BALL MAGNETS END USER LICENCE AGREEMENT

THIS IS A BINDING AGREEMENT between Ball Magnets Pty Ltd (ACN 640 796 176) (Ball Magnets, we, our or us) and any person (you) who registers a User Account. 

By registering a User Account, you are deemed to have confirmed to us that:

  • you are of legal age in your country and not under 18 years old or, if you are under 18 years old, you have consent from your parent or guardian;
  • you have full power, capacity and authority to agree to this End User License Agreement; and
  • you have not been prohibited from accessing or using the Ball Magnets App.

By accessing and / or using your User Account and the Services, you agree to be legally bound and abide by the terms and conditions set out in this End User Licence Agreement.

1. DEFINITIONS

In this End User Licence Agreement, all other grammatical forms of defined terms have a corresponding meaning, and:

AFL means Australian Football League;

Ball Magnets App means our application titled “Ball Magnets” which is a training aid that provides training services, features and content to assist Users to improve and develop their AFL football skills and / or improve their fitness;

Confidential Information means Information obtained via the Services, but excluding Information which is in (or enters) the public domain other than as a consequence of a breach of this End User Licence Agreement;

End User Licence Agreement means this agreement;

Information means any information, irrespective of its form, and includes (for the avoidance of doubt) all notes, comments, and other records prepared by you based on or incorporating information obtained by you via the Services;

Intellectual Property Rights means all intellectual property rights, including patents, copyright, moral rights, rights in circuit layouts, registered and unregistered designs, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential (together with any application or right to apply for registration of any such rights);

ISP means internet service provider;

ISP Services means internet service and/or access provider services;

Organisation Subscription has the meaning given in clause 5.3(a) of this End User Licence Agreement;

Services means the services, features and content made available via the Ball Magnets App;

Subscription Level means the level of subscription to the Ball Magnets App which you have purchased or, in the case of a Trial Subscription or Organisation Subscription, have otherwise signed up for (details of subscription options and applicable fees can be found here and in clause 5.1);

Trial Subscription has the meaning given in clause 5.2(a) of this End User Licence Agreement;

Website means the website located at https://www.ballmagnets.com.au/;

User means any person who accesses or uses the Services; and

User Account means an account registered by a User on the Ball Magnets App or Website under section 3.

2. THE SERVICE

2.1 Service composition

Subject to you complying with this End User Licence Agreement, we will provide access to and use of the Ball Magnets App and the Services to you as set out in this End User Licence Agreement.

2.2 Use of the Service

In addition to this End User Licence Agreement, your access and use of the Ball Magnets App and the Services is subject to and governed by:

  1. our Privacy Policy and
  2. our Website Terms 

2.3 Inconsistency

To the extent that there is any inconsistency between any of the provisions of the Website Terms, Privacy Policy and this End User Licence Agreement, the terms of the End User Licence Agreement will prevail.

3. REGISTRATION OF USER ACCOUNT

3.1 Registration

You must register a User Account on the Ball Magnets App or Website in order to access and use the Services. In order to register a User Account, you must provide the following information:

(a)         your full name, date of birth, mobile phone number and email address;

(b)         the names of any leagues/associations you are affiliated with;

(c)          the team or club you play for;

(d)         what position or positions you play;

(e)         your gender;

(f)           your favourite AFL/AFLW team and player;

(g)         your password; and

(h)         any other information reasonably required by us in relation to your User Account.

3.2 Accuracy

When registering as a User of the Ball Magnets App and Services, you must provide us with accurate, complete and up-to-date information as requested on the registration page of the Ball Magnets App or Website (as applicable). It is your responsibility to inform us of any changes to that information. You may do this at any time by updating your User Account information via the Ball Magnets App or Website (as applicable).

3.3 Obligations

We may, in our absolute discretion, refuse registration, suspend or terminate your User Account if:

(a)         you register or attempt to register more than one User Account;

(b)         we reasonably believe you have breached this End User Licence Agreement;

(c)          you open or attempt to open a User Account using incomplete or falsified details, or otherwise in a fraudulent or illegal way;

(d)         we suspect that any information provided by you is incomplete or inaccurate; or

(e)         we consider that the refusal of registration or the closure of your User Account is necessary to comply with our obligations at law.

