About these Terms
Ultimate Athlete Pty Ltd (ACN 644 348 363), trading as UAre Group, of 44 North Fort Road, Manly NSW 2095 Australia (UAre, we, us, our) develops, produces and distributes the UAre Application.
These terms of use (Terms), along with any Order, forms the agreement between UAre the user (User, you, your) and sets out the terms and conditions on which UAre will provide you with access to and use of the UAre Application (Agreement). These Terms apply to a User’s download, installation, access and use of the UAre Application on any Device.
The User must read and accept these Terms prior to accessing, using, downloading or installing the UAre Application. The User accepts these Terms by clicking ‘I accept’ (or otherwise confirming the acceptance of these Terms electronically) or by accessing, using, downloading or installing the UAre Application.
By accepting these Terms you agree that:
you have read, understood and will be bound by the Agreement; and
you are 18 years of age or older or if you are under the age of 18, your legal guardian has reviewed and agrees to these Terms and has consented to you accessing and using the UAre Application.
If you do not accept these Terms, you should not download, install, access or use the UAre Application.
These Terms apply regardless of how the User accesses and uses the UAre Application, including by desktop, laptop, smartphone or tablet (including any Apple Device or Android Device).
Free Access
UAre may from time to time make the UAre Application or any part or parts of the UAre Application or Subscription Services available on a free basis without the need for the User to pay any Fees to UAre (Free Access).
Where the User is provided with access and use of the UAre Application or any part or parts of the UAre Application or Subscription Services as part of any Free Access, the User acknowledges and agrees that:
such use may be subject to other restrictions or limitations determined by UAre;
the User may still be required to pay fees or other amounts for receiving, accessing and using any Mentor Services; and
some or all of the features, functions and other benefits of the UAre Application may be unavailable.
Subscription Services
Subscription Term
The Subscription Term commences on the Subscription Commencement Date and will continue for the Initial Term, unless terminated earlier in accordance with clause 8.
At the expiry of the Initial Term or any Further Term, this Agreement and the Subscription Term will automatically renew for each Further Term, unless a party provides written notice to the other party at any time prior to the expiration of the Initial Term or the then current Further Term (as the case may be) that the Agreement will not be renewed and will instead expire at the end of the Initial Term or that Further Term (as applicable).
The User may provide written notice under clause 3.1(b) by email to support@uare.app.
If notice is provided in accordance with clause 3.1(b) then UAre will continue to provide the Subscription Services and the User will continue to the pay the Fees in accordance with this Agreement until the end of the Initial Term or then current Further Term (as the case may be).
At any time during a Further Term, either party may terminate the Agreement by providing the other party with no less than 30 days’ notice.
Provision of Subscription Services
During the Subscription Term, UAre will provide the Subscription Services to the User on the terms and conditions of this Agreement.
3.3. Subscription Services
The Subscription Services will consist of UAre:
a) providing the User with access to and use of the UAre Application during the Subscription Term subject to the restrictions and with the benefits and restrictions applicable to the User’s Subscription Level as set out in the Order or agreed between the parties in writing; and
b) any other services expressly set out in the Order
3.4. Subscription Level
a) The Subscription Level that the User purchases from UAre will determine the specific benefits and features available to the User in relation to the UAre Application.
b) If the User wishes to upgrade their Subscription Level they may make a request to UAre for their Subscription Level to be upgraded and UAre will, subject to agreeing the Fees to be paid in respect of the upgraded Subscription Level, upgrade the User’s Subscription Level.
c) The User agrees that UAre may amend the Subscription Levels from time to time, provided that, unless otherwise agreed by UAre, any such variations will only take effect on and from the expiry of the then current Initial Term or Further Term (as applicable).
d) If the User breaches any of the restrictions or limits for the User’s Subscription Level then the User must immediately:
i) ensure its access and use of the UAre Application is reduced or limited so that it complies with the relevant restrictions or limits; or
ii) upgrade the User’s subscription to the UAre Application to a Subscription Level which would enable the User’s continued use of the UAre Application to comply with this Agreement.
