Welcome to Obstacle Fit!

To make it easier for you to understand the terms on which we provide our services, we’ve tried to keep these terms of use (Terms) as simple as possible by using plain English.

When we talk about “ObstacleFit”, “we,” “our,” or “us” in these Terms, we are referring to OBSTACLEFIT PTY LTD, an Australian business with ABN 21 646 706 765 that owns and operates the ObstacleFit app under the registered business name ObstacleFit. When we talk about the “Services” in these Terms, we are referring to our mobile applications available on the Apple iOS Store and the Google Play Store, our website and any associated services we offer.

We’ve also used a few other capitalised words and phrases as shorthand to refer to recurring concepts. Each of these are defined in bold and in brackets after the concepts are first mentioned.

DISCLAIMER

ObstacleFit is a training and fitness app that alerts you when to perform obstacles. ObstacleFit provides you with the Services based on the information you provide to us.

(Not medical or fitness advice) Any information in the Services is not medical advice and you cannot rely on this information as a substitute for medical advice. ObstacleFit is not intended to diagnose, treat, cure or prevent any disease. We accept no responsibility from any adverse effects or injuries from using the Services.

(Online Services – Unsupervised Training) Our Services are entirely online and you will be training entirely unsupervised. You agree that you will be using the Services at your own risk and any injuries that occur are your responsibility.

(Alerts) ObstacleFit uses an alert system to notify you of obstacles. It is your responsibility to make sure you are in a safe place to perform the obstacles and any training.

(Not designed for unsupervised use by under 18s) If you are a parent or legal guardian of a person under 18 who wants to use the Services, you must consent to that use and must supervise your child’s use of the Services. We will not be responsible for any injuries that occur to your child.

(Results not guaranteed) We cannot guarantee any results from your use of the Services.

(Seek medical advice) You may find that by using the Services you experience some level of discomfort or pain. It is normal to feel muscle soreness from exercise. If you experience sharp stabbing pain, pain the next day or anything out of the ordinary that you are concerned about, or if you think you may have suffered an injury, seek medical advice or contact your local emergency services in case of emergency.

If you are unsure about using the Services, we encourage you to seek medical advice and a referral from a health practitioner prior to using our Services.

INTRODUCTION

These Terms set out the terms and conditions that apply when you use the Services.

By using the Services, ordering any goods or services through the Services, or otherwise engaging with the content on the Services, you represent and warrant that you:

• are at least 18 years old, have the legal capacity to enter into a binding legal agreement with us and you agree to be bound by these Terms; and
• are the parent or legal guardian of a person under the age of 18 who intends to use the Services, and you agree to be bound by these Terms on that person’s behalf.

Please have a careful read through these Terms before using the Services. If you don’t agree to these Terms, please don’t use the Services.

We may modify our Terms from time to time. If we do, we will post the update in the app and send you a notification on the app. If you continue to use the Services after we modify our Terms, you’ll be taken to have agreed to the Terms as modified.

MINORS AND PARENTAL SUPERVISION

If you are a parent or legal guardian permitting a person under 18 years of age (Minor) to use the Services, you agree to:

• consent to the Minor’s use of the Services;
• supervise the Minor's use of the Services and not leave the Minor unattended whilst using the Services;
• assume all risks associated with, and liabilities resulting from, the Minor's use of the Services including all risk of injuries, (including those set out in clause 3 and any waiver we may require you to sign);
• ensure that the content on the Services is suitable for the Minor;
• ensure all information submitted to us by the Minor is accurate; and
• provide any consents (including those relating to privacy and sensitive information in clause 17), representations, warranties and waivers required by us for the Minor.

RISK AND WAIVER

Participating in the Services involves the potential for injury and you participate in any Services at your own risk with full knowledge of the dangers involved, including but not limited to, physical injury, muscle and ligament strains, illness, bruising, falls, injury through equipment failure and death.

