Important: Please read the following license details. If acceptable select "I Agree".
THIS IS A BINDING AGREEMENT between Visualcoaching Pty Ltd ABN 32 121 055 570 (Visualcoaching) and any person (you) who:
(a) purchases or otherwise obtains a packaged version of the Software; or
(b) is specified in the Order Details as the licensee of the Software.
In consideration of the licence granted to you in respect of the Software, you agree to be bound by and abide by the terms and conditions set out below.
1. DEFINED TERMS AND INTERPRETATION
1.1 Defined Terms
In this document, unless the contrary intention appears:
Activation has the meaning given in clause 6.1(c) and Activate has a corresponding meaning.
Administrator has the meaning given in clause 4.2.
Business Day means:
(a) where an obligation must be performed on a given day, or within a given number of days, a day that is not a Saturday, Sunday or public holiday in the place at or in which that obligation must be performed; or
(b) otherwise, a day that is not a Saturday, Sunday or public holiday in the State of Victoria, Australia.
Commencement Date means the date on which you Activate or (in the case of Hosted Software) first access the Software.
Confidential Information means information relating to the development, layout, programming and operation of the Software, and any other information with respect to Visualcoaching business, finances, trade secrets or know-how that may be communicated to you (whether by Visualcoaching or otherwise) during the term of this agreement, but excludes information:
(a) that is in, or subsequently enters, the public domain other than through a breach of this agreement by you;
(b) developed independently by you; or
(c) acquired by you from a third party who is not subject to a duty of confidentiality in respect of such information.
End User means an individual whom you validly permit to access and use the Software (and includes the Administrator).
Hosted Software means Software that is hosted by or on behalf of Visualcoaching and accessed by you and End Users via the internet.
Initial Term has the meaning given in clause 3.4.
Intellectual Property Rights means all intellectual property rights, including the following rights:
(a) patents, copyright, rights in circuit layouts, registered and unregistered designs, moral rights, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a).
ISP has the meaning given in clause 5.1(b).
ISP Services has the meaning given in clause 5.1(b).
Licence Fee has the meaning given in clause 10.
Maximum Number of End Users means the number of End Users specified in the Order Details, as increased (if at all) in accordance with clause 3.5.
New Release means a new version of the Software that is designated by Visualcoaching as providing significant new functionality when compared with the previous version of the Software.
Order Details means the order details:
(a) accompanying a packaged version of the Software; or
(b) generated electronically in connection with the online purchase of the Software.
Personnel means officers, employees, agents and subcontractors.
Renewal Term has the meaning given in clause 3.4.
Site means the physical location (or locations) specified in the Order Details.
Software means:
(a) the object code version of:
(i) (in the case of packaged software) the Visualcoaching software contained in the relevant package; and
(ii) (in the case of software purchased or accessed online) the Visualcoaching software described in the relevant Order Details; and
(b) documentation relating to that software supplied or made available to you (whether in hardcopy or electronic form) including operating manuals, user manuals and online help documentation,
and includes any improvements, enhancements, modifications or developments of that software or documentation supplied by Visualcoaching to you under this agreement.
Update means changes to the Software made generally available by Visualcoaching to licensees of the Software (but excluding any New Releases).
1.2 Interpretation
In this agreement, unless otherwise expressly stated:
(a) headings are for ease of reference only and do not affect the meaning of this agreement;
(b) the singular includes the plural and vice versa;
(c) other grammatical forms of defined words or expressions have corresponding meanings;
(d) a reference to party includes that party’s executors, administrators, successors and permitted assigns;
(e) a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(f) a reference to any thing includes the whole or part of that thing, and a reference to a group of things or persons includes each thing or person in that group;
(g) where two or more persons are bound, or to be bound, by an agreement or obligation, that agreement or obligation binds those persons severally and any two or more of them jointly;
(h) a reference to dollars or $ is a reference to Australian dollars;
(i) a reference to a person includes a natural person, a partnership, a body corporate, trust or joint venture;
(j) rules of construction will not apply to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or any part of it; and
(k) if a day on which, or by which, an obligation under this agreement must be performed or fulfilled, or an event must occur, is not a Business Day, that obligation must be performed or fulfilled, or that event must occur, on or by the next Business Day.
2. TRIAL LICENCE
2.1 Grant of Trial Licence. If the Order Details provide that you are granted a Trial Licence in respect of the Software, Visualcoaching grants you a non-exclusive, non-transferable licence:
(a) (in respect of non-Hosted Software) to use the number of copies of the Software specified in the Order Details; and
(b) (in respect of Hosted Software) to permit the Maximum Number of End Users to access and use the Software,
for the sole purpose of internally evaluating the Software. You acknowledge that the functionality of the Software may be reduced or limited for the purposes of the Trial Licence.
