Terms of Service

TERMS AND CONDITIONS OF USE

TURBOTRAINER MOBILE APPLICATION

1. Terms and conditions

1.1      TurboTrainer is operated by the Trustee for the McDonald Family Trust trading as TurboTrainer (“TurboTrainer”). These Terms and Conditions of Use (“Terms”) are between you (“you”) and TurboTrainer (“we”, “us”, or “our”) (“Party”) and by accessing or using, including downloading or posting any data to or information on the TurboTrainer mobile application, or any of its associated products, including the TurboTrainer website, associated web and mobile applications and any associated social media pages (collectively and severally referred to as “the Services”), you acknowledge that you have read, understood and agree to be bound by these Terms. If you do not agree to or understand these Terms, you must not access or use the Services.

1.2      We reserve the right to review and change all or part of these Terms at any time at our sole discretion, without notice to you and any amendments will be effective once posted to the Services. The continued use by you of the Services will be considered acceptance of the revised Terms.

1.3      By accepting the Terms, you agree that this is clear and unequivocal proof that the Terms herein are not unconscionable, that there is no unfair bargaining power or position and that there is no duress.

2. Interpretation

2.1      In these Terms, unless the context otherwise requires:

(a)     headings are for convenience only and do not affect their interpretation or construction;

(b)     the singular includes the plural and vice versa;

(c)     references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to these Terms;

(d)     words importing a gender include other genders;

(e)     the word “person” means a natural person and any association, body or entity whether incorporated or not;

(f)      where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(g)     a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re‑enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h)     all monetary amounts are in Australian currency;

(i)       a reference to time refers to Eastern Standard Time;

(j)       “includes” is not a word of limitation;

(k)     no rule of construction applies to the disadvantage of a Party because these Terms are prepared by (or on behalf of) that Party;

(l)       a reference to any thing is a reference to the whole and each part of it;

(m)    a reference to a group of persons is a reference to all of them collectively and to each of them individually; and

(n)     a reference to a document includes all amendments or supplements to, or replacements or novations of, that document.

3. Membership

3.1      You must be a registered member to access and use certain features of the Services. In order to become a registered member, you may be required create a profile and provide us with information about yourself, such as identification and contact details (“Profile”).

3.2      It is your responsibility to ensure that the information you provide to us is accurate and up to date. We may suspend or terminate your access to the Services if any information provided is inaccurate, outdated or incomplete.

3.3      You acknowledge that the use and disclosure of any personal or sensitive information provided by you to us may be subject to Australian privacy laws, including the Privacy Act 1988 (Cth) and associated regulations, in force from time to time.

3.4      By registering an account, you warrant that you are at least 18 years of age and have capacity to enter into a legally binding agreement with us. If you are not of legal age or capacity, then you warrant that you have obtained parental or guardian consent before using the Services.

3.5      You understand that access and use of the Services is limited and that by registering for the Services, we grant you a personal, limited, non-exclusive, non-transferable, non-assignable license to use and access the Services.

3.6      You acknowledge that use of and access to some or all of the Services may be subject to payment being made by you. The price of such use and access, such as for premium membership or subscription is subject to change as advised to you by us from time to time. You will be given an opportunity to either accept the changed price or terminate use and access to those Services.

3.7      By registering as a member of the Services, you expressly consent to receiving commercial messages from us, including but not limited to push notifications, email marketing and other commercial messages.

4. Physical activity notice

4.1      The Services may include features which promote physical activity. It is your sole responsibility to consider the risks involved and to consult with a medical practitioner prior to engaging in any physical activity. We are not responsible or liable for any injury, damages or loss which you may sustain as a result of your use, or inability to use, the Services.

5. Profile and Activity Sharing

5.1      The Services are intended to allow members to record, share and analyse workout information, view other members’ activities and share training programs.

5.2      Your use of the Services may record specific information about your workout, including but not limited to the date of your workout, the activity type, distance travelled, ride time, location and various other physiological variables (“Activities”).

5.3      You acknowledge that information included in your Profile and Activities will be public and disclosed to other members of the Services, unless you change the settings to private within the Services which regulate the privacy of your information (“Privacy Settings”). It is your sole responsibility to ensure that your Privacy Settings are set and that information which you upload to your Profile is current and up to date.

