TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATIONS
In this Agreement unless the context otherwise requires:
Agreement means these Terms and Conditions and the Agreement Details.
Agreement Details means the details agreed between the parties as amended from time to time setting out the Customer’s details and any specific conditions governing SLOCOACH’s provision of the Services to the Customer.
App means the mobile app and/or website through which SLOCOACH provides the Services.
Authorised User means the Customer and/or an end user authorised by SLOCOAH to use the Services.
Authorised User Fee means the authorised user fee agreed between the parties from time to time, in relation to the use by the Authorised Users of the App.
Coach means a third party Coach that provides the Coaching Services to the Customer or Authorised User via the Website or App.
Commencement Date means the commencement date specified in the Agreement Details.
Confidential Information means:
the Customer Information;
details of the Services;
the terms of this Agreement; and
all other information of a confidential or proprietary nature in whatever form, whether or not such information is expressly marked as “confidential” which is provided to a party, or of which a party becomes aware during the Term.
Customer means the purchaser of the App.
Customer Information means all data and information provided by the Customer and/or an Authorised User that is entered, stored, generated, processed or handled through the App.
Feature means a feature of the App accessible by the Customer and Authorised Users.
Fees means the cost of the Services as specified by SLOCOACH from time to time.
GST means goods and services tax or similar value added tax.
Intellectual Property Rights means all intellectual property rights including without limitation copyright, and trademarks.
Network means the network of SLOCOACH’s sources, suppliers, service providers or telecommunication infrastructure over which the Services are provided.
Personal Information means personal information as that term is defined in the Privacy Act which is included in the Customer Information;
Privacy Act means the Privacy Act 1988 (Cth) and any relevant State or Territory privacy legislation.
Coaching Services means the instruction or advice provided by a Coach to an Authorised User.
Services means the services provided via the Website or the App including the Coaching Services and as further described on the Website or the App.
Term means the term of this Agreement.
SLOCOACH Information means any information used or created by SLOCOACH to provide the Services, including any modification of the Customer Information.
Website means http://slocoach.com.au.
Subject to payment of the Fees by the Customer and compliance with the terms of this Agreement, SLOCOACH will supply the Services to the Customer and any Authorised Users during the Term in accordance with this Agreement.
SLOCOACH grants to the Customer a revocable, non-transferable and non-exclusive licence to use the App, the Website and the Services in accordance with this Agreement.
The Customer must not authorise any other person to use the App, the Services, or SLOCOACH Information without SLOCOACH’s prior approval.
SLOCOACH must use reasonable commercial endeavours to provide the Services:
with due skill and care;
in a commercially efficient manner; and
in compliance with applicable laws and regulations.
SLOCOACH reserves the right to introduce or remove services and Features to the App from time to time. The Customer’s access to any new services and Features will be at SLOCOACH’s discretion and, if such access requires a change to the Fees the Customer must pay those Fees, subject to written agreement between the parties.
Notwithstanding any other provision in this Agreement, the Customer and each Authorised User acknowledges that the Coaching Services will be provided by a variety of third party sources. SLOCOACH does not warrant or make any representations regarding the usefulness, correctness, completeness, reliability or accuracy of the Coaching Services and cannot guarantee any outcomes for the Customer or any Authorised User.
To the extent permitted by law neither SLOCOACH nor its personnel are responsible or liable to any person for any type of event or incident, including without limitation serious injury nor loss or damage to property which occurs, directly or indirectly, as a result of:
the Coaching Services;
any advice or service not provided to an Authorised User because it is not known to SLOCOACH at the time;
any failure to receive or respond to queries from an Authorised User either at all or in a timely manner;
any delay or misdirection in the provision or receipt of the Coaching Services;
any delay or failure in providing the Services;
the Customer Information;
the Customer’s or an Authorised User’s use of or reliance on the App, the Services or any Feature whether or not they are used in accordance with instructions provided by SLOCOACH from time to time;
the Network; or
the unavailability of the App or the Services due to any interruption to the Network.
AUTHORISED USER’S OBLIGATIONS
An Authorised User may use the Services subject to the following representations and warranties given by the Customer. The Customer represents and warrants that:
the Authorised User accepts these terms and conditions;
the Customer Information is not false, inaccurate, misleading, out of date, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, offensive, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically, or otherwise objectionable, or harmful to minors in any way; and
As regards the Customer, it has obtained prior consent to contact on behalf of each and every of its Authorised Users.