2.2 Duration of Trial Licence. The Trial Licence will commence on the Commencement Date and will expire 30 days from that date (subject to earlier termination of this agreement in accordance with clause 13).
2.3 Expiry of Trial Licence. On the expiry of the Trial Licence, you must either:
(a) purchase a licence to use the Software in accordance with clause 3; or
(b) cease using the Software and (for non-Hosted Software) uninstall all copies of the Software from your computers.
3. LICENCE
3.1 Single User Licence. If the Order Details state that you are granted a Single User Licence in respect of the Software, then subject to the payment of applicable Licence Fees, Visualcoaching grants you a non-exclusive, non-transferable licence to use the Software on a single computer.
3.2 Grant of Enterprise Licence. If the Order Details state that you are granted an Enterprise Licence in respect of the Software, then subject to the payment of applicable Licence Fees, Visualcoaching grants you a non-exclusive, non-transferable licence to use the Software at the Site on the number of computers as specified in the Order Details.
3.3 Grant of Hosted Licence. If the Order Details state that you are granted a Hosted Licence in respect of the Software, then subject to the payment of applicable Licence Fees, Visualcoaching grants you a non-exclusive, non-transferable licence to permit the Maximum Number of End Users to access and use the Software.
3.4 Duration of licence. The licence(s) granted under clauses 3.1, 3.2 and/or 3.3 will each commence on the Commencement Date and will continue:
(a) for 12 months from that date (Initial Term); and
(b) automatically for successive 12 month periods (each a Renewal Term),
subject to earlier termination of this agreement in accordance with clause 13.
3.5 Variation. You may:
(a) at any time during the term of this agreement, give notice to Visualcoaching:
(i) converting from a Single User Licence to an Enterprise Licence (which notice must set out the number of computers on which you will use the Software);
(ii) increasing the number of computers on which you will use the Software; or
(iii) increasing the Maximum Number of End Users who will access and use the Software; or
(b) not less than 60 days notice prior to the expiry of the Initial Term or a Renewal Term, give notice to Visualcoaching reducing:
(i) the number of computers on which you will use the Software; or
(ii) the Maximum Number of End Users who will access and use the Software,
and:
(c) in the case of a licence conversion or an increase in the number of computers or Maximum Number of End Users, you must pay the applicable then-current incremental Licence Fees in respect of that conversion or increase (and any such conversion or increase will not take effect until you make that payment);
(d) in the case of a decrease in the number of computers or the Maximum Number of End Users, Visualcoaching will adjust the Licence Fees, such adjustment to take effect from the commencement of the next Renewal Term.
4. ADMINISTRATION OF END USER ACCOUNTS
4.1 Application. This clause 4 only applies to Hosted Software.
4.2 You must appoint one person as the Administrator. The Administrator will issue usernames and passwords to other End Users and will specify the level of access that each End User is permitted to have to the Hosted Software. If Visualcoaching asks, you must provide Visualcoaching with the name and contact details of the then-current Administrator.
4.3 Without limiting clause 5, you must:
(a) ensure that each End User:
(i) accesses and uses the Hosted Software strictly in accordance with this agreement and with the Terms of Service applicable to the use of that Software; and
(ii) without limiting paragraph (i), keeps his or her username and password confidential and secure at all times;
(b) develop, implement and observe appropriate security measures so that that all issued and un-issued usernames and passwords are kept secure and are only used by End Users in accordance with this agreement; and
(c) monitor the access to and use of the Hosted Software by each End User to make sure that he or she complies with this agreement and the security measures referred to in paragraph (b).
5. USAGE CONDITIONS AND RESTRICTIONS
5.1 Conditions. You must:
(a) only use the Software on hardware that meets the minimum specifications as published by Visualcoaching from time to time;
(b) (for Hosted Software) have access to an account for the provision of internet services (ISP Services) with an internet service provider (ISP) in Australia;
(c) comply with the Terms of Service applicable to the use of the Software, as well as with all reasonable directions issued by Visualcoaching regarding use of the Software;
(d) ensure that each person who validly installs, accesses or uses the Software within the scope of the licence granted to you under this agreement is properly trained in the installation and operation of the Software; and
(e) ensure that each End User only uses the Software as permitted by this agreement and the Terms of Service applicable to the use of the Software, and complies with your obligations under this agreement.