3.5. Mentor Services
a) In addition to the Subscription Services, if requested by the User and accepted by UAre, UAre may also procure a Mentor to provide Mentor Services to the User.
b) The User acknowledges and agrees that:
i) UAre’s role in relation to the provision of the Mentor Services is limited to procuring the Mentor to provide the relevant Mentor Services and that the Mentor is not a party to this Agreement;
ii) in respect of any Mentor Services, this Agreement governs the User’s relationship with, and obligations to, UAre only as to the facilitation of the Mentor to provide the Mentor Services and if the User has an issue and/or dispute with the Mentor in connection with the Mentor Services then this is a matter between the User and the Mentor; and
iii) subject to clause 15(a), UAre has no liability to the User in respect of the provision of the Mentor Services (including for the actions of the Mentor).
c) The Fees which are payable by the User for the Mentor Services are the Fees agreed between UAre and the User for the Mentor Services.
d) The User must pay the Fees for the Mentor Services to UAre in accordance with clause 10.2 and UAre will pay the Mentor those Fees less any commission or other amount as agreed between UAre and the Mentor.
e) Subject to clause 15, UAre does not warrant or guarantee that the User will derive any particular benefits or results (including any health or wellbeing benefits) from the provision of the Mentor Services.
f) UAre are not responsible for any health problems that may result from training programs, consultations or other information provided by any Mentor.
4. Licence
4.1. Grant of Licence
Subject to this Agreement (including the restrictions set out in clause 4.2), UAre grants the User a personal, non-exclusive, worldwide, non-transferable, not-for resale or sub license, restricted right to access and use UAre Application for the Permitted Purpose during the Term on any Devices owned or controlled by the User.
4.2. Use Restrictions
a) The licence granted to the User under clause 4.1 permits the User to access and use the UAre Application and any UAre Information and Data solely for the Permitted Purpose and the User must not access or use the UAre Application and any UAre Information and Data for any other purpose.
b) The User must not:
i) make any copies of the UAre Application, other than copies that are made to download and install the UAre Application for the Permitted Purpose on any Devices owned or controlled by the User as permitted by this Agreement and by the provisions of Apple’s App Store Terms of Service or the Google Play Terms of Service (as applicable);
ii) modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the UAre Application or otherwise interfere or attempt to interfere with the proper working of the UAre Application;
iii) circumvent, modify or break or attempting to circumvent, modify or break any security or protection device contained in the UAre Application;
iv) distribute any part of the UAre Application for commercial purposes or otherwise sub-licence or resell the UAre Application;
v) create derivative works from all or any part of the UAre Application;
vi) transfer, assign, rent, lease, lend, sell, or otherwise dispose of all or any part of the UAre Application; and
vii) publish, communicate or otherwise make any part of the UAre Application publicly available.
4.3. User Obligations
Without limiting the other obligations of the User under this Agreement, the User must not:
a) disrupt, interfere with or otherwise adversely affect the normal operation of the UAre Application;
b) attempt to gain unauthorised access to the UAre Application or Accounts registered or used by others by any means;
c) attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another User, any Mentor or any other person or group, including UAre’s employees or other representatives;
d) solicit, or attempt to solicit, Login Details or any other login credentials or User Data from other Users of the UAre Application;
e) collect or post another person’s data (including personal information and personally identifiable information) through the UAre Application without that person’s consent; or
f) use the UAre Application in any way or for any purpose other than as permitted by this Agreement.
4.4. User Responsibilities
The User will be responsible for:
a) any charges the User may incur from their mobile or internet service provider for downloading, installing, using and accessing the UAre Application;
b) complying with the terms of service of the relevant digital storefront where you obtained the UAre Application, including Apple’s App Store Terms of Service or the Google Play Terms of Service;
c) any use of the User’s credit card or other payment instrument in connection with their use of the UAre Application and Account, including the acquisition of any Mentor Services;
d) ensuring that its access to and use of the UAre Application complies with any reasonable community guidelines and/or acceptable use policies published by UAre in respect of the UAre Application;
e) protecting your Login Details and doing everything reasonably necessary to protect your Login Details from unauthorised use or disclosure to any other person;
f) satisfying itself that the UAre Application is compatible with its own Device, Third Party Applications and internet and network capabilities and maintaining all Devices, Third Party Applications and other technology necessary to be able to access and use the UAre Application; and
g) taking reasonable steps and precautions to protect the security of its hardware (including mobile device), including ensuring the hardware does not have any viruses, malicious code or other conditions which could damage or interfere with the UAre Application.
4.5. Additional Obligations
Without limiting the other obligations of the User under this Agreement, to download, install, access and use the UAre Application, the User must:
a) not be located in a country that is subject to an embargo by the government of the Commonwealth of Australia;
b) not be included on any list of prohibited or restricted parties by the government of the Commonwealth of Australia; and
c) comply with the laws that apply to you in the location that you download, install, access and use the UAre Application from. If any laws applicable to you restrict or prohibit you from downloading, installing, using or accessing the UAre Application, you must comply with those legal restrictions or, if applicable, stop downloading, installing, using and accessing the UAre Application. UAre makes no representations that the UAre Application complies with the laws of any country outside of the Commonwealth of Australia.
