POUNDS OF FORCE APP USER TERMS AND CONDITIONS
1. INTRODUCTION
1.1 The Pounds of Force App and the Services made available through the mobile application are owned
and operated by POUNDS OF FORCE PTY LTD (ACN 673 505 792) (Pounds of Force, our, us or we).
1.2 By downloading, using, browsing or accessing the Pounds of Force App and the Services, you
acknowledge that you have read, understood and accept these Pounds of Force App User Terms and
Conditions (agreement), together with our Privacy Policy, and agree to abide by them. If
you do not accept this agreement, you must not access and use the Pounds of Force App and the
Services.
1.3 In this agreement, you and your means the individual who accesses or uses the Pounds of Force App
and the Services, and whose details are listed in the User Access Portal (and includes
anyone acting on your behalf or with your express or implied authority).
2. POUNDS OF FORCE APP
2.1 The Pounds of Force App is a collaborative and interactive travel planning tool made available through
a mobile application that allows users to:
(a) measure their punch power and other data that can be get by attaching the phone on a punching bag
users to record;
(b) punch power, punch speed, punch average, punch count
(c) and other information that we can record during the punch activity,
(collectively, the Services).
2.2 The Pounds of Force App is an online tool and resource for user enthusiasts that wants to record their power punches and
differentiate each rounds. We are not a professional boxing gym. Our role in providing you with access and use of the Pounds of Force App and
the Services should be construed strictly in this context only.
2.3 By downloading, accessing and using the Pounds of Force App, we grant you a non-exclusive, non-
transferable, personal, revocable and non-sublicensable licence to download, install,
access and use the Pounds of Force App and the Services for the Subscription Term.
2.4 You must only use the Pounds of Force App and Services for personal and non-commercial purposes.
You will not acquire or be entitled to any rights other than those rights expressly set out in
this agreement.
3. SUBSCRIPTION TERM
3.1 This agreement will commence on the date you download and access the Pounds of Force App
(Commencement Date) and shall continue until terminated in accordance with clause 15
(Subscription Term), unless you terminate the agreement during the Trial Period in
accordance with clause 3.2 .
3.2 If you do not wish to continue to access and use the Pounds of Force App and Services following the
expiry of the Trial Period, you must cancel your subscription by selecting the ‘cancel
subscription’ function in your Account page prior to the expiry of the Trial Period. Following
the cancellation of your subscription, you will not be able to access the advanced functions
and features of the Pounds of Force App and Services. You may continue to access the basic
functions and features of the Pounds of Force App and Services after you have cancelled your
subscription. If you do not wish to continue to use the Pounds of Force App and Services, you should
delete the Pounds of Force App.
4. REGISTRATION AND ACCESS
4.1 To access and use the Pounds of Force App and the Services, you must create and setup an account
on the Pounds of Force App (Account). Your Account will be operated by your email address (User
Name) and password (Password). You can change your Password at any time by
accessing the User Access Portal.
4.2 To setup an Account on the Pounds of Force App, you:
(a) will be required to provide, and keep us up-to-date with, accurate registration
information and Personal Information (including full name, email address, address and
date of birth). All Personal Information as well as the information you provide to setup
your Account is subject to our Privacy Policy; and
(b) must be over 18 years of age, and legally able to enter into contractual relations. If you
are under the age of 18 years, you may only access and use the Pounds of Force App and
Services if you have your parents’/guardians’ permission to access and use the Pounds of Force
App and Services. Your continued use of the Account constitutes an acknowledgement
by you that you are: (i) over 18 years of age; or (ii) under 18 years of age but have your
parents’/guardians’ permission to access and use the Pounds of Force App and Services and that
your parents/ guardians have agreed to abide by this agreement.
4.3 You are responsible for:
(a) maintaining control over, and the confidentiality of, your Account, User Name and
Password;
(b) keeping your Account registration information current, complete, accurate, and truthful.
You must not impersonate another account holder or provide false identity information
to gain access to or use the Pounds of Force App or the Services;
(c) notifying us in writing of any unauthorised access to, or use of, your Account, User
Name or Password; and
(d) for all activities or transactions that occur using your Account. We are not liable for any
loss or damage arising out of, or in connection with, any unauthorised access or use of,
your Account, User Name and Password.
4.4 At any time, you may edit, update, de-activate or change your Account.
5. YOUR OBLIGATION
5.1 When accessing and using the Pounds of Force App and the Services, you must at all times:
(a) obtain and maintain all hardware, software and communications equipment necessary
to download, access, and use, the Pounds of Force App and the Services;
(b) comply with all Relevant Laws with respect to your obligations under this agreement;
and
(c) comply with all of our directions, policies and guidelines advised in writing to you or as
displayed on the Pounds of Force App from time to time (including, but not limited to, the
Acceptable Use Policy).