4. YOUR RESPONSIBILITIES

4.1 Responsibility and security

(a)         You acknowledge and agree that:

(i)           you are solely responsible for all activities that occur on your User Account;

(ii)         your password is confidential; and

(iii)       you will keep your password secure and not disclose it to any other person, nor will you permit your username and password to be given to or used by any other person.

(b)         You must notify us immediately of any actual or suspected unauthorized use of your User Account or breach of your User Account security, including if the confidentiality of your password is compromised.

4.2 ISP Services

(a)         To use and access the Services, you must have access to:

(i)           a valid User Account and subscription; and

(ii)         an account for the provision of ISP Services with an ISP.

(b)         Your ISP (and not us) is responsible for the provision of ISP Services pursuant to any agreement between you and that ISP in respect of those ISP Services. You are responsible, and are solely liable, for any account charges or other costs incurred in relation to the ISP Services, including the use of the Services using the ISP Services.

4.3 Information

In addition to the information required to create a User Account under clause 3.1, you agree to provide all information required to enable us to provide the Services. You must ensure that all such information is accurate and complete. We will not be liable for any loss or damage arising from any inaccuracy, omission or other defect in any such information.

4.4 Compliance

You must comply with our reasonable directions in relation to your access to or use of the Ball Magnets App and the Services. In addition, you must use the Ball Magnets App and the Services in good faith, and must at all times comply with this End User Licence Agreement and all applicable laws, statutes and regulations in all jurisdictions that relate to your access to or use of the Ball Magnets App and the Services (including applicable privacy laws).

5. SUBSCRIPTION

5.1 Subscription options

You may subscribe to access and use the Services as follows:

(a)         on a Trial Subscription;

(b)         on a monthly or an annual basis, or for such other periods that Ball Magnets may offer from time to time; or

(c)          on an Organisation Subscription.

5.2 Trial Subscription

(a)         We may offer a free seven day trial of the Service to you if you have registered a User Account with us and have never received a free trial of the Service before (Trial Subscription).

(b)         Trial Subscriptions are available only to new users of the Service and Ball Magnets may, in its sole discretion, cancel any Trial Subscriptions if it becomes aware that the user has already had a Trial Subscription (including on a different User Account or email address).

(c)          Your Trial Subscription will automatically end at the end of the seven day trial period.

5.3 Monthly / Annual subscription

(a)         At any time during or after the expiration of the Trial Subscription, a User may subscribe for a monthly or annual subscription.

(b)         In order to subscribe for a monthly or annual subscription you will need to provide the following additional information:

(i)           your home address and billing information; and

(ii)         your payment details (e.g PayPal account details/credit card / App or Google Play store payment details).

(c)          Unless you cancel your subscription to the Services prior to the end of your monthly or annual subscription period (as applicable), your subscription to the Services will automatically renew and you will be charged by us on a monthly or annual basis according to the Service Subscription Level you have selected in accordance with the terms of clause 5.

5.4  Organisation Subscription

(a)         An organisation may purchase a subscription to the Services on behalf of itself and its members (Organisation Subscription).

(b)         When purchasing an Organisation Subscription, organisations will be subject to separate terms and conditions to be agreed with Ball Magnets.

(c)          Any organisation member or person who is a User under an Organisation Subscription will not be required to pay for access and use of the Services but must comply with the terms of this End User Licence Agreement.

(d)         If you have an Organisation Subscription the term of that subscription will be as per the terms and conditions in clause 5.4(b). Please contact your applicable organisation for details of the term of your Organisation Subscription.

5.5 Pricing

(a)         The fees payable for a subscription to the Services depends on the Subscription Level you select. The pricing and fees payable for each of the Subscription Levels are listed on the Website (see here) and may be revised or updated by Ball Magnets from time to time.

(b)          Any revision or update to fees payable will apply prospectively to any subscription option entered into by you for the Services on and from the next renewal period for your subscription.

