TERMS & CONDITIONS
Elevar Fitness Terms and Conditions
1. INTRODUCTION
1.1 The social media and fitness mobile application (Elevar Fitness App) and the Services made available through the Elevar Fitness App are owned and operated by Elevar Fitness PTY LTD (ACN 76 674 201 113) (Elevar Fitness, our, us or we).
1.2 By downloading, using, browsing or accessing the Elevar Fitness App and the Services, you acknowledge that you have read, understood and accepted these Elevar Fitness App User Terms and Conditions (agreement), together with our Privacy Policy and Acceptable Use Policy, and agree to abide by them. If you do not accept this agreement, you must not access and use the Elevar Fitness App and the Services.
1.3 In this agreement, you and your means the individual who accesses or uses the Elevar Fitness App and the Services, and whose details are listed in the User Access Portal (and includes anyone acting on your behalf or with your express or implied authority).
2. ELEVAR FITNESS APP
2.1 The Elevar Fitness App is a mobile application that promotes fitness, exercise, workouts, nutrition, macros and recipes, providing you with the ability to:
(a) post, share, comment and like photos, images, and videos of workouts routines, programs and recipes;
(b) search and save workouts routines, programs and recipes; and
(c) follow other users on the Elevar Fitness App, (collectively, the Services).
2.2 Although Elevar Fitness provides you with to access to workout programs and fitness videos and images and recipes published or posted by other users of the Elevar Fitness App, Elevar Fitness are not personal trainers or instructors, wellbeing coaches, nutritionist, dietitians or other fitness and wellbeing professionals, and we are not providing healthcare or wellbeing advice, fitness and exercise services, diet or nutritional advice of any kind. The Elevar Fitness App is a mere online resource and tool for users who wish to share and improve their fitness, diet and general wellbeing. Our role in providing you with access and use of the Elevar Fitness App and the Services should be construed strictly in this context only.
2.3 By downloading, accessing and using the Elevar Fitness App, we grant you a non- exclusive, non-transferable, personal, revocable and non-sublicensable licence to download, install, access and use the Elevar Fitness App and the Services for the Subscription Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
3. SUBSCRIPTION TERM
This agreement will commence on the date you download and access the Elevar Fitness App (Commencement Date) and shall continue until terminated in accordance with clause 15 (Subscription Term).
4. REGISTRATION AND ACCESS
4.1 To access and use the Elevar Fitness App and the Services, you must create and set up an account on the Elevar Fitness App (User Profile). Your User Profile will be operated by a username (User Name) and password (Password). You can change your User Name Password at any time by accessing the User Access Portal.
4.2 To setup a User Profile on the Elevar Fitness App, you:
(a) will be required to provide, and keep us up-to-date with, accurate registration information and Personal Information (including full name, email address, gender, height, weight, dietary restrictions and fitness level). The only registration information (including Personal Information) in the User Profile that can be viewed by other users of the Elevar Fitness App is your User Name, full name and your profile picture/image. All Personal Information as well as the information you provide us to setup your User Profile is subject to our Privacy Policy; and
(b) must be over 18 years of age, and legally able to enter into contractual relations. If you are under the age of 18 years, you may only access and use the Elevar Fitness App and Services if you have your parents’/guardians’ permission to access and use the Elevar Fitness App and Services. Your continued use of the User Profile constitutes an acknowledgement by you that you are:
(i) over 18 years of age; or
(ii) under 18 years of age, but have your parents’/guardians’ permission to access and use the Elevar Fitness App and Services and that your parents/guardians have agreed to abide by this agreement.
4.3 You are responsible for:
(a) maintaining control over, and the confidentiality of, your User Profile, User Name and Password;
(b) keeping your User Profile registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the Elevar Fitness App or the Services;
(c) notifying us in writing of any unauthorised access to, or use of, your User Profile, User Name or Password; and
(d) for all activities or transactions that occur using your User Profile. We are not liable for any loss or damage arising out of, or in connection with, any unauthorised access or use of, your User Profile, User Name and Password.
