WARNING: CONSULT A DOCTOR, GP OR LICENSED PHYSICIAN BEFORE STARTING A YBELL TRAINING PROGRAM. STOP EXERCISING IF YOU FEEL PAIN OR TIGHTNESS IN YOUR CHEST, BECOME SHORT OF BREATH OR FEEL FAINT. CONTACT YOUR DOCTOR, GP OR LICENSED PHYSICIAN BEFORE STARTING THE YBELL TRAINING PROGRAM AGAIN.
This is a legally binding agreement and governs use of training materials delivered via a website or mobile app (Programming) from Y Bell Group Pty Ltd ACN 611 976 080 (YBell Group, We, Us or Our). By clicking “I agree” or downloading, installing or using the Programming, You (You or Your) acknowledge and agree that You have read and understood this Agreement and agree to be bound by its terms and that if You are using the Programming on behalf of an entity other than Yourself, You have the power and authority to bind that entity and consent to the Agreement.
1. DEFINITIONS. The following terms apply to this Agreement:
Confidential Information means all trade secrets, ideas, know how, concepts and information whether in writing or otherwise relating in any way to Us or to You, Our sub-licensees, agents and employees, Your or Our affairs or businesses, sales, marketing or promotional information, this Agreement including any such information in Our or Your power, possession or control concerning or belonging to any third party but does not include information that: (a) is, or becomes part of, the public domain otherwise than by breach of this Agreement by You or Us; (b) is lawfully obtained by either party from another person without any restriction as to use and disclosure; or (c) was in the receiving party's possession prior to disclosure to it by You or Us.
App means the YBell Group application operating on a mobile device through which You use the Programming.
Fees means the First Term Subscription Fees, the Renewal Term Subscription Fees and any additional fees that You and Us agree are payable under this Agreement.
First Term means the initial 1-month period of paid Programming provided under Agreement.
First Term Subscription Fees means the fees owed by You to use the Programming for the First Term.
Order means the purchase of a license to use the Programming for a First Term or Renewal Term through the Website or the App.
Our Intellectual Property Rights means copyright, and all rights in relation to inventions, registered and unregistered trade marks (including service marks), registered and unregistered designs, circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields under the laws of any jurisdiction throughout the world and includes data and usage statistics that We collect from Users of the Programming but excludes Your Confidential Information.
Renewal Term Subscription Fees means the fees owed by You to Us to extend the license to use the Programming for the Renewal Term.
Renewal Term means the 1-month period that starts at the end of the First Term and includes each subsequent Renewal Term.
Programming means the training modules for the YBell developed by YBell Group and any updates, upgrades, modifications and documentation that We provide to You Programming.
Supported Device means a computer or mobile device that meets the specifications described on the Website or that runs the App and that We support for operating the Programming.
Term means the First Term and any subsequent Renewal Term.
User means a single person identified by a unique email address and such address may not be shared with other people.
Website means the YBell Group website at www.ybellfitness.com or the website of a partner of Ours who is authorised to distribute the Programming.
YBell means the multi-function exercise device owned and developed by the YBell Group.
2. LICENSE. We grant You a non-exclusive, non-transferable, licence to use the Programming as a User on a Supported Device for the Term specified in the Order. This license does not allow You to use the Programming to operate a service bureau, SaaS, cloud-based service, hosting service or other similar service or to make available the Programming to anyone other than You. Neither this Agreement nor the Programming may be sold, leased, assigned, sublicensed or transferred by You, in whole or in part.
3. TERM AND NOTICE FOR TERMINATION. The Initial Term and each subsequent Renewal Term will automatically renew for an additional Renewal Term unless You give Us written notice of termination at least 5 days before the end of the Term.
4. SCOPE OF USE. You may only use the Programming for Your personal use and You may not modify, alter or adapt the Programming or merge all or part of it with any other Programming without Our prior written consent. You may not reverse engineer, reverse compile or decompile the software that operates the Programming or try to access or discover its source code or any trade secret related to the Programming. You may not remove or obscure any notice relating to Our Intellectual Property Rights. You must immediately notify us if You become aware of any unauthorised use of the Programming. You acknowledge that We may incorporate technical features into the Programming to enforce this Agreement.
5. FEES. You agree to pay the Initial Term Subscription Fee as specified in the Order. You must pay a Renewal Term Subscription Fee to use the Programming for a Renewal Term. We may increase the Fees at any time to reflect changes in Our standard rates and charges. The Fees are exclusive of all sales, use, value-added and other taxes and duties other than tax owed on Our net income. We may issue You an invoice that includes GST.
6. TECHNICAL SUPPORT. If You have paid the First Term Subscription Fee and any Renewal Term Subscription Fee for the relevant Term or if You are using the Programming for a Free Term, We will provide technical consultation for the Programming and You will receive updates and new version releases of the Programming provided such updates and new release are generally made available to other customers using the Programming (Support Services). We only offer Support Services through the Website, the App or via email.
7. CONFIDENTIAL INFORMATION. We and You agree not to disclose, duplicate or otherwise reproduce, directly or indirectly, each other’s Confidential Information in whole or in part. We and You further agree to use each other’s Confidential Information solely for the purposes of exercising each other’s rights stated under this Agreement or other rights that are clearly contemplated by this Agreement.
