The Final Touch website http://www.thefinaltouch.online and associated software applications and services (The Final Touch Online PTY LTD) are made available to you to allow you to record physical health, fitness and well-being information and to track progress and improve performance. The Final Touch also provides you access to health and sports science information and resources.
These Terms and Conditions (Terms) set out the basis on which you may access and use The Final Touch Online.
1. Acceptance and variation
(a) These Terms form a legally binding agreement between you and us regarding your use of The Final Touch Online
(b) You acknowledge and agree to be bound by these Terms when you:
(i) communicate to us either verbally or in writing your acceptance of these Terms;
(ii) create an account to enable you to utilise The Final Touch Online; or
(iii) otherwise commence using The Final Touch Online
(c) You must only use The Final Touch Online in accordance with the provisions of these Terms.
(d) We reserve the right at any time and without liability to you to:
(i) modify, permanently or temporarily disable or discontinue any part of The Final Touch Online; and
(ii) alter, amend or withdraw any part of these Terms or any information or material accessible through The Final Touch Online.
(e) Where an amendment to these Terms will materially affect your rights or obligations, we will provide you with reasonable notice of such amendments.
(f) Your continued use of The Final Touch ONline will constitute your acceptance of any alteration, withdrawal or amendment made by us to these Terms.
(a) You must be at least 16 years of age to create an account to access and use The Final Touch Online (Member Account). If you are under the age of 16 (Minor) your Member Account must be created and these Terms agreed to by your parent or legal guardian on your behalf.
(b) If you are creating a Member Account on behalf of a Minor you represent and warrant to us that you:
(i) are over the age of 18 (or the age of legal majority in your jurisdiction) and therefore eligible to use The Final Touch Online and create an account on behalf of a Minor;
(ii) are the legal guardian of the Minor that will be using the The Final Touch Online account that you create and have the authority to allow the Minor to use The Final Touch Online;
(iii) will take all necessary precautions to ensure that all activities undertaken within The Final Touch Online are being conducted in an appropriate and safe fashion;
(iv) will at all times closely monitor the Minor’s participation in and use of The Final Touch Online to ensure their safety;
(v) have the capacity to and are forming a binding contract with us; and
(vi) will comply with these Terms and all applicable laws and will ensure any Minor using a Member Account that you have created does the same.
Your agreement with us commences upon your acceptance of these Terms in accordance with clause 1 and will expire on the date our agreement is terminated in accordance with clause 19.
4. Your account
(a) In order for you to access The Final Touch Online you must create a Member Account.
(b) By creating a Member Account you acknowledge that it will be necessary for us to process and use the data that you provide us in order for us to make our services available through The Final Touch Online and perform our agreement as set out in these Terms.
(c) By creating a Member Account you agree to:
(i) provide accurate and complete information about yourself and keep that information up to date;
(ii) not register for more than one Member Account, create a Member Account on behalf of someone else (other than in the circumstances contemplated by clause 2(b)), or create a false or misleading Member Account;
(iii) not transfer your Member Account to any other person, association or organisation;
(iv) maintain the security of your user identification, password and any other confidential information relating to your Member Account;
(v) notify us immediately in the event of any known or suspected unauthorized use of your Member Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your Member Account password;
(vi) take the necessary steps to prevent the continuance of any unauthorised use of your Member Account by contacting us to change your login security information; and
(vii) update and keep your Member Account information accurate, including but not limited to, all email addresses, residential addresses, postal addresses and any other contact or personal information we may require upon creation of your Member Account.
5. Member Account Subscription Fees
(a) Upon downloading The Final Touch Online you may be required to pay an initial fee (Initial Fee). In addition to the Initial Fee, upon creation of your Member Account you are subscribing for a paid service and will be charged an ongoing subscription fee to access and utilise The Final Touch Online (Subscription Fees). The Initial Fee and Subscription Fees will be made available on the The Final Touch Online website at ><www.thefinaltouch.online> or on the software application at the time of purchase.
(b) The Final Touch may also support website purchases for additional goods and services (Additional Purchase Fee).
(c) To pay any Initial Fee, Subscription Fee or Additional Purchase Fee (Fee) you must designate and provide information about your preferred payment method (e.g., credit card, online payment service, iTunes, Google Play, or any other payment method made available by The Final Touch) (Payment Method). Please note that we may require a particular Payment Method be used for the payment of certain Fees.
