STUDIO 16 PILATES LIMITED ("STUDIO 16")
TERMS AND CONDITIONS OF TRADE
1. NATURE AND SCOPE OF TERMS OF TRADE
1.1 These terms and conditions of trade ("Terms") form a contract that applies between Studio 16 and all persons purchasing the Services from it (hereafter "the Customer") in respect of any supply of Services provided to the Customer by Studio 16. These terms are binding on all parties.
1.2 Placement by the Customer of any booking with Studio 16 (either directly or through Mindbody) for the supply of Services constitutes an acknowledgment by the Customer that the contract between the Customer and Studio 16 shall be governed by these Terms.
1.3 From time to time, Studio 16 may issue updated or amended Terms which shall be deemed to be accepted 10 Business Days following Studio 16 sending such amended terms to the Customer and any booking of a Class or of the Services following that date shall be governed by the amended or updated terms.
1.4 Studio 16 and the Customer may agree in writing on special terms and conditions that either vary or are additional to these Terms or Studio 16 may vary these terms in a booking form that complies with clause 2.1 of these Terms, otherwise these Terms will apply to all transactions between Studio 16 and the Customer.
2.1 The Customer will purchase the Services and book any Classes by placing a booking on Studio 16's website, via the Mindbody application or any other method agreed to by Studio 16 from time to time (hereafter referred to as a "booking"). Each booking:
(a) Is subject to these Terms except as is otherwise specified by Studio 16 in writing; and
(b) must follow the Customer's confirmation that his/her personal details (including in regards to injuries or other health conditions) provided by the Customer remain correct.
2.2 All bookings submitted by the Customer will be subject to acceptance by Studio 16 (in its absolute discretion) and will not become binding on Studio 16 until such acceptance. Studio 16 shall accept all such bookings by advising the Customer in writing (ordinarily by email) that the booking has been accepted. Any variation, waiver or cancellation of any booking or any amendment to terms or conditions of the booking made by the Customer shall be of no effect unless accepted in writing by Studio 16.
2.3 The Customer may cancel a booking through the Mindbody app and provided that Studio 16 receives notice of said cancellation not less than 24 hours prior to the scheduled booking, Studio 16 will refund any payment made to the Customer in respect of that particular booking.
2.4 The Customer acknowledges and agrees that Studio 16 is not under any duty to accept bookings from the Customer. Further, the Customer acknowledges and agrees that Studio 16 may cancel any booking at any time, but in such case the Customer shall not be charged for said cancellation.
2.5 Within 24 hours of a Class, the Customer may not revoke or cancel a booking for a Class without Studio 16's prior written consent which may be withheld at Studio 16' sole discretion.
2.6 Without prejudice to any other rights Studio 16 may have it may refuse to continue providing the Services if the Customer:
(a) Fails to make any payment as provided in these Terms or under the payment terms set forth in any invoice or as otherwise agreed by Studio 16 and the Customer; or
(b) Otherwise fails to comply with these Terms or any other agreement with Studio 16.
Any such cancellation, refusal or delay by Studio 16 does not constitute a termination of any agreement with the Customer (unless Studio 16 so advises the Customer) or breach of any such agreement or these Terms by Studio 16.
3. PRICE AND PAYMENT
3.1 The price payable by the Customer for the Services shall be the price agreed to between Studio 16 and the Customer at the time the Customer purchases a 'Class pack' or at the time that the individual booking is made. The onus is on the Customer to confirm prices prior to each purchase.
3.2 Studio 16's prices are quoted in New Zealand dollars and will be inclusive of GST but otherwise shall be quoted exclusive of duties and other imposts (including Mindbody fees) which, if chargeable, are payable by the Customer whether they are imposed or brought into force before or after acceptance of the Customer's booking.
3.3. Following each payment for a booking, Studio 16 will deliver to the Customer via email an invoice for the price of the Services and any other incidental charges relating to the sale of Services.
