THE FOLLOWING “TERMS AND CONDITIONS” FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US IN RELATION TO YOUR ACCESS TO, AND USE OF, THE APP. IN ACCESSING OR USING THE APP, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN YOU MUST NOT ACCESS OR USE THE APP.
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GENERAL TERMS AND CONDITIONS
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Privacy Poilicy
Our Privacy Policy is set out here and shall apply to You and Your use of the App.
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Amendments to terms and conditions
We are continually seeking to update and improve the App. Accordingly, We reserve the right to amend these terms and conditions at any time. Any amendments shall be effective immediately upon notification on the App. Your continued use of the App following such notification will represent an agreement by You to be bound by the terms and conditions as amended. If You do not agree to the amended terms and conditions then You must stop using the App and must remove the App from your mobile phone, tablet or similar device.
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Grant of licence
We grant You a limited, non-exclusive, non-transferrable, non-assignable, revocable, licence to use the App solely for the purposes for which you are authorised under these terms and conditions.
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Registered User
To access certain features of the App, you will have to become a Registered User. You may, however, have limited access to browse and use certain features of the App without becoming a Registered User.
There are different categories of Registered Users that carry different fees, and allow access to and use of different features of the App. The types of Registered Users are as follows:
- “Free Single User Solution” – this option is for individuals that use the App for personal purposes but require only basic features from the App;
- “Free PT User Solution” – this option is for personal trainers that use the App to assist in managing their clients but require only basic features from the App;
- “PRO Single User Solution” – this option is for individuals that use the App for personal purposes and provides access to a wider range of features available to individual users;
- “PRO PT Single Suer Solution” – this option is for personal trainers that use the App to assist in managing their clients and provides access to a wider range of features available to personal trainer users;
- “PRO Acc Single User solution” – this option is for individuals that use the App for personal purposes and provides access to all features available to individual users. This option also provides the user with the ability to connect to various Accelerometer-equipped watches that use Bluetooth 4.0 in order to monitor actual movements and “rep-wave” for accurate analysis of the actual load on the working muscles;
- “PRO ACC PT User Solution” – this option is for personal trainers that use the App to assist in managing their clients and provides access to all features available to personal trainer users. This option also provides users with the ability to connect to various Accelerometer-equipped watches that use Bluetooth 4.0 in order to monitor actual movements and “rep-wave” for accurate analysis of the actual load on the working muscles; and
- “Gym solution” – this option is for owners or operators of gyms and provides access to features to assist in operating their gyms.
Further details on the features attaching to and fees applicable for each Registered User type are set out at [link to website setting out different types of Registered Users].
The App is intended for personal use only and may not be sold, redistributed or used for any commercial purpose except where Your Registered User status specifically provides otherwise.
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Account
To become a Registered User, You must provide Us with Your personal information (including, without limitation, Your name and e-mail address). If you are under 18 years of age, You may only become a Registered User if You obtain the written consent of your parent or legal guardian and email a copy of such consent to the contact details set out on our website at [link].
To use the App, You will be required to login using Your email address and a password nominated by You.
You are entirely responsible to maintain the confidentiality of Your password and You are responsible for Your use (or of any person using Your email address and password) of App.
You may change Your password at any time by following instructions on the App.
You may also use a social media account provided by another service, such as Facebook, to become or sign-in as a Registered User. In that case, You agree that We may access your email address or other features of your social media account through that social media account if We ask You first.
You agree that you may only have one Registered User account, and must not register as multiple Registered Users.
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Fees
Where fees are payable for Your Registered User type You must pay those fees to Us at the times We notify to You. In some instances this may include at the time you apply to become a Registered User. You may only pay such fees using Your:
- Visa;
- Mastercard;
- debit cards displaying a Visa or Mastercard logo; or
- any other payment method We notify to You.
If We are unable to successfully process payment from Your order, then We may refuse to admit You as a Registered User or suspend or cancel your Registered User status.
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Requirements for use
Use of the App requires internet access and:
- Android operating software version 4.3 or later;
- iOS software version [4.x] or later; or
- Windows phone software version [x.x] or later,
and may be affected by the performance of these factors. You acknowledge that meeting these requirements is Your responsibility.