5.2 Pounds of Force will not be liable to you or anyone else if, for any reason, the Pounds of Force App and the
Services is unavailable at any time or for any period. From time to time, Pounds of Force may suspend
or restrict access to all, or some parts of the Pounds of Force App and the Services.
5.3 You must not:
(a) introduce, access, store, distribute or transmit any viruses, worm, trojan or other
malicious code into the Pounds of Force App;
(b) violate any Pounds of Force IP or any third party service provider’s Intellectual Property Rights;
(c) copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit
or distribute all or any portion of the Pounds of Force App, or any other third party software that
you may access or use through the Pounds of Force App, in any way;
(d) access all or any part of the Pounds of Force App and/or the Services in order to build a product,
service or code which competes with Pounds of Force or reproduces the Pounds of Force App and/or the
Services (in full or part);
(e) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise
reduce to human-perceivable form all or any part of the Pounds of Force App in any way, or
otherwise learn the source code or algorithms underlying the Pounds of Force App;
(f) license, sell, rent, lease, sub-let, transfer, assign, distribute, display, disclose, or
otherwise commercially exploit, encumber or otherwise make the Pounds of Force App and the
Services available to any third party;
(g) claim ownership over any User Content posted or published by another user, unless
you have a legitimate basis for making such a claim; and
(h) use the Pounds of Force App or the Services for any unlawful purpose or other purpose not
authorised by Pounds of Force in writing.
6. USER CONTENT
6.1 When you create your Account and access the Pounds of Force App and/or the Services, you will be
required to provide User Content to Pounds of Force. You will retain ownership of your User Content
and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality
of your User Content. To the maximum extent permitted by Relevant Laws, we do not
warrant that any:
(a) User Content displayed on the Pounds of Force App by you; or
(b) all data, content, materials and information (including text, images, graphics, logos,
history of past punches) recorded by other users of the Pounds of Force App or
third parties (Third Party Content); or
(c) Content published by us; or
(d) Third Party Products or Services displayed or published on the Pounds of Force App by a third
party service provider,
is accurate, complete, reliable, current or error-free.
6.2 We do not make any warranties or guarantees about the standard or quality of any Content,
User Content, Third Party Content or Third Party Products or Services displayed by you,
another user or a third party on, or via, the Pounds of Force App. You (and not Pounds of Force) are solely
responsible for the completeness, accuracy, reliability, legality and quality of any User
Content published by you (or anyone else on your behalf) on, or via, the Pounds of Force App.
6.3 You grant Pounds of Force a worldwide, non-revocable, non-exclusive, royalty-free and perpetual
licence to use, disclose, share, reproduce, store, distribute, publish, export, adapt, edit,
translate, produce derivative works from or copy, the User Content (and all Intellectual
Property Rights contained therein) for any purpose, including for the purpose of:
(a) enabling Pounds of Force to provide the Pounds of Force App and the Services and otherwise perform its
obligations and exercising its rights under this agreement (including sharing your User
Content with other users of the Pounds of Force App when you post on the newsfeed within the
Pounds of Force App);
(b) informing the user of other products or services that Pounds of Force may offer from time to time or
in relation to Third Party Products and Services;
(c) complying with a legal requirement, such as a law, regulation, court order, subpoena,
warrant, legal proceedings or in response to a law enforcement agency request;
(d) using usage patterns, trends, and other statistical or behavioural data derived from use
of the Pounds of Force App and/or the Services for the purposes of providing, operating,
maintaining, or improving the Services, the Pounds of Force App, or our other products and
services; and
(e) sharing User Content with an Affiliate or other third party (with whom Pounds of Force may
contract or be affiliated with from time to time) for the purposes of performing or
improving the Pounds of Force App and/or the Services.
6.4 In the event of any Loss to User Content, your sole and exclusive remedy shall be for Pounds of Force
to use reasonable endeavours to restore the User Content, that is lost or damaged, from
the latest back-up of User Content maintained by Pounds of Force in accordance with our standard
archiving and backup procedures.
6.5 Pounds of Force shall not be responsible for any Loss, destruction, alteration, corruption or disclosure
of User Content caused by us, your acts or omissions or the acts of omissions of other
users of the Pounds of Force App or any third party.