5.2 Restrictions. You must not:
(a) grant any sublicences to exercise any rights in respect of the Software, or permit any third party to use the Software, other than allowing End Users to access and use the Software in accordance with this agreement;
(b) modify, add to, adapt, delete or amend any part of the Software without Visualcoaching prior written consent;
(c) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan, or otherwise distribute all or part of the Software, or any adaptation, modification or derivative of all or part of the Software;
(d) reverse engineer, disassemble, or decompile any software forming part of the Software, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(e) use the Software for any unlawful purpose;
(f) allow your Personnel, other End Users or third parties to do anything inconsistent with the terms of this agreement;
(g) remove, obscure or interfere with any copyright, acknowledgment, attribution, trade mark, warning, disclaimer statement, rights management information or serial numbers affixed to, incorporated in or otherwise applied in connection with the Software;
(h) make any copies of the Software, other than to produce one back-up version of the Software, without Visualcoaching prior written consent;
(i) copy or download, in a systematic manner, any content, graphics, video, text or animation from the Software, or communicate or otherwise distribute such systematically-obtained content, graphics, video, text or animation (or allow any End User to do so); or
(j) directly or indirectly, introduce or permit the introduction by your Personnel or any End User of, any virus, worm, trojan or other malicious code into any Hosted Software, or in any other manner whatsoever corrupt, degrade or disrupt the operation of any Hosted Software.
5.3 No guarantee of access to Hosted Software. You acknowledge and agree that to the extent possible under law, Visualcoaching makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Hosted Software or any ISP Services. Visualcoaching will not be liable if the Hosted Software or ISP Services are unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including Visualcoaching third party service providers);
(c) maintenance or repairs carried out by Visualcoaching or any third party service provider in respect of any of the systems used in connection with the provision of the Hosted Software or the ISP Services;
(d) any events beyond Visualcoaching control; or
(e) services provided by third parties ceasing or becoming unavailable.
6. TECHNOLOGICAL MEASURES
6.1 Acknowledgments. You acknowledge that the Software may contain technological measures:
(a) designed to prevent unlicensed use of the Software;
(b) limiting your ability to install the Software to a finite number of computers;
(c) requiring you to activate each installation of the Software by providing your unique product key and computer configuration to Visualcoaching over the internet (Activation); and
(d) that may disable some or all of the functionality of the Software pending:
(i) Activation; or
(ii) payment of applicable Licence Fees.
6.2 Agreement. You agree that:
(a) Visualcoaching may use your internal network and internet connection for the purpose of transmitting licence-related data at the time of installation, Activation or update of the Software in order to protect against unlicensed use of the Software; and
(b) if you:
(i) fail to Activate the Software as prompted by the Software; or
(ii) fail to pay applicable Licence Fees,
the Software may cease to function until Activation is complete or payment is made (as the case may be).
6.3 No circumvention. You must not circumvent, nor attempt to circumvent, any of the technological measures referred to in this clause 6.
7. UPDATES AND NEW RELEASES
7.1 Application. This clause 7 only applies to non-Hosted Software.
7.2 Provision of Updates. Subject to payment of applicable Licence Fees, Visualcoaching may provide you with Updates from time to time. You must use the procedures specified by us to install any such Updates.
7.3 Provision of New Releases. If Visualcoaching introduces a New Release, then:
(a) you may elect, at your discretion, to accept that New Release; and
(b) if you so elect, you must pay a further fee (as notified to you by Visualcoaching) for the provision by Visualcoaching of the New Release (in addition to the then-applicable Licence Fees).
8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
8.1 Ownership of Software. You agree that all rights, title and interest (including all Intellectual Property Rights) in the Software vests absolutely in Visualcoaching. The only rights you have in respect of the Software (and the Intellectual Property Rights subsisting in it) are those granted under this agreement, and such rights are subject to the terms of this agreement.
8.2 Ownership of improvements. If you make any improvements, additions or modifications to the Software (Improvements) whether during the term of this agreement or after it, and whether with the authority of Visualcoaching or otherwise, all of your rights, title and interest (including all Intellectual Property Rights) in such Improvements are hereby assigned to Visualcoaching, and you must do all things necessary to effect that assignment.
9. CONFIDENTIAL INFORMATION
9.1 Obligations of confidence. You must:
(a) use your best endeavours to ensure that the Confidential Information is kept secret, and is not disclosed to any third party, other than to your Personnel and to End Users, and even then, only to the extent that such persons have a need to know such information either to use the Software or to exercise your rights or fulfil your obligations;
(b) not use, reproduce or communicate any Confidential Information, other than for the purposes of this agreement, unless Visualcoaching gives its express written consent for you to do so; and
(c) procure that your Personnel and each End User does such things, or refrains from doing such things (as the case may be), as to ensure that you comply with your obligations under paragraphs (a) and (b).