4.4 At any time, you may edit, update, de-activate or change your User Profile.
5. YOUR OBLIGATION
5.1 When accessing and using the Elevar Fitness App and the Services, you must at all times:
(a) obtain and maintain all hardware, software and communications equipment necessary to download, access, and use, the Elevar Fitness App and the Services;
(b) comply with all Relevant Laws with respect to your obligations under this agreement; and
(c) comply with all of our directions, policies and guidelines advised in writing to you or as displayed on the Elevar Fitness App from time to time (including, but not limited to, our Acceptable Use Policy).
5.2 Elevar Fitness will not be liable to you or anyone else if, for any reason, the Elevar Fitness App and the Services is unavailable at any time or for any period. From time to time, Elevar Fitness may suspend or restrict access to all, or some parts of the Elevar Fitness App and the Services. You are responsible for making all arrangements necessary for you to download, access and use the Elevar Fitness App and the Services.
5.3 You must not:
(a) introduce, access, store, distribute or transmit any viruses, worms, trojans or other malicious code into the Elevar Fitness App;
(b) violate any Elevar Fitness IP or any third party service provider’s Intellectual Property Rights;
(c) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the Elevar Fitness App, or any other third party software that you may access or use through the Elevar Fitness App, in any way;
(d) access all or any part of the Elevar Fitness App and/or the Services in order to build product, service or code which competes or reproduces the Elevar Fitness App and/orthe Services (in full or in part);
(e) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Elevar Fitness App in any way, or otherwise learn the source code or algorithms underlying the Elevar Fitness App;
(f) license, sell, rent, lease, sub-let, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, encumber or otherwise make the Elevar Fitness App and the Services available to any third party; and
(g) use the Elevar Fitness App or the Services for any unlawful purpose or other purpose not authorised by Elevar Fitness in writing.
6. USER CONTENT
6.1 When you create your User Profile and access the Elevar Fitness App and/or the Services, you will be required to provide User Content to Elevar Fitness. You will retain ownership of your User Content and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of your User Content. To the maximum extent permitted by Relevant Laws, we do not warrant that any User Content displayed on the Elevar Fitness App by you (or any Content or Third Party Products or Services displayed or published on the Elevar Fitness App by a third party service provider) is accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any Content, User Content or Third Party Products or Services displayed on, or via, the Elevar Fitness App. We disclaim all liability and responsibility arising from any reliance placed on such User Content or Third Party Products or Services. You (and not Elevar Fitness) are solely responsible for the completeness, accuracy, reliability, legality and quality of any User Content published by you on, or via, the Elevar Fitness App.
6.2 You grant Elevar Fitness a worldwide, non-recoverable, non-exclusive, royalty-free and perpetual licence to use, disclose, share, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy, the User Content (and all Intellectual Property Rights contained therein) for any purpose, including for the purpose of:
(a) enabling Elevar Fitness to provide for the Elevar Fitness App and the Services and otherwise perform our obligations and exercising our rights under this agreement;
(b) informing the user of other products or services that Elevar Fitness may offer from time to time or in relation to Third Party Products and Services;
(c) complying with a legal requirement, such as a law, regulation, court order, subpoena, warrant, legal proceeding or in response to a law enforcement agency request;
(d) using usage patterns, trends, and other statistical or behavioural data derived from use of the Elevar Fitness App and/or the Services for the purposes of providing, operating, maintaining, or improving the Services, the Elevar Fitness App, or our other products and services; and
(e) sharing the User Content with an Affiliate or other third party (with whom Elevar Fitness may contract or be affiliated with from time to time) for the purposes of performing or improving the Elevar Fitness App and/or the Services.
6.3 Elevar Fitness shall use reasonable endeavours to follow our archiving procedures for User Content in accordance with its standard back-up policy from time to time. In the event of any Loss of User Content, your sole and exclusive remedy shall be for Elevar Fitness to use reasonable endeavours to restore the User Content, that is lost or damaged, from the latest back-up of User Content, maintained by Elevar Fitness.
