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TERMS OF USE

Last updated on 10 August 2018

1.                   LEGALLY BINDING DOCUMENT

These terms and conditions set out in this document (‘Terms’)form a legally binding agreementbetween you, as a user of the Services (‘User’, ‘you’ or ‘your’), and us, Fit For Footy Pty Ltd ABN 386243 86 401(‘FFF’, Fit For Footy’, ‘our’, ‘we’or ‘us’), in relation to your access to and use of FFF’s mobile application (‘App’), this website (‘FFF Website’), andany other services, products, software provided by FFF (excluding any services provided to you by FFF under a separate written agreement) (Services).

2.                   ACCEPTANCE OF TERMS

(a)                 FFF provides the Services to you subject to the Terms. These Terms may be updated by FFF from time to time without notice to you and continued use of the Services by you, following such an update will represent an agreement by you to be bound by the Terms as amended.

(b)                 When using the Services, you shall be subject to any related guidelines or rules applicable to the execution of the individual service and these guidelines or rules may be posted on the FFF Website from time to time. All such guidelines or rules are hereby incorporated by reference in these Terms.

(c)                 By downloading the App and/or accessing the Services you represent and warrant that:

(i)                   you have full legal authority to bind yourself to these Terms;

(ii)                  that you have read and understand the Terms; and

(iii)                you agree, to these Terms.

(d)                  If you do not have legal authority to bind yourself to these Terms, please do not download the App or access any of the Services.

(e)                 By accessing and/ or downloading the App you agree to abide by the terms and guidelines of the relevant mobile application store (‘App Store’), currently the Apple App Store and/or the Google Play market.

3.                   DESCRIPTION OF SERVICE

The Services are created to provide access to quality content in the ‘Football’ and ‘Physical Development’ aspects of Australian rules football. The Services are available online at the FFF Website and also to download from the App Store and can be used on iOS and Andriod devices with a reliable internet connection.

4.                   MODIFICATIONS

(a)                 The following terms apply to modifications to the Services:

(i)                   FFF shall have the right to change, suspend or discontinue any aspect of the Services at any time, without notice.

(ii)                  If FFF makes a material change to the Services, FFF may inform you of such changes at a time relevant to the changes being required for the service.

(iii)                 It is possible that you may need to upgrade your App via the App Store. Any costs associated with any such upgrade will be your responsibility.

(b)                 The following terms apply to modifications to these Terms:

(i)                   FFF reserves the right to modify these Terms or any policy governing the Services, at any time, by posting the new Terms at https://www.fitforfooty.com.au/terms-and-contidtions/ or such URL as FFF may provide.

(c)                 You are responsible for regularly reviewing any updates to these Terms.

(d)                 You understand and agree that if you access or use the Services after the date on which the Terms have changed, FFF will treatthis as acceptance of the updated Terms.

5.                   PROVISION OF SERVICES

(a)                 While FFF will use all reasonable endeavours to ensure that the Services are accessible at all times, FFF cannot guarantee that this will be case. FFF will use all reasonable endeavours to post a notice on the FFF Website if we have prior notice of any maintenance that is expected to result in the Services being unavailable, FFF will use all its reasonable endeavours to post a notice on the FFF Website notifying users of any such outage to the Services. FFF is not responsible for any problems associated with the use of the public internet or of the individual User’s telecommunications/ data carrier.

(b)                 The Services are designed for use only with certain devices and require certain functionality to be enabled in order to properly function. Details of these requirements are specified in clause 3of these Terms. These requirements may change over time to reflect evolving technologies. FFF will provide you with reasonable notice of any such changes.

(c)                 While FFF endeavours to ensure that the Services are free from viruses and other harmful code, you are responsible for taking appropriate steps (including but not limited to updating the App) to protect your device and ensure that the Services are being utilised to their intended purpose.

(d)                 In some instances, there may be material which is provided for particular Users (ie Users of a particular age group etc). In these instances, Users will be required to confirm and verify their personal information in order to gain access to such material. It is the responsibility of the User to ensure that they at all times provide true and accurate information regarding their personal information (including but not limited to data relating to age). FFF is neither responsible nor liable for any loss or damage suffered in the event that a user untruthfully provides information that provides them access to material not intended for their access.

(e)                 You understand that you are solely responsible for your mobile phone, access to and connectivity to the internet and all costs, including mobile data, required to use the Services.

6.                   ACCOUNTS AND REGISTRATION

(a)                 In order to actively use the Services via the App, you are required to sign up, register and receive an account through the App (‘Account’).