The Customer must provide SLOCOACH with any information that SLOCOACH reasonably requires to provide the Services, including but not limited to all relevant fitness, health and safety requirements of the Customer including any special risks applicable to the Customer and the Customer’s Authorised User of which any of those parties are aware.
The Customer is responsible for ensuring that all Authorised Users have all equipment necessary to use the App and that such equipment is in proper and safe working order.
SLOCOACH may request the Customer and/or any or all of the Authorised Users to stop doing anything which, in the reasonable opinion of SLOCOACH, is contrary to the Customer’s obligations under this Agreement or otherwise (in the reasonable opinion of SLOCOACH) as or may have an adverse impact on the App or the Services. The Customer must, and must use all reasonable endeavours to require its Authorised Users, to immediately comply with such a request. If it does not do so SLOCOACH may take all reasonable steps to ensure compliance, including without limitation suspending its provision of the Services.
The Customer must:
not allow the App to be used by more Authorised Users than those for whom it has paid;
notify SLOCOACH immediately of any unauthorised use of any password. account or known or suspected breach of security;
immediately report to SLOCOACH, and use reasonable efforts to immediately stop, any unauthorised copying or distribution of SLOCOACH Information; and
not, and must use all reasonable endeavours to ensure that Authorised Users do not, provide false information to gain access to or use the App.
The Customer acknowledges that the Services may be adversely affected by factors such as (without limitation):
inaccurate or incomplete Customer Information;
the availability of the Network;
capacity constraints; and
The Customer acknowledges that the Services may be adversely affected by updates, maintenance or repair of the App and/or the Services.
SLOCOACH does not make any guarantees or warrant that the App, the Services will be:
available at all times in all regions;
provided free of delay, faults or error;
impermeable to unauthorized interception or access; or
free from blockages, delays, Network failure, congestion, interferences or faults of any kind.
Notwithstanding any other provision in this Agreement, SLOCOACH will not be liable or responsible to the Customer, Authorised Users or any other person for any temporary unavailability or interruption of the App or the Services or for any loss or damage that might result from the unavailability of the Services or interruptions to the Services.
The Customer must not, and must ensure that Authorised Users do not, disclose any log-in details associated with the App or the Services and/or any information provided as part of the Services to any third party not specifically authorised to receive such information under this Agreement.
The Customer must, and must ensure that Authorised Users will, comply with any requirements set out in this Agreement and any instructions relating to the App or Features provided by SLOCOACH from time to time.
The Customer must pay SLOCOACH the Fees for the Services in advance in accordance with this Agreement.
SLOCOACH will issue invoices for the Fees.
SLOCOACH reserves the right, on prior written notice to the Customer, to prevent the Customer and Authorised Users from accessing the Services in the event that payment is not made in advance or any previous payment is returned.
All amounts payable or other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any). Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.
All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply). Where any GST payable is not referable to an actual payment, then it must be paid within ten (10) days of a tax invoice being issued by the party making the supply.
All payments must be made in Australian dollars unless otherwise notified by SLOCOACH.
SLOCOACH reserves the right to adjust the Fees at any time in any amount determined by SLOCOACH.
SLOCOACH warrants that:
subject to the terms of this Agreement, all Services will be provided with reasonable care and skill; and
it is authorised to enter into this Agreement.
The Customer warrants that:
it is authorised to enter into this Agreement on behalf of itself and any of its Authorised Users;
the signatory to this Agreement is authorised to execute this Agreement for and on behalf of the Customer;
the Customer Information will not contain any pornographic, offensive or illegal material and will not infringe any Intellectual Property Rights of any person;
the provision of the Customer Information will at all times be in compliance with applicable laws and the Privacy Act;
it and its Authorised Users will not use the App and/or the Services for the transmission of spam, to harass, stalk, intimidate or bully any person or for any malicious, illegal or unauthorised purpose or activity;
that it and its Authorised Users it will not use the Services for the purpose of disrupting or interfering with any computer network or equipment or any other person’s use of any software, hardware, network or services; and
that it has not relied on any representation made by SLOCOACH which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including without limitation any proposal document, catalogue or publicity material provided by SLOCOACH.
