FITVOO END USER LICENCE AGREEMENT

This End User Licence Agreement (the EULA) is a binding legal agreement between you, as an individual or entity, and Fitvoo Pty Ltd (ACN 610 678 610) (Fitvoo).

By downloading, installing, or using this application for Android, iOS or other mobile platform, as applicable (the Software), you agree to be bound by the terms of this EULA.

If you do not agree to the EULA, do not check the "I accept the terms" box and do not use the Software.

You agree that installation or use of the Software signifies that you have read, understood, and agree to be bound by the EULA.

The Software is provided to you under this EULA solely for your private, non-commercial use. Use of the Software or of the Fitvoo content, information, analytics, lead-generation or marketing services (Fitvoo Service) within an organisation, or the use of multiple copies of the Software (except a back-up copy) requires a commercial licence for the software.

1.    Description of Software

The Software is a downloadable software application that enables you to access Fitvoo functionality directly from your Android, iPhone, iPad or other mobile device supported by Fitvoo (Device).

You may download the Software whether or not you use the Fitvoo Service, but you must associate it with your Fitvoo account to enable its full functionality.

2.    License

 

Fitvoo hereby grants you, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable personal license to:

·       use the Software for your own personal use;

·       install the Software on only one Device; and

 ·       make one copy of the Software in any machine readable form solely for back-up purposes, provided you reproduce the Software in its original form and with all proprietary notices on the back-up copy.

For the purposes of clarity, the foregoing is not intended to prohibit you from installing and backing-up the Software for another Device on which you also agreed to the EULA.

Each instance of this EULA that you agree to grants you the aforementioned rights in connection with the installation, use and back-up of one copy of the Software on one Device.

3.    Title

 

Title, ownership and all rights (including without limitation intellectual property rights) in and to the Software shall remain with Fitvoo. Except for those rights expressly granted in this EULA, no other rights are granted, whether express or implied.

4.    Restrictions

 

You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.

You may not:

·       create derivative works based on the Software;

·       use the software for any purpose other than as described herein; 

·       copy or reproduce the Software except as described in this EULA;

·       sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to any third parties;

·       alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, except to the extent this prohibition is not permitted under an applicable law; or 

·       remove or alter any proprietary notices or marks on the Software.

 5.    Personal Information and Privacy 

We may ask you to provide certain information about you during the Software downloading process. All personal information that you provide to us will be governed by the Privacy Policy, which is available at https://fitvoo.com/privacy/.

You may use the Software whether or not you use the Fitvoo Service. If you use the Fitvoo Service, the personal information you provide to Fitvoo will also be governed by the Privacy Policy.

By choosing to use the Software and/or the Fitvoo Service, you indicate your understanding and acceptance of the General User Agreement (available at https://fitvoo.com/generaluseragreement), Professional User Agreement (available at https://fitvoo.com/professionaluseragreement), and the Privacy Policy.  

You understand and agree that Fitvoo may disclose information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to comply with legal process, enforce the terms of this EULA, or protect the rights, property, or safety of Fitvoo, its users, or the public. 

6.    No Warranty

 

FITVOO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FULLY COMPATIBLE WITH ANY PARTICULAR PLATFORM.

THE SOFTWARE IS OFFERED ON AN "AS-IS" BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. FITVOO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU. 

7.    Right to Terminate or Modify Software

 

Fitvoo may modify the Software and this EULA with notice to you either in email or by publishing notice on the Website, including but not limited to charging fees for the Software, or changing the functionality or appearance of the Software. In the event Fitvoo modifies the Software or the EULA, you may terminate this EULA and cease use of the Software. Fitvoo may terminate your use of the Software, the EULA or the Fitvoo Service at any time, with or without notice.

8.    Indemnification

 

By accepting the EULA, you agree to indemnify and otherwise hold harmless Fitvoo, its officers, employers, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software. 

9.    Limitation of Liability

 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT FITVOO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FITVOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL FITVOO’S AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF LICENSING FEES PAID BY YOU TO FITVOO. THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 

10. Age restrictions

 

By using the Software, you represent and warrant that you are: 

(a)  18 years of age or older and agree to be bound by this EULA; or

(b)  under the age of 18 years of age, and have obtained verifiable consent from a parent or legal guardian; and

(c)  your use of the Software does not violate any applicable law or regulation. 

Your access to the Software may be terminated without warning if Fitvoo believes, in its sole discretion, that you are under the age of 18 years of age, and have not obtained verifiable consent from a parent or legal guardian.  

If you are a parent or legal guardian and you provide your consent to your child’s use of the Software, you agree to be bound by this EULA in respect to your child’s use of the Software.

11. Objectionable content policy

 

In making use of the Software, you may encounter content which you find objectionable. 

Fitvoo will monitor content and will retain the ability to block, censor or otherwise remove such content it deems objectionable.

For the purposes of clarity, objectionable content includes, but is not limited to:

(i)             sexually explicit materials;

(ii)            obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity;

(iii)          content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent;  

(iv)          content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and

(v)           gambling, including without limitation, any online casino, sports books, bingo or poker.

Where you determine that content is objectionable to you, you will be permitted to block or report this objectionable content by selecting the ‘block content’ button. 

12. General

 

Ftivoo will be solely responsible for the provision of all maintenance and support services for the Software, if required, as determined by Fitvoo from time to time.

By entering into this EULA, and by downloading the Software from a relevant app-store or other platform (Platform), you acknowledge that the Platform is a third party beneficiary to the EULA, and that it will have the right to enforce the EULA against you as a third party beneficiary.

By agreeing to the terms of this EULA, you represent and warrant that you are not located in a country that is subject to a United States government embargo, designated by the U.S. Government as a ‘terrorist supporting’ country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.

No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

This EULA may not be varied except by a written document signed by or on behalf of each of the parties.

You agree that Fitvoo may assign the it’s contractual rights and obligations under this EULA to any successor to all or a substantial part of the business of Fitvoo from time to time. You must not without the prior written consent of Fitvoo assign, transfer or otherwise deal with any of your contractual rights or obligations under this EULA.

All questions, complaints or claims with respect to the Software and this EULA must be directed to [email protected]

Subject to clause 5, this EULA shall constitute the entire agreement between the parties in relation to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

This EULA shall be governed by and construed in accordance with Victorian law and the laws of the Commonwealth of Australia.

The courts of Victoria shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.

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