You acknowledge that you will be training unsupervised by any ObstacleFit personnel and you agree to accept any risks of loss, injury, damage or death arising out of your unsupervised training, unless there is reckless disregard or gross negligence on ObstacleFit's behalf.

You will bear all risk of loss or destruction of, or damage to, any equipment and/or other property and/or people arising out or contributed to by your or their participation in the Services.

(Waiver) Before you participate in any of the Services, we may require you to complete and sign a waiver that will be provided to you.

ACCOUNT REGISTRATION

In order to use the Services, you will be required to sign up for an account (Account).

When you register for an Account, you must provide true, accurate and complete information as requested and keep this information up to date after registration.

You agree that you’re solely responsible for:

• maintaining the confidentiality and security of your Account information and your password;
• choosing an appropriate username (this means nothing offensive – think family friendly); and
• any activities and those of any third party that occur through your Account, whether those activities have been authorised by you or not.

We reserve the right to reject, remove or direct you to change any username that we deem offensive, discriminatory or inappropriate in any way.

You also agree to let us know if you detect any unusual activity on your account as soon as you become aware of it.

We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your Account information or your password.

FEES

FEES

We offer a no cost plan which will allow you to access some features of our Services (Free Version). In order for you to access additional features (Paid Version), we may require the payment of fees (Fees). These Fees may be paid via the mobile application store or as otherwise notified by us to you, depending on our current prices and billing process.

FAILURE TO PAY

If Fees for an Account are not paid when they are due, we may revoke your Account and require payment for you to continue accessing those Services.

PAYMENT METHODS

We may use third-party payment providers (Payment Providers) to collect Fees. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

REFUNDS

Except as otherwise set out on our website, we generally don’t offer refunds for any of our subscriptions and any refunds we issue will be solely at our discretion. Please let us know if you have any issues with our Services that you think should entitle you to a refund and we’ll consider your situation.

ACCEPTABLE USE

We’ll need you to make a few promises about the way you’ll use the Services

You agree:

• not to copy, reproduce, translate, adapt, vary or modify the Services without our express consent;
• not to use the Services in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
• not to use the Service for the purpose of distributing unsolicited commercial content, junk mail, spam, bulk content or harassment;
• not to attempt to breach the security of the Services or ObstacleFit’s system security, or otherwise interfere with the normal function of the Services, including by:
  • gaining unauthorised access to Accounts or data about other users of the Services;
  • scanning, probing or testing the Services for security vulnerabilities;
  • overload, flood, mailbomb, crash or submit a virus to the Services or ObstacleFit’s system; or
  • instigate or participate in a denial-of-service attack against the Services or ObstacleFit’s system; and
• to ensure that your employees, sub-contractors and other agents who you have authorised to use or access the Services comply with the Terms.

YOUR CONTENT

TYPES OF CONTENT

As part of using the Services, you’ll be uploading images, content, information and materials you share with us or the public (including feedback, suggestions and enhancement requests), including by using the features of the app, sharing content via the app on social media or by contacting us, or when you register an Account, including your username (Posted Materials).

POSTED MATERIALS

By providing or posting any Posted Materials, you represent and warrant that:

• you are authorised to provide the Posted Materials;
• the Posted Materials are free from any harmful, discriminatory, defamatory or maliciously false implications and do not contain any offensive or explicit material;
• the Posted Materials are not “passing off” of any product or service and does not constitute unfair competition;
• the Posted Materials do not infringe any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement (Intellectual Property Rights);
• the Posted Materials are accurate and true at the time they are provided;
• any Posted Materials which are in the form of a review or feedback is honest, accurate and presents a fair view of the relevant person and/or your experience;
• the Posted Materials do not contain any viruses or other harmful code, or otherwise compromise the security or integrity of any network or system; and
• the Posted Materials do not breach or infringe any applicable laws, regulations or orders.

