Software Licence Agreement
Sports Performance Systems Pty Ltd A.C.N 121 290 239
Welcome to the websites of Sports Performance Systems Pty Ltd, including AccelerWare.com.
This Software Licence Agreement is made between you and Sports Performance Systems Pty Ltd A.C.N. 121 290 239 of PO Box 1449, Milton QLD 4064 and governs your use of your Account and Software provided for its use.
By clicking on the "I accept the terms and conditions of this Software Licence Agreement" button you are indicating your acceptance of this Software Licence Agreement and you agree to be legally bound by it.
1. Definitions and interpretation
‘Account Types’ means the two (2) types of accounts offered by the AccelerWare software: Athlete and Customised.
‘Additional Services’ means those services which are advertised and available to you on the Site as an additional extra to your Account package.
‘Athlete Account’ is known as the “Athlete Account” which is capable of being converted to a High School, University or Fitness Client Account subject to the terms set out in the Software Licence Agreement for a High School, University or Fitness Account available by clicking here.
‘Commencement Date’ means the date on which you pay your initial Term Account fee and download the Licensed Software under this Agreement.
‘Confidential Information’ means all information provided by one party to the other in connection with this Software Licence Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Software Licence Agreement, and
(b) information developed independently by a party.
‘Content’ means all of the fitness data which you upload and store on the site.
‘Customised Account’ means the Account Type where the framework of the Fitness Version is used however all of the exercises and other intellectual property have been removed. This account may be modified according to the needs of the organisation utilising it.
‘Documentation’ means any and all proprietary documentation made available to you by the Licensor for use with the Licensed Software, including any documentation available online.
‘Entity’ means and includes a company whether limited by shares or not limited by shares, a partnership whether limited or not limited by shares, trading trust or any other de facto business association entering into this Software Licence Agreement to use AccelerWare.
‘Fees’ means the fees payable for the use of the Software. The fee table found at: http://www.accelerware.com/store/product_teaching.cfm?product_id=281
‘Force Majeure Event’ means any event beyond the control of the relevant party.
‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
‘Intellectual Property Rights’ means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
‘Licensed Software’ means the AccelerWare software owned by the Licensor and downloaded by you or delivered to you by the Licensor pursuant to this Software Licence Agreement.
‘Moral Rights’ has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
‘Sports Performance Systems’ is hereafter referred to as “SPS”, “the Licensor”, “we”, “us” or “our”.
‘User Content’ means the current and anticipate features of the site including text, images, illustrations, graphics, other data, audio, video or auto-video clips as posted by users of the site.
‘You’ means the individual, entity, agent or employee of the entity or agent entering into this Software Licence Agreement with the authority necessary to enter into this Software Licence Agreement on the behalf
'Your Content’ means any text, images, illustrations, graphics, other data, video or audio-video clips posted by you.
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Software Licence Agreement or otherwise affect the interpretation of this Software Licence Agreement;
(d) the term "includes" (or any similar term) means "includes without limitation"; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2. Scope of Licence
(a) through the site;
(b) which will allow you to generate Content by collecting, storing, analysing and comparing your fitness data against training programs and periodisation charts; and
(c) software necessary to collate, interpret, store, download and print your Content.
3. Pre-conditions to the Grant of Licence
3.1 To accept the grant of the licence from the Licensor you must:
(a) be over the age or eighteen (18) years; and
(b) undertake to keep the account for your own personal use.
4. Grant of Licence to Account Holders
4.1 The Licensor grants you a limited, personal, non-exclusive, world-wide, non-transferable, revocable licence to:
(a) use the Licensed Software and the Documentation, subject to and in accordance with the terms and conditions set out in this Software Licence Agreement; and
(b) to download and print copies of any portion of the Content of the Site to which you have properly gained access; and
(c) to create hyperlinks to the home page or public pages within the Site provided that the hyperlink accurately describes the content as it appears on the applicable page of the Site; and
(d) to implement an RSS feed located on the Site at www.accelerware.com
For your personal use. If you wish to obtain a licence to use, distribute or otherwise feature our RSS feeds for commercial purposes please contact us at: firstname.lastname@example.org and request a licence for commercial use. If you wish to link the Site to any other site other than as set out in this Software Licence Agreement, please contact Stewart Briggs on email@example.com.