(b)                 Subject to these Terms, FFF’s discretion and the FFF policies and procedures, you may create an Account:

(i)                   On behalf of yourself; or

(ii)                  On behalf of someone of whom you are the legal guardian;

(iii)                On behalf of someone under the care of a legal guardian, to whom such legal guardian has provided authorisation;

(iv)                 On behalf of someone else, with their authorisation,

(c)                 As part of the Account registration process and as part of your continued use of the Services, you will be required to provide personal information and details such as (without limitation) your email address, first and last name, preferred username, a secure password, billing, postal and physical addresses, mobile phone number, photos and video, audio files, profile information, emergency contacts, payment details, ratings and reviews, verified identifications, and other information as determined by FFF from time to time.

(d)                 You warrant that any information you give to FFF in the course of completing the Account registration process and as part of your continued use of the Services will always be accurate, honest, correct and up to date

(e)                 Once you complete the Account registration process, FFF may in its sole discretion, choose to accept you as a registered User within the App and provide you with an FFF Account.

(f)                   FFF reserves the right to contact you about any concerning behaviour by you, or to seek a resolution with you.

(g)                 FFF may suspend or cancel your Account for any reason, including without limitation, any failure to comply with the Terms.

(h)                 You agree that you are solely responsible for any breach of your obligations under the Terms, and that FFF has no responsibility to you or any third party.

(i)                   You will ensure that any other person that you authorise or allow to use your Account, in accordance with these Terms, will comply with the Terms.

(j)                   You will be solely responsible for any and all activities that occur under your FFF Account as created by you.

(k)                  Any use of your Account by a person other than the person the Account has been created for, in accordance with clause 6, is strictly prohibited.

(l)                   You agree not to expressly or impliedly impersonate any other User or use the profile, password, email or Account of another User at any time.

(m)                You agree to receive marketing materials and other communications from FFF, as distributed in accordance with the FFF Privacy Policy and that you may unsubscribe from such materials. You cannot unsubscribe from messages to your Account or from critical emails related to the App and your Account.

(n)                 You warrant that if you are using the Services in any way, on behalf of another person, group or organisation, that you have the relevant authority from that person, group or organisation to do so.

(o)                 You agree to immediately notify FFF of any unauthorised use of your Account, password or email, or any other breach or potential breach of the App’s security.

(p)                 You agree not to use your FFF Account for any purpose other than for the purposes of the Services (as expressed by FFF).

7.                   USER OBLIGATIONS

(a)                 As a User, you agree to use the Services only for the purposes permitted by the Terms and any applicable laws, regulations or generally accepted practices or guidelines.

(b)                 You agree not to:

(i)                   access (or attempt to access) the Services by any means other than through those approved by FFF, unless you have been permitted to do so in a separate written agreement with FFF;

(ii)                  engage, in any activity that interferes with or disrupts the Services;

(iii)                copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile reproduce, duplicate, distribute, sell, trade or resell the Services (in part or as a whole) for any purpose without the express, written consent of FFF;

(iv)                 upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

(v)                  harm minors in any way whatsoever;

(vi)                 impersonate any person or entity, including but not limited to an FFF official forum leader, guide or host, service provider, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(vii)               use the Services in any way which breaks the laws governing the state and/or territory in which the Services are being used;

(viii)              in any way attempt to commercialise the use of the Services. For the removal of doubt, the Services are provided only for personal use and you will not use the Services in connection with any commercial or money making or other promotional or marketing endeavours except those that are endorsed herein, or as approved in writing by FFF;

(ix)                 interfere with, disrupt or create undue burden on the Services or the servers or networks that host the Services;

(x)                  harass, stalk, threaten, bully or endanger any other User;

(xi)                 use the Services in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity (including making, requesting or accepting an opportunity which includes illegal activities or purposes);

(xii)               use the contact details of other Users for the purpose of distributing unsolicited commercial content, junk mail, spam, bulk content or harassment;

(xiii)              make, or in any way authorise the making of any automated use of the Services;

(xiv)              use the Services for any illegal or unauthorised purpose, which includes collecting email addresses of Users for any purpose such as sending unsolicited email, or unauthorised framing of or linking to the Services;

(xv)                act in any way that may harm the reputation of FFF or associated or interested parties or do anything at all contrary to the interests of FFF or the Services, including by linking to the Services on any other website;

(xvi)              attempt to breach the security of the Services, or otherwise interfere with the normal functions of the Services, including by:

A.                  gaining unauthorised access to Services, Accounts or data;
B.                  scanning probing or testing the Services for security vulnerabilities;
C.                  overloading, flooding, mailbombing, crashing or submitting a virus to the Services; and
D.                  instigating or participating in a denial-of-service attack against the Services.