4.6. Monitoring use and access
For security, statistical, compliance, regulatory and other related purposes UAre may:
a) monitor the User's access to and use of the UAre Application; and
b) record or otherwise capture data or other information relating to the User's access to and use of the UAre Application (including username, country and location).
5. User Content
a) The UAre Application may enable you to communicate with other users, or to post materials that may be made publicly available and accessible to other users of the UAre Application.
b) You are solely responsible for the User Content that you post on, through or in connection with the UAre Application. Nothing in this Agreement imposes obligations on UAre to review or monitor User Content, however UAre reserves the right to remove or suspend access to User Content which we reasonably believe is offensive, contains Unacceptable Content or violates or is inconsistent with any of our community standards or guidelines;
c) We may reject, refuse to post, modify or delete any User Content for any reason, including, but not limited to, User Content that we consider to be Unacceptable Content or in our reasonable opinion violates this Agreement or violates or is inconsistent with any of our community standards or guidelines.
d) You are responsible for all risks associated with the use of any User Content available when using the UAre Application. We are not responsible or liable for the accuracy of User Content made by other users of the UAre Application, and we are not liable for any Loss or claim resulting from any action taken or reliance made by you regarding any User Content.
6. UAre Information and Data
6.1. User Acknowledgements
The User acknowledges and agrees that:
a) the UAre Information and Data may be based on and generated from User Content and information which is provided through Third Party Applications or by Third Party Providers;
b) the UAre Information and Data and the provision of any services by UAre does not constitute:
i) the provision of any health or medical advice to the User and if the User has any health or medical concerns the User must discuss those concerns with a doctor; or
ii) any advice, view or interpretation in respect of any UAre Information and Data;
c) UAre Information and Data may be used to help a User better understand or improve their health and wellbeing however:
i) UAre does not warrant or guarantee that the use of the UAre Application or any UAre Information and Data will derive any particular benefits or results (including any health or wellbeing benefits);
ii) the UAre Application and the UAre Information and Data is not intended to diagnose, treat, cure, or prevent any disease, injury or health condition; and
iii) the accuracy of the UAre Information and Data collected and presented through the UAre Application is not intended to match that of medical practitioners or scientific measurement;
d) UAre Information and Data may not be based on the most recent findings or developments and may not be specifically tailored for any particular person;
e) they will not disregard, delay, change or discontinue any medication or treatment they may be receiving or other activity they may be undertaking on the recommendation of a health professional without first consulting that health professional;
f) as the UAre Information and Data may be based on and generated from data and other information not controlled by UAre, UAre cannot guarantee the accuracy of any UAre Information and Data and in particular:
i) UAre provides no warranty as to the availability, accuracy, currency or completeness of the UAre Information and Data or any information or documentation that uses or is derived from the UAre Information and Data and UAre is not responsible for the content of the UAre Information and Data;
ii) the User is responsible for its use of and reliance on the UAre Information and Data; and
iii) the User must not make any claim against UAre in respect of the UAre Information and Data or otherwise seek to hold UAre responsible for the provision, content, accuracy or reliability of the UAre Information and Data;
g) UAre retains complete discretion regarding the type of UAre Information and Data which will be made available through the UAre Application and the format in which such UAre Information and Data will be made available;
h) to the maximum extent permitted by law, UAre makes no representations either expressly or impliedly concerning any UAre Information and Data and UAre accepts no liability whatsoever in connection with any UAre Information and Data.
7. UAre Application Features and Availability
7.1. Variation and Availability
a) As the UAre Application may be provided on a Free Basis the User acknowledges that, subject to clause 7.1(b), UAre retains the sole discretion regarding the features, functions and other benefits that will be available within the UAre Application from time to time and that:
i) nothing in this Agreement requires UAre to provide or maintain any particular features, functions and other benefits of the UAre Application;
ii) UAre may vary the features, functions and other benefits available to the User in respect of the UAre Application at any time;
iii) not all of the features, functions and other benefits may be available at all times;
iv) some or all of the features, functions and other benefits may be unavailable due to scheduled outages and downtime, disaster recovery processes or due to circumstances beyond the control of UAre; and
v) nothing in this Agreement imposes obligations on UAre to provide any services to the User in respect of the UAre Application including (without limitation) development or customisation services, technical or user support, training or maintenance services.
b) UAre agrees that where the User has purchased a Subscription Level, UAre will ensure that during the relevant Subscription Term the UAre Application continues to include or otherwise provide for the User the material features, functions and other benefits described in the Order.
c) UAre will use reasonable efforts to provide Users with notice (including via our website or other online accounts) before making material changes to the UAre Application.