6. Use of the Services

6.1      In using the Services, you undertake, warrant and agree as follows:

(a)     Your access and use of the Services is solely for personal and non-commercial purposes;

(b)     Posting of commercial advertisements, affiliate links, and other forms of solicitation may result in suspension or termination of your access to the Services, and where relevant, your paid membership;

(c)     You will immediately notify us of any unauthorised use of your account or any breach of security within the Services of which you have become aware;

(d)     You are solely responsible for your interactions with other members. ­­­You acknowledge that we do not in any way screen members, enquire into the backgrounds of members or attempt to verify the statements of members and that we make no representations or warranties as to the conduct of members;

(e)     We reserve the right, at our sole discretion, to monitor the Services and pre-screen, review, flag, filter, modify, refuse or remove any or all content contained within the Services; and

(f)      Subject to any applicable laws, we reserve the right to suspend, discontinue or cancel your access and use of the Services at any time and may suspend or deny, at our sole discretion, your access to all or any portion of the Services without notice if you breach any of these Terms or any applicable law or if we find your conduct adversely impacts our name or reputation or violates the rights of those of another party.

7. Content on the Services

7.1      You understand that the Services may provide you with the ability to upload, post, transmit, share, store, distribute, disseminate or otherwise make available (“post”) content such as your activities and training programs. You agree that you will not post inaccurate, misleading or false content on the Services and if, subsequently, the content posted by you becomes obsolete, inaccurate or false, you will promptly update or remove the content.

7.2      You agree that you are solely responsible for any content that you post while using the Services and are solely responsible for any damage you incur or cause to any other person or entity as a result of that content and you agree to keep us indemnified with respect to same.

7.3      If you are posting information about another person, you warrant to us that you have that person’s prior consent to post their information on the Services.

8. Prohibited Use

8.1      In using the Services, you agree that you will not:

(a)     Post any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information;

(b)     Post any information that promotes discrimination, bigotry, racism, hatred, harassment, harm or violence against any individual or group;

(c)     Use the Services in connection with advertising and promotions, surveys, contests, pyramid schemes, chain email, junk email, spamming or any duplicative or unsolicited messages;

(d)     Attempt to probe, test or penetrate the vulnerability of any of the Services’ systems;

(e)     Post or otherwise make available information that contain images, photographs, software or other material protected by intellectual property laws, including, but not limited to, copyright or trade mark laws unless you own or control the rights thereto or have received all necessary authorisation and consent to do same;

(f)      Use any material or information, including but not limited to, words, images, sounds and videos, which are made available through the Services in any manner that infringes any copyright, trade mark, patent, trade secret, or other proprietary right of any party;

(g)     Cause the Services to be used as a medium which stores, hosts, transmits, sends or distributes any material which contains spyware, viruses, Trojan horses, worms or any other similar harmful software or programs that may damage the operation of another person’s computer or electronic device;

(h)     Download any data or information posted by another member that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in any such manner;

(i)       Violate any applicable laws or regulations or other guidelines which may be applicable;

(j)       Harvest or otherwise collect information about others;

(k)     Create a false identity for the purpose of misleading others; or

(l)       Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of members or usage information.

9. Termination

9.1      The Terms will continue to apply until terminated by either you or by us as set out below.

9.2      You may terminate the Terms at any time by removing the Services from your device(s), and where applicable, cancelling payment of subscriptions through the Apple iTunes service.

9.3      Where applicable, any paid membership and/or subscription agreement entered into by you with us may be automatically renewed at the end of each period unless you cancel your subscription before the end of the current period. Where your subscription is renewed, you authorise us and our third party payment processors to charge your credit card for the fees associated with the subscription (if any) for the renewed period.

9.4      In case of any conflict between the terms and conditions of iTunes and the terms and conditions in this agreement, the former shall prevail to the extent of any inconsistency between the two agreements.

9.5      We may terminate the Terms at our sole discretion at any time, including but not limited to, if:

(a)     you have breached any provision of the Terms or indicated that you intend to breach any provision of the Terms;

(b)     we are required to do so by law;

(c)     the Services are no longer provided in the country in which you are resident or from which you use the Services; or

(d)     the provision of the Services to you is, in our sole opinion, no longer commercially viable.

9.6      Upon termination in accordance with this clause 9, you are no longer authorised to access the Services, however, all restrictions imposed on you, licences granted by you and all our disclaimers and limitations of liability contained in the Terms will survive termination.

10. Third Party Links and Services

10.1    The Services may allow you to upload content from the Services directly to third party links and services or collect, import or upload data from third party or external devices to the Services. In order to do so, you may require an account with these third party services and authorise the connection between us and the third party service.