6.4 Elevar Fitness shall not be responsible for any Loss, destruction, alteration, corruption or disclosure of User Content caused by your acts or omissions or the acts or omissions of other users of the Elevar Fitness App or any third party.
6.5 You agree to make your own enquiries to verify information displayed on, or via, the Elevar Fitness App (including User Content and Third Party Products and Services) and to assess the suitability of any information or Content before relying upon such information or Content. If you choose to rely upon any information or Content displayed or published on, or via, the Elevar Fitness App and/or the Services (including User Content and Third Party Products and Services) you do so at your own risk. We make no representations or warranties that use of the Content, User Content and Third Party Products and Services will not infringe any third party’s Intellectual Property Rights.
7. ACCEPTABLE USE POLICY
7.1 By downloading, accessing and using the Elevar Fitness App and each time you publish, upload, submit, post or share User Content on, or via, the Elevar Fitness App, you agree to comply with the rules for the acceptable use of the Elevar Fitness App as specified herein (Acceptable Use Policy).
7.2 You are solely responsible for the accuracy, currency, completeness and use of User Content published or posted by you on, or via, the Elevar Fitness App, and you agree to post or publish User Content on, or via, the Elevar Fitness App at your own risk. Elevar Fitness accepts no responsibility and assumes no liability for any User Content posted, published or otherwise transmitted by you, any other user or any third party on, or via, the Elevar Fitness App.
7.3 Elevar Fitness is under no obligation to monitor, review, or otherwise control the Services or any User Content listed, published or posted on, or via, the Elevar Fitness App by you, any other user or any third party. However, Elevar Fitness reserves the right, but is not obligated to edit, remove or refuse to edit or remove any User Content published, posted or otherwise made available on, or via, the Elevar Fitness App.
7.4 You must access and use the Elevar Fitness App and the Services only for lawful purposes. You must not access and use the Elevar Fitness App and/or the Services:
(a) in any way that breaches any Relevant Laws;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c) to publish, post or upload User Content intended to harm someone in any way or that is libelous, defamatory, obscene, vulgar, offensive, pornographic, indecent, racist, harassing, threatening, seditious, blasphemous, invasive of privacy or publicity rights, abusive, inflammatory, discriminatory or otherwise objectionable;
(d) to publish, post or upload any User Content that is false, misleading or deceptive or is likely to be false, misleading or deceptive (including, but not limited to, impersonating another person or user or misrepresenting your identity to users of the Elevar Fitness App);
(e) to publish, post or upload any User Content that contains confidential, secret or proprietary information of another person;
(f) to upload or transmit any User Content that contains viruses, Trojan horses, worms, time- bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; and
(g) to publish, post or upload User Content that may infringe the Intellectual Property Rights or other rights of Elevar Fitness or any third party; and
(h) to promote any illegal activity or advocate, promote or assist any unlawful act.
7.5 By accessing or using Elevar Fitness App and/or the Services, you acknowledge and agree that it is your responsibility to:
(a) ensure that any User Content posted or transmitted through the Elevar Fitness App by you is accurate, reliable, up-to-date, and complete;
(b) respect the privacy rights of other users and third parties. You must not use Elevar Fitness App to publish or post the name of any person without their consent; and
(c) ensure that you have adequate legal rights to publish, post, transmit, reproduce or otherwise use the User Content transmitted through the Elevar Fitness App.
7.6 The Elevar Fitness App reserve the right, at our absolute discretion, to determine whether the Acceptable Use Policy has been breached and to terminate this agreement in accordance with clause 15.
8. CHARGES
8.1 We do not charge you a fee to download, access and use the Elevar Fitness App and Services. However, we reserve the right at any time to charge you a fee to access and use Elevar Fitness App and Services (including any advanced or premium features and functions of the Elevar Fitness App) by giving you at least 30 days written notice, or by otherwise posting it on the Elevar Fitness App or the Website. If you do not agree to pay a
fee to access and use Elevar Fitness App and Services (including any advanced or premium features and functions of the Elevar Fitness App), you should terminate the agreement in accordance with clause 15 , no later than 30 days after the date you received written notice of the fee changes or the fee changes were posted on the Elevar Fitness App or the Website.
