TERMS OF SERVICE
A INTRODUCTION
A.1 Active Health Tech Pty Ltd (ABN 70 162 052 271) (Australia) and/or ACTIVE HEALTH TECH LTD (Company number 10530672) (UK) (Company) provides the TrackActive Me website (www.trackactiveme.com) and mobile system.
A.2 These terms and conditions apply to all use of TrackActive Me, unless
expressly specified otherwise under separate commercial agreement
with an employer, health organisation and/or insurer (Organisation).
A.3 TrackActive Me allows individual users authorised by an Organisation
(Referred Individuals) and individual users engaging TrackActive Me directly (Direct Individuals) (Referred Individuals and Direct Individuals,
together being Individuals) to:
(a) Undertake assessment and screening;
(b) Access Exercises and lifestyle suggestions (as defined in B.1 below);
(c) Receive Exercise Programmes (as defined in B.1 below);
(d) View Exercises;
(e) Log progress and symptoms (for example, pain and functional levels)
through Exercise Programmes;
(f) Edit information;
(g) In the case of Referred Individuals and subject to relevant consent,
communicate with Organisations.
A.4 TrackActive Me allows Organisations to:
(h) Invite Referred Individuals to complete assessment and screening;
(i) Engage with Referred Individuals regarding their Exercises;
(j) Monitor health information and progress with Exercise Programmes, by
accessing anonymonised and aggregated data summary insights (or, on
a case by case basis, identifiable data at the request of the Organisation
with the express consent of the Referred Individual in question);
(k) Where applicable and subject to relevant consent, communicate with
specific Referred Individuals.
B DEFINITIONS
B.1 The following terms are used regularly throughout these Terms of
Service and have a particular meaning (additional definitions are found in
the General Conditions):
(a) Admin User means any employee or other personnel of an Organisation that may be authorised to access the TrackActive Me admin web application other than as an Individual;
(b) Agreement means these Terms of Service and the Disclaimer;
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in London, England;
(d) Company means Active Health Tech Pty Ltd (ABN 70 162 052
271) (Australia) and/or Active Health Tech Ltd (Company number
10530672) (England and Wales);
(e) Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including:
i All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
iv All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
v The party’s policies and procedures; and
vi All information contained in this document,
But excludes information that the other party can establish:
vii Is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
viii Is in the public domain other than by a breach of this document or any obligations of confidence.
(f) Database means the database operated by the Company and accessed and edited using TrackActive Me.
(g) EHR (Electronic Health Record) means the record of an Individual’s Health Information in TrackActive Me.
(h) Exercise means an instructional video, diagram or image, descriptions and supporting evidence (where applicable) of how to correctly perform an exercise.
(i) Exercise Programme means an exercise or physical rehabilitation programme that may include such instructions and parameters as repetitions, sets, resistance and rest time created and made available through TrackActive Me.
(j) Fee means any fee payable by an Organisation and/or User (if any) for access to, or use of TrackActive Me.
(k) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
iii The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage;
(l) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(m) Health Information means personal information or an opinion about:
i the health, including an illness, disability or injury, (at any time) of an Individual;
ii an Individual’s expressed wishes about the future provision of health services to him/her;
iii a health service provided, or to be provided, to an Individual; or
iv generally anyinformation about the health, injury or a disability of an Individual at any time;
(n) Intellectual Property means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
(o) Privacy Policy means TrackActive Me’s privacy policy as updated, which can be found at http://www.TrackActive Me.com/privacy-policy/;
(p) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and/or applicable VAT legislation;
(q) Third Party means any person that is not a User;
(r) TrackActive means:
i TrackActive Me; and/or
ii TrackActive Me web application accessible from http://www.TrackActiveMe.com; and/or;
iii TrackActive Me mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces;
(s) TrackActive Me means the “TrackActive Me” Web and mobile application made available to Organisations and Individuals;
(t) User means any Individual or Admin User that uses TrackActive Me;
(u) User Content means data that is uploaded or input into TrackActive Me by the User or that forms part of the User’s Intellectual Property.
