THIS IS A BINDING AGREEMENT between Setore International Pty Ltd ACN 621 995 293 (Setore) and any person (you) who downloads and installs the PoleBuddy App or otherwise accesses the PoleBuddy Website at www.polebuddy.com (App) to purchase goods and services from, and book appointments with, dance studios that subscribe to the App (Studio).
By clicking “Accept” and/or by accessing and/or using the App (whichever is first), you agree to be bound by this agreement as it appears as part of the App from time to time. If you do not agree to abide, and be bound, by this agreement, please exit the App and permanently delete it from all your devices.
1. DEFINED TERMS
In this agreement:
Intellectual Property Rights means all intellectual property rights, including but not limited to, the following rights:
(a) patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
Goods means the goods offered for sale by a Studio via the App.
Services means the services offered for sale by a Studio via the App.
Studio means a user of the App that is a dance or fitness studio or an individual dance or fitness instructor.
User Content means all data, text, files, information, user names, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or material uploaded to the App.
Wholesaler means a user of the App that is a supplier of the Goods to be offered for sale to Studios via the App.
2. IMPORTANT DISCLAIMER
You acknowledge and agree that:
(a) the App and any content contained in it:
(i) is provided by Setore for instructional purposes only; and
(ii) does not constitute, and is not a substitute for, any advice, diagnosis or treatment provided by a fitness professional;
(b) any activities contained within or associated with the App must not be performed without in contravention of any advice provided by a fitness or medical professional;
(c) all persons undertaking activities associated with the App should complete a physical activity questionnaire in consultation with a qualified fitness or medical professional prior to undergoing any activity;
(d) incorrectly performing prescribed exercises or activities may pose a risk to your health; and
(e) you are solely responsible for all actions or omissions, whether negligent or otherwise, undertaken in connection with the use of the App.
3. REGISTRATION OF USER ACCOUNT
3.1 Registration. You must register a user account in order to use the App and receive the Setore Services (User Account).
3.2 Accuracy. When registering as a user of the App, you must provide us with accurate, complete and up-to-date information as requested on the registration page of the App. It is your responsibility to inform us of any changes to that information. You may do this at any time by accessing your user account page on the App.
3.3 User account. Setore will provide you with all necessary user accounts (including any user names, passwords or other authentication requirements) for you to access the App.
3.4 Access. You must keep any user account names and passwords confidential and secure at all times.
4. SCOPE OF LICENCE
4.1 Licence grant. Setore grants you a non-exclusive, non-transferable licence to use the App from the date you accept this agreement until you delete the App from all your devices.
4.2 Conditions. You must ensure that you only use the App as permitted by this agreement and that you comply with your obligations under this agreement.
4.3 Restrictions. You must not:
(a) copy, modify, add to, adapt, delete or amend any part of the App;
(b) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan or otherwise distribute all or part of the App, or any adaptation, modification or derivative of all or part of the App;
(c) reverse engineer, disassemble, or decompile any software forming part of the App, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(d) use the App for any unlawful purpose; or
(e) allow third parties to do anything inconsistent with the terms of this agreement.
4.4 Updates to App. Setore may modify the App at any time, including by updating, amending or removing particular functions or aspects of the App and makes no representation that the App accessed by you at the date you accepted this agreement will remain the same for the duration of this agreement.
5. NO GUARANTEED ACCESS
5.1 Acknowledgements. You acknowledge and agree that:
(a) while Setore will make reasonable efforts to ensure availability, continuity, reliability, accuracy, currency and security of the App, Setore makes no representations, warranties or guarantees in relation to the App;
(b) the App is provided on an ‘as-is’ basis; and
(c) Setore cannot and does not guarantee that:
(i) access to the App will be uninterrupted or error free;
(ii) the content of the App (including data) is accurate, current, complete or suitable for any particular purpose; or
(iii) the operation or use of the App by you will result in you complying with any relevant laws, procedures, codes of conduct, organisational policies or procedures.
5.2 Unavailability of App. Without limiting clause 5.1, Setore will not be liable if the App is unavailable for any reason, including directly or indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including Setore’s third party service providers);
(c) maintenance or repairs carried out by Setore or any third party service provider in respect of any of the systems used in connection with the provision of the App;
(d) any events beyond Setore’s control; or
(e) services provided by third parties ceasing or becoming unavailable.