(c)          Unless otherwise stated, all prices listed on the Website are in Australian dollars and are exclusive of 10% GST as defined in A New Tax System (Products and Services Tax) Act 1999 (Cth). You must pay to us an amount equal to the GST payable on any taxable supply made to you under this agreement.

(d)         The prices listed on the Ball Magnets App and Website for each Subscription Level are not inclusive of any additional amounts relating to applicable taxes on the transaction, bank fees and currency fluctuations which are not specifically mentioned in this End User Licence Agreement.

5.6 Payment

(a)         Payment for the Services must be made in advance, on a monthly or annual basis depending on the Subscription Level you select.

(b)         We accept payment via the Ball Magnets App or our Website (as applicable) through the payment methods offered from time to time (e.g PayPal /credit card / App or Google Play store payments). You must abide by relevant agreements which govern your use of any given payment method for the Service.

(c)          If you have a Trial Subscription or an Organisation Subscription this term will not apply to you.

5.7 Cancellation

(a)         You may cancel your subscription to the Services at any time via the Ball Magnets App or Website (as applicable).

(b)         On cancelling your subscription to the Services, you will continue to have access to the Services for any remaining period of access that you have paid for in advance. Once this period of access expires, you will no longer have access to the Services and your agreement to this End User Licence Agreement is terminated subject to clause 11.4.

6. LICENCE

Subject to the terms of this End User Licence Agreement, we grant you a limited, non-exclusive, revocable licence to:

(a)         download and use the Ball Magnets App for non-commercial, personal purposes; and

(b)         access and use the Services according to your Subscription Level for non-commercial, personal purposes and in accordance with clause 5.

7. RESTRICTIONS ON USE

7.1 Restrictions

You must not:

(a)         use Ball Magnets App, or the Services for any purpose other than as permitted by this End User Licence Agreement;

(b)         remove, obscure or tamper with any copyright notices or author attributions on Ball Magnets App, or the Services;

(c)          tamper with Ball Magnets App or circumvent any technology used by us or our third party licensors to protect any Services accessible through Ball Magnets App;

(d)         copy, store, reproduce, transmit, alter, emulate, disassemble, decompile, reverse engineer, or create derivative works or functionally equivalent software from Ball Magnets App (except to the extent permitted by Division 4A of Part III of the Copyright Act 1968 (Cth));

(e)         copy, store, reproduce, transmit, alter, emulate, disassemble, decompile, reverse engineer, or create derivative works from the Ball Magnets App or the Services;

(f)           rent, lease, loan, make available to the public, sell or distribute the Ball Magnets App or any content from the Services in whole or in part;

(g)         plagiarise all or any part of any information to which you have access via the Services (or all or any part of any information which you know or have reason to suspect is derived without acknowledgement from the Services);

(h)         attempt to collect or harvest any information or data from the Ball Magnets App or our systems, or attempt to decipher any transmissions to or from the servers running the Ball Magnets App; or

(i)           incorporate the Ball Magnets App, or the Services in any other product (unless we expressly agree otherwise with you).

7.2 Disruption

You must not, directly or indirectly, introduce or permit the introduction of, any virus, worm, trojan, harmful data or other malicious code into the Ball Magnets App or the Services, or in any other manner whatsoever corrupt, degrade or disrupt the Ball Magnets App or the Services.

7.3 Unlawful, unauthorised or dangerous use

You must not (nor permit a third party to) submit any data or information to the Ball Magnets App or the Services, nor otherwise use the Ball Magnets App or the Services:

(a)         to engage in any activity which breaches any law, infringes a third party’s rights, or in a manner which interferes with the rights of any other person;

(b)         to infringe our Intellectual Property Rights or the Intellectual Property Rights of any third party;

(c)          in any way that:

(i)           is false, inaccurate, defamatory, offensive, inflammatory, obscene, unsuitable for minors, abusive, indecent or threatening;

(ii)         is xenophobic, racist, abusive, harassing or hateful;

(iii)       is invasive of a person’s privacy or constitutes personal abuse directed at other Users;

(iv)       constitutes commercial advertising or the promotion of your own site, app, products and / or services; or

(v)         contains links to other sites that contain or promote the material identified in paragraphs (i) to (iv);

(d)         to obtain unauthorised access to (or damage, disrupt or interfere with the operation of) any computer, system, application, network or service; or

(e)         in any way that constitutes misuse, or resale or other commercial use, of the Ball Magnets App, Services or any associated materials.