8.                   PASSWORD/ CONFIDENTIAL INFORMATION AND SECURITY

(a)                  If you provide any password and/or confidential material in connection with your use of the Services, then you are responsible for maintaining the confidentiality of such password and/or confidential material and understand that you are fully responsible for all activities that occur under your account.

(b)                 You agree to immediately notify FFF and the relevant App Store provider (e.g. Apple or Google) of any unauthorised use of your password or account or any other breach or security.

(c)                  It is your responsibility to ensure that you correctly exit from your account at the end of each session of use of the App.

(d)                 FFF cannot and will not be liable for any loss or damage suffered arising from your failure to comply with this clause 8.

9.                   COST OF SERVICE

(a)                 The Services are offered at the subscription price stated at the point of purchase in the App Store. Details of the cost of the subscription are outlined at the point of purchase, subject to the terms of use of each App Store.

(b)                 The cost associated with any data download is as per the User’s data plan with the telecommunications provider of the device they are using the Services on. For any queries related to costs of data downloads please contact your telecommunications service provider.

(c)                 Costs associated with updating the Services are subject to the policies outlined by the App Store.

10.                CONTENT IN THE SERVICES

(a)                 Subject to clause 11, materials provided to you by FFF as part of the Services (including text, graphics, logos, design, icons, images, systems, sound and video recordings, pricing, downloads and software) (‘Services Content’) are protected by Intellectual Property Rights.

(b)                 You may not modify, rent, lease, loan, sell, distribute or create derivative works based on the Services Content (either in whole or in part) unless you are specifically authorised under a separate written agreement with FFF or, where applicable, the owner of the Services Content, if that owner is not FFF.

(c)                 You understand that by using the Services, you may be exposed to Services Content that you may find offensive, indecent or objectionable, and that, in this respect, you use the Services at your own risk. FFF reserves the right (but has no obligation) to review, flag, filter, modify, refuse or remove any or all Services Content from the Services at any time it deems necessary.

(d)                 You agree that you are solely responsible for (and that FFF has no responsibility to you or any third party for):

(i)                   any materials that you create, transmit or display while using the Services; and

(ii)                  the consequences (including any loss or damage that FFF may suffer) of you doing so.

11.                INTELLECTUAL PROPERTY

(a)                 FFF retains ownership of, and reserves all rights in, the Services and all Services Content, including any copyright, trade marks, business names, patents, confidential information or any other similar proprietary or intellectual property rights, whether registered or unregistered, anywhere in the world (‘Intellectual Property Rights’).

(b)                 FFF grants you non-exclusive, limited, revocable licence to use its Intellectual Property Rights in the Services and/or Services Content for the sole purpose of enabling you to access the Services and the Services Content in accordance with these Terms.

(c)                 You may make a temporary electronic copy of all or part of the Services or Services Content for the sole purpose of you privately and personally viewing it. You must not otherwise use, reproduce, transmit, adapt, distribute, sell, modify or publish the Services or any Services Content without prior written consent from FFF or as permitted by law.

(d)                 The licence granted to you in this clause in respect of the Services and Services Content is a licence for private use only. Nothing in this clause or elsewhere in these Terms permits you to use, reproduce, transmit, adapt, distribute, sell, modify or publish Services or Services Content for any purpose other than for you to privately and personally view or use such Services or Services Content.

12.                CONTENT PROVIDED BY THE USER

12.1             TYPES OF CONTENT

As part of using the App, the Services and/or accessing the Services Content, you may upload images, content, information and materials that will be shared with us or the public (including feedback, suggestions and enhancement requests), including by using the features of the websites, sharing content on social media or by contacting us, or when you register an Account (Posted Materials).

12.2             POSTED MATERIALS

By providing or posting any Posted Materials, you represent and warrant that:

(a)                 you are authorised to provide the Posted Materials;

(b)                 the Posted Materials are free from any harmful, discriminatory, defamatory or maliciously false implications and do not contain any offensive or explicit material;

(c)                 the Posted Materials are not “passing off” of any product or service and does not constitute unfair competition;

(d)                 the Posted Materials do not infringe any intellectual property rights, including copyright, trademarks, business names, patents, confidential information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world (Intellectual Property Rights);

(e)                 the Posted Materials are accurate and true at the time they are provided;

(f)                   any Posted Materials which are in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;

(g)                 the Posted Materials do not contain any viruses or other harmful code, or otherwise compromise the security or integrity of any network or system; and

(h)                 the Posted Materials do not breach or infringe any applicable laws, regulations or orders.