1.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(a) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(b) A reference to a clause refers to clauses in this Agreement.
(c) A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
(d) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(g) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
C AGREEMENT
C.1 This Agreement governs the use of and access to TrackActive Me by any User and limits the liability of the Company to any User. This Agreement has specific terms of use (in addition to the General Conditions) that apply to:
(a) Individuals (Item P)
(b) Organisations (Item U)
C.2 The User must register an account in TrackActive Me to use TrackActive Me. The Company may set any registration requirements in its absolute discretion.
C.3 In addition to any other express or implied consents, by using TrackActive Me the User accepts and agrees to the terms of:
(a) This Agreement; and
(b) The Privacy Policy.
C.4 The User’s license to access TrackActive Me shall be ongoing until terminated by The Company in accordance with this Agreement.
C.5 The Company may limit or restrict access to TrackActive Me as it sees fit, including:
(a) Organisations. The Company may restrict access only to reputable and/or registered Organisations; and
(b) Location. The Company may restrict access to TrackActive Me to certain jurisdictions where it is able to offer TrackActive Me.
C.6 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using TrackActive Me.
C.7 This Agreement may be updated by the Company at its absolute discretion, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of TrackActive Me at the User’s next login after the User receives written notice of the update(s).
D INDIVIDUALS TERMS OF USE
D.1 TrackActive Me may enable Individuals to:
(a) Receive Exercise Programmes following an assessment;
(b) Log progress and symptoms through Exercise Programmes including:
i Program Completion;
ii Symptom levels; and
iii Difficulty.
(c) Enter and edit the Individual’s EHR; and
(d) Communicate with Organisations and its Admin Users (in the case
of Referred Individuals).
D.2 TrackActive Me can enable an Individual to access information:
(a) Uploaded by an Organisation (in the case of Referred Individuals); or
(b) Uploaded by the Individual.
D.3 The Individual agrees and accepts that:
(a) The individual must be at least 18 years of age to use the TrackActive Me application and services. The Individual uses TrackActive Me at its own risk. To the extent permitted by law, under no circumstance will TrackActive Me be liable for any injury, illness, death or damage to property resulting from the use of TrackActive Me. It is the Individual’s responsibility to follow the Exercise Programme and correctly perform any Exercise;
(b) TrackActive Me acts only as a platform to introduce Individuals to
health professionals and nothing shall be considered as a referral, endorsement, recommendation or guarantee of such health professional;
(c) Any provision of medical advice, treatment or services by a health
professional introduced via TrackActive Me to the Individual is directly between the health professional and the Individual and it is acknowledged that the Company is not a party to such arrangement, booking or contract. Such provision of any medical advice, treatment or services shall be governed by the terms of supply or contract agreed between such health professional and Individual and the health professional’s duty of care to the
Individual;
(d) The Individual indemnifies TrackActive Me against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Individual’s use of TrackActive Me;
(e) Any information (other than Health Information) shared by TrackActive Me with an Organisation authorised by an Individual may be retained by the Organisation for the purpose of updating their administrative records, subject to the necessary consent;
(f) TrackActive Me may send Individuals emails, text messages, push notifications and other alerts;
(g) Any consent made by an Individual through TrackActive Me is valid and binding unless and until revoked by the Individual, and consent made through TrackActive Me may be relied upon without any need to further verify the veracity of that consent;
(h) TrackActive ME does not allow Organisations to access or control any Health Information, which an Individual can access and control via TrackActive Me;
(i) All information input to TrackActive Me about an Individual is provided with that Individual’s consent if provided by the Individual;
(j) The Organisation authorised by a Referred Individual to receive personal information must have its own policy governing access to this information and the use of TrackActive Me by its Admin Users;
(k) TrackActive Me may be hosted using Amazon Web Services operated by Amazon Web Services Inc. on servers located in the United Kingdom, Australia and the United States of America. TrackActive Me may also use email servers located outside of Australia and/or or the United Kingdom using Mandrill operated by The Rocket Science Group LLC.