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Service
By accessing and using the App, You assume all risks associated with such access and use. The App is provided to You on an as is basis. To the fullest extent permitted by law, We do not represent or warrant that the App will be uninterrupted or error-free or defect-free or that errors or defects in the App will be corrected. We do not represent or warrant to You that any electronic files available through the App will be free of Harmful Code. nor that Your use of the App will achieve any particular result. We reserve the right, at any time, to disable, close or render inaccessible the App for so long as We desire for any reason whatsoever, and without the need to provide any reasons. To the maximum extent permitted by law, We do not accept liability for any Loss or Injury which You may suffer or incur as a result of such actions.
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Use of App
Without limiting any other provision of these Terms and Conditions, although We have spent significant time and resources in developing the App and are confident in its features, due to a range of factors that are outside of Our control, including without limitation health and physiological characteristics, We cannot and do not represent, warrant or guarantee to You that Your use of the App will result in any improvement in Your or any other person’s fitness, strength, health or physiological condition.
The content of Materials made available through the App (including without limitation exercise or training instructions or programs) are based on information You provide to Us or the App. You represent that this information is correct and accurately reflects the physical and other characteristics of You or the person on whose behalf the information was provided. You must not provide any information that is incorrect, does not accurately reflect Your or the relevant person’s physical characteristics or is otherwise misleading. If any information You provide is incorrect, inaccurate or misleading, any Materials that are based on or take account of that information may not be appropriate to You or the person on whose behalf the information was provided, and Loss or Injury may result as a consequence. We accept no liability and will not be liable for any Loss or Injury You or any other person suffers as a result of You or any other person providing such information or acting in reliance on the Materials. Further, We accept no liability and will not be liable for any Loss or Injury that You or any other person suffers as a result of failing to comply with any information or instructions set out in any Materials or engaging in any exercise or training that deviates from information or instructions provided in the Materials.
All use of the App, including without limitation acting in accordance with or in reliance on any Materials, is at your own risk. While we have developed the App to apply to a wide range of persons, the Materials (including any exercise or training instructions or programs or feedback) are based on information You provide, and each individual is different and has their own health and physiological characteristics (both known and unknown). Further, as with all exercise or training programs, there are inherent risks in following or acting in accordance with or in reliance on any exercise or training programs made available through the App or Materials. Accordingly, We cannot and do not represent, warrant or guarantee to You that Your use of the App or actions in reliance on any Materials will be risk free and will not result in any unintended Loss or Injury.
The App and Materials have been designed to identify each user’s peak workout parameters and in doing so potentially enable users to push their performance to higher limits. You are in control of Your body and health and We are unable, through the provision of the App, to determine how You or Your body is actually responding to any particular exercise or training. You should therefore consult Your personal trainer and doctor before undertaking any rigorous or strenuous training, and stop training immediately if you feel unwell or experience unusual symptoms, including without limitation light-headedness, dizziness, difficulty in breathing or an overly high or erratic heartbeat.
Where you are using the App for business or commercial purposes in accordance with these terms, including without limitation where you are a personal trainer or the owner or operator, or employee, contractor or agent of the owner or operator, of a gym chain You acknowledge that are responsible for Your own business and commercial decisions and must make Your own independent assessment of any information or advice provided by or through the App or any act, action, undertaking, venture or transaction you intend to take in reliance on such information. We do not accept liability for any Loss which You may suffer or incur as a result of acting or relying on such information.
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Data sharing
The App exchanges data with Our server for the purposes of:
- maintaining Your User Data; and
- providing You with updated training and exercise programs and instructions.
You acknowledge and agree that such exchange of data may result in You incurring communication costs with Your mobile, tablet or other device carrier or provider.
Your User Data will be stored and used in a collective database of all Registered Users. You acknowledge and agree that We may then use such User Data for the purposes of preparing statistics and data of the training characteristics of Registered Users. We may also use this data for the purposes of conducting studies of training characteristics of groups of people or such other purposes as determine. We may make some or all of this data available to Registered Users or other persons.
Any User Data we use for these purposes will be used anonymously so that it does not identify You or any other Registered User. However, You may notify Us through the App that You wish for Your User Data to identify You. For example, You may wish to do this where as part of preparing the statistics and data We determine which Registered Users are the top performers in certain training or exercise programs or categories.