7.2. Updates
The User acknowledges and agrees that nothing in this Agreement imposes obligations on UAre to develop, release or install for the User any updates, upgrades, patches, bug fixes, new features, new functions, new releases, new versions or other benefits or any Improvement in respect of the UAre Application (Updates), provided however that if UAre does develop or release any Updates, it may require that all such Updates be downloaded, installed and used by the User in order for the User to be able to access features, functionality or other aspects of the UAre Application.
8. Account and Login Details
8.1. Account
a) To access and use the UAre Application you will be required to create an Account with us. To register an Account, please ensure you carefully follow the provided instructions and provide all necessary information as requested by UAre.
b) The User acknowledges and agrees that UAre has the sole right to determine the eligibility criteria to register an Account and may reject or require that you change the information that you provide to us in registering the Account including if you do not meet the eligibility criteria or if the information you have provided is not accurate or complete.
c) You represent and warrant that any information you provide in connection with the creation of the Account is and will remain accurate and complete, and that you will maintain and immediately update such information.
d) Your Account is personal to you and is non-transferable.
8.2. Login Details
a) Access to the UAre Application may be denied to the User if the User enters incorrect Login Details.
b) The User must:
i) ensure that their Login Details are securely maintained and used only by the User and not any other person;
ii) immediately notify UAre if Login Details are lost, stolen, missing or misused; and
iii) not transfer or allow Login Details to be transferred to other individuals or systems and take all reasonable steps to ensure that Login Details are not transferred.
c) You acknowledge that we may provide access to your Account to any person who enters your Login Details and therefore it is important that you keep your Login Details secure.
d) Any action or request made by any user of your Account or Login Details (Instruction) will be deemed to have been made by you and the Instruction will be carried out without further enquiry. You will be responsible for all use of your Account, Login Details or Instructions provided and consequential transactions whether authorised by you or not (including the acquisition of any Mentor Services). We will not be liable for any loss you suffer as a result of us acting on an Instruction.
e) The User acknowledges and agrees that UAre reserves the right at any time and from time to time to change and/or revoke Login Details or require the User to change the Login Details by providing the User with written notice where such change and/or revocation is necessary to address security or other similar risks.
f) You must immediately notify us if you are or become aware that there is or has been an unauthorised use of your Account or Login Details, or any other security breach relating to your Account.
9. Third Party Applications
a) The User acknowledges and agrees that the UAre Application may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used to provide particular features, functionality, information, data or services. Where such Third Party Applications are used, the User acknowledges and agrees that:
i) UAre makes no representations or warranties relating to the Third Party Applications or Third Party Providers;
ii) UAre is not related or associated with any Third Party Providers;
iii) the inclusion of any link to or integration with any Third Party Application does not constitute or imply any affiliation with, or sponsorship, endorsement or approval by UAre of the Third Party Application or the Third Party Provider;
iv) the User will abide by any terms of use or other terms imposed upon it by Third Party Providers in respect of any Third Party Application; and
v) access to, and use of, Third Party Applications is at the User’s risk and UAre will in no way be responsible for any Loss that may result from the User’s access to, and use of, any Third Party Application or the User’s dealings with any Third Party Provider (including use of any information or data provided by or through any Third Party Application or Third Party Provider), notwithstanding that any such Third Party Application may interface or interact with the UAre Application.
b) If the User does not agree to use any Third Party Applications or the terms of service of such Third Party Applications, the User acknowledges and accepts that certain features of the UAre Application may not be available to the User.
10. Fees and Expenses
10.1. Fees and Expenses Payable
The User agrees to pay to UAre the Fees.
10.2. Payment of Fees
a) UAre will issue the User with a tax invoice for the Fees payable by the User (Tax Invoice) in accordance with the terms of payment set out in the Order.
b) All amounts payable by the User must be paid within 14 days of the date of the relevant amounts being invoiced to the User by UAre.
10.3. Failure to Pay
If the User fails to pay any amounts due to UAre under this Agreement then, without prejudice to UAre’s other rights regarding the non payment:
a) UAre may charge the User interest (both before and after any judgement) on the unpaid amount at the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which such amount becomes overdue until UAre receives payment of all such amounts (including all interest) by way of cleared funds; and
b) UAre may issue a notice to the User stating that the Tax Invoice is overdue (Overdue Notice). If UAre does not receive payment of the relevant Fees within 14 days of the date of the Overdue Notice, UAre may cease providing the Subscription Services and any Mentor Services and may disable the User’s access to the UAre Application until such time as the outstanding amount is paid in full (together with any interest). UAre will not be liable for any Loss suffered by the User as a result of UAre exercising its rights under this clause 10.3(b).