9.2 Disclosure required by law.
(a) You will not be in breach of your obligations under clause 9.1 if you disclose Confidential Information pursuant to a statutory requirement, order of a court or legal direction or requirement of a person acting with statutory authority.
(b) If you are required to disclose Confidential Information under paragraph (a), you must, before disclosing that information, notify Visualcoaching in writing and permit Visualcoaching the opportunity to limit the scope, or seek the withdrawal, of such required disclosure. You must provide Visualcoaching with reasonable co-operation in this regard.
10. LICENCE FEES
Your continued use of the Software is subject to your payment to Visualcoaching of an annual licence fee (as initially specified in the Order Details), payable on each anniversary of the expiry of the Initial Term (or such later date as is specified in the Order Details), and as increased by Visualcoaching at the start of each Renewal Term in its absolute discretion (Licence Fee). However, Visualcoaching will give you not less than 90 days notice of any such increase. All Licence Fees are payable by you no later than the date specified in the Order Details. Additional Licence Fees may be payable should you elect to acquire a New Release of the Software. The amount of any such fees will be notified to you by Visualcoaching from time to time.
11. GOODS AND SERVICES TAX
11.1 Interpretation. Words or expressions used in this clause 11 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
11.2 Consideration is GST exclusive. Any consideration or amount to be paid or provided for a supply made under or in connection with this agreement, unless specifically described as GST inclusive, does not include GST payable on that supply.
11.3 Gross up of consideration. If a party (Supplier) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specified as GST inclusive):
(a) the consideration payable or to be provided for that supply but for this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Provider on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
12. DISCLAIMER, INDEMNITY AND LIMITATION OF LIABILITY
12.1 Disclaimer. You acknowledge and agree that:
(a) the Software and any content contained in it:
(i) is provided by Visualcoaching for instructional purposes only; and
(ii) does not constitute, and is not a substitute for, any advice, diagnosis or treatment provided by a fitness or medical professional;
(b) any activities contained within or associated with the Software must not be performed without receiving prior medical consultation and clearance, nor in contravention of any advice provided by a fitness or medical professional;
(c) all persons undertaking activities associated with the Software should complete a physical activity questionnaire in consultation with a qualified fitness or medical professional prior to undergoing any activity;
(d) performing incorrectly prescribed exercises or activities may pose a risk to your health or that of your End Users; and
(e) you are solely responsible for all actions or omissions, whether negligent or otherwise, undertaken in connection with the use of the Software.
12.2 Acknowledgment & indemnity
(a) You acknowledge and agree that:
(i) you are and will be responsible for the acts and omissions of each End User in connection with the Software as if they were your acts or omissions; and
(ii) you accept all liability for any unauthorised use of any username and password issued to an End User.
(b) You indemnify Visualcoaching (and all of its related bodies corporate and its Personnel) and hold those indemnified harmless against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising from any claim by a third party arising directly or indirectly out of or in connection with:
(i) any breach of this agreement by you; or
(ii) any suit, claim or demand brought or made against Visualcoaching by or due to the conduct, act or omission of:
(A) you; or
(B) any End User.
12.3 Limitation
(a) Subject to clauses 12.4 and 12.5, but notwithstanding any other provision of this agreement, and to the maximum extent permitted by law:
(i) Visualcoaching excludes all liability:
(A) arising from any unavailability, or failure in the functionality, of any Hosted Software;
(B) arising from any circumstance beyond its control; and
(C) for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with this agreement or the Software; and
(D) Visualcoaching total aggregate liability for all losses, damages, expenses, claims and actions arising under or in connection with this agreement or the Software is limited to an amount equal to the total fees paid by you to Visualcoaching during the term of this agreement.
(b) The exclusion and limitation of liability under this clause 12.3 applies whether any such claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise.
12.4 Exclusion of warranties. To the extent permitted by law, Visualcoaching excludes all warranties and representations, express and implied, in relation to the provision of the Software (including warranties as to merchantability and fitness for purpose, non-infringement of Intellectual Property Rights and as to the availability, accuracy, reliability or currency of information or content provided via the Software).
