YayTrain Runners Edition Licence Agreement

Warning: Use of YayTrain Runners Edition is conditional upon you (“the Athlete”) agreeing to the terms of this Agreement. Choosing “I accept the terms and conditions of this Agreement” when installing YayTrain Runners Edition shall be deemed to be your acceptance of the terms of this Agreement. If you do not agree, choose “do not accept” and do not proceed to install or use YayTrain Runners Edition and contact Orchard eBusiness Pty Ltd ABN 43 142 602 435 (“Orchard”) to arrange for any applicable refund.

Operative Part

Definitions

1.1 In this Agreement, unless inconsistent with the context: (a) Act means the NSW Civil Liability Act 2002 (NSW) and any similar legislation. Each definition in the Act is hereby incorporated by reference into this Agreement. (b) Agreement means this agreement, its recitals, provisions and any schedule of this agreement. (c) Confidential Information includes information which relates to YayTrain Runners Edition including account details, passwords and activation codes and training methodologies. (d) Clause means a clause of this Agreement. (e) Confidential Client Data Information means information which relates solely to Athlete. (f) Fees means the published fees payable for use of the application as update from time to time. (g) Force Majeure means an act, omission or circumstance over which Orchard could not have reasonably exercised control including telecommunication failures. (h) Intellectual Property Right includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and Confidential Information. (i) Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum. (j) Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns. (k) Sub-clause means a sub-clause of this Agreement. (l) Taxes includes taxes, duties and government charges, fees, levies, any penalty for not paying same and any liability for same.

Interpretation

2.1 In this Agreement, unless inconsistent with the context: (a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities. (b) Words denoting the singular number shall include the plural number and vice versa. (c) Words denoting any gender shall include all other genders. (d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same. (e) Money references are references to Australian currency. (f) A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively. (g) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement. (h) Every obligation express or implied into this Agreement and entered into by more than one Party shall bind them jointly and severally. (i) Every right express or implied into this Agreement granted in favour of more than one Party shall be for the benefit of each of them jointly and severally. (j) A provision of this Agreement shall not be construed adversely to the Party that drafted it. (k) If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted. (l) No right or remedy granted to Orchard pursuant to this Agreement excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Orchard and all such granted rights and remedies are cumulative.

Athlete’s Right to Use YayTrain Runners Edition

3.1 Subject to the terms of this Agreement Orchard grants Athlete a perpetual revocable non-exclusive right to use YayTrain Runners Edition for the number of users for which the Fees are paid.

Athlete’s Responsibilities

4.1 Athlete shall: (a) obtain professional advice from qualified sports training staff as to the suitability of the proposed training program by Orchard for their needs; (b) pay the Fees (c) keep its user accounts, passwords and activation codes details confidential and not disclose same to any other party. Athlete shall be responsible for all use of same whether authorised by Athlete or not. Should any such disclosure occur Athlete shall report same to Orchard in writing as soon as possible; (d) comply with Orchard’s Reasonable Use Policy which may be updated and changed from time to time and is currently located at http://[insert URL]; (e) comply with Orchard’s Publishing Policy which may be updated and changed from time to time and is currently located at http://[insert URL]; (f) agree to and comply with the terms and conditions of any third party software or services supplied by Orchard or made available with YayTrain Runners Edition and or not use such third party software and services. Athlete agrees that such terms and conditions apply as if same were set out in full this Agreement and hereby authorises Orchard to execute all such agreements to procure same on behalf of Athlete. The details of the third party terms and conditions can be found at the following urls: (g) comply with all applicable laws; (h) conduct all appropriate virus and security checks; (i) ensure that its Athletes, employees, sub-contractors and other agents who have authorised access to YayTrain Runners Edition are made aware of the terms of this Agreement; (j) supervise and control the use of YayTrain Runners Edition in accordance with the terms of this Agreement; (k) immediately advise Orchard in writing upon Athlete becoming aware of any person using YayTrain Runners Edition who is not authorised by Orchard to do so; and (l) train its staff in the use of YayTrain Runners Edition and the internet;

4.2 Athlete shall not: (a) copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, reverse engineer, create derivative works of, sub-license, rent, lease, loan or distribute YayTrain Runners Edition other than as expressly authorised by this Agreement; (b) engage in password sharing, remote desktop access or port aggregation without the express permission of Orchard; (c) exceed the licensed number of users; (d) install, upload or execute any computer programs which have not been checked and are not expressly specified by Orchard as suitable; (e) interfere with the network or disrupt any other user, service or equipment; (f) permit any act which infringes the Intellectual Property Rights which subsist in YayTrain Runners Edition and which belong to Orchard. (g) provide or otherwise make available YayTrain Runners Edition in any form to any other person; (h) use YayTrain Runners Edition for any illegal, unauthorised or dangerous purpose including unsolicited commercial e-mail; (i) use YayTrain Runners Edition for or in connection with a service bureau operation; or (j) use YayTrain Runners Edition to publish any material for which it is not the Intellectual Property Right owner or licensed by the Intellectual Property Right owner or is defamatory.