7.4  Access outside Australia

The Ball Magnets App and Services may be accessed from outside Australia. We make no representation that the Services comply with the laws (including intellectual property laws) of any country outside Australia.  If you access the Services from outside Australia, you do so at your own risk and you are responsible for ensuring compliance with all laws in the place where you are located.

8. APPLICATION STORE ADDITIONAL TERMS

8.1 Apple App store

If the Ball Magnets App is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, Apple) App Store you acknowledge and agree that:

  • this End User Licence Agreement is between Ball Magnets and you (and not with Apple) and that the Ball Magnets App and Services are governed by this End User Licence Agreement;
  • you may only access and use the Ball Magnets App on or through an Apple device that you own or control;
  • Apple has no obligation to provide any maintenance or support services in relation to the Ball Magnets App;
  • where the Ball Magnets App fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Ball Magnets App (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Ball Magnets App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Ball Magnets App to conform to any warranty will be governed by this End User Licence Agreement;
  • any claims arising or in connection with the Ball Magnets App including those that are related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection laws, privacy laws or similar legislation are governed by this End User Licence Agreement, and Apple is not responsible for addressing such claims;
  • any third party claim that the Ball Magnets App or your use of it infringes the intellectual property rights of that third party will be governed by this End User Licence Agreement, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim;
  • you represent and warrant that you are not
    • located in any 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; or
    • listed on any U.S. Government list of prohibited or restricted parties;
  • you may contact Ball Magnets in writing at info@ballmagnets.com.au with any notices, questions, complaints, or claims that relate to the Ball Magnets App and the Services;
  • you will comply with any applicable third party terms when using the Ball Magnets App;
  • Apple is a third-party beneficiary to this End User Licence Agreement and, upon your acceptance of this End User Licence Agreement, may enforce the terms of this End User Licence Agreement against you; and
  • to the extent that any of the terms of this End User Licence Agreement are inconsistent with Apple’s applicable instructions for Minimum Terms for Developer’s End User Licence Agreement or the App Store Terms of Service (as at the date this End User Licence Agreement was accepted by you), the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User Licence Agreement or App Store Terms of Service, as applicable, will apply to the extent of the inconsistency.

8.2 Google Play Store

If the Ball Magnets App is provided to you through Google Inc.’s (Google Inc. together with all of its affiliates, Google) Google Play:

  • you acknowledge and agree that Google is not responsible for providing support services for the Ball Magnets App; and
  • to the extent that any of the terms of this End User Licence Agreement are inconsistent with Google’s “Google Play Developer Distribution Agreement” (as at the date this End User Licence Agreement was accepted by you) the terms and conditions of Google’s Google Play Developer Distribution Agreement apply to the extent of the inconsistency.

9. TITLE AND INTEREST

You agree that all existing and future rights, title and interest (including all Intellectual Property Rights) in and to Ball Magnets App and the Services remain or vest absolutely in us (and/or our third party licensors). The only rights you have in respect of Ball Magnets App and the Services are those granted to you under this End User Licence Agreement.

10. LIABILITY AND INDEMNITY

10.1 Consumer rights and remedies

To the extent that you acquire goods or services from us as a 'consumer' (as that term is defined in section 3 of the Competition and Consumer Act 2010 (Cth)), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement. 

10.2 Non-excludable Obligations

Nothing in this End User Licence Agreement operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute (Non-excludable Obligation), the exclusion, restriction or modification of which would:

  • contravene that statute; or
  • cause any term of this End User Licence Agreement to be void.