6.6 You agree to make your own enquiries to verify information displayed on, or via, the Pounds of Force
App (including Third Party Content and Third Party Products and Services) and to assess
the suitability of any information, Third Party Content or Content before relying upon such
information, Third Party Content or Content. If you choose to rely upon any information,
Third Party Content or Content displayed or published on, or via, the Pounds of Force App and/or the
Services (including User Content and Third Party Products and Services) you do so at your
own risk. We make no representations or warranties that use of the Content, User Content,
Third Party Content and Third Party Products and Services will not infringe any third party’s
Intellectual Property Rights.
7. ACCEPTABLE USE POLICY
7.1 By downloading, accessing and using the Pounds of Force App and each time you publish, upload,
submit, post or share User Content via the newsfeed on the Pounds of Force App, you agree to
comply with the rules for the acceptable use of the Pounds of Force App as specified herein
(Acceptable Use Policy).
7.2 You are solely responsible for the accuracy, currency, completeness and use of User
Content published, submitted or posted by you on, or via, the Pounds of Force App, and you post or
publish User Content on, or via, the Pounds of Force App at your own risk. Pounds of Force accepts no
responsibility and assumes no liability for any User Content posted, published or otherwise
transmitted by you, or any Third Party Content published or posted by other users of the
Pounds of Force App or any third party on, or via, the Pounds of Force App.
7.3 Pounds of Force is under no obligation to monitor, review, or otherwise control the Services or any
User Content listed, published or posted on, or via, the Pounds of Force App by you, any other user of
the Pounds of Force App or any third party. However, Pounds of Force reserves the right (whether in response to
a complaint or at our own initiative), but is not obligated to edit, remove or refuse to edit or
remove any User Content or Third Party Content published, posted or otherwise made
available on, or via, the Pounds of Force App.
7.4 You must access and use the Pounds of Force App and the Services only for lawful purposes. You
must not access and use the Pounds of Force App and/or the Services:
(a) in any way that breaches any Relevant Laws;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or
effect;
(c) to publish, post or upload User Content intended to harm someone in any way or that is
libelous, defamatory, obscene, vulgar, offensive, pornographic, indecent, racist,
harassing, threatening, seditious, violent, blasphemous, invasive of privacy or publicity
rights, abusive, inflammatory, discriminatory or otherwise objectionable to children;
(d) to publish, post or upload any User Content that is false, misleading or deceptive or is
likely to be false, misleading or deceptive (including, but not limited to, impersonating
another person or user or misrepresenting your identity to users of the Pounds of Force App);
(e) to publish, post or upload any User Content that contains confidential, secret or
proprietary information of another person or is otherwise not appropriate for persons
under the age of 18 years;
(f) to upload or transmit any User Content that contains viruses, Trojan horses, worms,
time-bombs, keystroke loggers, spyware, adware or any other harmful programs or
similar computer code designed to adversely affect the operation of any computer
software or hardware; and
(g) to publish, post or upload User Content that may infringe the Intellectual Property Rights
or other rights of Pounds of Force or any third party;
(h) to promote any illegal activity or advocate, promote or assist any unlawful act; and
(i) to publish, post or upload any unsolicited or unauthorised advertising or promotional
material or any other form of similar solicitation (spam).
7.5 By accessing or using Pounds of Force App and/or the Services, you acknowledge that it is your
responsibility to:
(a) ensure that any User Content posted or transmitted through the Pounds of Force App is accurate,
reliable, up-to-date, and complete;
(b) respect the privacy rights of other users and third parties. You must not use the Pounds of Force
App to publish or post the name of persons without the actual or implied consent; and
(c) ensure that you have adequate legal rights to publish, post, transmit, reproduce or
otherwise use the User Content transmitted through the Pounds of Force App.
7.6 Pounds of Force reserves the right, at our absolute discretion, to determine with the Acceptable Use
Policy has been breached and to terminate this agreement in accordance with clause 16 .
8. SUBSCRIPTION FEES AND PAYMENT
8.1 We do not charge you a fee to download, access and use the Pounds of Force App and Services.
However, if you wish to access the advanced or premium features and functions of the
Pounds of Force App (eg collaborative trips, expenses section, importing tickets, creating more than
one trip) and Services (including Third Party Products and Services), except for during the
Trial Period, you must pay us the Subscription Fees and other amounts owing to us under
this agreement during the Subscription Term. The Subscription Fees are payable in
advance (either on a monthly or annual basis) in accordance with the Direct Debit Authority.
8.2 During the Trial Period, you will not be required to pay the Subscription Fees to access and
use the advanced or premium features and functions of the Pounds of Force App and Services
(including Third Party Products and Services).