3.4 Unless otherwise stipulated or required in a booking that complies with clause 2.1 or 2.2, payment of each invoice shall be made by the Customer in New Zealand dollars and:
(a) Into such bank account as Studio 16 notifies the Customer; and
(b) In cleared funds, free of any deduction or withholding, and with no right of set-off for on or account of any taxes or other duties, currency controls or any other matter and no payment shall be deemed to be made until made in accordance with these requirements;
3.6 Notwithstanding any other provision of these Terms, Studio 16 reserves the right to change payment terms at any time.
3.7 If the Customer fails to pay an amount due on its Due Date Studio 16 may at its sole discretion charge the Customer:
(a) Interest on that amount from its due date until the date of payment at 14% per annum calculated on a daily basis on the unpaid portion of the price from due date until payment in full, plus GST; and
(b) All legal and other costs, charges and expenses incurred in connection with the recovery of all outstanding amounts including, without limitation, Studio 16's own solicitor/client costs and costs of any debt collection agency employed by Studio 16;
(c) Studio 16's right to require payment of interest and other costs under clauses 3.7(a) or (b) does not affect any other rights or remedies it may have relating to any failure to pay an amount due under these Terms; and
(d) Without limiting this clause or clause 3.8, the Customer’s payment obligation to Studio 16 in accordance with these Terms is unconditional, and the Customer’s failure to pay any invoice on the due date shall be an automatic default of these payment terms and Studio 16 shall not be required to give the Customer any prior notice of default.
3.8 Studio 16 reserves the right to vary the price of the Services and bookings from time to time and will provide reasonable notice to the Customer of such.
3.9 In accepting any payments from the Customer, Studio 16 will not be bound by any conditions or qualifications or other terms which the Customer may have attached to those payments. If Studio 16 accepts part payment of amounts owing by a Customer, all such amounts will first be applied to any interest or costs owing to Studio 16 under these Terms and then second to amounts outstanding in respect of Services, being applied to such amounts in the booking in which they were due and payable.
3.10 If the Customer does not agree with an amount set out in an invoice, the Customer must:
(a) No later than 5 Business Days after receipt of the invoice it disputes, deliver to Studio 16 a written notice setting out full details of the amount in dispute and the basis for the dispute;
(b) Pay the undisputed amount of the invoice amount; and
(c) Resolve the dispute in accordance with clause 11 of these Terms.
4.1 Studio 16's prices referred to in these Terms are inclusive of GST (unless expressly outlined otherwise). The Customer shall pay GST on the Services as invoiced by Studio 16 on the payment terms on that invoice directly to Studio 16.
5. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
5.1 Studio 16 owns or has rights in all intellectual property, including copyright in all technical information provided by Studio 16 in connection with performance of these Terms. Any technical information, knowledge or processing messages at any time transmitted orally or in writing by Studio 16 will remain Studio 16's property and is absolutely confidential and the Customer shall not utilise such intellectual property or confidential information for any purpose or in any manner not expressly consented to by Studio 16 in writing.
6. STUDIO 16'S WARRANTIES AND LIMITATION OF WARRANTY/LIABILITY
6.1 Subject to the limitations set out in these terms, Studio 16 warrants that the Services shall generally comply with their description, although it may not exactly comply with descriptions or photographic representations. Otherwise, to the maximum extent permitted by law and any except express, written warranties provided by Studio 16 directly to the Customer, Studio 16 provides no warranties in respect of the specific Services supplied or to be supplied to that Customer.
6.2 If the Services are acquired for the Customer's own business use all guarantees and remedies in the Consumer Guarantees Act 1993 are excluded.
6.3 The Customer acknowledges that it must rely upon its own judgment as to the nature, quality and condition of the Services supplied by Studio 16 prior and during each Class and if the Customer feels any discomfort, the Customer shall stop all exercise immediately and inform the instructor of the nature of the discomfort.
6.4 It is the Customer's responsibility to inform Studio 16 and any instructor of any relevant pre-existing injuries, surgeries, illness, physical or medical conditions (including pregnancy or post-pregnancy) that may affect the Customer's ability to attend a Class. Studio 16 has the right to prevent the Customer from attending a Class until it obtains and provides a medical certificate from a suitably qualified medical professional. Studio 16 strongly recommends that the Customer obtains medical clearance prior to starting that Customer's first Class.