Orchard’s rights

5.1 Orchard may, whilst being under no obligation to do so and at its sole discretion, without notice or giving any reason or incurring any liability for doing so delete, remove or refuse to publish, receive or transmit any material which is, in its sole opinion, without limitation, dangerous; found in an unauthorised area; excessive in volume; unauthorised; uncollected for an excessive period; unlawful; in breach of Orchard’s Reasonable Use or Publishing Policy; and take action if it suspects that malicious, illegal or unacceptable usage of YayTrain Runners Edition is occurring or has occurred, including destruction or disposal of Athlete’s access passwords.

Disclaimer & Acknowledgments

6.1 Athlete acknowledges that: (a) training for performance sport is a dangerous recreational activity which involves significant risk of physical harm; (b) sports training is a complex area and YayTrain Runners Edition is not designed as a substitute in any way for professional advice. Athlete shall obtain appropriate professional advice before using YayTrain Runners Edition; (c) supplied with YayTrain Runners Edition are certain notes and instructions and a failure to follow those instructions or notes carefully could result in erroneous data being produced or actions being taken or not taken by YayTrain Runners Edition; (d) whilst YayTrain Runners Edition may be used by persons without a detailed knowledge of computers, YayTrain Runners Edition is designed to be used by persons who are familiar with sports training. Athlete shall check all data stored or provided by YayTrain Runners Edition with trained sports professional for any suitability and anomalies (e) YayTrain Runners Edition does not necessarily comply with any standard or legislation; (f) YayTrain Runners Edition is licensed on the strict understanding that, subject to the warranties below, Orchard is not responsible for injuries suffered by Athlete or a third party relying on data supplied or not supplied by YayTrain Runners Edition; (g) Orchard cannot and does not warrant that YayTrain Runners Edition shall be available 24 hours a day or that any defect shall be corrected within a specific time frame; (h) YayTrain Runners Edition is not necessarily secure, virus free or without defect; and (i) Orchard is not responsible for: (i) ensuring that YayTrain Runners Edition is suitable for Athlete’s requirements or fit for any purpose; (ii) any interruption to YayTrain Runners Edition due to equipment failure, the need for routine maintenance, peak demand etc; (iii) the supply or maintenance of Athlete’s equipment, software or telephone lines; (iv) monitoring, controlling or ensuring the accuracy, appropriateness or content of any information on the internet and does not do so; and (v) any software available on the internet or supplied by third parties.

Intellectual Property Rights

7.1 Orchard retains all the Intellectual Property Rights in YayTrain Runners Edition and the trade mark YayTrain Runners Edition. Training plans used within the application are owned by the respective coaches are are licenced for use within Training Partner. 7.2 Athlete hereby assigns all Intellectual Property Rights it may have arising from or in relation to any of its suggestions or requirements in relation to the YayTrain Runners Edition to Orchard immediately as such rights are capable of assignment. 7.3 This assignment is absolute, worldwide and includes all present and future Intellectual Property Rights arising from or in relation to YayTrain Runners Edition. 7.4 Athlete acknowledges that Athlete’s right to make any use of materials assigned pursuant to this Agreement, is dependent upon Orchard granting an express licence to Athlete, the granting and terms of which shall be at the sole discretion of Orchard. 7.5 Athlete shall retain the Intellectual Property Rights in the Confidential Client Data Information. However, nothing in this Sub-clause grants Athlete the right to download any Confidential Client Data Information until all Fees are paid in full.

Confidential Information

8.1 To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by Athlete at the time of disclosure, Athlete: (a) shall: (i) keep such information confidential; (ii) take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third parties; and (iii) inform Orchard of any suspected or actual disclosure of Confidential Information; and (b) shall not, without the express written consent of Orchard: (i) directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party; (ii) use any Confidential Information, other than for the express purpose set out in this Agreement; or (iii) remove or cause to be removed from Orchard’s systems any Confidential Information.

8.2 This Clause shall survive the termination of this Agreement.

Confidential Client Data Information

9.1 To the extent that Confidential Client Data Information is not in the public domain (other than by way of breach of this Agreement and is not known by Orchard at the time of disclosure, Orchard: (a) shall keep such information confidential; (b) shall not, without the express written consent of Athlete: (i) directly or indirectly divulge or communicate or otherwise disclose Confidential Client Data Information, in whole or part to any third party; or (ii) use Confidential Client Data Information for its own purposes.

9.2 This Clause shall survive the termination of this Agreement.

Fees

10.1 Athlete shall pay Orchard the Fees without withholding, deduction or offset of any amounts for any purpose. 10.2 Orchard may increase the Fees at any time upon one month’s notice. 10.3 An account rendered by e-mail or otherwise by Orchard shall be prima facie evidence for a Court of the provision of the items referred to in same to Athlete by Orchard.