9. INTELLECTUAL PROPERTY
9.1 You acknowledge that Elevar Fitness, or our licensors, are the owners of the Elevar Fitness App (and any Intellectual Property Rights contained therein) including any information, Content or technology that may be provided to, or accessed by, you in connection with your use of the Elevar Fitness App and the Services (including any modifications, enhancements of the foregoing) (collectively, Elevar Fitness IP)). Accessing and using the Elevar Fitness App and the Services does not give you (or anyone else) ownership of, or any right, title or interest in Elevar Fitness IP.
9.2 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Elevar Fitness App and the Services will automatically vest in, and are assigned to, Elevar Fitness (Developed IP).
9.3 Ownership of any User Content will vest in the creator of that User Content, but excluding Elevar Fitness IP and Developed IP.
10. OUR OBLIGATIONS
10.1 Subject to your compliance with the terms of this agreement, during the Subscription Term, Elevar Fitness shall use reasonable endeavours to provide you with access to and use of the Elevar Fitness App and the Services.
10.2 The undertaking in clause 10.1 , shall not apply in the event of:
(a) any non-conformance which is caused, or contributed, by use of the Services and the
Elevar Fitness App contrary to our instructions or the terms of this agreement;
(b) modification or alteration of the Services and the Elevar Fitness App by any party other than Elevar Fitness or its duly authorised Personnel;
(c) the unsuitability or malfunction of the computer hardware or computer software used by
you in conjunction with which the Elevar Fitness App and the Services are used;
(d) Force Majeure Events; and
(e) the unsuitability or malfunction of the Services when used in conjunction with any software, apps, applications and tools supplied by a third party provider.
10.3 In the event that Elevar Fitness fail to provide you with access and use of the Elevar Fitness App and the Services in accordance with clause 10.1 , Elevar Fitness shall use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 10.1.
11. THIRD PARTY PRODUCTS AND SERVICES
11.1 You acknowledge that the Elevar Fitness App and Services may require you to use or access Third Party Products and Services, and that you do so solely at your own risk.
11.2 We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products and Services, or any transactions completed, and any contract entered into by you, with the owner, licensor or operator of such Third Party Products and Services.
11.3 Elevar Fitness recommends that you refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third Party Products and Services.
11.4 Elevar Fitness does not endorse, sponsor or approve any Third Party Products and Services used in conjunction with the Elevar Fitness App and Services. It is your sole responsibility to determine that specific products or services meet your business and are suitable for the purposes for which they are used.
11.5 Any rights you may have to access Third Party Products and Services shall be limited to:
(a) the extent of Elevar Fitness’s ability to pass on such rights to you; or
(b) the relevant third party licensor terms.
12. NO WARRANTIES
12.1 You acknowledge that Elevar Fitness are not personal trainers or instructors, wellbeing coaches, nutritionist, dietitians or other fitness and wellbeing professionals, and we are not providing healthcare or wellbeing advice, fitness and exercise services, diet or nutritional advice of any kind.
12.2 While User Content created or generated by you and Content (including Third Party Products and Services made available to you by third party providers) through the Elevar Fitness App are designed for users who wish to share and improve their fitness and general wellbeing, it is not a substitute for professional fitness, wellbeing and nutritional advice, or fitness and wellbeing services. Reliance on, and use of, the Content, User Content and Third Party Products and Services is at your own risk. You understand and acknowledge that undertaking or participating in fitness exercises and training programs published, endorsed or recommended by other users of the Elevar Fitness App involve risks and as a consequence you may suffer personal injury or death by accessing and using fitness exercises and training programs published or posted on, or via, the Elevar Fitness App by other users.
12.3 To the maximum extent permitted by Relevant Laws, Elevar Fitness exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Elevar Fitness App and the Services.
12.4 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other international, national, State or Territory legislation where to do so is unlawful.
