers' fees and expenses) arising from your improper use of this Website or our products or offerings, your violation of these Terms & Conditions, or your infringement, or the infringement or use by any other user of your account, of any intellectual property or other right of any person or entity.
18. Governing Law and Choice of Forum
Residents of Australia
If you are a resident of Australia, these Terms & Conditions shall be governed by and construed in accordance with the laws of the state of New South Wales, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of this Website or these Terms & Conditions shall be filed only in the state or federal courts located in New South Wales and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
Residents of New Zealand
If you are a resident of New Zealand, these Terms & Conditions shall be governed and construed in accordance with the laws of New Zealand, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to your use of this Website or these Terms & Conditions shall be filed in the New Zealand courts and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
19. Miscellaneous Terms
In any action against us arising from the use of this Website, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable lawyer's fees.
If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. These Terms & Conditions, together with other documents incorporated by reference and the Subscription Agreement (if applicable), are the entire agreement between you and us relating to the subject matter herein. If you are a subscriber to one of our online subscription offerings or products, in the event of any conflict between these Terms & Conditions and the Subscription Agreement, the Subscription Agreement shall control. These Terms & Conditions may be modified only by our posting of changes to these Terms & Conditions on this Website, or by written agreement between you and WeightWatchers.com.au. Each time you access this Website, you will be deemed to have accepted any such changes. We may assign our rights and obligations under these Terms & Conditions. These Terms & Conditions will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms & Conditions, or to exercise any right under the Terms & Conditions, will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.