8.3 All Subscription Fees are in Australian Dollars and are inclusive of any goods and services
taxes. To the maximum extent permitted by Relevant Laws and except as otherwise
contemplated in this agreement, the Subscription Fees and all other amounts owing to
Pounds of Force under this agreement are non-refundable.
8.4 When setting up your Account, you will be offered payment options to pay the Subscription
Fees. Pounds of Force may, at our absolute discretion and without notice to you, change the payment
methods that can be used to access and use the Pounds of Force App and Services at any time.
8.5 Payment of the Subscription Fees and all other amounts owing to Pounds of Force under this
agreement are made by means of direct debit in accordance with the Direct Debt Authority
in clause 9 . By making payment of the Subscription Fees or any other amount owing to
Pounds of Force under the agreement, you will provide Pounds of Force’s Third Party Payment Processors with
accurate and complete billing information, and you authorise Pounds of Force and/or its Third Party
Payment Processors to access your billing information (including Personal Information) for
the purpose of processing your payment.
8.6 Pounds of Force may increase our Subscription Fees for the provision of the Pounds of Force App or charge
additional fees to access new functions or features of the Pounds of Force App at any time upon 30
days’ written notice to you. The fee increases will come into effect in the next billing cycle. If
you do not agree to these fee increases, you may terminate this agreement by written
notice to Pounds of Force any time before the next billing cycle.
9. DIRECT DEBIT AUTHORITY
1.1 By accepting this agreement, you authorise us to arrange for the Subscription Fees or any
other amount owing to Pounds of Force under this agreement to be debited from your credit card or
bank account (as applicable) as and when such fees are due and payable under this
agreement (Direct Debit Authority).
1.2 You may cancel or change your Direct Debit Authority by accessing the ‘Subscription’
function in your Account page before the day on which your next debit is due. If you cancel
Direct Debit Authority, Pounds of Force may not be able to provide you with access to, and use of, the
Pounds of Force App and Services, unless you provide Pounds of Force with new Direct Debit Authority.
1.3 It is your responsibility to ensure that there are sufficient funds available on your credit card
or bank account (as applicable) to allow each debit to be made in accordance with the
Direct Debit Authority. If there are insufficient funds:
(a) the transaction will be rejected and the payment will be treated as if it were never made;
(b) your financial institution may charge you a fee and/or interest; and
(c) you must arrange for the debit to be made by another method or arrange for sufficient
funds to be available by an agreed time so that Pounds of Force can process the debit.
1.4 It is your responsibility to check your credit card or bank account statement (as applicable)
to verify that the amounts debited from your credit card or bank account are correct.
1.5 If you believe that an error has been made in debiting your credit card or bank account (as
applicable), you should update your credit card or bank account details by accessing the
‘Subscription’ function in the Account page as soon as possible.
1.6 If you cancel the Direct Debit Authority, your right to access and use the advanced
functions and features of the Pounds of Force App and Services will cease at the end of the current
billing cycle. If you wish to access and use the advanced functions and features of the
Pounds of Force App and Services, you will need to pay the Subscription Fees prevailing at the time
you re-active your subscription.
10. INTELLECTUAL PROPERTY
10.1 You acknowledge that Pounds of Force, or our licensors, are the owners of the Pounds of Force App (and any
Intellectual Property Rights contained therein) including any information, Content or
technology that may be provided to, or accessed by, you in connection with your use of the
Pounds of Force App and the Services (including any modifications, enhancements of the foregoing)
(collectively, Pounds of Force IP)). Accessing and using the Pounds of Force App and the Services does not give
you (or anyone else) ownership of, or any right, title or interest in the Pounds of Force IP.
10.2 Ownership of any User Content will vest in the creator of that User Content or Third Party
Content but excluding Pounds of Force IP.
11. OUR OBLIGATIONS
11.1 Subject to your compliance with the terms of this agreement, during the Subscription Term,
Pounds of Force shall use reasonable endeavours to provide you with access to and use of the Pounds of Force
App and the Services.
11.2 The undertaking in clause 11.1 shall not apply in the event of:
(a) any non-conformance which is caused, or contributed, by use of the Services and the
Pounds of Force App contrary to our instructions or the terms of this agreement;
(b) modification or alteration of the Services and the Pounds of Force App by any party other than
Pounds of Force or our duly authorised Personnel;
(c) the unsuitability or malfunction of the computer hardware or computer software used by
you in conjunction with which the Pounds of Force App and the Services are used;
(d) Force Majeure Events; and
(e) the unsuitability or malfunction of the Services when used in conjunction with any
software, apps, applications and tools supplied by a third party provider.