Depending on the type of Registered User You are and the type of Registered User Your personal trainer is (if applicable), the App may share Your User Data with Your personal trainer. Further information on when the App will share Your User Data in this way is available at [link to website setting out different types of Registered Users].
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Communicating with You
We may send You newsletters or other information that We think may be of interest to You. We may provide this information to You:
- by using any of the Registered User details that You have provided to Us; or
- by using functions incorporated into the App.
If You want to stop receiving this information from Us You can notify us using the features provided in the App or otherwise by contacting Us.
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Security
You acknowledge that despite all reasonable precautions on Our part, there is a risk of unauthorised access to, or alteration of, Your transmissions of data or of information contained on Your App or Your mobile phone, tablet or similar device through which you access the App. To the maximum extent permitted by law, We do not accept liability for any Loss which You may suffer or incur as a result of such activity. You agree to immediately notify Us of any unauthorised use of Your user name and password or any other breach of security.
You must take Your own precautions to ensure that the processes taken by You to access the App do not expose You to the risks of Harmful Code.
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Change to App
We reserve the right to make any changes to the App as considered by Us necessary or desirable, at any time, without notice. We will use all reasonable endeavours to give prior notice of such changes on the App but You acknowledge that prior notice may not be able to be given in respect of all changes (including, without limitation, any urgent necessary changes to remedy errors or defects on the App).
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Lawful use
You must use the App for lawful purposes only and ensure that Your access to, or use of, the App is not illegal or prohibited by law. It is Your responsibility to ensure You are in compliance with all Applicable Laws in using, or dealing with any information or material provided by Us or accessed through, the App, including specifically the Posting of any User Content.
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Misuse and interference
You must not:
- attempt to gain unauthorised access to any part of the App;
- interfere with or disrupt (or attempt to interfere or disrupt) any servers or networks connected to the App or the integrity or performance of the App;
- disable any protection software associated with the App;
- send or store any Harmful Code;
- use any feature of the App in a manner that We reasonably determine is inappropriate or not intended.
To the maximum extent permitted by law, We accept no liability for any Loss or Injury suffered or incurred by You or any other Registered User arising from or in connection with Your or any Registered User’s misuse of the App, our services, or any User Data submitted by or User Content Posted by You or another Registered User on or available through the App.
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Prohibited User Content
You must not Post any User Content that:
- may infringe the rights of any other person, including without limitation Intellectual Property rights;
- may defame another person;
- may disclose a person’s confidential information;
- is not accurate, complete or current or may otherwise mislead or deceive other persons;
- may contravene Your privacy obligations or any other person’s privacy obligations;
- is illegal or may constitute or encourage any contravention of any Applicable Laws by any person;
- is threatening, offensive or abusive or is intended or likely to threaten, offend or abuse another Registered User;
- is otherwise, in Our view, inappropriate.
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Ownership of User Data and User Content
We do not claim ownership of any of Your User Data or User Content.
However, You acknowledge and agree that, upon submitting any User Data or Posting any User Content, You hereby unconditionally and irrevocably grant (or represent and warrant that the owner of such rights has expressly unconditionally and irrevocably granted) to Us, a worldwide, royalty-free, perpetual, assignable, sub-licensable and non-exclusive licence to use, reproduce, copy, adapt, store, distribute, print, display, perform, broadcast, publish, communicate to the public, make available to the public or create derivative works of such User Data and User Content anywhere, for any purpose and in any form, without any compensation to You.
You acknowledge and agree that You are solely responsible for any User Data submitted by You and any User Content Posted by You. We do not guarantee any confidentiality or security in relation to any User Data and User Content. We also do not endorse, nor are We responsible for, any User Data submitted by You and any User Content Posted by You.
You represent, warrant and undertake to Us that:
- all User Data submitted by You and all User Content Posted by You does not contravene any Applicable Laws;
- all User Data submitted by You and all User Content Posted by You does not contain third party copyrighted material or material subject to third party proprietary rights (unless you have prior permission from the owner or You are legally permitted to submit or Post such User Data or User Content as applicable);
- all User Data submitted by You and all User Content Posted by You does not infringe the Intellectual Property rights of any person;
- all User Data submitted by You and all User Content Posted by You will be free of Harmful Code; and
- all User Data submitted by You and all User Content Posted by You will otherwise comply with these Terms and Conditions.