6. PURCHASE OF GOODS AND SERVICES
6.1 Acknowledgements. You acknowledge and agree that:
(a) the Goods and Services offered via the App are not subject to any of the warranties, service commitments or other obligations with respect to the App as set out in this agreement;
(b) Setore is not the supplier or seller of any of the Goods or Services;
(c) Setore does not moderate interaction between users, including transactions between buyers and sellers for the sale and purchase of Goods or Services via the App;
(d) the availability of the Goods and Services via the App does not imply Setore’s endorsement of or affiliation with a Studio;
(e) Setore does not control the Goods or Services and will have no liability to you in connection with your purchase or use of any Goods or Services;
(f) without limiting paragraph (e), Setore has no control over the quality, fitness for purpose, safety or legality of the Goods available for sale, the compliance of any Goods with any applicable laws in any jurisdiction, the reliability, truth or accuracy of any User Content used by a Studio in connection with its Goods and/or Services or the ability of a Studio to provide the Goods and/or Services;
(g) Setore takes no responsibility whatsoever for the accuracy or truthfulness of information or User Content used by a Studio via the App in connection with its advertisement of Goods or Services;
(h) Setore has no obligation to monitor or maintain Goods or Services, and may disable or restrict access to any Goods or Services at any time;
(i) by purchasing any Goods or by booking or enabling any Service, Setore may disclose your personal information (within the meaning of the Privacy Act 1988) or other information to the relevant Studio or Wholesaler the extent necessary to deliver the Goods or to utilise the Service;
(j) your use of the Goods and/or Services is at your own risk and, without limiting clause 11.4, is subject to any additional terms, conditions and policies of that Studio (such as terms of service or privacy policies of the Studio);
(k) contracts for the purchase of Goods and/or Services are formed directly between you and a Studio, and do not involve Setore; and
(l) any dispute between you and a Studio must be resolved directly with the Studio, and Setore is under no obligation to resolve or assist you in resolving a dispute with another user.
6.2 Risk and title. Setore has no responsibility for the transfer of risk or legal title of items from the Studio (or its supplier) to you.
6.3 Third party websites. The App may contain links to other third party websites. Setore is not responsible for the content of any other websites or pages linking to or from the App. Any links to another website should not be construed as endorsement or recommendation of any information or goods and services contained on or from that website or its operator.
6.4 Overseas access. If you access or use the App from outside Australia, you do so at your own risk and are responsible for ensuring compliance with all laws in the place from which you access or use the App (or buy, sell or receive any Goods). Setore does not represent or guarantee that the App, or your use of the App, will comply with the laws of any country from you may access the App.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 No transfer. You agree that all rights, title and interest (including all Intellectual Property Rights) in the App vest absolutely in Setore (or its third party licensors). The only rights you have in respect of the App (and the intellectual property rights subsisting in it) are those granted under and subject to this agreement.
7.3 Warranties. By uploading User Content to the App, you warrant that the User Content:
(a) is solely your responsibility, and that Setore will be under no obligation to take steps to verify, vet or moderate any User Content;
(b) is not fraudulent or defamatory and does not infringe the Intellectual Property Rights, confidentiality rights, or privacy rights of any person;
(c) is not offensive, defamatory, obscene, vulgar, unlawful, harmful, threatening, abusive, harassing or ethically objectionable;
(d) is current, accurate and up-to-date;
(e) is truthful and contains no false, misleading or deceptive representations;
(f) does not contain information about a third party unless you have the express permission of that third party to do so;
(g) has only been uploaded after you have obtained any releases, permissions or consents required for use of the User Content;
(h) does not contain any computer viruses, macro viruses, trojan horses, worms or anything else which can interfere with, interrupt or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority or expropriate any system, data or personal information; and
(i) will not cause the App to be interrupted, damaged, rendered less efficient or be such that the effectiveness or functionality of the App is in any way impaired.
Any information submitted by you in the course of downloading, installing or using the App is governed by our Privacy Statement available at www.polebuddy.com.
Setore will process payment for your purchase of any Goods or Services in accordance with a third-party online payment platform accepted by Setore. You may be required to set up automatic payments via the payment platform for your purchase of certain Services (e.g. recurring class bookings at a Studio).
10.1 Consideration does not include GST. Unless specifically described in this licence as ‘GST inclusive’, any sum payable (or amount included in the calculation of a sum payable), or consideration to be provided, under or in accordance with this licence does not include any amount on account of GST.
10.2 Gross up of consideration. Where any supply to be made by one party (Supplier) to another party (Recipient) under or in accordance with this licence is subject to GST (other than a supply the consideration for which is specifically described in this licence as ‘GST inclusive’):
(a) the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) shall be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply (GST Amount); and
(b) the Recipient must pay the GST Amount to the Supplier, without set-off, deduction or requirement for demand, at the earlier of:
(i) the time that the GST Exclusive Consideration is payable or to be provided; and
(ii) the time that the Supplier has to pay the GST in respect of that supply.
10.3 Reimbursements. If any payment to be made to a party under or in accordance with this licence is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with the preceding sub-clause.
10.4 Tax invoices. Notwithstanding any other provision of this licence, the Recipient need not make any payment for a taxable supply made by the Supplier under or in accordance with this licence until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.
10.5 Adjustments. If an adjustment event has occurred in respect of a taxable supply made under or in accordance with this licence, any party that becomes aware of the occurrence of that adjustment event must notify each other party to that taxable supply as soon as practicable, and all of those parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid no later than 28 days after the Supplier first becomes aware that the adjustment event has occurred.
10.6 Interpretation. A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.
11. INDEMNITY AND EXCLUSIONS AND LIMITATIONS OF LIABILITY
11.1 Indemnity. You indemnify Setore (and all its related bodies corporate and its personnel) and must keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages arising directly or indirectly out of or in connection with:
(a) any breach of this agreement by you;
(b) death or personal injury arising in connection with your use of the App; or
(c) any suit, claim or demand brought or made against Setore by or due to your conduct, acts or omissions.