11.3 In the event that Pounds of Force fail to provide you with access and use of the Pounds of Force App and the
Services in accordance with clause 11.1 , Pounds of Force shall use reasonable endeavours to correct
any such non-conformance or provide you with an alternative means of accomplishing the
desired performance. The foregoing constitutes your sole and exclusive remedy for any
breach of clause 11.1 .
12. THIRD PARTY PRODUCTS AND SERVICES
12.1 You acknowledge that the Pounds of Force App and Services may require you to use or access Third
Party Products and Services and that you do so solely at your own risk.
12.2 We make no representation or commitment and shall have no liability or obligation
whatsoever in relation to the content or use of any such Third Party Products and Services,
or any transactions completed, and any contract entered into by you, with the owner,
licensor or operator of such Third Party Products and Services.
12.3 Pounds of Force recommends that you refer to the third party’s terms and conditions and privacy
policy prior to using the relevant Third Party Products and Services.
12.4 Pounds of Force does not endorse, sponsor or approve any Third Party Products and Services used in
conjunction with the Pounds of Force App and Services. It your sole responsibility to determine that
specific products or services, meet your business and are suitable for the purposes for
which they are used.
12.5 Any rights you may have to access Third Party Products and Services shall be limited to:
(a) the extent of Pounds of Force’s ability to pass on such rights to you; or
(b) the relevant third party licensor terms.
13. NO WARRANTIES
13.1 To the maximum extent permitted by Relevant Laws, we exclude all express or implied
representations, conditions, statutory guarantees, warranties and provisions (whether
based on statute, common law or otherwise), in connection with the Pounds of Force App and the
Services.
13.2 Nothing contained in this agreement excludes, restricts or modifies the application of any
condition, warranty or other obligation, the exercise of any right or remedy, or the imposition
of any liability under the Competition and Consumer Act 2010 (Cth) or any other national,
State or Territory legislation where to do so is unlawful.
13.3 You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, we
make no representation, warranty or guarantee in relation to the availability, continuity,
legality, completeness, reliability, accuracy, currency or security of the Pounds of Force App and/or the
Services (including any User Content, Third Party Content, products or services provided in
connection with the Pounds of Force App and the Services) and we will not be liable if the Pounds of Force App
and/or the Services is, or becomes unavailable for any reason, including directly, or
indirectly as a result of:
(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious, willful acts or omissions of third parties (including third party
service providers) or other users;
(c) maintenance (scheduled or unscheduled) carried out by us or any third party service
provider, including in respect of any of the systems or network used in connection with
the provision of the Pounds of Force App and the Services;
(d) services provided by third parties (including internet service providers) ceasing or
becoming unavailable; or
(e) a Force Majeure Event.
13.4 You acknowledge that, to the maximum extent permitted by Relevant Laws, we do not
make any warranty or representation that any information (including any User Content or
Third Party Content) uploaded, published, shared or made available to you by us, any other
user or anyone else or any Content made available or offered on, or via the Pounds of Force App is
accurate, complete, reliable, current or error-free, virus free or is suitable for any particular
purpose or use under any specific conditions, and so is provided on an “as is” basis.
13.5 Pounds of Force shall use reasonable endeavours to make the Pounds of Force App and the Services available
24 hours a day, 7 days a week, except for:
(a) planned maintenance carried out at times advised in advance by Pounds of Force; and
(b) unscheduled maintenance which may need to be performed from time to time. Pounds of Force
will, where practicable, use reasonable endeavours to conduct any unscheduled
maintenance outside of Business Hours.
14. LIMITATION OF LIABILITY
14.1 To the maximum extent permitted by Relevant Laws, we will not be liable to you, any other
user of the Pounds of Force or any third party for any:
(a) any Claims or Losses (including Consequential Loss); or
(b) loss of, or damage to, any property or any personal injury, illness or death to you, any
third person,
arising out of, relating or connected to, the provision or use of the Pounds of Force App and Services
(including Content, User Content, Third Party Content and/or Third Party Products and
Services generated or made available through the Pounds of Force App or the Services) and this
agreement, regardless of the cause of action on which they are based, even if advised of the
possibility of such damage occurring.
14.2 All risk in using the Pounds of Force App and the Services passes to you upon creating an Account, or
otherwise using the Pounds of Force App and the Services (whichever is earlier). Pounds of Force assume no
responsibility and Pounds of Force have no liability to you or anyone else for any use of, or reliance
on, any Content, User Content, Third Party Content and/or Third Party Products and
Services obtained or generated from your access to, and use of, the Pounds of Force App and the
Services.