All information submitted by You on the App that is personal information shall be subject to Our Privacy Policy.
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Review of User Content
We reserve the right (but not the obligation) to review User Content prior to publication on or being made available through the App or any time thereafter and to edit or remove or refuse to display any User Content for any reason whatsoever and without the need to provide any reasons, including without limitation where, in Our opinion the User Content does not comply with these Terms and Conditions.
We do not undertake to monitor, moderate or otherwise review User Content and in the event that We do monitor, moderate or otherwise review User Content, We give no warranty or undertaking that such actions will be complete or will be performed with due care and skill or on a regular or ongoing basis.
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Materials available through the App
Whilst We make all reasonable efforts to ensure the accuracy of the Materials, We do not warrant or represent the accuracy, completeness or suitability for Your intended use of any information or materials on or made available through the App, including without limitation User Content and the Materials. Without limiting any other provision of these Terms and Conditions, You are responsible for Your use of any information or materials obtained from the App and You should make Your own enquiries to check if the information or materials on or made available through the App are accurate, complete and suitable for Your intended use.
The App may contain information or materials that include the views or recommendations of others that are not necessarily Our views. In particular We do not endorse the views Posted by any Registered User. All User Content expresses the views of the relevant author and does not necessarily reflect Our views or indicate Our support of, or commitment to, any matter, including a particular course of action. Moreover all User Content does not constitute advice by Us or a recommendation by Us as to a particular matter or course of action.
The App may contain links and pointers to internet sites maintained by third parties. These links to third party sites are provided for Your convenience and You access them at your own risk. Such links are not under Our control and We are not responsible for the contents (including the accuracy, completeness or suitability for Your intended use) of any linked site or any link contained in a linked site. We do not endorse any information on those linked sites or any associated entity, product or service.
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Disclaimer
To the maximum extent permitted by law, We do not accept any liability for, and You hereby release Us from any claim in relation to, any Loss, howsoever caused (including through Our negligence), suffered or incurred by You arising from or in connection with:
- Your access to, or use of, the App, any Materials, User Data or User Content or any linked site;
- any particular Materials, User Data or User Content being available or accessible on, from or through the App;
- any change in content of the App;
- any decision or action taken by You in reliance on any information or materials available on or through the App; or
- the availability of the App or any error or defect in the App.
The above disclaimer does not attempt or purport to exclude liability under any statute if, and to the extent, that such liability cannot be lawfully excluded .
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Implied terms
Subject to the non-excludable provisions of applicable laws, and to the fullest extent permitted by law, any guarantee, condition or warranty (including, without limitation, any implied guarantee, condition or warranty of merchantability, acceptable quality or fitness for a particular purpose) which would otherwise be implied in these Terms and Conditions is hereby excluded.
Where the applicable law or any other legislation implies in these terms and Conditions any guarantee, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such guarantee, condition or warranty, to the maximum extent permitted by law, Our liability for any breach of such guarantee, condition or warranty shall be limited, at Our option, to one or more of the following:
- if the breach relates to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the cost of replacing the goods or of acquiring equivalent goods; or the cost of having the goods repaired; and
- if the breach relates to services: the supplying of the services again or the cost of having the services supplied again.
You acknowledge and agree that reliance by Us on this limitation of liability is fair and reasonable in all the circumstances.
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Force Majeure
We accept no liability for any delay or failure to perform Our obligations under these Terms and Conditions if such a delay or failure is due to circumstances beyond Our reasonable control.
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Indemnity
You agree to indemnify, and keep indemnified, Us and Our officers, employees and agents (those indemnified) against all Loss suffered or incurred by those indemnified (including legal fees on a full indemnity basis), directly or indirectly, in connection with:
- any User Data submitted by You;
- any User Content Posted by You;
- any decision or action taken by You in reliance on any information or materials on the App and any linked site;
- any breach of these Terms and Conditions by You;
- any wilful misconduct by You;
- any negligent act or omission by You.