10.4. Increases to Fees
a) Unless otherwise expressly agreed in writing by UAre, UAre may increase the Fees payable by the User at the start of any Further Term by providing notice in writing to the User at least 14 days before the end of the then Initial Term or Further Term (as the case may be).
b) Any increase in the Fees notified by UAre under clause 10.4(a) will become effective on and from the commencement of the next Further Term.
11. Unacceptable Content
a) The User must not upload or post any Unacceptable Content to the UAre Application.
b) Nothing in this Agreement imposes obligations on UAre to monitor the UAre Application for Unacceptable Content and the User acknowledges and agrees that it is responsible for monitoring its own use of the UAre Application.
12. Intellectual Property
a) The User acknowledges and agrees that nothing in this Agreement grants the User any ownership of the Intellectual Property in the UAre Application, the UAre Information and Data, the UAre Content or any improvements to any of the above. The only rights granted to the User in respect of the Intellectual Property in the UAre Application, the UAre Information and Data, the UAre Content or any Improvements to the UAre Application is the licence granted under clause 4.1.
b) Any Intellectual Property in respect of the UAre Application, the UAre Information and Data , the UAre Content or any improvements to the above which is created by, or vests in, the User is assigned to UAre immediately upon the Intellectual Property being created or vesting in the User and the User agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.
c) The User owns all Intellectual Property that may exist in the User Content and User Data. The User grants UAre a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferrable and sub-licensable licence to use, reproduce and otherwise exploit the User Data and User Content for or in connection with the provision of the UAre Application, or for the other activities, operations or other business purposes of UAre or its licensees.
13. Security
a) UAre will take reasonable steps to keep the UAre Application secure.
b) Without limiting the other obligations of the User under this Agreement, Users are responsible for taking all necessary and reasonable steps to ensure that their Login Details, Account and Device are securely maintained and used only by the User.
14. Term, Suspension and Termination
14.1. Term
This Agreement commence on the Commencement Date and will continue in effect as long as you maintain an Account with us or otherwise access, use or interact with the UAre Application or until terminated in accordance with this Agreement.
14.2. Suspension
UAre may, at any time, by reasonable notice to the User where providing such notice is reasonably practicable, temporarily, or indefinitely, suspend the User’s access to a User’s Account and the UAre Application (or any part of it), if any one or more of the following applies:
a) such suspension is reasonably required to address material security, performance or legal compliance issues in respect of the UAre Application; or
b) UAre believes on reasonable grounds that the User is in material breach of any provision of this Agreement and the suspension is necessary to prevent further actual or potential Loss or damage in respect of such breach.
14.3. Termination
a) UAre may, at any time, terminate this Agreement and terminate or delete your Account and your access and use of the UAre Application if:
i) the User breaches any provision of this Agreement which is capable of remedy and fails to remedy such breach within 7 days after being provided with written notice of the breach by UAre;
ii) the User breaches any material provision of this Agreement which is not capable of remedy (including, without limitation, in the case of the User posting any Unacceptable Content); or
iii) UAre ceases operating the UAre Application or if the UAre Application is removed from the App Store by Apple or Google Play by Google (as applicable). In such event, UAre will provide as much notice as reasonably possible to the User.
b) The User may, at any time, terminate this Agreement if:
i) UAre breaches any provision of this Agreement which is capable of remedy and fails to remedy such breach within 7 days after being provided with written notice of the breach by the User;
ii) UAre breaches any material provision of this Agreement which is not capable of remedy; or
iii) UAre ceases operating the UAre Application or if the UAre Application is removed from the App Store by Apple or Google Play by Google (as applicable).
14.4. Consequences of Termination
a) Immediately on termination of this Agreement, UAre may disable a User’s access and use of the UAre Application and the User will not be able to access and use the UAre Application.
b) The User acknowledges that if a User deletes its Account, or if we delete your Account in accordance with this Agreement, you may lose access to any information and data previously associated with your Account (including, User Content, UAre Information and Data and User Data associated with your Account).
14.5. Survival of Certain Terms
The termination of this Agreement does not operate to terminate any rights or obligations under this Agreement that by their nature are intended to survive termination, including the parties’ rights and obligations under clauses 10.3, 12, 14.4, 14.5, 15, 16, 18, 19, 20, 21 and 22 of this Agreement and those rights or obligations remain in full force and binding on the party concerned.
