THIS IS A BINDING AGREEMENT between Visualcoaching Pty Ltd ABN 32 121 055 570 (Visualcoaching) and any person (you) who:
(a) uses a licensed copy of the Visualcoaching Software (Pro or Client version) made available by a third party licensee of that software; and/or
(b) accesses or uses the online version of the Visualcoaching Software hosted at Visualcoaching website (at www.visualcoaching.com or as otherwise notified by Visualcoaching from time to time),
(collectively, the Visualcoaching Services). In consideration of your access to and/or use of any of the Visualcoaching Services, you agree to be bound by and abide by the terms and conditions set out below.
1. VISUALCOACHING SERVICES
1.1 Access to Visualcoaching Services. This contract is void where prohibited by law. You must be at least 18 years of age to access or use the Visualcoaching Services, or have the permission of a parent, guardian or adult over the age of 18. You must be a qualified fitness or medical professional to prescribe any aspect of the Visualcoaching Services to another person.
1.2 Minimum system requirements and ISP Services. To use and access the Visualcoaching Services, you must have access to:
(a) a computer system that meets the minimum system requirements specified by Visualcoaching from time to time; and
(b) (where all or part of the Visualcoaching Services are provided by Visualcoaching via the internet) an account for the provision of internet services (ISP Services) with an internet service provider (ISP) in Australia.
Your ISP (and not Visualcoaching) is responsible for the provision of ISP Services pursuant to any agreement between you and that ISP in respect of those ISP Services.
1.3 No guarantee of access. You acknowledge and agree that to the extent possible under the law, Visualcoaching makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Visualcoaching Services or any ISP Services. Visualcoaching will not be liable if the Visualcoaching Services, or any information obtained in relation to them, is inaccurate, outdated or incorrect, or if the Visualcoaching Services or ISP Services are unavailable for any reason, including directly or indirectly as a result of: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 Visualcoaching Services or the ISP Services;
(d) any events beyond Visualcoaching control; or
(e) services provided by third parties ceasing or becoming unavailable.
2. YOUR RESPONSIBILITIES
2.1 ISP charges. You are responsible, and are solely liable, for any account charges or other costs incurred in relation to the ISP Services, including without limitation the use of the Visualcoaching Services using the ISP Services.
2.2 Compliance with ISP terms and conditions. You must comply with the terms and conditions of or relating to the ISP Services provided by your ISP from time to time. You acknowledge and agree that failure to comply with those terms and conditions may adversely affect your ability to activate or use any or all of the Visualcoaching Services.
2.3 Secrecy of information. You must:
(a) ensure that any personal or financial information provided or sent by you from, to or via the Visualcoaching Services (Personal Data) is accurate and complete;
(b) maintain the secrecy and confidentiality of all identification and login information required for your use of the Visualcoaching Services; and
(c) not disclose to any other person any identification or login information, whether in use or not, relating to the use of the Visualcoaching Services.
2.4 Compliance. You must comply with any reasonable directions of Visualcoaching from time to time in relation to the use of the Visualcoaching Services. In addition, you must use the Visualcoaching Services in good faith, and must at all times comply with this agreement and all applicable laws, statutes and regulations in all jurisdictions that relate to your access to or use of the Visualcoaching Services.
3. DATA PRIVACY AND SECURITY
You acknowledge and agree that your Personal Data (as defined in clause 2.3) may be stored, processed, used, reproduced, distributed and disclosed in connection with the provision of the Visualcoaching Services, and may be provided to Visualcoaching third party service providers in Australia and overseas. You further acknowledge that as telecommunications networks and computer servers are, by their nature, vulnerable to third party attack and interference, Visualcoaching cannot guarantee that the Personal Data will at all times be secure and accessible.
4. RESTRICTIONS ON USE
4.1 Restrictions. You must not:
(a) reverse engineer, disassemble, or decompile any software forming part of the Visualcoaching Services, 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
(b) use the Visualcoaching Services for any unlawful purpose;
(c) copy or download, in a systematic manner, any content, graphics, video, text or animation from the Visualcoaching Services, or communicate or otherwise distribute such systematically obtained content, graphics, video, text or animation.
4.2 Disruption. You must not, directly or indirectly, introduce or permit the introduction of, any virus, worm, trojan or other malicious code into the Visualcoaching Services, or in any other manner whatsoever corrupt, degrade or disrupt the Visualcoaching Services.