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Copyright
All copyright in the Materials (including, without limitation, text, graphics, logos, and icons is owned by Us or third party licensors and/or their successors and assigns. Material procured from a third party may be the subject of copyright owned by that third party. Except as expressly authorised by, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) or except as expressly permitted by these terms and conditions or the relevant copyright owner or licensor, You may not, in any form or by any means:
- copy, adapt, reproduce, store, distribute, print, display, perform, broadcast, publish, communicate to the public, make available to public or create derivative works of the whole or any part of the Materials; or
- commercialise the whole or any part of the Materials without Our express written permission or, in the case of third party material, from the owner of the copyright in that material.
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Trade marks
Trade marks used on the App are Our trade marks (registered or unregistered) or trade marks of third parties. If You use any trade marks owned by Us, in reference to Us or the App, You must include a statement attributing that trade mark to Us. You must not use any of Our trade marks or trade marks of third parties featured on the App:
- in, or as the whole or part of, Your own trade marks;
- in connection with any business, products or services which are not Ours;
- in a manner which may be confusing, misleading or deceptive to any person; or
- in a manner that disparages Us, the third party owners of the trade marks or the App.
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Termination
We may suspend or terminate Your access to the App, for any reason, including without limitation if We reasonably consider that You are in breach of any provision of these Terms and Conditions. We may, at Our discretion, terminate this these Terms and Conditions and Your access to all or part of the App without the need to provide reasons.
Termination will not end those provisions that are capable of surviving the ending of these Terms and Conditions (including, without limitation, clauses 1.17, 1.18, 1.19, 1.20, 1.21, 1.23, 1.24, 1.25, and 1.27.
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General provisions
Any waiver, in whole or part, of any rights available to Us under these Terms and Conditions is only valid if it is in writing and is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past breaches only).
If any provision of these Terms and Conditions is held to be invalid, unenforceable or illegal for any reason, it is to be read down to give it as much effect as possible, or if it is not capable of having any effect at all, it is to be severed from these Terms and Conditions, in which case, the remainder of these Terms and Conditions shall nevertheless continue in full force.
Nothing in these Terms and Conditions shall impose a duty of care upon Us in respect of Your use of the App.
The laws governing these Terms and Conditions will be the laws in the State of South Australia; Australia and You irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
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DEFINITIONS
In these Terms and Conditions, unless the context otherwise requires:
App means the LIFT-IQ application for use on mobile phones, tablets and similar devices, and any software embedded in the LIFT-IQ application.
Applicable Laws means any and all statutes, regulations, by-laws, ordinances or subordinate legislation in force from time to time which pertains to Your use of, and access to, the App and the Posting of any User Content on the App and includes, without limitation, those relating to equal opportunity, anti-discrimination, trade practices, fair trading, Intellectual Property, privacy and confidentiality.
Harmful Code means any computer virus, trojan, worm or other computer code that, directly or indirectly, is harmful or disabling or which assists in or enables unauthorised access to or corruption of data.
Injury means any physical or mental hurt or injury, or any other health condition, including without limitation loss of life, incapacity or any physical or mental affliction.
Intellectual Property means any registered or unregistered rights in any copyrights, patents, inventions, discoveries, trade marks, designs or confidential information or any rights of a similar nature under the laws of Australia or anywhere else in the world.
Loss means any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any demand, claim, action or proceeding made or brought by or against a person) and including any that are prospective or contingent and any the amount of which for the time being is not ascertained or ascertainable.
Materials means any content made available by Us via the App (including but not limited to software, information, data, statistics, exercise or training instructions or programs, targets, guidelines, documents, images, photographs, graphics, audio, videos, or webcasts).
Post means to transmit or make available or accessible to other Registered Users on, from or through the App.
Registered User means a person who has registered to have access to, and use, the App.
User Content includes any text, information and other submissions (including, without limitation, any statistics, graphics, photos, sounds, videos, ideas, concepts, content, materials or information of any nature) Posted on or through the App, by a Registered User.
User Data includes any data, content, or information relating to a Registered User, the Registered User’s training or other activities using the App and any other data, content or information that the Registered User submits to Us on or through the App.
We, Us, Our means Titanec Pty Ltd ACN 162 964 356 and its related bodies corporate and associates (as defined in the Corporations Act 2001 (Cth)).
You, Yourself, Your means any person, business, company or organisation who is a Registered User.
Your acceptance of these Terms and Conditions
By clicking on the icon marked “Accept” You confirm that You have read and understood, accept and agree to be bound by, these Terms and Conditions.