14.3 To the maximum extent permitted by Relevant Laws, under no circumstances will Pounds of Force’s
aggregate liability to you or anyone else, whether based upon warranty, contract, statute,
tort (including negligence) or otherwise, exceed the amount you paid to Pounds of Force under this
agreement in the one month immediately preceding the date on which the Claim giving rise
to such liability arose.
14.4 You agree to defend, indemnify and hold Pounds of Force, our Affiliates and our Personnel
(collectively, the Indemnified) harmless from and against any and all Claims or Losses,
that may be brought against the Indemnified or which the Indemnified may pay, sustain or
incur as a direct or indirect result of or arising out of:
(a) your (access to, and use of, or reliance on the Pounds of Force App or the Services (including the
User Content, Third Party Content and Third Party Products and Services);
(b) any breach of our or any third party’s Intellectual Property Rights or other rights caused
by you; or
(c) any breach by you of this agreement.
15. PRIVACY
All Personal Information you provide to open an Account and any User Content you
record, generate, or share, on, or via, the Pounds of Force App (including on the history),
is subject to Pounds of Force’s Privacy Policy, which is incorporated into this agreement. Pounds of Force will
not share, sell or disclose your User Content to any third party. You warrant that, in
relation to any Personal Information comprising User Content or any other information
disclosed to Pounds of Force on, or via, the Pounds of Force App:
(a) it has been collected in accordance with Privacy Laws;
(b) you have the authority to record, generate, share or otherwise transmit such information
on, or via, the Pounds of Force App; and
(c) you have obtained the informed consent of the individuals (in the case of children,
parental/guardian consent) who are the subject of such Personal Information in order for
Pounds of Force to use, disclose, store, transfer, process or handle it.
16. TERMINATION
16.1 During the Subscription Term you may terminate this agreement at any time by selecting
the ‘cancel subscription’ function in the Accounts page. In this case, you will not be entitled
to a pro rata refund of the Subscription Fees for the unused portion of the Subscription
Term.
16.2 Pounds of Force may terminate the agreement any time (without liability to you except Pounds of Force will
provide you with a pro rata refund of the Subscription Fees for the unused portion of the
Subscription Term) by giving you 14 days’ written notice.
16.3 You agree that Pounds of Force may, at any time and at its sole discretion, with or without cause or
any notice to you, terminate, suspend or block your access to (either temporarily or
permanently):
(a) your Account and/or the User Access Portal; and/or
(b) the Pounds of Force App and/or Services;
(c) any social media pages linked to its business or the Pounds of Force App; or
(d) any other products and services offered on, or via the Pounds of Force App (including Third Party
Products and Services).
16.4 Cause for such suspension or termination under clause 16.3 may include, but are not
limited to:
(a) any serious or repeated breaches or violations of this agreement, our policies and
guidelines (including our Privacy Policy and Acceptable Use Policy) and any other
agreements entered into between the parties;
(b) serious or repeated breaches or violations of Pounds of Force's or a third party service providers’
Intellectual Property Rights;
(c) your failure to pay the Subscription Fees to access and use the Pounds of Force App and Services
(except during the Trial Period);
(d) your activities, conduct or transactions on, or, via, the Pounds of Force App, brings, or has the
capacity to bring, Pounds of Force into disrepute;
(e) requests by law enforcement or other government agencies.
16.5 If Pounds of Force terminates the agreement in accordance with clauses 16.3 and 16.4 , you
acknowledge and agree that you are not entitled to pro rata refund of the Subscription Fees
for the unused portion of the Subscription Term.
16.6 You agree that all such suspensions or terminations shall be made at Pounds of Force's sole
discretion and that Pounds of Force shall not be liable to you or any third party for any such
suspension or termination.
17. EFFECT OF TERMINATION
17.1 On termination of this agreement for any reason:
(a) we may (without liability to you or any third party) delete, de-identify or otherwise
dispose of your Account, User Profiles and any or all of your User Content in our
possession in accordance with any limitation periods and records retention obligations
that are imposed by Relevant Laws. Any User Content you have published or submitted
on the newsfeed on the Pounds of Force App (or on any communications with other users of the
Pounds of Force App) will not be deleted, except your Account (including Personal Information) on
the Pounds of Force App will be de-identified and so will not be visible to other users of the Pounds of Force
App; and
(b) all licenses to use the Services and rights of access to the Pounds of Force App granted under this
agreement will immediately terminate; and
(c) you should delete the Pounds of Force App from your mobile device.