11.2 Consumer guarantees. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on Setore are excluded under this agreement. However, if a supply under this agreement is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time), nothing contained in this agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law; provided that, to the extent the Australian Consumer Law permits Setore to limit its liability, then Setore’s liability is limited to (at Setore’s option):
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
11.3 Exclusion of liability. Subject to clause 11.2, Setore excludes liability for all direct, indirect or consequential liabilities, losses, damages, costs and expenses, whether arising in contract, tort (including negligence) or otherwise suffered or incurred by any person:
(a) in connection with or in any way relating to the App or its use, including (without limitation):
(i) any death or personal injury arising in connection with your use of the App;
(ii) any disruption to or unavailability or failure of the App or interference with or damage to any electronic systems or devices;
(iii) errors, omissions or inaccuracies contained in any information published on the App or supplied by Setore to you via email or otherwise;
(iv) as a result of any fraudulent use, misuse or misappropriation of the App or any part of the App; or
(v) as a result of any act committed by another person in connection with your use of the App;
(b) arising from any circumstance beyond its control; or
(c) otherwise under or in connection with this agreement.
11.4 Information and documents required by a Studio. You acknowledge and agree that, as a condition of purchasing certain Services and seeking to utilise those Services, you may be required to provide either of the following documents in the form specified by the Studio in its sole discretion, prior to your participation in a class of a Studio:
(a) medical information and emergency contact information; and/or
(b) a waiver or disclaimer of liability.
12. TERM AND TERMINATION
12.1 Term. This agreement continues to apply until terminated by you or by Setore.
12.2 Your right to terminate. You may terminate this agreement at any time by permanently deleting the App from all your devices.
12.3 Automatic termination. Your rights automatically and immediately terminate, without the need for notice from Setore, if you fail to comply with any term of this agreement. On termination of this agreement for any reason, you must immediately and permanently delete the App from all your devices.
12.4 Setore’s right to terminate. Setore may:
(a) suspend your access to or use of the App for any reason, at any time and for any period including if you are in breach of any term of this agreement, and Setore is not required to end the suspension until the breach has been rectified to Setore’s satisfaction; or
(b) if any third party licence rights relating to the App granted to Setore (or otherwise made available to Setore) are materially altered, expire, are suspended or are otherwise terminated, Setore may terminate this agreement if and to the extent that Setore is no longer able to make the App available to you.
13.1 Force majeure. Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s control. If that failure or delay exceeds 60 days, either party may terminate this agreement with immediate effect by giving notice to the other party.
13.2 Governing law. This agreement is governed by the laws of the State of South Australia, and the parties submit irrevocably and unconditionally to the exclusive jurisdiction of the courts of that State.
13.3 Assignment. You may not assign your rights under this agreement, nor attempt or purport to do so.
13.4 Representation and warranty. You represent and warrant to Setore that:
(a) you are not located in a country that is subject to a United States Government embargo or a country that has been designated by the United States Government as a ‘terrorist supporting’ country;
(b) you are not on any United States Government list of prohibited or restricted parties; and
(c) you will not export from anywhere any part of the App provided to you except in compliance with, and with all licenses and approvals required under, applicable Australian export laws, rules and regulations.
14. VARIATION OF TERMS
14.1 Setore may vary terms. Setore reserves the right to revise and amend this agreement in its discretion, as follows:
(a) if Setore considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended agreement (or a link to the amended agreement) on the App; or
(b) if Setore considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change solely by displaying a notice on the App describing the change.
14.2 Deemed agreement to variation. Your continued use of the App after an amendment will mean that you agree to that amendment. You must stop using the App if you do not agree to an amendment.
15. APPLE-SPECIFIC TERMS AND CONDITIONS
In addition to your agreement to be bound by and abide by the terms of this agreement, you further acknowledge and agree to the following provisions with respect to your use of the version of the App that is compatible with the iOS operating system of Apple Inc (Apple):
(i) is not a party to this agreement and is not responsible for the App nor the content contained in the App;
(ii) is not responsible for providing any maintenance or support services in respect of the App and has no obligation whatsoever to furnish any maintenance or support services in respect of the App;
(iii) is not providing any warranties for the App, except if applicable, to refund the purchase price for it;
(iv) is not responsible for addressing any of your claims in relation to the App, including:
(A) product liability claims;
(B) claims relating to a failure of the App to conform with any legal or regulatory requirement; or
(C) claims arising under consumer protection legislation; and
(v) is not responsible for any claim that the App or your possession or use of the App infringes any third party’s intellectual property rights, nor is Apple responsible for the investigation, defence, settlement or discharge of any such claim. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Setore at firstname.lastname@example.org.
(b) Apple and Apple’s subsidiaries are third party beneficiaries of this agreement and, from the date on which you accept this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you. Setore’s right to enter into, rescind or terminate any variation, waiver or settlement under this agreement is not subject to the consent of any third party.
(c) The licence you have been granted under this agreement is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set out in Apple’s App Stores Terms of Service.