4.2 You must not:
(a) provide false, misleading or out dated information about yourself or your use of the account;
(b) use the Licensed Software for any purpose or in any manner other than as set out in clause 4.1;
(c) use the Licensed Software in any way that could damage the reputation of the Licensor or the goodwill or other rights associated with the Licensed Software;
(d) permit any third party to use the Licensed Software without our permission;
(e) assign, sub-licence or otherwise deal in any other way with any of your rights under this Software Licence Agreement without the prior written consent of the Licensor;
(f) disclose your password to any third party;
(g) reproduce, make error corrections to or otherwise modify or adapt the Licensed Software or the Documentation or create any derivative works based upon the Software or the Documentation;
(h) modify or remove any copyright or proprietary notices on the Licensed Software or the Documentation.
4.3 You must:
(a) contact us at firstname.lastname@example.org if you have reason to believe that your password has been compromised or used without your authority; and
(b) take steps to change your password with us using the facilities contained at www.accelerware.com; and
(c) where directed, provide us with details of any other professional party linked to your account; and
(d) keep your account details updated and provide us with notice of any changes to your personal details; and
(e) be responsible for the payment of any stamp duty and other government charges in relation to this Software Licence Agreement; and
(f) keep your internet piracy and virus detection software up to date.
5. Intellectual Property Rights
5.1 Nothing in this Software Licence Agreement constitutes a transfer of any Intellectual Property Rights.
5.2 You acknowledge that the Licensor owns all Intellectual Property Rights in the Licensed Software.
5.3 The Trademarks and service marks used or displayed on the Site are registered and unregistered trademarks owned by Sports Performance Systems Pty Ltd A.C.N. 121 290 239 and its licensors or affiliates.
5.4 You may not use any Trademarks displayed on site without the prior express written permission of Sports Performance Systems Pty Ltd A.C.N. 121 290 or its licensor or affiliate.
5.5 You must not directly or indirectly do anything that would or might invalidate or put in dispute the Licensor's title in the Licensed Software or any of the Licensor's registered or unregistered Trademarks.
5.6 You must comply with the Licensor's reasonable usage guidelines and directions with respect to the Licensed Software and the Trademarks as notified to you from time to time.
6. Payment of Fees
6.1 You must pay the Licensor the Fees for your use of the account prior to obtaining access to your account.
6.2 All plans automatically renew unless you terminate your account within the time specified in your account before your plan is scheduled to renew.
6.3 Upon termination by us under clause 12.2 (c) we shall provide you with a pro-rata refund for the unexpired balance of the term of your Plan.
7.1 All amounts payable under this Software Licence Agreement are expressed exclusive of GST.
7.2 In respect of any taxable supply, you must pay to the Licensor an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by you of a valid tax invoice.
8.1 You must permit the Licensor (or its nominated auditor) to audit the records and premises of you at any time during the Term and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming your compliance with this Software Licence Agreement.
9.1 A party must not, without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Software Licence Agreement or required to do so by law or any regulatory authority.
9.2 A party may:
(a) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Software Licence Agreement; and
(b) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Software Licence Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
9.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information whilst it is in the receiving party's possession or control.
9.4 Each party must return, or at the other party's option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of the Licensor's request or on termination of this Software Licence Agreement for any reason.
10. Medical Advice
10.1 You agree that prior to downloading material or Content from the Software and undertaking any fitness training you have received medical advice from your physician or other medical professional as to the suitability and level of fitness appropriate to your age, weight and abilities.
10.2 You agree that you will not use your Account or fitness Plan or photographs, images, illustrations, video or audio clips or site recommendations in place of medical advice or as a diagnostic tool provided by your physician or medical professional.
10.3 You agree that you will contact your physician or medical professional in the event that you have an emergency.
10.4 You agree that you will not use the Software as a tool to diagnose or treat any medical conditions you may have.
10.5 You agree that your use of the Software does not create a doctor-patient relationship between you and us.
11. Suspension of Provision of Software or Access
11.1 We may without notice suspend our Website or disconnect or deny you access to any part of our Website:
(a) due to any technical failure; or
(b) due to any maintenance period that Sports Performance Systems Pty Ltd A.C.N. 121 290 239 decides to utilise; or
(c) if you do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Software or access to that Software by other users;
11.2 Sports Performance Systems Pty Ltd A.C.N. 121 290 239 may make improvements and or changes to www.accelerware.com or the Software at any time without notice to you.
11.3 We do not warrant that the Software architecture or navigation will not change now or at any time into the future.
12.1 Either party may terminate this Software Licence Agreement by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Software Licence Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice;
(b) an insolvency event occurs, other than an internal reconstruction with notice to the other party;
12.2 We may terminate this Software Licence Agreement if:
(a) you fail to comply with the terms of this Software Licence Agreement; or
(b) you fail to comply to the Terms and Conditions of Use of the Site; or
(c) we are unable to continue providing Services;
12.3 You may terminate your Account at any time and following termination you shall not have further access to your Content. Your Content shall remain stored by us until such time as you re-activate your Account.