18. FORCE MAJEURE
Pounds of Force will not be responsible to you (or anyone else) if Pounds of Force are prevented from or
delayed in performing our obligations, by acts, events, omissions or accidents beyond our
reasonable control, including but not limited to, acts of God, governmental actions,
shipping, postal or other relevant transport strike, failure or accident, lockouts or other
labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act
or omission of a third party, epidemic, pandemic, mandatory government shutdown or
lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or
services, the failure of performance provided by others, hacker attacks, denial of service
attacks, internet interruption or virus, accidents or breakdown of plant, machinery,
software, hardware or communication network, or default of hosting or data centre
providers (Force Majeure Event).
1. DISPUTE RESOLUTION
1.1 Any party claiming a dispute exists under the agreement must notify the other party in
writing of the nature of the dispute (Dispute Notice), except where urgent interlocutory
relief is being sought.
1.2 The parties must in good faith attempt to resolve any dispute between them.
1.3 If the dispute cannot by resolved within 30 days of receipt of a Dispute Notice, either party
may commence legal proceedings in relation to the dispute.
1.4 Each party must continue to perform its obligations under this agreement notwithstanding
the existence of any unresolved dispute.
19. UPDATES AND VARIATIONS
19.1 Without notice to you, Pounds of Force may, at our absolute discretion, from time to time:
(a) change, add or delete the functions, features, performance, or other characteristics of
the Pounds of Force App; or
(b) apply or install updates to, or new versions of, the Pounds of Force App.
19.2 You acknowledge that the Content and/or Third Pary Content on the Pounds of Force App are subject
to change at any time and may be out of date at any given time. Pounds of Force are under no
obligation to:
(a) update, correct or fix any Content, Third Party Content or errors in the Pounds of Force App.
However, we may, at our absolute discretion, provide you with standard user support
services during Business Hours; and/or
(b) notify you of any changes to the Content or the Pounds of Force App unless required by a
Relevant Law to do so.
19.3 Some of the provisions contained in this agreement may also be superseded by provisions
or notices published elsewhere on the Pounds of Force App. Any changes are effective immediately
upon posting to the Pounds of Force App. Your continued use of Pounds of Force App thereafter constitutes your
acceptance of all such changes to the agreement.
19.4 Please read this agreement before using the Pounds of Force App as the agreement may have
changed since the last time you accessed and used the Pounds of Force App. If you do not agree to
any change, then you must immediately stop using the Pounds of Force App and the Services.
20. SEVERABILITY
If any provision in this agreement is found to be invalid or unenforceable by a court of
law, such invalidity or unenforceability will not affect the remainder of this agreement
which will continue in full force and effect.
21. RELATIONSHIP
No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-
franchisee relationship is intended or created between you and us by this agreement.
22. ASSIGNMENT
Neither party shall, without the prior written consent of the other party (which will not be
unreasonably withheld), assign or transfer all or any of its rights or obligations under this
agreement, except that Pounds of Force may assign, sell or transfer our rights or obligations under
this agreement to an Affiliate or bona fide third party purchaser of Pounds of Force’s business.
23. ENTIRE AGREEMENT
This agreement, and any other documents referred to in it, represent the entire
agreement between us and you in relation to the subject matter and supersedes any
previous arrangements, agreements, representations, understandings or statements
(whether verbal, in writing, or in some other format).
24. JURISDICTION AND APPLICABLE LAW
The laws of the State of Victoria, Australia govern this agreement. You agree to submit to
the exclusive jurisdiction of the Courts of Victoria, Australia.
25. DEFINITIONS
In this agreement, the following words shall have the following meanings:
(a) Acceptable Use Policy has the meaning in clause 7.1 .
(b) Account has the meaning in clause 4.1.
(c) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is
Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person
referred to in (ii) above, and for this purpose Control means the power of a person to
secure (whether by the holding of shares, possession of voting rights or by virtue of any
powers conferred by articles of association, constitution, partnership agreement or other
document regulating such person) that the affairs of another are conducted in
accordance with its wishes.
(d) Business Days means each day excluding Saturdays, Sundays and public holidays in
Victoria.
(e) Business Hours means 8:00am to 4:00pm local time on Business Days.
(f) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or
demand of any nature whether present or future, fixed or unascertained, actual or
contingent, at law, in equity, under statute or otherwise.
(g) Pounds of Force, our, us or we has the meaning in clause 1.1, and where the context permits,
includes our Personnel and Affiliates.
(h) Commencement Date has the meaning in clause 3.1.