12.3             POSTED MATERIALS – IP LICENCE

By uploading any Posted Materials, you grant to FFF (and its agents or service providers) a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in that Posted Material in order for FFF to use, exploit or otherwise enjoy the benefit of such Posted Material.

12.4             REMOVAL OF POSTED MATERIALS

We don’t have any obligations to screen Posted Materials in advance of them being posted and your compliance with these Terms is your responsibility. However, we may, if we choose, review and remove any Posted Materials at any time without giving any explanation or justification for removing the material and/or information.

13.          INFORMATIONON THE WEBSITE

While we make every effort to ensure that the information on the Services is as up-to-date and accurate as possible, you acknowledge that it is made available to you strictly on an ‘as is’ basis. Without limitation, you acknowledge that FFF cannot guarantee that:

(a)                 the Services will be free from errors or defects;

(b)                 the Services will be accessible at all times;

(c)                 messages sent through the Services will be delivered promptly, or delivered at all;

(d)                 information you receive or supply via the Services will be secure or confidential; or

(e)                 any information provided via the Services is accurate or true.

(f)                   We reserve the right to change any information or functionality on the Services by updating the Services at any time without notice, including Posted Materials.

14.                SOFTWARE UPDATES

You may be prompted to download and install software updates. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions of the Services. You agree to receive or download (as applicable) such updates, and permit FFF to deliver them to you (in line with the standard terms of the App Store, as part of your use of the Services.

15.          EXCLUSION OF WARRANTIES & DISCLAIMERS

15.1             GENERAL

(a)                 You expressly understand and agree that your access to and use of the FFF Services is at your sole risk and that the FFF Services is provided “as is” and “as available”. In particular, FFF does not represent or warrant to you that:

(i)                   your access to and use of the FFF Services will meet your requirements (and you expressly acknowledge that you have relied upon your own experience, skill and judgement to evaluate the FFF Services and that you are satisfied as to the suitability of the FFF Services to meet your requirements); or

(ii)                  your access to and use of the FFF Services will be uninterrupted, timely, secure or free from error.

(b)                 Without limiting the foregoing, and to the extent permitted by law, all express or implied representations, conditions, warranties, guarantees or other provisions that are not contained in the Terms (whether based in legislation, the common law or otherwise) are excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose or timeliness.

(c)                 Where any law (including the Competition and Consumer Act 2010(Cth)) implies a condition, warranty or guarantee into these Terms which may not lawfully be excluded, then to the maximum extent permitted by applicable law, FFF’s liability for breach of that non-excludable condition, warranty or guarantee will, at our option, be limited to:

(i)                   in the case of goods, their replacement or the supply of equivalent goods or their repair; and

(ii)                  in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

(d)                 FFF and all of its personnel are not liable for any injury (including any head injury or concussion), disease, condition (including worsening of existing) or death arising from or in connection with your use of the Services. All material included is of a general nature only and does not guarantee outcomes. For tailored advice please seek out personal medical and dietetic consultation. Diet plans and nutritional advice included in the Services should only be used with approval from your doctor or health care provider.

15.2             PLAYER REPRESENTATIONS

(a)                 The Services Content may include representations of a football player performing a skill. This player is a professional athlete and the performance of the skill does not account for age, physicality, medical conditions and other matters specific to the individual User. You should consult your medical professional before undertaking the skill.

(b)                 Any player who is represented in the Services Content, and/or such a player’s company, will not be held responsible for any injury, death, loss, expense or claim arising out of the viewers performance of the skill.

15.3             DIET

(a)                 We arenot a licensed medical care provider. We have not expertise in diagnosing, examining or treating medical conditions of any kind.

(b)                 We strongly recommend that you consult with you doctor, dietician or a qualified medical professional before beginning any dietary or exercise program particularly if you have a personal or family history of high blood pressure, heart disease, chest pain, smoking, high cholesterol, obesity, bone or joint problems or if you are pregnant.

(c)                 Any diet programs included in the Services are not formulated to suit any nutrient deficiencies, allergies or any other food related health problems. Please contact your doctor or a dietician prior to purchasing if you are unsure whether the Services are suitable for your dietary needs.

(d)                 Any diet programs included in the Services are not formulated to suit the nutritional needs of pregnant or breastfeeding women. If required, we recommend visiting an accredited practicing dietitian to help tailor a program specific to you and your baby’s needs. If you are no longer breastfeeding, please seek approval from your doctor before commencing any diet programs included in the Services.