POSTED MATERIALS – IP LICENCE

By uploading any Posted Materials, you grant to ObstacleFit (and its agents or service providers) a perpetual, irrevocable, transferable, worldwide and royalty-free licence (including the right to sublicense) to use, copy, modify, reproduce and adapt any Intellectual Property Rights in that Posted Material in order for ObstacleFit to use, exploit or otherwise enjoy the benefit of such Posted Material.

REMOVAL OF POSTED MATERIALS

We don’t have any obligations to screen Posted Materials in advance of them being posted and your compliance with these Terms is your responsibility. However, we may, if we choose, review and remove any Posted Materials at any time without giving any explanation or justification for removing the material and/or information.

OUR CONTENT

Unless we indicate otherwise, all materials used in the Services (including text, graphics, logos, icons, sound recordings and software) are subject to Intellectual Property Rights that are owned or licensed by us.

You can only access and use these materials for the sole purpose of enabling you to use the Services in accordance with the plan you are on, except to the extent permitted by law or where you have received prior written approval from us.

THIRD PARTIES

THIRD PARTY CONTENT

The Services may contain text, images, data and other content provided by a third party (Third Party Content). We’re not responsible for any of this Third Party Content and we make no representation or warranty about the quality, suitability, accuracy, reliability, currency or completeness of any Third Party Content.

THIRD PARTY LINKS

The Services may also contain links to websites operated by third parties (Third Party Links). Third Party Links are provided for convenience and may not remain current or be maintained. We do not endorse and are not responsible for Third Party Links and have no control over or rights in linked websites.

THIRD PARTY TERMS AND CONDITIONS

By using the Services, or any other third party service, you acknowledge and agree that third party terms & conditions (Third Party Terms) may apply (including app store providers such as Apple and Google and Google Maps or other ).

You agree to any Third Party Terms applicable to any third party goods and services, and ObstacleFit will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.

MAPPING AND TRACKING

We may use Google Maps/Earth mapping services, including Google Maps API(s) as part of the Services so that you can track your progress. Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.

SPONSORSHIP DISCLOSURE AND AFFILIATES

ObstacleFit may partner with affiliated businesses, accept paid sponsorships and advertising or other forms of compensation (Sponsored Content) on the Services. We only partner with brands whose products and services we believe to be beneficial to some or all, of our audience.

Where we are using or offering Sponsored Content we will inform you on the Services.

NOTICE REGARDING APPLE

If you are accessing the Services from the Apple, Inc. (Apple) iOS Store, you acknowledge and agree:

• these Terms are between you and ObstacleFit and not with Apple. Apple is not responsible for the Services or any content available on the Services;
• Apple has no obligation whatsoever to furnish any maintenance and support services for the Services;
• in the event of any failure of ObstacleFit to conform to any applicable warranty, you may notify Apple, and Apple will refund the price for the Services. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs of expenses attributable to any failure to conform to any warranty will be ObstacleFit’s responsibility;
• Apple is not responsible for addressing any claims by you or any third party relating to the Services, including, but not limited to:
  • product liability claims;
  • any claim that the Services fails to conform to any applicable legal or regulatory requirement; and
  • claims arising under consumer protection, privacy, or similar legislation;
• in the event of any third party claim that the Services or your use of the Services infringes any third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim;
• that you represent and warrant that:
  • you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting’” country; and
  • you are not listed on any U.S. Government list of prohibited or restricted parties;
• you must comply with applicable third party terms of agreement when using the Services; and
• Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.

OPERATION OF THE APP DEPENDENT ON THIRD PARTIES

You acknowledge that the Services are dependent on software and hardware developed by third party providers such as Apple and Google. If following an update by such third party provider, the Services can no longer function as they did prior to the update, we will not (to the maximum extent permitted by law) be liable to you for any loss or damage you might suffer as a result.

SERVICE LIMITATIONS

The Services are made available to you strictly on an ‘as is’ basis. We can’t guarantee, and make no warranties, to the extent permitted by law, that:

• the Services will be free from errors or defects;
• the Services will be accessible or available at all times;
• messages sent through the Services will be delivered promptly, or delivered at all;
• information you receive or supply through the Services will be secure or confidential; or
• any information provided through the Services is accurate or true.