10.2    You acknowledge that we are not responsible for any third-party websites or resources linked to the Services, in particular with respect to their availability or accuracy and the quality, use and disclosure of content, products or services on the third party website or links. Links to these websites do not constitute endorsement by us. You acknowledge sole responsibility and bear all risks arising from your use of such websites and resources and you will not hold us liable or in any way accountable for anything that occurs on any third-party websites.

10.3    You may create links from your website or service to the Services. However, no trade mark or logo of ours may be used without prior written authorisation obtained from us.

11. Indemnity and Liability

11.1    General indemnity

You will at all times indemnify, and keep indemnified, us and our directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person against you or us where such loss or liability arose out of, in connection with or in respect of your conduct or breach of these Terms.

11.2    General limitation of liability

We will not be liable to you in contract, tort or equity in relation to any direct, indirect or consequential loss you incur in relation to the contents, use or reliance of the Services or otherwise in connection with the Services.

11.3    Acceptance

By using this Website, you agree and accept that the indemnity and limitations of liability provided in this clause 11 are reasonable.

12. Warranties and Representations

12.1    The use of the Services is at your own risk, everything from the Services is provided to you on an “as is” and “as available” basis without warranty or condition of any kind.

12.2    None of our affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors make any express or implied representation or warranty about the Services.

13. Intellectual Property

13.1    We reserve all intellectual property rights (including copyright) in the content and compilation of the Services (including text, graphics, logos, button icons, video images, audio clips and software).

13.2    We retain all rights, title and interest in and to the Services. Nothing you do on or in relation to the Services will transfer to you any:

(a)     rights, title and/or interest in a business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright;

(b)     right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or

(c)     rights, title and/or interest in a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process).

13.3    You acknowledge and agree that the content posted on the Services is owned and controlled by us. Where any information you post on the Services is not proprietary to us, you grant us a non-exclusive, irrevocable, worldwide, transferable, royalty-free, perpetual right to use the content in any manner or on any media now or later developed and for any purpose, without any payment due to you.

13.4    You may not, without our prior written permission and the permission of any other relevant rights owner, broadcast, republish, upload to a third party, transmit, post, distribute, reverse engineer, show or play in public, adapt or change in any way the content of, or create a derivative work from the Services for any purpose. This prohibition does not extend to materials on the Services which are freely available for re-use or are in the public domain.

14. Dispute Resolution

14.1    Neither Party shall be entitled to start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these Terms (“Dispute”) unless it has complied with this clause.

14.2    A Party claiming that a Dispute has arisen must give notice to the other Party specifying the nature of the Dispute (“Dispute Notice”).

14.3    During the fourteen (14) day period after a Dispute Notice is served (or any longer period agreed in writing by the Parties), each Party must use its best efforts to resolve the Dispute.

14.4    If the Dispute is not resolved following the expiration of the fourteen-day period pursuant to clause 14.3, the Parties must endeavour to jointly engage a Mediator and endeavour to agree on the Mediator’s terms of engagement.

14.5    If the Parties fail to agree on the engagement of a Mediator and/or the Mediator’s terms of engagement within twenty-five (25) days of service of a Dispute Notice, either Party may apply to a local body of accredited mediators to appoint a Mediator and determine the terms of the Mediator’s engagement.

14.6    Any information or documents disclosed by either Party under this clause:

(a)     is on a without prejudice basis;

(b)     must be kept confidential; and

(c)     may not be used except to attempt to resolve the Dispute.

14.7    Each Party must bear its own costs of complying with this clause, and the Parties must bear equally the costs of any mediator engaged under clauses 14.4 or 14.5.

15. General

15.1    You agree and acknowledge that, in the event that we merge, sell or otherwise change control of the Services to a third-party, that:

(a)     we shall be permitted, without providing notice or obtaining consent from you, to disclose information and data that we have collected from you to that third party; and

(b)     we shall be entitled to assign the benefit of any agreement that we may have with you to that third party.

These Terms are governed by the laws of Victoria, Australia. You irrevocably submit to the exclusive jurisdiction of the courts in the State of Victoria, Australia.

15.2    Any provision of, or the application of any provision of these Terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

15.3    Any provision of, or the application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

15.4    If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these Terms.

15.5    If we do not exercise or enforce any right or provision under these Terms, this will not constitute a waiver of such right or provision. Any waiver of any provision contained within these Terms will only be of effect if it is in writing and signed by us.