4.3 Unlawful, unauthorised or dangerous use. You must not (nor permit a third party to) submit any data or information to the Visualcoaching Services, nor otherwise use the Visualcoaching Services:
(a) to engage in any activity which breaches any law, infringes a third party’s rights, or in a manner which interferes with the rights of any other person;
(b) to infringe the intellectual property rights (including trade marks and copyright) of Visualcoaching or any third party;
(c) in any way that is defamatory, obscene, misleading or deceptive or otherwise illegal;
(d) in any way that constitutes misuse, or resale or other commercial use, of the Visualcoaching Services or any associated materials.
4.4 Misuse of Visualcoaching Services. Without limiting clause 4.3, you must not use the Visualcoaching Services for any purpose other than as described under this agreement.
5. USE OF FORUMS
5.1 Prohibited material. Visualcoaching may provide you with access to online help and other forums (Forum). You agree that you will not post any material to any Forum that:
(a) is inflammatory (commonly referred to as ‘trolling’);
(b) is xenophobic, racist, abusive, harassing or hateful;
(c) is false, defamatory, inaccurate, threatening, invasive of a person’s privacy, or constitutes personal abuse directed at other forum users;
(d) is obscene, sexually explicit or pornographic, or that contains links to other sites that contain or promote obscene, sexually explicit or pornographic material;
(e) constitutes commercial advertising (including but not limited to the promotion of pyramid or referral schemes), the promotion of gambling or the promotion of your own site (commonly referred to as ‘spamming’);
(f) is copyright material unless the copyright is owned by you or you have an appropriate licence from the owner of the copyright material;
(g) constitutes discussion of how to circumvent copyright law or technological protection mechanisms, including (but not limited to) mod chips, keygens, activation workarounds, peer-to-peer software, the creation of back-ups, or links to other sites that contain or promote the use of unlicensed software; or
(h) is in violation of any Australian law.
5.2 Prohibited actions. Additionally the following actions are prohibited on any Forum:
(a) the creation of a database (electronic or otherwise) that includes material downloaded or otherwise obtained from this website;
(b) cross-posting (ie posting the same message in several areas of the forum at the same time). Messages should be posted in the most appropriate thread. Cross-posts may be removed by us without notice
(c) attempting to bypass the auto-censor;
(d) posting irrelevant material (commonly referred to as ‘padding’); or
(e) posting links affiliated to other websites.
5.3 Reporting. If you find any post that you believe may contain inappropriate material, please contact us by using the "report bad post" button on the Forum so that we may take any necessary action.
6. INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that Visualcoaching, or its applicable licensors, own and retain all intellectual property rights comprised in the Visualcoaching Services (including any graphic, video, text, animation and other content comprised in the Visualcoaching Services). You assign to Visualcoaching all rights, title and interest (including all intellectual property rights) in any materials (including text, graphic or other materials) posted by you on a Forum.
7.1 Disclaimer. You acknowledge and agree that:
(a) the Visualcoaching Services and any content contained in them:
(i) are provided by Visualcoaching for instructional purposes only; and
(ii) do not constitute, and are 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 Visualcoaching Services 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 Visualcoaching Services 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; and
(e) you are solely responsible for all actions or omissions, whether negligent or otherwise, undertaken in connection with the use of the Visualcoaching Services.
7.2 Indemnity. You will indemnify Visualcoaching (and all its subsidiaries, employees and officers) 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 your access to or use of the Visualcoaching Services.
(a) Subject to clauses 7.4 and 7.5, 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 the Visualcoaching Services;
(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 your use of the Visualcoaching Services; and
(ii) Visualcoaching total aggregate liability for all losses, damages, expenses, claims and actions arising under or in connection with this agreement or your use of the Visualcoaching Services is limited to AUD$10,000.
(b) The exclusion and limitation of liability under this clause 7.3 applies whether any such claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise.
7.4 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 Visualcoaching Services (including warranties as to merchantability and fitness for purpose, and as to the availability, accuracy, reliability or currency of information or content provided via any Visualcoaching Services).
7.5 Where implied warranties cannot be excluded. Where implied conditions and warranties cannot be excluded under clause 7.4, 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.
8.1 Termination for breach. Where you have breached any provision of this agreement, and without prejudice to any other rights or remedies, Visualcoaching may by written notice immediately terminate this agreement or the provision of any Visualcoaching Services, without any liability to you.
8.2 Termination without cause. Visualcoaching may terminate your access to and use of the Visualcoaching Services without cause by giving you seven days prior written notice.
8.3 Survival. Clauses 2.3, 6, 6 and 9 survive termination of this agreement for any reason.
9.1 Variation. This agreement may be varied by Visualcoaching from time to time by written notice to you.
9.2 Governing law. This agreement is governed by and interpreted in accordance with the laws of the State of Victoria, Australia, and both of us submit to the jurisdiction of the courts of that State.
9.3 Entire agreement. This agreement is the entire agreement between us on its subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).