The Customer must not, and must ensure that Authorised Users do not, and must not permit or direct any other person to:
circumvent or modify any security mechanisms employed by SLOCOACH in the App;
reverse engineer, decompile or disassemble the App;
imply any affiliation or endorsement of you or any organisation by SLOCOACH;
sell, resell, rent or lease the App or Services;
use the App to store or transmit any viruses, Trojan horses, backdoors or similar types of code designed to disrupt or interrupt any computer systems or service;
use the App to store or transmit infringing, libellous, defamatory, inaccurate or otherwise unlawful or tortious material
interfere with or disrupt the integrity or performance of the App or the Services or any other person's use of the App or Services;
attempt to gain unauthorised access to SLOCOACH or its related systems or networks or any part of them;
interfere with or disrupt the servers or networks connected to the App, or disobey any requirements, procedures, policies or regulations of networks connected to the App;
send or make unsolicited e-mails, mailings, telephone calls or other communications to individuals or companies whose contact details you may obtain through the App or the Services; or
use any automatic device, program, algorithm or methodology or any comparable manual process to access, acquire, copy or monitor any portion of the App or Services (other than as authorised by this Agreement).
If SLOCOACH determines, in its sole discretion, that a Customer is not complying with any of the terms of this Agreement SLOCOACH may, in addition to any other remedy to which SLOCOACH is entitled under this Agreement, terminate the Customer's licence or any Authorised User's licence to use and access the App and the Services.
The Customer acknowledges that SLOCOACH will, in performing the Services, be dependent upon the Customer Information without any independent investigation or verification. SLOCOACH is entitled to rely upon the accuracy and completeness of the Customer Information in performing the Services and will not be liable to the Customer, Authorised Users or third parties for any loss or damage suffered by the Customer, Authorised Users or a third party as a result of SLOCOACH’s reliance on any inaccurate, incomplete or omitted Customer Information.
The Customer at all times indemnifies and keeps SLOCOACH indemnified against all losses, damages, expenses, claims, demands, actions and proceedings suffered or incurred by SLOCOACH as a result directly or indirectly of any claim by any third party (including without limitation any regulator or enforcement authority) in connection with the Customer Information, any infringement of any law arising from or in connection with the Customer Information or any claim that that the Customer Information infringes the Intellectual Property Rights or moral rights of any person, except to the extent that such claim is caused by the actions of SLOCOACH.
Any decision by the Customer or an Authorised User to implement SLOCOACH’s advice or recommendations, or to rely on any Coach’s instruction or advice, will be the sole responsibility of the Customer and/or the Authorised User. SLOCOACH shall be entitled to rely on all of the Customer’s and Authorised Users' decisions.
Each party must:
treat and safeguard as confidential the Confidential Information of the other party (“Disclosing Party”);
use the Confidential Information of the Disclosing Party solely for the purpose of complying with its obligations under this Agreement;
upon request of the Disclosing Party, promptly return (or at the option of the Disclosing Party, destroy) all Confidential Information of the Disclosing Party in its custody or control, together with any copies which have been made; and
inform the Disclosing Party immediately upon becoming aware or suspecting that the Confidential Information of the Disclosing Party has been disclosed in breach of the terms of this Agreement.
Notwithstanding the above, the Customer acknowledges that SLOCOACH may be obliged by law to disclose some or all Confidential Information to government or regulatory authorities. SLOCOACH will make best efforts to advise the Customer prior to, and where possible consult with and otherwise use reasonable endeavours to minimise such mandatory disclosure.
The obligations of confidentiality under this Agreement do not extend to information that (whether before or after this Agreement is signed) is:
rightfully known to or in the possession or control of the receiving party and not subject to an obligation of confidentiality on the receiving party;
public knowledge (otherwise than as a result of a breach of this Agreement); or
required by law to be disclosed.
INTELLECTUAL PROPERTY RIGHTS
Subject to clause 7.3, all intellectual property rights in the Customer Information shall remain with the Customer.
All intellectual property rights in the SLOCOACH Information shall remain with SLOCOACH.
The Customer hereby grants, and must ensure that any Authorised User will grant to SLOCOACH a worldwide, non-exclusive, perpetual, irrevocable licence to use, adapt, disclose, reproduce, transfer, modify and sub-licence any of the Customer’s Information for the purpose of developing, improving, marketing or selling the App and providing the Services to the Customer, any other Customer or any Authorised User of the App.
Each party licences to the other that part of the Customer Information and SLOCOACH Information that is required to enable the other party to perform its obligations or receive the benefits of this Agreement (as the context requires).