Tax 11.1 Unless expressly stated to the contrary and to the extent permitted by law: (a) the Fees are exclusive of all Taxes which may arise in relation to the subject matter of this Agreement; (b) Athlete shall immediately pay any applicable Taxes to Orchard; and (c) Athlete shall indemnify and keep indemnified Orchard from payment of the Taxes and any penalties arising from non-payment of same.
Interest

12.1 Athlete shall pay Orchard interest at the Interest Rate on all overdue amounts from the due date until payment is made.

Suspension of Obligations

13.1 If Athlete breaches any provision of this Agreement Orchard may, without further notice to Athlete: (a) suspend all its obligations to Athlete under this Agreement; (b) disable the YayTrain Runners Edition using time out codes, remote access or other technological measures; and or (c) withdraw any discount which was otherwise applicable to the Fees.

Force Majeure

14.1 Orchard shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.

Limited Warranty

15.1 Orchard shall supply YayTrain Runners Edition with all due care and skill. 15.2 Orchard shall re-supply YayTrain Runners Edition which is not supplied in accordance with this Clause provided that Athlete notifies Orchard of same within a reasonable time. This remedy shall be Athlete’s sole and exclusive remedy for breach of this Agreement or any other cause of action against Orchard.

Limitation of Liability

16.1 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of Orchard for any breach of such term shall be limited, at the option of Orchard, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again. 16.2 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, Orchard shall not be under any liability (contractual, tortious or otherwise) to Athlete in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or an act, failure or omission of Orchard or any third party provider. 16.3 Athlete warrants that it has not relied on any representation made by Orchard or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by Orchard.

Further Assistance

17.1 Athlete shall: (a) declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement; and (b) if applicable, procure its officers, employees and agents to do same.

Indemnity

18.1 To the extent permitted by law, Athlete shall release, indemnify and keep indemnified Orchard, its officers, employees and agents, against any injury, death, damage, loss, costs (including legal costs on an indemnity basis), expenses, interest, taxes or liability whether direct or indirect and whether sustained by Orchard, Orchard’s officers, employees and agents, Athlete, Athlete’s officers, employees and agents or a third party arising out of: (a) a breach of this agreement by Athlete; (b) any wilful, unlawful or negligent act or omission of Athlete, its officers, employees or agents; (c) any injury suffered by Athlete’s officers, employees or agents; and (d) the discharge of Athlete’s obligations pursuant to this Agreement. 18.2 This indemnity applies regardless of whether or not legal proceedings are instituted. 18.3 This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is, or is not, authorised by Athlete. 18.4 It is not necessary to incur any expense or make any payment before enforcing any right of indemnity under this Agreement. 18.5 This Clause survives termination of this Agreement.

Waiver & Estoppel

19.1 No right of Orchard under this Agreement shall be deemed to be waived or estopped except by notice in writing signed by Orchard. Any such waiver or estoppel shall be limited to its express terms. 19.2 Any failure by Orchard to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by Orchard shall not be construed as a waiver of Orchard’s rights.

Survival 20.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
Assignment, Novation and Sub-Contracts

21.1 Athlete shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of Orchard. 21.2 Any consent provided by Orchard to subcontract shall not relieve Athlete from any liability or obligation under this Agreement. 21.3 Athlete shall be liable to Orchard for the acts and omissions of Athlete’s subcontractors and employees and agents of subcontractors as if they were acts or omissions of Athlete. 21.4 Orchard may: (a) sub-contract for the performance or part performance of this Agreement; and (b) assign this Agreement to a third party without notice and in such circumstances, Orchard’s rights and obligations under this Agreement shall be immediately terminated upon assignment.

Notices

22.1 Notices under this Agreement may be delivered by email.

Termination

23.1 Orchard may terminate this Agreement immediately if: (a) Athlete breaches any provision of this Agreement and such breach is not remedied within 14 days of notice by Orchard; (b) Athlete becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; (c) Athlete, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; (d) Athlete being a natural person, dies; or (e) Athlete ceases or threatens to cease conducting its business in the normal manner. 23.2 In addition to terminating this Agreement, Orchard: (a) may disable YayTrain Runners Edition using time out codes, remote access or other technological measures; (b) may retain any moneys paid; (c) may charge a reasonable sum for any un-invoiced items; (d) shall be regarded as discharged from any further obligations under this Agreement; (e) shall be under no liability to Athlete for damages or compensation or any other payment whatsoever; (f) may immediately erase all Confidential Client Data Information stored by Orchard; and (g) may pursue any additional or alternative remedies provided by law.

Entire Agreement

24.1 Unless stated expressly to the contrary in this Agreement: (a) this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded; (b) this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties; (c) no Party may bind another Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and (d) no modification or alteration of any provision of this Agreement shall be valid except in writing signed by Orchard save that Orchard may on 30 days’ notice change any term of this Agreement and in such a case Athlete may terminate this Agreement during that notice period without further obligation.

Governing Law 25.1 This Agreement shall be governed by and construed according to the law of New South Wales, Australia. 25.2 The Parties irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales and the Commonwealth of Australia. Any proceedings in a Commonwealth Court shall be commenced and heard in Sydney.

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