(d) By providing your payment information to us you authorize us and our third-party service providers to receive and store your payment information and to charge you any applicable Fees.
(e) Please note that we will not provide refunds or credits for purchases that you have made, other than as set forth in these Terms. You specifically acknowledge and agree that you may cancel your Member Account at any time and that upon cancellation you will not be entitled to any refund of any Subscription Fees paid for the relevant subscription period.
(f) We reserve the right to include as additional charges any third-party payment processing costs associated with processing your transaction.
6. Permitted use
(a) We grant you a non-exclusive, worldwide, non-transferable licence to use The Final Touch Online in accordance with these Member Terms.
(b) You are only authorised to use The Final Touch Online for the following:
(i) creating a Member Account;
(ii) updating, amending or editing your Member Account information;
(iii) allowing a Minor you are responsible for to utilise The Final Touch Online;
(iv) viewing educational content and materials;
(v) monitoring and tracking your health, fitness and performance;
(vi) comparing your health, fitness and performance with other Members;
(vii) retrieving our contact details;
(viii) reviewing our policies; or
(ix) contacting us.
(c) You must not use any part of The Final Touch Online for any commercial or consumer purpose without our written consent.
(a) The Final Touch Online may include functionality that allows you to share content by uploading or communicating such content (Contributing) through the platform.
(b) When Contributing you agree that you will:
(i) not do anything, unlawful, malicious or discriminatory;
(ii) not bully, intimidate or harass any person;
(iii) be respectful, courteous and considerate;
(iv) not upload viruses or other malicious code;
(v) ensure that you do not promote the unauthorised copying of another person’s copyrighted work;
(vi) ensure that your Contribution does not infringe upon the rights of any third party, including intellectual property rights; and
(vii) ensure that the content is not hateful or threatening, inciting of violence, pornographic, or graphic violence.
(c) In order to maintain The Final Touch Online in a manner that we deem appropriate, in our sole discretion, we may remove, reject, refuse to post, display, delete or monitor any Contributions by you without notice or liability to you or any third party.
(d) Notwithstanding clause 7(c) you acknowledge that we do not have any obligation to remove, reject, refuse to post, display, delete or monitor any Contributions by you, or any content, materials or communications made through The Final Touch Online by any other user of The Final Touch Online.
(e) You acknowledge that we do not control Contributions from other users of The Final Touch Online and accordingly do not guarantee the accuracy, integrity or quality of them. You acknowledge that all Contributions through The Final Touch Online are the responsibility of the person that makes the Contribution.
(f) You specifically acknowledge we are under no obligation to monitor The Final Touch Online and we accept no responsibility for any Contributions made by other users.
You agree that you will not:
(a) use any automated processes or means to access The Final Touch Online;
(b) use any software or manual repetition that will or is likely to interfere with The Final Touch Online; or
(c) attempt to cause stress or detriment to the proper working of The Final Touch Online, such as by acting in any way likely to cause an unreasonable strain to the infrastructure of The Final Touch Online.
(a) When using The Final Touch Online you are sending information and communicating electronically.
(b) By making such electronic communications you acknowledge and consent to receiving communications (including legal notices) from us electronically. We may communicate with you by email, private message or by posting notices through The Final Touch Online.
(c) We may deliver communications (including legal notices) to you at any street address detailed in your account.
10. Off Site conduct
(a) It is a direct violation of these Terms for you to engage in an activity using information obtained from The Final Touch to abuse, harass or harm any other user.
(b) It is a direct violation of these Member Terms for you to engage in an activity using The Final Touch that is illegal, immoral or unethical, or that involves the offering for sale of any illegal or illicit goods, services or substances of whatsoever nature.
11. Consequences of violation
(a) If you breach these Terms in any way we may in our sole discretion and without notice or liability to you:
(i) take any legal action available against you;
(ii) terminate or suspend your Member Account;
(iii) restrict your ability to make Contributions; or
(iv) disclose information about you and your use of The Final Touch Online for investigation by any enforcement body for your unlawful activity.
(b) You agree that monetary damages may not be sufficient where your actions cause damage to us, whether by tarnishing our goodwill, causing a loss to our sales or increasing our expenses and in such a case you irrevocably consent to us seeking injunctive or other equitable relief against you as a consequence of your violation.