12.4 We shall not provide any refund if your Account is terminated in accordance with this section 9.
13. Consequences of Termination
13.1 If this Software Licence Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Software Licence Agreement except those obligations in clauses 6, 7, 8 and 10, and any other obligations that, by their nature, survive termination;
(b) each party retains the claims it has against the other;
(c) your right to use the Licensed Software and the Trademarks immediately ceases and the licence granted under this Software Licence Agreement terminates;
(d) we reserve the right to delete your Account and Information or to remove Content which you have posted or uploaded;
(e) you must immediately remove all Licensed Software and Trade Marks from your computer; and
(f) if your termination is prior to the end of your Plan, you shall continue to have access to your Account until the expiry of the term of your Plan.
13.2 If we terminate under 12.2 (c) then we will provide you with a pro-rata refund for the balance of the unexpired term of your Plan.
14.3 We reserve the right to monitor, collect, store your communications with us whether by email, facsimile or any other form of transmission for the purposes of quality control, business needs and security.
15.1 We welcome your comments, feedback, suggestions, information and other communications regarding the Software.
15.2 The feedback you provide to us regarding the Software will be and remain our exclusive property and you relinquish any right, title or interest in it the moment it is sent to us.
15.3 We will be entitled to reduce to practice, exploit, improve, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any feedback you submit for any purpose whatsoever without restriction.
15.4 We will not compensate you for any feedback you may send to us.
15.5 Please do not send us your feedback if you do not wish to assign all of the right, title and interest in it to us.
16. Limitation of Liability, Warranties and Disclaimer
16.1 To the full extent permitted by law, the Licensor excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
16.2 The Licensor makes our Software available for you to use, however it does not assume a duty of care to you.
16.3 The Licensor makes no warranties or representations regarding the quality, accuracy, completeness, merchantability or fitness for purpose of the Software. To the full extent permitted by law, the Licensor excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Software Licence Agreement.
16.4 The Licensor does not warrant or represent that our Software will not cause damage or is free from any computer virus or any other defects or errors.
16.5 The Licensor's total aggregate liability for all claims relating to this Software Licence Agreement is limited to the Fees payable by you under this Software Licence Agreement.
16.6 Where any law implies a warranty into this Software Licence Agreement which may not lawfully be excluded, then to the maximum extent permitted by law, the Licensor’s liability for breach of the warranty will at the Licensor’s option be limited to the supply of services or Software again, or the payment of the cost of having them supplied again.
16.7 Either party's liability for any claim relating to this Software Licence Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
16.8 Where liability cannot be excluded, any liability incurred by the Licensor in relation to the use of our Software is limited as provided under the Trade Practices Act 1974 (Cth).
16.6 Under no circumstances will the Licensor be liable for any incidental, special or consequential damages, including damages for loss of business or other profits arising in relation to use or reliance on the Software.
17. Your Indemnity to Us
17.1 You will indemnify and hold us and our subsidiaries, affiliates, officers, agents or any other partners and employees or contractors harmless from any claim, liability, loss, expense or demand including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Software under Licence, your violation of this Agreement or any violation of any rights of another.
17.2 If you access the Software from outside of Australia, you undertake to comply with all laws applicable to the country from which you access the Software regarding your use of the Software.
18.1 We will send you notices via email or regular mail. We may display notices or links on the Site as described in these Terms of Notice.
19.1 You must not assign, sublicense or otherwise deal in any other way with any of its rights under this Software Licence Agreement without the prior written consent of the Licensor.
19.2 Nothing contained in this Software Licence Agreement creates any relationship of partnership or agency between the parties.
19.3 If a provision of this Software Licence Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
19.4 Each party must at its own expense do everything reasonably necessary to give full effect to this Software Licence Agreement and the events contemplated by it.
19.5 This Software Licence Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Software Licence Agreement, no party has relied on any representation made by or on behalf of the other.
19.6 This Software Licence Agreement may be amended only by a document signed by all parties.
19.7 A provision of or a right under this Software Licence Agreement may not be waived or varied except in writing signed by the person to be bound.
19.8 A party will not be responsible for a failure to comply with its obligations under this Software Licence Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
19.9 Without limiting any other right to terminate under this Software Licence Agreement, if a Force Majeure Event affects a party's performance under this Software Licence Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Software Licence Agreement by written notice.
19.10 All stamp duties and other government charges in relation to this Software Licence Agreement must be paid by you.
19.11 This Software Licence Agreement is governed by the laws of Queensland and each party submits to the jurisdiction of the courts of Queensland.
I agree to the above Terms and Conditions