8. DISCLAIMER. The purpose of this disclaimer (Disclaimer) is to make you conscious of the potential risks connected with activity in any exercise, physical fitness or training program. You should make an informed decision as to whether You should participate in these types of activities. Injuries of all types can occur when participating in exercise, physical fitness and training programs. We strongly encourage You to obtain a comprehensive physical examination by a doctor, GP or licensed physician before undertaking any exercise or training demonstrated in the Programming on the Website or the App and You fully assume the risk of any resulting injury. Such injuries include but are not limited to: (a) bruising, cuts and general soreness; (b) muscle and tendon injuries; (c) ligament and skeletal injuries; (d) fractured or broken bones; (e) concussions and (f) heart attack. WE DISCLAIM ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT OR REVENUE AND WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY LOSS, INJURY OR DAMAGE SUFFERED BY YOU AS A RESULT OF THE USE OR MISUSE OF ANY INFORMATION, VIDEOS OR OTHER TRAINING MATERIAL PROVIDED AS PART OF THE PROGRAMMING ON THE WEBSITE OR THE APP. In consideration of participating in the Programming, You hereby agree to indemnify and hold harmless Us, Our officers, directors, shareholders, members, employees, and agents, and their respective successors and assigns, against any loss, liability, damage, cause of action, cost, or expense of any nature whatsoever, including without limitation legal costs. The content, information, videos, training instructions and other materials offered and made available as part of the Programming offered on the Website or App are for informational purposes only.
9. LIMITED WARRANTY. Subject to clause 10 below, We license the Programming to You “as is” without warranty of any kind. Our entire liability and Your sole remedy under this warranty is that We will use reasonable commercial efforts to correct or provide a work around for any reproducible error arising from a technical fault in the Programming, the Website or the App. WE DO NOT WARRANT THAT YOUR USE OF THE PROGRAMMING, WEBSITE OR APP WILL BE UNINTERRUPTED OR ERROR FREE. THE WARRANTIES IN THIS CLAUSE 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The warranties set forth in this clause 9 are expressly subject to the limitation of liability in clause 12 and apply to You only and not to any third party.
10. AUSTRALIAN CONSUMER LAW. Under the Australian Consumer Law included in the Competition and Consumer Act 2010 (Cth) (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the fitness for purpose of goods or services. Nothing in this Agreement will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified. This Agreement must be read subject to these statutory provisions. Subject to any consumer rights You have under the ACL and to the extent permitted by law, We limit Our liability in respect of any claim under those provisions, at Our option to (a) in the case of goods, replacing or repairing the goods or paying to have the good repaired and (b) in the case of services, supplying the services again; or paying the cost of having the services supplied again.
11. INTELLECTUAL PROPERTY RIGHTS. You agree that We own Our Intellectual Property Rights in the Programming, including improvements, modifications or enhancements to the Programming and that You obtain no right or interest in the Programming or any part of the Programming. You agree that We may use Our Intellectual Property Rights to further develop, improve and promote the Programming. You agree not to challenge or make claims against Our Intellectual Property Rights.
12. LIMITATION OF LIABILITY. WE ARE NOT RESPONSIBLE FOR AND WE SPECIFICALLY DISCLAIM ALL LIABILITY FOR ANY LOSS, LIABILITY, DAMAGE (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL), PERSONAL INJURY OR EXPENSE OF ANY NATURE WHATSOEVER WHICH MAY BE SUFFERED BY YOU OR ANY THIRD PARTY THAT MAY BE ATTRIBUTABLE, DIRECTLY OR INDIRECTLY, TO THE PROGRAMMING OR TO YOUR USE OF IT, THE WEBSITE OR THE APP. WE ARE NOT LIABLE FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH YOUR USE OF THE PROGRAMMING, THE WEBSITE OR THE APP AND IN NO EVENT ARE WE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT OR REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF CHANCE, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF DATA AND LOSS OF REPUTATION EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS CLAUSE 12 ARE INDEPENDENT OF EACH EXCLUSIVE OR LIMITED REMEDY SET FORTH IN THIS AGREEMENT.
13. TERMINATION. We may terminate this Agreement immediately by notice to You if You breach a provision of this Agreement and fail to remedy the breach within 14 days. Either party may terminate this Agreement if the other party becomes or threatens to become subject to any form of bankruptcy or insolvency administration. Upon termination, You are no longer permitted to use the Programming and You must immediately cease to use it and You must delete or destroy all copies of the App in Your possession. Termination of this Agreement does not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination.
14. GOVERNING LAW AND ENTIRE AGREEMENT. This Agreement and Your use of the Programming, Website or App and any non-contractual obligations arising out of or in connection with this Agreement, the Website or the App are governed by the law applying in New South Wales. The courts having jurisdiction in New South Wales have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to any non-contractual obligations arising out of or in connection with this Agreement) and each party irrevocably submits to the non-exclusive jurisdiction of the courts having jurisdiction in New South Wales. This Agreement contains the entire agreement and understanding between You and Us about the Programming and all prior agreements and representations made between You and Us are superseded by this Agreement.
15. MANDATORY MEDIATION AND DISPUTE RESOLUTION. If a dispute arises regarding this Agreement or any non-contractual obligations arising out or of in connection with this Agreement (Dispute), a party must notify the other party in writing of the Dispute (Dispute Notice). Within 14 days of receipt of a Dispute Notice, the parties must meet in good faith and use their best endeavours to resolve the Dispute. If the Dispute cannot be resolved through good faith discussions, then the parties must refer the Dispute to mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation. The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (the Guidelines) and the Guidelines are incorporated by reference into this Agreement.