E ORGANISATION TERMS OF USE
E.1 TrackActive Me may enable the Organisation to:
(a) View aggregated and anonymised data from the use of Referred Individuals invited to use TrackActive Me for that particular organisation and, on a case by case basis, identifiable data at the request of the Organisation with the express consent of the Referred Individual in question; and
(b) Provide unique access codes to individuals in their organisations
to access TrackActive Me.
E.2 Each Organisation agrees and warrants that:
(a) It must pay the applicable Fee for all Users in that Organisation that use TrackActive Me.
(b) To the extent permitted by law indemnify and hold the Company harmless against all costs, claims damages and expenses for any:
i Injury, illness or death caused to an Individual or Third Party;
ii Damage to the property of any Individual or Third Party;
iii Claim of infringement of intellectual property rights made by a Third Party;
iv Claim of breach of confidentiality by any Third Party; As a result of use by the Organisation and Users of TrackActive Me.
(c) It shall not disclose any information, other than to its authorised Admin Users, about an Individual to any other person or party other than as authorised by the Individual;
(d) It shall ensure all personal information it has access to through its use of TrackActive Me is kept and used in accordance with applicable privacy laws in the jurisdiction;
(e) It shall only use TrackActive Me for its intended purpose as set out in this Agreement;
(f) It shall comply with all anti-SPAM legislation in its jurisdiction;
(g) It grants the Company a royalty free licence to use any logos in any form, media or technology for the purpose of promoting or marketing TrackActive Me; and
(h) It’s licence to use TrackActive Me, as provided for in the General Conditions, is subject to the payment of all necessary Fees and any separate commercial agreement taking priority.
E.3 Any person who registers an Organisation in TrackActive Me warrants he or she is an authorised representative of that Organisation, with the requisite authority to bind the Organisation to this Agreement.
E.4 Admin Users agree to use TrackActive Me in accordance with the rights and obligations of the Organisation that authorises their access, provided that an Admin User may not use TrackActive Me to access Personal Information of any Individual (except with their express consent).
F FEES, INVOICING & PAYMENTS
F.1 Fees apply as advertised or separately agreed to the use of TrackActive Me. The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability. The Company shall maintain all Fees for the term of the licence paid for by the Organisation.
F.2 All Fees due for Referred Individuals and Admin Users shall be payable yearly in advance, subject to any Software License Agreement with an Organisation. The Organisation agrees to pay all Fees as and when they fall due and to the extent permissible by law.
F.3 All Fees due for Direct Individuals shall be payable monthly or annually in advance. The Direct Individual agrees to pay all Fees as and when they fall due and to the extent permissible by law.
F.4 Fees are non-cancellable and/or non-refundable once ordered or paid. Where a Fee is paid for a particular term of access to TrackActive Me, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using TrackActive Me within that term.
F.5 The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the Organisation’s licence.
F.6 The Company may revoke or suspend the User’s license to access TrackActive Me for unpaid Fees without liability.
F.7 Where the Company:
(a) Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
(b) Is subject to delays caused by changes or complexities outside of
its control (and not caused by its breach of this Agreement); then
the Organisation or Direct Individual (as applicable) agrees that the
Company shall be entitled to charge the Organisation or Direct Individual
(as applicable) an additional amount that is reasonable for the service
performed.
F.8 All transactions are processed in United Kingdom pounds and conversion rates may apply for foreign currencies.
F.9 Fees charged by the Company may be subject to VAT for Users within the United Kingdom and GST within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST and/or VAT. The Company will provide the User with a Tax Invoice for its payment.
F.10 The Company shall issue the User and/or Organisation a Tax Invoice for all Fees for which GST and/or VAT applies.