10.3 General disclaimers

Except in relation to Non-excludable Obligations:

  • all 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 us are expressly excluded under this End User Licence Agreement;
  • we make no representation or warranty, and expressly disclaim all warranties, either express or implied, in relation to the Ball Magnets App and the Services, including merchantability and fitness for a particular purpose; and
  • subject to clause 4, we make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency or security of the Ball Magnets App or the Services, and we are not liable to you if the Ball Magnets App and / or any Services are unavailable for any reason.

10.4 Medical disclaimer

The elements of the Services which promote physical activity, exercise techniques or other training and fitness practices are for informational purposes only and are not medical advice, resources or services or provided for treatment purposes. Before engaging in any physical exercise or training activity, or making any changes to your fitness regimen, you should seek appropriate professional advice. Never disregard any advice or medical instructions from a health care professional because of something that you have seen in the Services. Except in relation to Non-excludable Obligations, to the maximum extent permitted by law, Ball Magnets is not responsible or liable for any loss, harm, damage, cost or expense of any sort incurred that result from your use of the Services. 

10.5 Security

While we use reasonable endeavours to ensure the Website, the Ball Magnets App, and any transactions conducted through the Website or Ball Magnets App, are secure, you acknowledge that the security of information and payments transmitted through the internet can never be entirely secure or error free.  We are not liable for any loss or damage suffered by you or anyone else due to a failure, delay, interception or manipulation of an electronic communication caused by a third party.

10.6 Exclusion and limitation of liability

Except in relation to Non-excludable Obligations, our liability to you arising directly or indirectly under or in connection with this End User Licence Agreement or the performance or non-performance of this End User Licence Agreement and whether arising under any indemnity or statute, in tort (for negligence or otherwise) or on any other basis in law or equity is limited as follows:

  • we will have no liability whatsoever to you for any loss of profits, loss of revenue, loss of goodwill, loss of customers, loss of or damage to reputation, loss of capital, downtime costs, loss under or in relation to any other contract or any economic, special, indirect or consequential loss, harm, damage, cost or expense (including legal fees) incurred by you or anyone else under or in connection with the Ball Magnets App or the provision of the Services; and
  • our total aggregate liability to you under or in connection with the Ball Magnets App or the provision of the Services is otherwise limited to an amount not exceeding $100.

10.7 Indemnity

You indemnify us against any liability, loss, harm, damage, cost or expense we may suffer or incur (including as a consequence of any claim made by a third party, and including legal costs and expenses on a full indemnity basis) arising from or in connection with your breach of this End User Licence Agreement or the terms and policies they incorporate by reference, or your violation of any law or the rights of any third party in connection with the Ball Magnets App or Services.

11. VARIATION, SUSPENSION AND TERMINATION

11.1 Variation, suspension, and termination without notice or cause

We may:

(a)         make a change to all or part of the Ball Magnets App or the Services (including the availability of any feature, content or database) which results in an increase, or a minor decrease in functionality without having to give you notice;

(b)         make a change to all or part of End User Licence Agreement which results in a positive, neutral or minor detrimental impact on you immediately without notifying you except by publishing the amended terms (as applicable) on the Ball Magnets App and / or the Website;

(c)          temporarily suspend or block access to the Ball Magnets App or the Services in an emergency or in connection with clause 3.3 at any time, without having to give you notice; and

(d)         terminate your access to and use of the Ball Magnets App or the Services without cause by giving you 14 days prior written notice in which case we will refund any prepaid amounts to you on a pro rata basis which is your sole and exclusive remedy,

without any liability to you except as specified in this clause 11.1.

11.2 Specific changes to the Ball Magnets App, Services or this End User Licence Agreement

(a)         We may make a change to:

(i)           all or part of the Ball Magnets App or the Services (including the availability of any feature, content or database) which results in a material decrease in functionality of the Ball Magnets App or the Services; or

(ii)         all or part of End User Licence Agreement which results in a significant detrimental impact on you,

if we have notified you of the change prior to the change coming into effect.

(b)         Once we have notified you of a proposed change under clause 11.2(a), you may within 10 days of receipt of that notice elect to terminate your subscription, in which case we will refund you any pre-paid amounts on a pro rata basis, which is your sole and exclusive remedy.