12.5 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, Elevar Fitness make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency, validity or security of the Elevar Fitness App and the Services (or any Content, User Content and Third Party Products and Services generated or made available through the Elevar Fitness App and Services) and Elevar Fitness will not be liable to you or anyone else if the Elevar Fitness App or the Services becomes unavailable for any reason, including directly, or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious, willful acts or omissions of third parties (including third party service providers) or other users;
(c) maintenance or repairs carried out by Elevar Fitness or any third party service provider in respect of any of the systems used in connection with the provision of the Services or the Elevar Fitness App;
(d) services provided by third parties (including internet service providers) ceasing or becoming unavailable; or
(e) a Force Majeure Event.
12.6 You acknowledge that, to the maximum extent permitted by Relevant Laws, Elevar Fitness do not make any warranty or representation that:
(a) your access to, and use of, the Elevar Fitness App and the Services will be uninterrupted, virus-free or error-free; and/or
(b) the Elevar Fitness App and the Services (or any Content, User Content and/or Third Party Products and Services), will be accurate, safe, complete, reliable, current or will be suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis.
12.7 You acknowledge that your access to, and use of, the Elevar Fitness App and Services (including Content, Third Party Products and Services) may be interrupted or unavailable during scheduled or unscheduled maintenance.
13. LIMITATION OF LIABILITY
13.1 To the maximum extent permitted by Relevant Laws, Elevar Fitness will not be liable to you or any third party for:
(a) any Claims or Losses (including Consequential Loss); or
(b) loss of, or damage to, any property or any personal injury, illness or death to you, any third person, Rarising out of, relating or connected to, the provision or use of the Elevar Fitness App and Services (including Content, User Content and/or Third Party Products and Services generated or made available through the Elevar Fitness App or the Services) and this agreement, regardless of the cause of action on which they are based, even if advised of
the possibility of such damage occurring.
13.2 All risk in using the Elevar Fitness App and the Services passes to you upon creating a User Profile, or otherwise using the Elevar Fitness App and the Services (whichever is earlier). Elevar Fitness assume no responsibility and Elevar Fitness have no liability to you
or anyone else for any use of, or reliance on, any Content, User Content and/or Third Party Products and Services obtained or generated from your access to, and use of, the Elevar Fitness App and the Services.
13.3 To the maximum extent permitted by Relevant Laws, under no circumstances will Elevar Fitness’s aggregate liability to you or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed AUD $10.
13.4 You agree to defend, indemnify and hold Elevar Fitness, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims or Losses, that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:
(a) your access to, and use of, or reliance on the Elevar Fitness App or the Services
(including the Content, User Content and Third Party Products and Services);
(b) any breach of our or any third party’s Intellectual Property Rights or other rights caused by you; or
(c) any breach by you of this agreement.
14. PRIVACY
14.1 All Personal Information you provide to open a User Profile and any User Content you upload, generate, share, or publish on, or via, the Elevar Fitness App, is subject to Elevar Fitness’s Privacy Policy, which is incorporated into this agreement. You warrant that, in relation to any Personal Information comprising User Content or any other information disclosed to Elevar Fitness on, or via, the Elevar Fitness App:
(a) it has been collected in accordance with Privacy Laws;
(b) you have the authority to upload, post, publish or otherwise transmit such information on, or via, the Elevar Fitness App; and
(c) you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for Elevar Fitness to use, disclose, store, transfer, process or handle it.
15. TERMINATION
15.1 During the Subscription Term you may terminate this agreement at any time by deleting the Elevar Fitness App from your mobile device or by accessing the settings section in the Elevar Fitness App and selecting ‘delete User Profile’.
15.2 Elevar Fitness may terminate the agreement any time (without liability to you) by giving you seven days’ written notice.
15.3 You agree that Elevar Fitness may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):
(a) your User Profile and/or the User Access Portal; and/or
(b) the Elevar Fitness App and/or Services;
(c) any social media pages linked to its business or the Elevar Fitness App; or
(d) any other products and services offered on, or via the Elevar Fitness App (including Third Party Products and Services).