15.4             FITNESS

(a)                  If you have any concerns or questions regarding your health you should always contact your doctor. If you experience faintness, dizziness, pain or shortness of breath at any time you must stop the physical activity immediately and contact your doctor before resuming.

(b)                 The Services not intended to replace or be a substitute for professional medical advice diagnosis or treatment. The Services have been created for information purposes only.

(c)                 You must be in good physical condition before using any of our Services whether tangible or intangible.

(d)                 Before using the Services you acknowledge and agree that by participating in physical activity there exists the possibility of physical injury. If you engage in any exercise in connection with any of our Services (including extra strength and conditioning), you agree that you do so at your own risk.

15.5             FOOTBALL

(a)                 The Services Content assumes that each person is healthy and has no medical condition, disability, illness, impairment or other reason that may impact, limit or restrict their involvement in sport or other physical activity.

(b)                 A person should not participate in an activity described in the Services Content, if any medical, physical or other factor indicates that they are not suited to that activity. Where there are any queries or concern about such matters, the consent of the User, or, if the User is a minor, the User’s parent or guardian, should be obtained before allowing participation.

(c)                 While care has been taken in the preparation of the Services, FFF and content creators of the Services do not accept any liability arising from the use of the Services, including, without limitation, from any activitiesdescribed in the Services Content.

16.                INDEMNIFICATION

(a)                 You agree to indemnify, defend and hold harmless FFF, and its directors, officers, employees, agents and contractors, from and against any loss, damage, liability, cost or expense (including reasonable legal fees) suffered or incurred in connection with a claim brought against any of them, to the extent that such third party claim arises out of your use of the Services or the App, or your breach of any obligation or warranty in the Terms.

17.                LINKS TO EXTERNAL SITES/ OTHER WEBSITES

(a)                 The Services may contain links to other websites that are not our responsibility.

(b)                 We have no control over the content of the linked websites and we are not responsible for it.

(c)                 Inclusion of any linked website on the Services does not imply our approval or endorsement of the linked website.

18.                SECURITY

(a)                 FFF does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Services. You should take your own precautions to ensure that the process that you employ for accessing the Services does not expose you to risk of viruses, malicious computer code or other forms of interference.

19.                REPORTING MISUSE

(a)                  If you become aware of misuse of the Services by any person, any errors in the material on the Services or any difficulty in accessing or using the Services, please contact us immediately by email at enquiries@fitforfooty.com.

20.                LIABILITY

(a)                 (Limitation of liability) To the maximum extent permitted by applicable law, FFF limits completely all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Services or its use, to $10 AUD. This includes any liability for personal injury, loss of data or transmission of a computer virus.

(b)                 (Consequential loss) Under no circumstances will FFF be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Services, these Terms or their subject matter.

(c)                 (Indemnity) You agree to indemnify FFF and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with, your or your representatives’ use of the Services or breach of these Terms.

21.                PRIVACY

(a)                 For information about FFF’s data protection practices, please read the FFF Privacy Policy at [insert link to the Privacy Policy]. The Policy explains how FFF treats your personal information, and protects your privacy, when you access or use the Services.

(b)                 You agree to the use of your personal information and data in accordance with FFF Privacy Policy.

(c)                 You agree that you are solely responsible for (and that FFF has no responsibility to you or any third party for):

(i)                   all data that you submit or store, or that is generated, in the course of your use of the Services (referred to as “Your Data” below); and

(ii)                  backing up Your Data, and the consequences (including any loss or damage you may suffer) of you failing to do so.

(d)                 The Services are available for download from the App Store and therefore the collection, use and disclosure of personal information collected in connection with the download of this app is governed by their respective Privacy Policies. Please see the App Store for the location of the relevant Privacy Policy.

22.                GENERAL

(a)                 FFF is not liable for any failure to perform its obligations under the Terms where that performance is delayed, prevented, restricted or interfered with for any reason outside FFF’s control.

(b)                 These Terms are governed by the laws of New South Wales, Australia, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.

(c)                 The words “includes”, “including”, “such as”, “in particular” and “for example”, when used in this agreement, are not words of limitation.

(d)                 No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these terms.

(e)                 No party to these Terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

(f)                   A party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.

(g)                 These Terms embody the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the Terms.

(h)                 In these Terms, the following rules of interpretation apply:

(i)                   words in the singular includes the plural (and vice versa);

(ii)                  words indicating a gender includes the corresponding words of any other gender;

(iii)                 if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(iv)                 a reference to “person”, “user”, or ”you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(v)                  headings and words in bold type are for convenience only and do not affect interpretation.