The Customer must not adapt, modify, reproduce or sub-licence SLOCOACH Information to any person without the express written approval of SLOCOACH.
SLOCOACH may use, on its website and in any marketing material, any logo, image, video or other information provided by the Customer. The Customer indemnifies SLOCOACH from any loss or injury suffered or incurred by SLOCOACH as a result of any third party claim that SLOCOACH’s use of a logo, image, video or other information provided by the Customer in accordance with this clause infringes any third party’s intellectual property rights.
The Customer must not, and must ensure that any Authorised Users do not, use SLOCOACH’s trade mark in any manner without SLOCOACH’s prior written consent
Each party warrants to the other that it will comply with the Privacy Act.
The Customer warrants to SLOCOACH that it is authorised to provide the Personal Information.
INDEMNITY AND LIMITATION OF LIABILITY
The Customer and any Authorised User (“indemnifying party”) indemnifies SLOCOACH, it’s officers, employees, related bodies corporate and contractors (“indemnified party”) against all expenses, losses, damages and costs on a solicitor and client basis that the indemnified party may sustain or incur as a direct result of any:
breach of a warranty given by that party in this Agreement;
material breach of this Agreement by the indemnifying party or its officers, employees or agents; or
fraud or wilfully malicious act or omission of the indemnifying party (other than an act done or omitted to be done at the indemnified party's direction).
Subject to any applicable non-excludable rights, including the rights granted under the Competition and Consumer Act 2010 (Cth) ("Non-Excludable Rights"), SLOCOACH provides the App and the Services "as is" and does not provide any warranties other than those expressly stated in this Agreement. Subject to the Non-Excludable Rights, SLOCOACH disclaims all representations, warranties and conditions of any kind, whether express, implied, written, oral, contractual or statutory.
To the maximum extent permitted by law and subject to the Non-Excludable Rights, SLOCOACH’s total aggregate liability for all claims arising under or in connection with this Agreement regardless of form or action and whether in contract, tort or based on other legal or equitable grounds (including without limitation negligence) and whether or not SLOCOACH knew that the loss was possible or the loss was foreseeable, shall in any event be limited in aggregate to the total amount of Fees paid by the Customer to SLOCOACH in the twelve calendar month period prior to the date on which the incident arises.
Subject to any Non-Excludable Rights, neither SLOCOACH nor its employees, officers and directors will have any liability to the Customer or any Authorised User or any third party for any loss of profits, lost management time, savings, contracts, revenue, loss of business, loss of opportunity, inaccuracy of data, interest, goodwill, data or any penalties, fines or special, exemplary, indirect or consequential damages or expenses, even if such party has been advised of the possibility of such damages or expenses.
Each party must use its best endeavours to mitigate all loss, damage and expenses.
To the maximum extent permitted by law, SLOCOACH’s total liability to the Customer or any Authorised User or third party for any liability (other than any claim in negligence) that is not excludable by law is limited at SLOCOACH’s option to the cost of supplying again or paying the cost of resupplying the Services in respect of which the breach occurred.
Each party’s liability in contract, tort, negligence, strict liability or by statute or otherwise to the other party, under or in connection with this Agreement, will be reduced to the extent, if any, to which the other party contributed to the loss or damage suffered.
TERM AND TERMINATION
This Agreement will continue in effect until terminated and for however so long as the Customer or End User requests SLOCOACH to provide the Services.
Either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party has breached any material term of this Agreement and fails to remedy the breach within 14 days after receiving written notice requiring it to do so.
Termination of this Agreement does not affect any accrued rights or remedies a party may have.
Upon termination or expiry of this Agreement the Customer must immediately pay to SLOCOACH:
any outstanding invoices; and
the Fees for any Services provided which have not been invoiced to the Customer at the date of termination.
In this clause, "Force Majeure" means any act of God, war, governmental law, order, enemy or hostile governmental actions, strikes, lockouts, labour or employment difficulties, civil commotions, fires, floods, accidents or breakdowns, Network failure or unavailability or any other conditions which are beyond the reasonable control of the party claiming the occurrence of a Force Majeure.
Other than an obligation to pay money, neither party is required to perform its obligations under this Agreement if it is prevented from doing so as a result of Force Majeure, provided it advises the other party as soon as practicable of the occurrence and cessation of the Force Majeure.