12. Third party sites and Content
(a) The Final Touch Online may contain links to third party websites or applications outside our control (Linked Sites). We take no responsibility for content contained in any Linked Sites, and do not endorse any aspect of these third party services. We cannot and do not guarantee, represent or warrant that the content contained in any Linked Site is accurate, legal, or inoffensive. Such links are provided for convenience only. You use these Linked Sites entirely at your own risk.
(b) We do not assume any responsibility or liability for the actions, products, services and content of any Linked Site. We advise that users should carefully review each Linked Site’s privacy policies and terms and conditions of use. If you choose to purchase goods or services from a third party via a Linked Site, including one accessed from The Final Touch Online, then you are entering a separate agreement with that third party, and expressly agree that we are not a party to that transaction.
(c) Opinions, advice, statements, or other information made available through The Final Touch Online by third parties, are those of their respective authors, and should not necessarily be relied on. We hold third party authors fully responsible for any information that they create. We do not:
(i) guarantee the accuracy, completeness, or usefulness of any third-party information; or
(ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice or statement made by a third-party, in The Final Touch Online.
(d) Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted on The Final Touch Online that:
(i) we have not expressly endorsed;
(ii) has been transmitted to you by any third-party via The Final Touch Online.
(a) In order to allow you to use The Final Touch Online we will be required to collect certain personal information and data from you.
(c) You specifically acknowledge and agree that where you are using The Final Touch Online as part of a program conducted by a school, sporting, training or fitness club, or other association of the same or similar nature (Overarching Body), we may disclose the information that you provide to us to the relevant Overarching Body.
14. Intellectual Property Rights
(a) You must not without our express written authority engage in the use, copying, reproduction, display modification or distribution of any of the content available through The Final Touch Online including any text, software, scripts, flash files, graphics, photos, sounds, music, videos, business names, company names and logos.
(b) You must not utilise any tool, program, script or application for the purpose of scraping, indexing, surveying or otherwise data mining any portion of The Final Touch Online.
(c) You must not attempt to gain unauthorised access to or impair any aspect of The Final Touch Online, or otherwise undertake or engage in actions that impede the operation or functionality of The Final Touch Online.
(d) Nothing in these Member Terms is to be construed as an assignment or transfer to you of any ownership rights in the intellectual property rights in The Final Touch Online, or any other content and materials belonging to us.
(e) You will be provided with the ability to post or upload content, data and information to The Final Touch Online. Where you have posted or uploaded content, data or information, you grant us a perpetual, irrevocable, world-wide, royalty free, non-exclusive licence (including the right to novate or assign the licence, and to sub-licence) to use, reproduce, adapt, modify and communicate all such material for any purpose relating to the use of The Final Touch Online, as well as incorporating such material into our own advertising, promotional and marketing campaigns.
15. Member Warranties and Indemnity
You hereby warrant to us that:
(a) you will not breach the rights of any third party in your use of The Final Touch Online;
(b) where a third party has intellectual property rights in content and materials you have uploaded to The Final Touch Online you have the required authority and consent to grant us a license to use such content and materials in the manner contemplated by these Member Terms;
(c) you will not upload content and material to The Final Touch Onlone that is misleading, deceptive or false, obscene, indecent or offensive in nature;
(d) you will not remove any copyright, trade mark or other proprietary rights notices contained in or on The Final Touch Online;
(e) you will not breach any laws, regulations, codes or applicable rules (whether statutory or at common law) in your use of The Final Touch Online; and
(f) you have the authority and capacity to enter into this agreement with us and to be bound by your obligations under these Terms.
(a) For the purposes of this clause 15.2 the term “Loss” includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any demand, claim, action, dispute or proceeding) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
(b) You hereby indemnify and keep us indemnified against any Loss that may be incurred or suffered by us arising from or in connection with:
(i) any breach or default by you of these Terms (including any breach of warranty);
(ii) a negligent act or omission by you;
(iii) your failure to comply with any applicable law, regulation, code or rule;
(iv) your failure to comply with your contractual obligations to any third party insofar as such obligations arise or relate to the use by you, or by a party you are responsible for, of The Final Touch Online; and
(v) any demand, claim, action, dispute or proceeding made or brought against us as a result of an act or omission by you or resulting in any way from the upload or posting of content and materials to The Final Touch Online by you.