6.5 While at Studio 16's premises, it is the Customer's responsibility to look after its personal belongings as Studio 16 shall not responsible for any such belongings that are lost, stolen or damaged.
6.6 The Customer shall ensure that it takes good care of any equipment and will be responsible for the repayment to Studio 16 for any damage to said equipment other than due to any defect and to the maximum extent permissible by law. Each Customer shall acknowledges and accepts that if Studio 16 provides the Customer with any of its equipment or that of its instructors to borrow or take home, title shall not pass to the Customer unless Studio 16 confirms in writing.
6.7 While Studio 16 will use reasonable endeavours to ensure that the Services are performed as scheduled, it reserves the right to cancel, postpone or otherwise amend the scheduling of the Pilates sessions at its sole discretion.
6.8 To the maximum extent permitted by law, the parties acknowledge and agree that in no event will Studio 16 or its officers, principals, employees, contractors or agents have any liability to the Customer arising out of or connection with these Terms or the use or performance of any Services and without limiting the foregoing (and only in the event that this exclusion in these Terms is held not to apply), the parties agree that Studio 16 shall not in any case whatsoever be liable for:
(a) Any special, incidental, indirect, punitive or consequential Damages; loss of profit, revenue, goodwill, use or the costs of procuring substitute Services; or
(b) Damages, in the aggregate, exceeding the value actually received by Studio 16 from the Customer under these Terms for the Services that are subject to the claim
7.1 The Customer indemnifies Studio 16 from and against all liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis whether incurred by or awarded against a party) including those associated with any third party claim, and whether arising under contract, tort (including negligence) or otherwise shall Studio 16 or its directors, principals, employees, contractors or agents sustains or incurs (directly or indirectly) arising out of or resulting from:
(a) Any breach of these Terms by the Customer;
(b) Any contravention of applicable laws or regulations by the Customer;
(c) Any claim by any third party arising from any act or omission of the Customer in connection with these Terms (whether negligent or not), including if connected to or arising out of the Customer’s breach of clause 6;
(d) Without limiting the foregoing, any negligent, wilful, reckless or unlawful act or omission of, or any intentional misconduct by the Customer in connection with these Terms; or
(e) Any claim by the Customer, to the extent that such claim is beyond the scope of Studio 16's liability to the Customer under these Terms.
8. TERMS RELATING TO WEBSITE USE, CONTENT AND ONLINE BOOKING
8.1 The Customer acknowledges and agrees that:
(a) Studio 16 may from time to time add to or change the features, functionality or content of its website at any time without notice; and
(b) Studio 16 does not warrant that any such use will be uninterrupted or error-free, nor will Studio 16 be liable for any loss, harm, cost of damage (direct or otherwise) that the Customer may incur or suffer in connection with the Customer's use of Studio 16's website, Mindbody's website or any linked site or material, or in respect of the Customer's use of or reliance on content contained on or linked to the website or booking process directly or indirectly.
8.2 To the extent that Mindbody's terms do not conflict with these Terms, the Customer shall also comply with the terms of trade and website conditions set by Mindbody from time to time while making online bookings.
9. PRIVACY ACT/USE OF INFORMATION/PROMOTIONS BY STUDIO 16
9.3 The Customer acknowledges that the Customer does not have to provide Studio 16 with its personal information, but that if it does not do so, it may affect Studio 16's decision whether or not to allow the Customer to make bookings for the Services.
9.4 The Customer acknowledges that they understand they have certain rights under the Privacy Act 1993, which include the right to access and correct any information held about each of them individually by Studio 16.
9.5 The Customer acknowledges that from time to time, Studio 16 may be required to disclose personal information to appropriate law enforcement agencies, or medical professionals to comply with its obligations under law or its health and safety policy. The Customer acknowledges and consents to the disclosure of such information, provided that it shall be disclosed only as required as necessary to ensure the health, safety and security of the Customer and fellow users of the Services.