15. Liability
a) If the User is a consumer as defined in section 3 of the Australian Consumer Law (Consumer) and UAre supplies PDH Goods or Services to the User, UAre acknowledges that the User may have certain rights under the Australian Consumer Law in respect of the guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by UAre and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
b) If the User is a Consumer and any goods or services supplied by UAre to the User are non PDH Goods or Services, UAre’s liability to the User in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at UAre’s discretion) to:
i) in the case of goods:
A) the replacement of the goods or the supply of equivalent goods;
B) the repair of the goods;
C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
D) the payment of the cost of having the goods repaired; and
ii) in the case of services:
A) the supplying the services again; or
B) the payment of the cost of having the services supplied again.
c) Subject to clause 15(e), if the User makes a claim against UAre which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the maximum aggregate liability of UAre to the User under or in connection with this Agreement and any claim (including for breach of this Agreement by UAre or any negligent act or omission of UAre) shall be limited to the greater of the total amount of the Fees paid to UAre by the User for the use and access to the UAre Application or the sum $1,000.
d) Subject to clause 15(e), the User’s aggregate liability to UAre in respect of all claims which UAre may have against the User under this Agreement (other than any claim for payment of any Fees or interest or claims arising due to the User’s failure to comply with clause 4.2) will not exceed the greater of the total amount of the Fees paid to UAre by the User for the use and access to the UAre Application or the sum $1,000.
e) Subject to clause 15(a), UAre will not be liable to the User for any Consequential Loss incurred by the User under or in connection with this Agreement or as a result of the User’s use of the UAre Application, even if UAre has been advised of the possibility of such Consequential Loss being incurred.
16. Warranties
16.1. Warranty Exclusions
Subject to clause 15, UAre does not warrant that the UAre Application or any portion of UAre Application will be uninterrupted or error-free. All express or implied warranties in relation to the UAre Application are excluded to the extent permitted by law.
16.2. Process for Warranty Claims
In the event of any failure of the UAre Application to conform to any applicable warranty, the User may notify Apple or Google (as applicable), and Apple or Google (as applicable) will refund the purchase price for the UAre Application to the User (if any) and, to the maximum extent permitted by applicable law, Apple or Google (as applicable) will have no other warranty obligation whatsoever with respect to the UAre Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of UAre (subject to clauses 15 and 16.1).
17. Subcontractors
We may use subcontractors or other service providers to assist us to provide the UAre Application from time to time. However, we will remain responsible to you complying with our obligations under this Agreement.
18. GST
18.1. Definitions and Interpretation
Words and expressions used in this clause 18 which are not defined in this Agreement, but which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act), have the meaning given to them in the GST Act.
18.2. Consideration Does Not Include GST
The consideration for any supply made under or in connection with this Agreement does not include an amount for GST, unless it is expressly stated in this Agreement to be inclusive of GST.
18.3. Recovery of GST
If GST is or becomes payable on any supply made under or in connection with this Agreement (not being a supply for which the consideration is expressly stated in this Agreement to be inclusive of GST), the party required to provide the consideration for the supply must pay, in addition to and at the same time as the consideration is provided, an amount equal to the amount of GST on the supply.
18.4. Adjustment of Amount Recovered for GST
If the amount for GST recovered by a party under this clause 18 differs from the amount of GST payable by the party or its representative member on the supply, the amount of the difference must be paid to or refunded by the party (as the case requires).
18.5. Reimbursement or Indemnity Payments
If a party is required under this Agreement to reimburse or indemnify another party for any amount incurred by the other party, the amount to be reimbursed or paid by the party will be the amount incurred reduced by an amount equal to any input tax credit that the other party or its representative member is entitled to claim for the amount incurred and increased by the amount of any GST payable in respect of the reimbursement or payment.
19. General Provisions
19.1. Governing Law
These Terms will be governed by and construed exclusively under the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Federal Court of Australia.
19.2. International Conventions
The United Nations Convention on the International Sale of Goods (the Vienna Convention) will not apply to this Agreement or the subject matter hereof.
19.3. Privacy Policy
UAre will collect, handle and store personal information (including personal information regarding the User and their use of the UAre Application and any personal information forming part of the User Data) in accordance with UAre’s privacy policy, a copy of which is available at www.uare.app/privacy-policy or by requesting a copy from UAre.
19.4. Assignment
The User may not assign or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of UAre. UAre may assign, novate or otherwise deal with its rights or obligations under this Agreement at any time effective immediately upon UAre notifying the User of the assignment or novation where the assignment or novation will not adversely affect the rights of the User.
19.5. Waiver and Variation
UAre may vary the terms of this Agreement by publishing new terms via an update and notification to Users via the UAre Application (or by other communication methods such as email) no less than 30 days prior to the varied terms taking effect (Variation). If the Variation adversely affects the User’s rights in a material way, the User may terminate this Agreement. No failure to exercise or delay in exercising any right given by or under this Agreement to a party constitutes a waiver and the party may still exercise that right in the future.