F.11 Should the User or Organisation dispute a Tax Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
F.12 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
F.13 The Organisation/Direct Individual authorises the Company to use their information for the purposes of obtaining a credit assessment or to otherwise make investigations as to their payment history.
G LICENSE
G.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable license to access and use TrackActive Me for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
G.2 The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
G.3 The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
G.4 The User agrees that it shall only use TrackActive Me for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
G.5 The User shall authorise users to access TrackActive Me in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
G.6 The User is solely responsible for the security of its username and password for access to TrackActive Me.
G.7 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its TrackActive Me account.
H CUSTOMER DATA
H.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
H.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
H.3 The Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid.
H.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for TrackActive Me).
H.5 Notwithstanding anything to the contrary in this Agreement, nothing shall restrict the Company from collecting, analysing, using and sharing any User Content on an aggregated and anonymous basis.
I PRIVACY
I.1 The Company maintains the Privacy Policy for data that it collects about the User and other customers.
I.2 The Privacy Policy does not apply to how the Organisation handles personal information. It is the Organisation’s responsibility to meet its own obligations by implementing a privacy policy in accordance with applicable law.
I.3 The Company makes no warranty as to the suitability of TrackActive Me in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether TrackActive Me is appropriate for the Organisation’s circumstances.
I.4 The TrackActive Me website may use cookies (a small tracking code in your browser) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
J DATA
J.1 Security. The Company takes the security of TrackActive Me and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
J.2 Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
J.3 Storage. The Company may limit the amount of data that the User stores in TrackActive Me, and shall advise the User of such. Data that is stored with TrackActive Me shall be stored according to accepted industry standards.
J.4 Backup. The Company shall perform backups of TrackActive Me in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
K ACCESS
K.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to TrackActive Me to the best of its abilities, however:
(a) Access to TrackActive Me may be prevented by issues outside of its control; and
(b) It accepts no responsibility for ongoing access to TrackActive Me.
K.2 Users may prepare for unscheduled unavailability of TrackActive Me by:
(a) Keeping their TrackActive Me mobile app up to date, which will store local copies of the data; and
(b) Printing hard copies of reports.
L INTELLECTUAL PROPERTY
L.1 Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
L.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User (and Organisation, as applicable) warrants that it shall not infringe on any third-party rights through the use of TrackActive Me.
L.3 TrackActive Me Application. The User (and Organisation, as applicable) agrees and accepts that TrackActive Me is the Intellectual Property of the Company and the User (and Organisation, as applicable) further warrants that by using TrackActive Me the User (and Organisation, as applicable) will not:
(a) Copy TrackActive Me or the services that the Company provides for the User’s or Organisation’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in TrackActive Me or any documentation associated with it.
L.4 Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to TrackActive Me.
M CONFIDENTIALITY
M.1 The Company will keep confidential all information that it becomes aware of regarding the User’s:
(a) Health Information;
(b) Personal information;
(c) Business, employees and contractors;
M.2 The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
M.3 Each party acknowledges and agrees that:
(a) The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
(b) It owes an obligation of confidence to the Discloser concerning the Confidential Information;
(c) It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
(d) All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
(e) Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
M.4 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
(a) Any actual, suspected, likely or threatened breach by it of clause M.1 ;
(b) Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
(c) Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
(d) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
(e) Any actual, suspected, likely or threatened breach of a term of this Agreement; or
(f) Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
N DISCLAIMER – THIRD PARTY INFORMATION & SERVICES
N.1 The User agrees and accepts that TrackActive Me is:
N.2 Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
N.3 Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to TrackActive Me is available to the User unless expressly agreed in writing.
N.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter TrackActive Me.
N.5 The Company shall not exercise its rights in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of TrackActive Me to the User, other than in accordance with the terms of this Agreement.
N.6 The User (and Organisation, as applicable) acknowledges that TrackActive Me is dependent on third-party services, including:
(a) Banks, credit card providers, BPAY;
(b) Telecommunications services;
(c) Hosting services;
(d) Email services; and
(e) Analytics services.