15.4 Cause for such suspension or termination under clause 15 , may include, but are not limited to:
(a) any serious or repeated breaches or violations of this agreement, our policies and guidelines (including our Privacy Policy and Acceptable Use Policy) and any other agreements entered into between the parties;
(b) serious or repeated breaches or violations of Elevar Fitness’s or a third party service providers’ Intellectual Property Rights;
(c) your activities, conduct or transactions on, or, via, the Elevar Fitness App, brings, or has the capacity to bring, Elevar Fitness into disrepute;
(d) requests by law enforcement or other government agencies.
15.5 You agree that all such suspensions or terminations shall be made at Elevar Fitness’s sole discretion and that Elevar Fitness shall not be liable to you or any third party for any such suspension or termination.
16. EFFECT OF TERMINATION
16.1 On termination of this agreement for any reason:
(a) a back-up of your User Content (such as your uploaded workout videos and recipes) is available for you to download for a period of up to 30 days after the effective date of termination, and thereafter all your User Content will be permanently and securely destroyed. However, Elevar Fitness will be required to retain Personal Information (including basic registration information) in accordance with documentation retention and destruction laws;
(b) any of your User Content saved by other users on their User Profiles (such as workouts routines, programs and recipes) will also be deleted 30 days after the effective date of termination, unless such other users download a backup of your User Content before such User Content is deleted from the Elevar Fitness App; and
(c) all licences to use the Services and rights of access to the Elevar Fitness App granted under this agreement will immediately terminate.
17. FORCE MAJEURE
Elevar Fitness will not be responsible to you (or anyone else) if Elevar Fitness are
prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act or omission of a third party, epidemic, pandemic, mandatory government shutdown or lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, hacker attacks, denial of service attacks, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).
DISPUTE RESOLUTION
1.1 Any party claiming a dispute exists under the agreement (except for a complaint between users) must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
1.2 The parties must in good faith attempt to resolve any dispute between them.
1.3 If the dispute cannot be resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.
1.4 Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute.
18. UPDATES AND VARIATIONS
Elevar Fitness will not be responsible to you (or anyone else) if Elevar Fitness are
prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act or omission of a third party, epidemic, pandemic, mandatory government shutdown or lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, hacker attacks, denial of service attacks, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).
DISPUTE RESOLUTION
1.1 Any party claiming a dispute exists under the agreement (except for a complaint between users) must notify the other party in writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory relief is being sought.
1.2 The parties must in good faith attempt to resolve any dispute between them.
1.3 If the dispute cannot be resolved within 30 days of receipt of a Dispute Notice, either party may commence legal proceedings in relation to the dispute.
1.4 Each party must continue to perform its obligations under this agreement notwithstanding the existence of any unresolved dispute.
19. COMPLAINTS PROCESS
19.1 If you wish to make a complaint or lodge a report that User Content published or posted by another user of the Elevar Fitness App has breached the Acceptable Use Policy or other terms of this agreement, you may lodge a complaint or report with us by either using the
‘Report’ function:
(a) linked to the User Content published by another user; or
(b) located within another user’s User Profile.
19.2 We will use reasonable endeavours to investigate any complaint or report lodged by you or another user of the Elevar Fitness App within a reasonable period of time and we may, at our absolute discretion, take corrective action that we deem appropriate in the circumstances (such as modifying, deleting, blocking or removing the User Content).
19.3 We do not guarantee that any User Content will be modified, blocked or removed from the Elevar Fitness App following your complaint. We will not take corrective action, if we do not believe that the User Content complained about has breached the Acceptable Use Policy or any other terms of this agreement.
19.4 Where we have determined, at our absolute discretion, that User Content has breached the Acceptable Use Policy or other terms of this agreement, we do not guarantee that such User Content will be deleted or removed within a specific timeframe.
19.5 We will not notify you of the outcome of our investigation or the corrective action (if any) we have taken in response to your complaint, unless you have complained about a breach of your Intellectual Property Rights or privacy rights.
20. SEVERABILITY
If any provision in this agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of this agreement which will continue in full force and effect.
21. RELATIONSHIP
No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this agreement.