9.6 To the maximum extent permitted by law, and while Studio 16 agrees to take reasonable steps to protect Customers' information, the Customer agrees that Studio 16 shall not be liable for any breach of privacy in the event that the Customer's private information is stolen or otherwise dispersed into a third party's control.
9.7 The Customer agrees to Studio 16 providing marketing and promotional material to them that Studio 16 considers may be of interest or relevant to those parties in respect of the Services provided under these Terms or any related Services or services, including those provided by third parties. The Customer agrees that Studio 16 can send such information by email and can unsubscribe from such commercial mail outs by utilising the unsubscribe function in any such emails. The Customer acknowledges that unsubscribing from marketing and promotional emails does not prohibit Studio 16 from sending emails to the Customer that directly or indirectly relate to the subject matter of these Terms.
10. HEALTH AND SAFETY
10.1 Studio 16 will have control over the workplace where the Services will be performed in terms of health and safety and acknowledges that it has the appropriate licences required by statute to supervise and carry out the Services.
10.2 Studio 16 will:
(a) Provide the Customer and all other relevant persons with its health and safety policy or other applicable health and safety information;
(b) Perform its, and ensure its workers perform their obligations under this Agreement in compliance with its and their obligations under the HSW Act;
(c) Report any health and safety incident, injury or near miss, or any notice issued under the HSW Act, to the applicable regulatory body.
10.3 The Customer will ensure that it complies with any reasonable instructions or directions given by Studio 16 relating to health, safety and security when visiting Studio 16's premises or otherwise.
11. DISPUTE RESOLUTION
11.1 Either party may give the other party notice of any dispute arising in respect of, or in connection with, these Terms ("Dispute") and in such event they shall first meet to discuss the Dispute and make a genuine effort to resolve the Dispute but if no resolution of the Dispute has occurred within 10 Business Days from the date of the giving of the said notice, then either party may pursue their remedies as they see fit.
11.2 Nothing in this clause shall prevent a party making application to a court for an injunction or other urgent interlocutory relief.
12.1 To be effective, any waiver of any or all of the terms and conditions in any agreement the Customer has with Studio 16 must be in writing.
12.2 The Customer may not assign all or any of its rights or obligations under these Terms without the prior written consent of Studio 16, which may be withheld for any reason and at Studio 16's sole discretion.
12.3 Studio 16 is not bound, unless otherwise stated in these terms, by any error or omission on any invoice, booking form or other document or statement issued by Studio 16 or Mindbody.
12.4 Where Studio 16 has rights and remedies at law or otherwise in addition to the rights set out in these Terms, those rights and remedies will continue to apply.
12.5 Failure by Studio 16 to enforce any of the terms and conditions shall not be deemed to be a waiver of any of the rights or obligations Studio 16 has under these Terms.
12.6 If any of these Terms or part thereof are held to be invalid, illegal, unenforceable or void for any reason or reasons, all of the remaining Terms (or part thereof) shall remain in full force and effect.
12.7 These Terms are governed by the law of New Zealand and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand.
13. DEFINITIONS AND INTERPRETATION
In interpreting these Terms:
"Business Day" means any day not being a Saturday or Sunday or statutory holiday in Auckland, New Zealand.
"Class" means an individual session in which the Services are performed, and "Classes" means multiple sessions.
"Damages" means all liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis) whether incurred by or awarded against a party) including those associated with any third party claim, and whether arising under contract, tort (including negligence) or otherwise.
"GST" means Goods and Services Tax payable in accordance with the Goods and Services Tax Act 1986.
"HSW Act" means the Health and Safety at Work Act 2015.
"Mindbody" means the external application system (and organisation) of that name that customers may use from time to time to book the Services and includes Ezidebit (NZ) Limited, or whichever payment provider Mindbody chooses to use.
"Services" means the classes provided by Studio 16 to Customers teaching exercises and classes known as Pilates, yoga and other related exercise activities.
“Website" means the following website operated by Studio 16: studiosixteenpilates.com.