(c)          If you do not elect to terminate within the 10 day period in clause 11.2(b), you waive your right to terminate your subscription under this clause 11.2.

11.3 Termination for breach

Where you have breached any provision of this End User Licence Agreement, and without prejudice to any other rights or remedies, we may, by written notice, immediately terminate this End User Licence Agreement or the provision of any Services, without any liability to you and you agree that no prepaid amounts will be refunded. This will include termination of your User Account.

11.4 Survival

Clauses 1, 10, 11.4 and 14 survive termination of this End User Licence Agreement.

12. CONFIDENTIALITY

12.1 Confidentiality acknowledgments

(a)         If you access any Confidential Information using the Services, you acknowledge and agree that:

(i)           the Confidential Information is confidential to us;

(ii)         you owe an obligation of confidence to us in relation to that Confidential Information; and

(iii)       you have no right or interest in the Confidential Information (other than the right to use and disclose it in accordance with this End User Licence Agreement).

(b)         The obligations in this section 12.1 continue to apply even if your access to the Services and / or your User Account is disabled, suspended or terminated.

12.2 Permitted use

You must not, without first obtaining our consent:

(a)         use any Confidential Information except to the extent necessary to enjoy the benefit of the Services; or

(b)         disclose any Confidential Information except to the extent required by law.

12.3 Security and control

You must, at your cost, keep the Confidential Information:

(a)         confidential;

(b)         under your effective control; and

(c)          secure from theft, loss, damage and unauthorised access, use and disclosure.

12.4 Return or destruction of Confidential Information

At the our request, or on termination of this End User Licence Agreement (whichever occurs first), you must:

(a)         immediately stop using all Confidential Information in your possession or control; and

(b)         at the our option, either:

(i)           deliver that Confidential Information to us; or

(ii)         permanently erase that Confidential Information (and, if requested, provide evidence of destruction reasonably satisfactory to the discloser),

except to the extent that you need to retain the Confidential Information to comply with any applicable law or the requirements of a regulatory body or stock exchange.

13. PRIVACY       

13.1 Collection of personal information

We will collect, use and store your personal information in accordance with this End User Licence Agreement, our Privacy Policy and applicable laws, including for the purposes of making available the Services, complying with our legal obligations, communicating with you to promote our products and services, and improving the user experience in relation to the Services.

13.2 What we collect

(a)         If you use the Services, the information that we may collect and store includes:

(i)           the type of operating system and/or other software or firmware used by the device(s) that you use to access the Services;

(ii)         the data you send and receive data using the Services (including the type and quantity of that data);

(iii)       the dates on which and times at which you use the Services; and

(iv)       the IP and MAC address of the device(s) that you use to access the Services.

(b)         In some cases, we may obtain limited information about you from the organisation that employs you, in order to invite you to use the Services.

13.3 Disclosure of personal information

We may disclose your personal information to our related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth)), other organisations or individuals who assist us in providing services or who perform functions on their, and anyone else to whom you authorise us to disclose it.

14. GENERAL

14.1 Assignment

You may not assign your rights under this End User Licence Agreement, or attempt or purport to do so, without our prior written consent (which may be given or withheld in our absolute discretion).

14.2 Force majeure

Neither party will be liable to the other for any failure to fulfil, or delay in fulfilling, its obligations caused by circumstances outside of its reasonable control.

14.3 Governing law

This End User Licence Agreement is governed by the laws of the Victoria, Australia, and all parties submit to the non-exclusive jurisdiction of Victoria, Australia.

14.4  Severability

If any provision, or part of a provision, of this End User Licence Agreement is found to be illegal or unenforceable it will be severed from the agreement, and the remainder of this End User Licence Agreement will be construed as if that provision or part did not form part of this End User Licence Agreement. The previous sentence will not apply if the provision or part to be severed constitutes a material and fundamental element of the agreement between the parties.

14.5 Entire agreement

This End User Licence Agreement is the entire agreement between the parties on its subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbally, in writing or in another format).