22. SURVIVAL
Clauses 5.2 , 6.4 , 9 , 10.3 , 12 , 13 , 15 , 16 , 17 , 18 , 20 , 22 , 23 , 24 , 25 , 26 , 27 and any other obligation which is expressed to, or by its nature, survive expiry or termination of this agreement, will survive expiry or termination of this agreement and are enforceable at any time at law or in equity
23. ASSIGNMENT
Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign or transfer all or any of its rights or obligations under this agreement, except that Elevar Fitness may assign, sell or transfer our rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of Elevar Fitness’s business.
24. ENTIRE AGREEMENT
This agreement, and any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any
previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).
25. JURISDICTION AND APPLICABLE LAW
The laws of the State of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of Victoria, Australia.
26. DEFINITIONS
In this agreement, the following words shall have the following meanings:
(a) Acceptable Use Policy has the meaning in clause 7 .
(b) Affiliate means in relation to any party, a person which, directly or indirectly,
(i) is Controlled by that party; or
(ii) Controls that party; or
(iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
(c) Business Days means each day excluding Saturdays, Sundays and public holidays in Victoria.
(d) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
(e) Commencement Date has the meaning in clause 3 .
(f) Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the Elevar Fitness App.
(g) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties on the Commencement Date as a likely result of breach of the agreement:
(i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
(ii) loss of revenue, profit, income, bargain, opportunity (including marketing or advertising opportunity), use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of
obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data;
(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
(h) Force Majeure Event has the meaning in clause 17 .
(i) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill,
rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
(j) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs including Consequential Loss.
(k) Elevar Fitness, our, us or we has the meaning in clause 1.1 , and where the context permits, includes our Personnel and Affiliates.
(l) Elevar Fitness App has the meaning in clause 1.1 , including any systems, Content and server software, the computer hardware, tools, application, database, systems, and all Intellectual Property Rights contained therein, provided or otherwise made available by us.
(m) Elevar Fitness IP has the meaning given to it by clause 9.1 .
(n) Password has the meaning given to it by clause 4.1 .
(o) Personnel means any director, officer, employee, contractor or agents, of a party (in
your case, includes any person acting for or on your behalf)
(p) Personal Information has the same meaning that it has under Privacy Laws, namely information or an opinion about an identified individual or an individual who is
reasonably identifiable, whether the information or opinion is true or not and recorded in a material form or not.
(q) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles and any other legislation, codes and policies relating to the handling of Personal Information.
(r) Privacy Policy means our privacy policy available on the Elevar Fitness App or Website or such other web address notified by us to you from time to time), which is incorporated into this agreement.
(s) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world.
(t) Services has the meaning in clause 2.1 .
(a) Subscription Term has the meaning in clause 3 .
(u) Third Party Content means all data, content, materials and information (including text, images, graphics, logos, video and audio clips and links) that are provided by third parties or are identified as belonging to, or sourced from, third parties.
(v) Third Party Products and Services means any software, products, services or Third Party Content (including all Intellectual Property Rights contained therein) that:
(i) are provided by third party providers or advertisers;
(ii) interoperate with the Elevar Fitness App or Services; or
(iii) may be identified as third party products or services.
(w) User Access Portal means the self-service portal provided to you to access and use the Elevar Fitness App and the Services.
(x) User Content means all data, information, content, materials, images, videos and Personal Information (including your first name and last name, email address, gender, height, weight, dietary restrictions and fitness level):
(i) uploaded to, or stored on, the Elevar Fitness App by you;
(ii) transmitted by the Elevar Fitness App at your instigation;
(iii) supplied by you to Elevar Fitness for uploading to, transmission by, or storage on, the Elevar Fitness App; or
(iv) generated by the Elevar Fitness App as a result of the use of the Services by you, but excluding Elevar Fitness IP and Developed IP.
(y) User Name has the meaning in clause 4.1 .
(z) User Profile has the meaning in clause 4.1 .
(aa) Website means the website located at and any other website notified by us from time to time.
(bb) you or your has the meaning in clause 1.3 .
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