RESOLUTION OF DISPUTES
The parties record their intention that, if any dispute or difference arises out of or in relation to this Agreement (“Dispute”), the parties will attempt first to resolve the Dispute, in a spirit of good faith and on a commercially realistic basis, within a period of 30 days from the date one party first notifies the other in writing of the existence of the Dispute.
Subject to clause 12.5, neither party may refer a Dispute to litigation without first complying with clauses 12.3and 12.4.
If a Dispute has not been resolved pursuant to clause 12.1, either party may refer the Dispute to non-binding mediation in Sydney, Australia in accordance with the applicable rules of the Institute of Arbitrators and Mediators Australia (“IAMA”). Each party will bear its own costs incurred in the mediation, and the parties will equally share the mediator’s fees. Any negotiations pursuant to this clause are confidential, and will be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence.
If a Dispute has not been resolved pursuant to clauses 12.1 and 12.2, either party may refer the Dispute to binding arbitration administered by the IAMA in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitrations. In addition:
the arbitration will be heard and determined by single arbitrator selected by the nominee of the Chairman of the New South Wales Chapter of the IAMA or a person acting in that capacity, who must be a legally qualified person having experience and familiarity with telecommunications disputes;
the arbitration will occur in Sydney;
each party will bear its own costs relating to such arbitration, and the parties will equally share the arbitrator’s fees and security;
any proceedings pursuant this clause will be confidential; and
in no event will any arbitration award provide a remedy beyond that permitted under this Agreement.
Nothing in this clause will prevent either party from seeking urgent equitable relief from any court of competent jurisdiction.
SLOCOACH may amend or modify these Terms and Conditions at any time and will post updated Terms and Conditions and notice of the changes on the SLOCOACH website or call for acceptance upon any App update or prior to a request for further Services.
SLOCOACH is an independent contractor of the Customer and nothing in this Agreement constitutes a relationship of joint venture, employment, agency or partnership between SLOCOACH and/or any Coach and the Customer and/or Authorised Users.
Neither party may make any public announcements relating to this Agreement without the other party’s prior written consent.
Each party must do or cause to be done all things necessary or desirable to give effect to, and must refrain from doing all things that could hinder performance of, this Agreement.
This Agreement is governed by the laws applicable in the State of New South Wales and the parties submit to the jurisdiction the courts of that state.
The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:
to insist on performance of that obligation or to claim damages unless that party acknowledges in writing that the failure is a waiver; and
at any other time to insist on performance of that or any other obligation under this Agreement of that other party.
The waiver of any breach or non-observance of any of the terms of this Agreement will not be construed as a general waiver and will relate only to the particular breach or non-observance in respect of which it was made.
No waiver will be effective unless it is in writing and signed by the party against whom such waiver is claimed.
This Agreement constitutes the entire agreement between the parties and supersedes all prior representations and agreements in connection with the Services.
The whole or any part of any clause of this Agreement that is illegal or unenforceable will be severed and will not affect the continued operation of the remaining provisions of this Agreement.
Each party notifying or giving notice under this Agreement must:
notify the recipient in writing; and
hand deliver or send by pre-paid post to the address of the recipient or send by email or facsimile transmission, to the address or number specified in the Agreement Details.
Any variation to any of the terms of this Agreement must be signed by each of the Customer and SLOCOACH or its authorised representatives before it is valid. No other confirmation, invoice or other document issued by or on behalf of the Customer in relation to any services will vary this Agreement.
The Customer must not assign this agreement to any other party without SLOCOACH's prior written consent. For the avoidance of doubt, if the Customer is a company (other than a company whose shares are listed on a recognised stock exchange) a change in Control (as that term is defined in the Corporations Act 2001) of the Customer will be deemed to be an assignment.
The following rules of interpretation apply unless the context requires otherwise:
headings are for convenience only and do not affect interpretation;
the singular includes the plural and conversely;
a gender includes all genders;
where a word or phrase is defined its other grammatical forms have a corresponding meaning;
a reference to a person includes a body corporate, an unincorporated body or other entity and conversely;
a reference to a clause or schedule is to a clause or schedule to this Agreement;
a reference to any party to this Agreement or any other agreement or document includes the party's successors and assigns;
a reference to a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, jointly and severally;
a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
a reference to conduct includes, without limitation, any omissions, statement or undertaking, whether or not in writing.