SECURITY

We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information (including Posted Materials), your computer systems, mobile phones or other electronic devices arising in connection with use of the Services. You should take your own precautions to ensure that the process which you employ for accessing the Services does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

LIABILITY AND INDEMNITY

To the maximum extent permitted by applicable law, ObstacleFit limits all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to the Services to the total Fees paid to ObstacleFit in the 6 months preceding the first event giving rise to the relevant liability in aggregate, or if no Fees have been paid, then $0 (AUD) in aggregate. This includes the transmission of any computer virus

You agree to indemnify ObstacleFit and its employees, contractors and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with, you, your child, or your representatives: use of the Services; any injury suffered by you or your child, as part of participating in the Services; an event, where circumstances giving rise to a claim, were caused or contributed to by you; and/or breach of these Terms

All express or implied representations and warranties given by us are, to the maximum extent permitted by applicable law, excluded.

Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.

To the maximum extent permitted by law, under no circumstances will ObstacleFit be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with the Services, these Terms or their subject matter (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).

CANCELLATION

CANCELLATION BY YOU

You are responsible for the cancellation of your Account. You can cancel your Account at any time by using the ‘delete profile’ functionality provided in the app.

CANCELLATION BY US

To the extent permitted by law, we reserve the right to terminate your access to any or all of the Services or any part of the Services at any time without notice, for any reason, provided that we refund to you any Fees for Services which you have paid for and not received.

We may also terminate your access to any or all of the Services at any time without notice without issuing a refund if you breach any provision of these Terms.

EFFECT OF CANCELLATION

Upon cancellation, termination or expiry of your Account, we will delete any Posted Materials associated with your Account. You won’t be able to recover any of this after cancellation, termination or expiry of your Account so we recommend you back up anything important to you. We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of your Account.

SURVIVAL

Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.

COLLECTION NOTICE AND PRIVACY

• We may collect personal information about you, or your child, in the course of providing you with our Services, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.
• Our Privacy Policy contains more information about how we use, disclose and store your information and details how you can access and correct your personal information.
• We may collect sensitive information about you, or your child, such as health information, during the course of providing you with the Services. We only collect the information that you choose to provide us and will not collect this without your consent. It is up to you whether you choose to disclose your sensitive information.
• You may also choose to share your personal and/or sensitive information with other users on the Services.
• If you are providing personal information of a Minor you must be that Minor's parent or legal guardian and you must provide consent for that Minor’s personal and/or sensitive information to be collected.
• You agree to be bound by the clauses outlined in ObstacleFit’s Privacy Policy, which can be found at https://obstaclefit.com/privacy/.

LOCATION OF SERVICES

The Company controls the operation of the Services from headquarters located in Australia. Some Services or parts thereof may be operated from, or hosted on mirrors or servers, at various locations outside of Australia.

We make no representation or warranty that all of the features of the Services will be available to you outside of Australia or that they are permitted to be accessed outside Australia.

You’re solely responsible for your decision to use the Services from other locations and you acknowledge that such use may be subject to, and you are responsible for, compliance with applicable local laws in relation to your use of the Services.

NOTICES

A notice or other communication to a party under this agreement must be:

• in writing and in English; and
• delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

• 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
• when replied to by the other party

whichever is earlier

GENERAL

GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

INTERPRETATION

• (singular and plural) words in the singular includes the plural (and vice versa);
• (currency) a reference to $; or “dollar” in these Terms is to the Australian dollar, (but if you are purchasing through the app any currency will be to the currency set on your app or as advertised on the app);
• (gender) words indicating a gender includes the corresponding words of any other gender;
• (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
• (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
• (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
• (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
• (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
• (headings) headings and words in bold type are for convenience only and do not affect interpretation;
• (includes) the word “includes” and similar words in any form is not a word of limitation; and
• (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.