(i) Content means all the information, text, materials, graphics, logos, button icons,
images, video and audio clips, trade marks (whether registered or not), layout,
arrangement, graphical user interface, look and feel, databases, functionality and
control features of the Pounds of Force App.
(j) Consequential Loss means the following, however arising and even if it is reasonably
contemplated by the parties on the Commencement Date as a likely result of breach of
the agreement:
(i) direct, indirect, consequential, incidental, special, remote or unforeseeable loss,
damage, cost or expense;
(ii) loss of revenue, profit, income, bargain, opportunity (including professional and
career opportunities), use, production, customers, business, contract, goodwill, or
anticipated savings, loss caused by business interruption, or the cost of obtaining
new financing or maintaining existing financing, loss of or corruption to data, loss
of use of data;
(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise
may be incurred or suffered by a third party; or
(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is
incurred or suffered by or to a third party.
(k) Force Majeure Event has the meaning in clause 18 .
(l) Insolvency Event means the bankruptcy, liquidation or winding up, the appointment of
a controller, administrator, receiver, manager, trustee in bankruptcy or similar
insolvency administrator to a party or any substantial part of its assets or any event that
has a substantially similar effect to the above events.
(m) Intellectual Property Rights means designs, copyright, trade marks, patents,
operations, software or systems, trade names and domain names, rights in goodwill,
rights in confidential information or other intellectual property rights, whether under
statute, common law, equity, and whether registered or unregistered, and including all
applications for, and renewals or extensions of, such rights and all similar rights which
subsist or will subsist now or in future in any part of the world.
(n) Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any
nature or kind, including all legal and other professional costs including Consequential
Loss.
(o) Password has the meaning given to it by clause 4.1.
(p) Personnel means any director, officer, employee, contractor or agents, of a party (in
your case, includes any person acting for or on your behalf)
(q) Personal Information has the same meaning that it has under Privacy Laws, namely
information or an opinion about an identified individual or an individual who is
reasonably identifiable, whether the information or opinion is true or not and recorded in
a material form or not.
(r) Privacy Laws means any applicable laws and codes of practice dealing with privacy,
including the Privacy Act 1988 (Cth) (as amended), the Australian Privacy Principles
and any other legislation, codes and policies relating to the handling of Personal
Information.
(s) Privacy Policy means our privacy policy available on the Pounds of Force App or Website or such
other web address notified by us to you from time to time), which is incorporated into
this agreement.
(t) Relevant Laws means any relevant rules of common law, principles of equity,
international, federal, state and local laws, statutes, rules, regulations, proclamations,
ordinances and by-laws and other subordinate legislation, rulings, or legal requirements
and Privacy laws, anywhere in the world.
(u) Services has the meaning in clause 2.1.
(v) Subscription Fees means the fees payable by you to access and use the Pounds of Force App
and Services (including Third Party Products and Services) for the Subscription Term as
further described on the Pounds of Force App.
(a) Subscription Term has the meaning in clause 3.1.
(b) Trial Period means seven consecutive days from the date you register and setup your
Account.
(w) Third Party Products and Services means any software, products, services or content
(including all Intellectual Property Rights contained therein) that:
(i) are provided by third party providers;
(ii) interoperate with the Pounds of Force App or Services; or
(iii) may be identified as third party products or services.
(x) Third Party Content has the meaning in clause 6.1(b) .
(y) Third Party Payment Processor means Apple Pay and any other a third party
payment processor permitted by Pounds of Force from time to time.
(z) User Access Portal means the portal provided to you to access and use the Pounds of Force App
and the Services.
(aa) User Content means all data, information, content, materials and Personal
Information (including images and photographs):
(i) uploaded to, or stored on, the Pounds of Force App by you;
(ii) transmitted by the Pounds of Force App at your instigation;
(iii) supplied by you to Pounds of Force uploading to, transmission by, or storage on, the Pounds of Force
App; or
(iv) generated by the Pounds of Force App as a result of the use of the Services by you,
but excluding Pounds of Force IP.
(bb) User Name has the meaning in clause 4.1.
(cc) Pounds of Force App means the mobile software application owned, operated and used by
Pounds of Force to provide you with Services, including the application and database software for
the Services, the system and server software used to provide the Services, the
computer hardware on which that application, database, system and server software is
installed, and all Intellectual Property Rights contained therein, provided or otherwise
made available by us on, or via, the Pounds of Force App.
(dd) Pounds of Force IP has the meaning given to it by clause 10.1 .
(ee) Website means the website located at poundsofforce.com and any other website
notified by us from time to time.
(ff) you or your has the meaning in clause 1.3 .
Yes, I have read, understood and accept this agreement.