N.7 The User (and Organisation, as applicable) agrees that the Company
shall not be responsible or liable in any way for:
(a) Interruptions to the availability of TrackActive Me due to third-party services; or
(b) Information contained on any linked third party website.
O LIABILITY & INDEMNITY
O.1 The User agrees that it uses TrackActive Me at its own risk.
O.2 The User acknowledges that TrackActive Me does not provide medical advice, nor does it hold itself out to provide medical advice.
O.3 The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
O.4 The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
O.5 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with TrackActive Me, including any breach by the User of this Agreement.
O.6 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use TrackActive Me or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
O.7 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other jurisdictions and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
P BREACH
P.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
(a) The nature of the breach;
(b) The provisions of the Agreement that are alleged to have been breached;
(c) A reasonable timeframe to remedy the breach in no less than 10 Business Days; and
(d) The action required to remedy the breach.
P.2 Where a party issues a compliant Breach Notice in accordance with clause 11.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
(a) The steps taken to remedy the breach; or
(b) Why the party believes it is not in breach as put forward in the Breach Notice,
(c) Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
P.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
Q TERMINATION
Q.1 This Agreement may be terminated at any time by:
(a) Written notice of one party to the other; or
(b) By cancelling or otherwise terminating your account through TrackActive Me.
Q.2 Deleting TrackActive Me does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that TrackActive Me has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
Q.3 The User agrees and accepts that deletion of TrackActive Me may result in loss of data for which the Company is in no way liable.
Q.4 Breach. Where a party is in Material Breach of this Agreement (as provided above), the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
Q.5 Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
(a) Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(b) Is insolvent within the meaning of applicable legislation;
(c) Fails to comply with a statutory demand (within the meaning of applicable legislation) unless:
(d) The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
(e) The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
(f) Has an administrator appointed in respect of it;
(g) Has a controller similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
(h) Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
(i) Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
(j) Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
Q.6 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
Q.7 The rights and obligations under the relevant provisions of clauses H , I,
L , M , N , P , Q , R , S , T and U.6 survive termination of this Agreement.
R DISPUTES
R.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
R.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
R.3 Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
R.4 Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause R.1 , the parties must agree to submit the
dispute to mediation, administered by lawyers engaged in alternative
dispute resolution;
R.5 Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (R) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
S FORCE MAJEURE
S.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a) Specify the obligations and the extent to which it cannot perform those obligations;
(b) Fully describe the event of Force Majeure;
(c) Estimate the time during which the Force Majeure will continue; and
(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
S.2 Following a notice of Force Majeure in accordance with clause S.1 and
while the Force Majeure continues, the obligations which cannot be
performed because of the Force Majeure will be suspended, other than
obligations to pay money that is due and payable.
S.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
S.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
S.5 The term of this Agreement will not be extended by the period of Force Majeure.
T ELECTRONIC TRANSACTIONS
T.1The User agrees that when it provides any consent, authority or agreement through TrackActive Me it does so as an electronic transaction and warrants that such transaction shall be binding on the party. The User agrees that any request for a consent, authority or agreement it sends to other Users through TrackActive Me as an electronic transaction shall be sent directly from its email address.
T.2The User is solely responsible for verifying the identity of a signatory to any electronic transaction it is a party to. The Company does not guarantee the validity of any electronic transaction.
U ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
U.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
U.2 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details.
U.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company. It is the User’s responsibility to update its contact details as they change.
U.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
U.5 Notices must be sent to the parties’ most recent known contact details.
U.6 The User may not assign or otherwise create an interest in this Agreement.
U.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
V GENERAL
V.1 Software Licence Agreement. An Organisation may agree with the Company an Software Licence Agreement in writing.
V.2 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
V.3 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
V.4 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
V.5 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
V.6 Governing Law. This Agreement and any non-contractual obligations arising therefrom is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
V.7 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