12.5 Where implied warranties cannot be excluded. Where implied conditions and warranties cannot be excluded under clause 12.4, to the extent permitted by law, Visualcoaching limits its liability to:
(a) if the breach or liability relates to goods, at Visualcoaching option, the replacement of the goods or supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired;
(b) if the breach or liability relates to services, at Visualcoaching option, the supplying of the services again or the payment of the cost of having the services supplied again.
13. TERM AND TERMINATION
13.1 Termination by either party for convenience. Either party may terminate this agreement without cause by giving not less than 60 days notice prior to the expiry of the Initial Term or a Renewal Term.
13.2 Termination by Visualcoaching for cause. Visualcoaching may terminate this agreement immediately by notice in writing if you:
(a) breach any term of this agreement that is not capable of remedy (including clauses 9 and 15.3);
(b) breach any term of this agreement that is capable of remedy and fail to rectify that breach within 14 days of receiving a notice from Visualcoaching requiring you to do so; or
(c) become an externally-administered body corporate (as that term is defined in the Corporations Act 2001 (Cth)) or are otherwise unable to pay your debts as and when they fall due for payment.
13.3 Effect of termination
(a) The termination of this agreement under clause 13.2 is not Visualcoaching sole remedy, and will not prejudice, or amount to a release of, any of Visualcoaching rights to claim compensation or other remedies in respect of your acts, omissions, breach, negligence or wilful misconduct occurring prior to such termination.
(b) You will not be entitled to receive any refund of any part of any Licence Fees or other fees or charges paid by you under this agreement should this agreement be terminated for any reason.
(c) The parties agree that their rights and obligations under clauses 8, 9, 12, this clause 13.3 and clauses 13.4, 14 and 15 will survive the expiry or termination of this agreement for any reason.
13.4 Rights, obligations on termination. On expiry or termination of this agreement:
(a) you must immediately cease using the Software, and you must procure that your End Users cease doing so;
(b) to the extent that you have a copy of the Software, or any part of the Software, whether in tangible or electronic form, and whether stored on a disk or installed in its own platform or system, you must either return to Visualcoaching, or destroy, each such copy of the Software, or part thereof, that is in your possession or control (or that of any End User); and
(c) you must within 30 days send to Visualcoaching or otherwise dispose of in accordance with our directions all Confidential Information and all other documentation and written correspondence relating to the Software then in your possession or control or that of your End Users.
14. NOTICES
14.1 Form. All formal communications between the parties for the purposes of this agreement must be in writing, and may be delivered by one party to the other by hand, prepaid post or facsimile transmission to the address or facsimile number of the recipient specified at the beginning of this agreement.
14.2 Delivery. Subject to clause 14.3 below, a notice that it delivered:
(a) by hand, will be considered to have been delivered at the time of delivery;
(b) by prepaid post, within 3 Business Days of posting, if posted within Australia, or 5 Business Days of posting, if posted outside Australia; and
(c) by facsimile transmission, at the time at which the sender can show that the transmission was completed successfully.
14.3 Next day. Notwithstanding clause 14.2, if a notice is delivered (or is considered to have been delivered) on a day that is not a Business Day, or at a time that is outside the recipient’s usual business hours, then that notice will be deemed to have been delivered at 9.00am on the next Business Day after such delivery.
15. GENERAL
15.1 Force majeure. Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s control. If that failure or delay exceeds 60 days, either party may terminate this agreement with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay money.
15.2 Governing law. This agreement will be governed by the laws of the State of Victoria, Australia, and the parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of that State.
15.3 Assignment. You may not assign your rights under this agreement, or attempt or purport to do so, without our consent (which may be given or withheld at our absolute discretion).
15.4 Waiver. A waiver or relaxation by a party of a right under this agreement will only be effective if it is in writing. Such waiver or relaxation will apply only in respect of a particular instance or event, and will not prevent that party from exercising that or any other right in the future.
15.5 Severability. If any provision, or part of a provision, of this agreement is found to be illegal or unenforceable it will be severed from the agreement, and the remainder of this agreement will be construed as if that provision or part did not form part of this agreement. The previous sentence will not apply if the provision or part to be severed constitutes a material and fundamental element of the agreement between the parties.
15.6 Entire agreement
(a) The terms of this agreement constitute the entire agreement between the parties with respect to the subject matter of this agreement, and replace all prior agreements, statements, representations or understandings between the parties.
(b) An amendment, deletion or addition to this agreement will not be valid or binding on the parties unless it is in writing and signed by each party.
16. CREDITS
(a) Torson body image by Torson Group Inc. © 2003 All Rights Reserved. Licensed from Bolster Trading Pty Ltd.