(c) This clause 15.2 survives the termination of the agreement between us and you on the basis of these Member Terms.
16. Member Acknowledgements
(a) You acknowledge and agree that:
(i) computer and software services are not fault free and occasional periods of downtime may occur with regard to The Final Touch online; and
(ii) we have not made any representations or warranties that The Final Touch Online will be error free, free of viruses or available without interruption.
(b) We do not endorse, make any warranties or bear any responsibility with regard to third party content or Contributions by other users.
(c) Whilst all due care has been taken in providing the information on The Final Touch Online, we do not provide any warranty either express or implied, including without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose.
(d) You join and participate in interactions with other users of The Final Touch Online at your own risk.
(e) To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is excluded.
(f) We may at our discretion undertake various identity checks or utilize other security measures in order to ensure the The Final Touch Online platform remains secure and that you are not breaching any laws in your use of The Final Touch Online. We reserve the right to cancel your account immediately and without notice where you fail, or we suspect that you are likely to fail, any such checks, or you are otherwise a risk or likely to be a risk to the security of The Final Touch Online.
(g) If we think it is reasonable to do so, we may immediately suspend your access to The Final Touch Online, remove or amend any content or material you have uploaded to The Final Touch Online, or take any other steps we deem reasonably necessary or appropriate to protect our interests or those of third parties.
(h) We will not be responsible for any loss, damage or expense you may suffer or incur, whether direct or consequential, arising from or relating to the exercise of our rights in accordance with clause 11(a), 16(c) or 16(g).
You hereby acknowledge that all documentation and materials provided through The Final Touch Online are provided for general information purposes only. You acknowledge that none of the information contained in the documentation and materials provided through The Final Touch Online platform constitutes health, medical or wellness advice and is not intended to be a substitute for professional medical advice, diagnosis or treatment. You should seek the advice of qualified medical and health professionals with any health or medical queries that you have and should never disregard or refrain from obtaining professional medical advice due to something you have read on The Final Touch Online.
18. The Final Touch Online Warranties and Limitations of Liability
(a) To the maximum extent permitted by law, we will not be liable for any loss of profit, loss of goodwill, loss of opportunity or any special, punitive, indirect or consequential loss or damage incurred by you or by any other person whether directly or indirectly related to these Terms.
(b) We are not liable for any loss or damage caused to you by reason of any delay, lack of supply, industrial action, fire, riot, war, embargo, civil commotion, act of God or any other event which is beyond our control.
(c) We do not make any representations or warranties that goods, services and information offered through The Final Touch Online will be safe, of an acceptable standard or fit for consumption.
19.1 Termination by notice
(a) You may terminate this agreement at any time by:
(i) deleting your Member Account and ceasing to use The Final Touch Online in all capacities;
(ii) requesting through the following email account <www.thefinaltouch.online/members/support> that we delete your Member Account and that we terminate your access to The Final Touch Online.
(b) We may terminate this agreement with you at any time after the provision to you of fourteen (14) days’ notice.
19.2 Termination for breach
Nothing in this clause 19 will have the effect of limiting our rights to terminate, delete or suspend access to your account in accordance with clause 11(a), 16(f) or clause 16(g).
20.1 General terms
(a) We may without further notice to you, assign or otherwise transfer the benefit of all or any part of these Terms to any other person or entity. You must not assign, novate or otherwise transfer any rights, benefits or liabilities relating to these Member Terms without our prior written consent.
(b) These Terms are governed by the law in force in the State of Queensland and each party submits to the exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to these Terms.
(c) Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of these Terms which shall remain in force.
In interpreting this document, unless the context provides otherwise:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a party means a party to this document and includes the party’s executors, administrators, successors, and permitted assigns;
(d) a reference to a person includes a firm, individual, corporation, association, government body or other corporate body;
(e) an obligation or liability assumed by two or more persons binds them jointly and severally and a right conferred on two or more persons benefits them jointly and severally;
(f) a rule of construction does not apply to the disadvantage of a stopped rolling down party because the party was responsible for the preparation of this document or any part of it;
(g) a reference to a law or statute includes regulations under it, reenactments and replacements; and
(h) headings and table of contents are for ease of reference only and do not affect interpretation.