19.6. Force Majeure Event
If a party is prevented, hindered or delayed from performing its obligations under this Agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
19.7. Severability
If any provision of this Agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
20. Additional Apple Terms
If the UAre Application is downloaded from the App Store or is otherwise used on an Apple Device, the following clauses apply and are incorporated into this Agreement in respect of the use of the UAre Application on the Apple Device:
a) the licence granted under clause 4.1 is further limited to a non-transferable licence to use the UAre Application on any Apple-branded Devices that the User owns or controls and as permitted by the usage rules set forth in the Apple Media Services Terms and Conditions, except that the UAre Application may be accessed and used by other accounts associated with the User via Family Sharing or volume purchasing;
b) if there is any inconsistency between the provisions of this Agreement and the provisions of Apple’s App Store Terms of Service, the provisions of Apple’s App Store Terms of Service will prevail to the extent of the inconsistency;
c) UAre and the User acknowledge that:
i) this Agreement are concluded between UAre and the User only, and not with Apple; and
ii) UAre, and not Apple, is solely responsible for the UAre Application and the content thereof; and
iii) this Agreement may not provide for usage rules for the UAre Application that are in conflict with, the App Store Terms of Service and, to the extent of any inconsistency, the App Store Terms of Service shall apply;
d) the User and UAre acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the UAre Application (whether under this Agreement or pursuant to any applicable law);
e) UAre and the User acknowledge that, in the event of any third party claim that the UAre Application or the User’s possession and use of the UAre Application infringes that third party’s intellectual property rights, UAre (and not Apple) will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim;
f) the User and UAre acknowledge that UAre (and not Apple) is responsible for addressing any claims of the User or any third party relating to the UAre Application or the User’s possession and/or use of the UAre Application, including, but not limited to:
i) product liability claims;
ii) any claim that the UAre Application fails to conform to any applicable legal or regulatory requirement; and
iii) any claim arising under consumer protection, privacy or other similar legislation; and
g) UAre and the User acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement and that, upon the User’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against the User as a third party beneficiary thereof.
h) The User represents and warrants that they are not:
i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a ‘terrorist supporting’ country; and
ii) listed on any U.S. Government list of prohibited or restricted parties.
i) If the User has any questions, complaints or claims with respect to the UAre Application those questions, complaints or claims should be directed to support@uare.app.
21. Additional Android Terms
If the UAre Application is downloaded from Google Play or is otherwise used on an Android Device, the following clauses apply and are incorporated into this Agreement in respect of the access and use of the UAre Application on the Android Device:
a) if there is any inconsistency between the provisions of this Agreement, the provisions of the Google Play Terms of Service and/or the provisions of the Google Play Developer Distribution Agreement, the following order of precedence shall apply to the extent of the inconsistency:
i) the provisions of the Google Play Developer Distribution Agreement;
ii) the provisions of the Google Play Terms of Service; and
iii) the terms of this Agreement;
b) UAre and the User acknowledge that:
i) this Agreement are concluded between UAre and the User only, and not with Google;
ii) Google will not be responsible for, and will not have any liability whatsoever under this Agreement; and
iii) UAre, and not Google, is solely responsible for the UAre Application and the content thereof;
c) the User and UAre acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services or handle any defects, performance issues or complaints with respect to the UAre Application (whether under this Agreement or pursuant to any applicable law); and
d) the User agrees to comply with all domestic and international export laws and regulations that apply to the UAre Application or the use of the UAre Application.
22. Definitions and interpretation
22.1. Definitions
In this Agreement, unless the context otherwise requires:
a) Account means a user account which the User is required to create in order to be able to access and use the UAre Application.
b) Android Device means any device that runs on the Android operating system or any other Google operating system.
c) Apple means Apple Inc., a California corporation with its principal place of business at 1 Infinite Loop, Cupertino, California 95014, U.S.A.
d) Apple Device means any device that runs on the iOS operating system or any other Apple operating system.
e) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) (or any equivalent State or Territory legislation).
f) Commencement Date means the earliest of the date the User clicks the ‘I accept’ button, downloads, installs, accesses or uses the UAre Application or otherwise confirms the User’s acceptance of this Agreement electronically.
g) Consequential Loss means:
i) all indirect and consequential Loss;
ii) all Loss beyond the normal measure of damages; and
iii) all Loss of revenue, Loss of data, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, iv) lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
h) Device means an Android Device or an Apple Device, as the context requires.
i) Fees means any fees or other amounts payable by the User to UAre under this Agreement, including the fees set out in the Order and any fees for the provision of Mentor Services as may be increased under clauses 3.4(d)(ii) or 10.4.
j) Further Term means consecutive periods of time as set out in the Order (if any) or agreed between the parties in writing commencing immediately after the expiry of the Initial Term or the previous Further Term (as applicable).
k) Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it, including war (declared or undeclared) civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing transmission service (such as internet, private network or virtual private network) or telecommunications outage or impairment or failure of the performance or availability of a transmission service.
l) UAre Content means all visual, audio, textual, and other elements included in the UAre Application, excluding User Content. This includes but is not limited to graphics, animations, sounds, music, text, software, scripts, codes, objects, characters, and storylines.
m) Google means Google LLC and its related entities and affiliates.
n) Google Play means the software and services which allows for the distribution of products (such as the UAre Application) to users of Android Devices (which is currently known as Google Play but may be known by other names from time to time).
o) Improvement means any modification, alteration, development, new use or other change to the UAre Application which makes it more accurate, more useful, more functional, more efficient, more cost effective or in any other way improves the performance of the UAre Application.
p) Initial Term means the period of time set out in the Order or agreed between the parties in writing which begins from the Commencement Date.
q) Intellectual Property means all present and future copyright, rights to inventions including patents and patent applications, modifications or improvements to the same, registered and unregistered trade marks, registered and unregistered designs, rights to trade secrets and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
r) Login Details means the username and password or other means of authentication which the User is required to provide in order to be able to access their Account.
s) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
t) Mentor means any individual or group engaged by the User via the UAre app to provide Mentor Services to the User or any group on whose behalf the User has engaged the Mentor.
u) Mentor Services means any services which the User and UAre agree will be provided to the User by a Mentor during the Term in addition to any Subscription Services, including but not limited to the provision of mentoring, coaching, advice or support.
v) Order means the order form or product description provided by UAre to the User in respect of the Subscription Services and the User’s access to and use of the UAre Application.
w) PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
x) Permitted Purpose means the User accessing and using the UAre Application for their own personal and non-commercial purposes in accordance with this Agreement and in accordance with and as permitted by:
i) the benefits and features of the UAre Application which UAre makes available to the User;
ii) in respect of any use of the UAre Application on an Apple Device, the usage rules set out in Apple’s App Store Terms of Service; or
iii) in respect of any use of the UAre Application on an Android Device, the usage rules set out in the Google Play Terms of Service.
y) Subscription Commencement Date means the commencement date set out in the Order or, if no date is set out in the Order, the earlier of:
i) the date the User confirms its acceptance of the Order either in writing or electronically; and
ii) the date the User first uses the relevant Subscription Services.
z) Subscription Level means the subscription level or type of subscription that the User purchases from UAre from time to time, as set out in the relevant Order or otherwise agreed with UAre.
aa) Subscription Services means the services described in clause 3.3.
ab) Subscription Term means the period of time during which UAre will provide the Subscription Services to the User, as set out in clause 3.1.
ac) Term means the period described in clause 14.1 of this Agreement.
ad) Third Party Application means any product, service, system, application or internet site that is integrated or interfaced with the UAre Application or otherwise interacts with the UAre Application and that is owned or operated by a Third Party Provider.
ae) Third Party Provider means any third party that provides services, support, technology and/or other products or services that are used by a person (including the User) in connection with the UAre Application.
af) UAre Application means the software application that allows Users to benchmark, monitor and track their well-being and certain activities which they participate in, receive mentoring services and interact and communicate with other users of the application and which is downloaded by the User and licenced to the User pursuant to this Agreement.
ag) UAre Information and Data means the information and data generated by the UAre Application or made available to the User through the UAre Application.
ah) Unacceptable Content means any:
i) content which, in UAre’s reasonably held opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct;
ii) content which is incorrect, false or misleading;
iii) files with any viruses, malicious code or other conditions which could damage or interfere with data, hardware or software; or
iv) any content that, in UAre’s reasonably held opinion, is objectionable or which may expose UAre, its affiliates or users to any harm or liability.
ai) User Content means any content generated, created, made or otherwise brought into existence by a User result of the User using the UAre Application, including any communications, images, sounds and information that you upload or transmit through the UAre Application or create or generate within the UAre Application.
aj) User Data means all information, communications and other data uploaded by the User to the UAre Application or collected or processed by UAre as a result of UAre providing the and UAre Application to the User, including personal details such as name, date of birth, location, phone number and email address.
22.2. Interpretation
In this Agreement, headings are inserted for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
a) the singular includes the plural and vice versa;
b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
d) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a government authority or agency; and
e) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the licence agreement or the inclusion of the provision in the licence agreement.