Effective as of 14 June 2021.
Black Fitness Pty Ltd (ACN 630 468 414) (FLOE) supplies an online fitness platform including live interactive video sessions with trainers and other associated services, FLOE Data, content and features (Services). The Services are accessible through the FLOE website available at floefit.com (Website) or the FLOE app (App) available for download on the Google Play Store or Apple App Store, as may be updated from time to time (together, the FLOE Platform). FLOE also supplies goods and products associated with the Services (Products). In order to use FLOE’s Services and Products, you must read and accept these terms of service.
Scope. This agreement (Agreement) is between you and FLOE and governs FLOE’s supply of the Services and Products, and your access to and use of the Services and FLOE Platform. The Agreement is comprised of:
(a) the terms of your Subscription;
(b) these Terms of Service;
(c) the FLOE Privacy Policy;
(d) the FLOE Cookie Policy; and
(e) any other documents incorporated by reference by any of the documents mentioned above.
Where there is any inconsistency in the documents listed above, such inconsistency will be resolved by giving priority to the terms in the first mentioned document.
If you have entered into a separate written agreement with FLOE for the Services and Products, then that agreement will govern and this Agreement will not apply to you. If your employer or other host is providing you with access to the Services and Products and has entered into a written agreement with FLOE in respect of such access, then you must ensure that you comply with the terms of your employer or host’s written agreement and any terms of service provided to you by your employer or host.
In order for you to enter this Agreement, you must be over the age of eighteen and have the power and authority to enter into and perform your obligations under this Agreement. If you do not meet these requirements, do not accept this Agreement or use FLOE’s Services or Products.
You accept and agree to the terms of this Agreement on the earlier of the time when you first enter a Subscription on the FLOE Platform or first access or use any of the Services (Commencement Date).
This Agreement commences on the Commencement Date and continues for the duration of your Subscription Term, unless terminated in accordance with its terms.
FLOE reserves the right to update and modify the terms of this Agreement in its sole discretion from time to time, including to address any changes to the FLOE Platform or Services, FLOE’s business or as required by law by providing notice to you. Notice may include FLOE posting information on such amendments on the FLOE Platform. It is your responsibility to regularly check the FLOE Platform for any such notice of amendments. If an amendment to the terms of this Agreement materially reduces your rights, you may terminate this Agreement upon providing notice to FLOE within 30 days after the date of FLOE’s notice to you under this clause, with such termination to be effective on the date of your notice or the effective date of the amendment, whichever is later. Where you do not provide such notice, you will be deemed to have accepted the relevant amendment if you continue to use the FLOE Platform or Services after such 30 day period. If you terminate the Agreement under this clause, FLOE will provide you with a pro-rated refund of any Fees you have pre-paid in relation to any period of your Subscription Term on and after the effective date of termination.
In order to access and use the Services you must register for an account on the FLOE Platform and enter into a Subscription. The details of your Subscription are stored on your account page on the FLOE Platform, and include your account information, the Fees payable under your Subscription, your payment method and payment details, the Services you are entitled to access and use, the Products that you have acquired, and the initial period of your Subscription (Initial Subscription Period). The terms of your Subscription form part of this Agreement.
At the expiry of the Initial Subscription Period, your Subscription will renew for successive one month renewal periods (Renewal Period) thereafter, unless you provide notice of non-renewal at least 5 days’ prior to the expiry of initial term or renewal term (as applicable).
You acknowledge that:
(a) the Services are dependent on you owning or having access to a Compatible Device and an internet connection that meets the minimum requirements specified on floefit.com, and that FLOE is not responsible for the supply of such Compatible Devices or internet connection, or any charges that you may incur from your internet service provider when accessing or using the Services;
(b) in order to participate in the interactive video sessions you are required to acquire certain Products. The Products that you require in order to receive the benefit of particular Services are specified on the FLOE Platform and notified to you when obtaining your Subscription; and
(c) FLOE is not responsible if you are unable to access or receive the benefit of any Services to the extent caused by your failure to meet the minimum requirements described in this clause.
Subject to your compliance with the terms of this Agreement, FLOE grants you a non-exclusive, non-sublicensable, non-transferable and revocable right to:
(a) download, install, and run the App on up to three Compatible Devices that you own or control; and
(b) access and use the Services and FLOE Platform via the internet,
solely for the Approved Purpose during the Subscription Term. The rights granted under this clause are personal to you, and do not permit you to allow any other person to use your Subscription to access the Services or FLOE Platform, or to download, install and run the App, other than where expressly permitted by your Subscription.
You must not:
(a) permit any person other than you to access or use the Services or FLOE Platform using your Subscription, other than as expressly permitted by your Subscription;
(b) use the Services other than for the Approved Purpose;
(c) download, copy or record any content accessible through the Services or FLOE Platform, other than where expressly permitted under this Agreement;
(d) transmit or upload to, generate on, or communicate via the Services or FLOE Platform any content or material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;
(e) use the Services or FLOE Platform to provide any product or service that is an alternative, substitute or competitor to the Services;
(f) copy or develop any modification, enhancement, derivative work or other development of the Services or FLOE Platform, or incorporate any third party material into the FLOE Platform or Services (except as required in order to access or use the FLOE Platform or Services);
(g) remove any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Services or FLOE Platform;
(h) access or use the Services or FLOE Platform by any unauthorised means, including using any bot, script, spider, crawler, scraper, API or automated device; or
(i) reverse engineer, decompile or disassemble the Services or FLOE Platform, or view or gain access to the source code to the Services or FLOE Platform.
You acknowledge that FLOE may update or change the Services or FLOE Platform in its sole discretion from time to time, including by adding, removing or amending functionality and features, or discontinuing any Service in whole or part. FLOE will use reasonable endeavours to notify you of any such updates or changes, including by posting information on such updates on the FLOE Platform. To the extent that any update or change to the Services or FLOE Platform causes a material adverse effect on your access to or use of the FLOE Services or FLOE Platform, and FLOE is unable to rectify such adverse effect within a reasonable time of you contacting the FLOE support team, you may terminate this Agreement immediately upon providing written notice of such termination to FLOE. If you terminate the Agreement under this clause, FLOE will provide you with a pro-rated refund of any Fees you have pre-paid in relation to any period of your Subscription Term on and after the date that the relevant material adverse effect first commenced.
You may order Products from us by placing an order in our online shop available on the FLOE Platform.
Title in the Products will pass to you upon FLOE’s receipt of full payment for the Products. Risk in the Products will pass to you upon delivery of the Products to your nominated address. Where you return any Product to FLOE pursuant to clause 11.1, risk in the Product passes to FLOE upon your return of the Product to FLOE’s nominated address or collection by FLOE’s shipping provider (as applicable). Title in any returned Product will revert to FLOE in circumstances where FLOE either replaces the Product or refunds you the Fees paid for the Product.
You use the Services and Products at your own risk and are solely responsible for:
ensuring that the Services and Products are suitable for your use, and will not present a risk to your health. FLOE recommends that you consult with your physician prior to engaging in any exercise program in connection with the Services or Products. If you encounter any adverse health effects while using the Services or Products, we recommend that you cease using the Services and Products immediately and seek medical advice;
ensuring that you have a space that is free from safety hazards and appropriate for your participation in live interactive video sessions; s
setting up, installing (if applicable) and operating the Products for their intended purpose and in accordance with any published documentation provided with the Products and accessible at floefit.com and all safety instructions contained in such documentation or otherwise in this Agreement or the FLOE Platform; and
ensuring the security and confidentiality of your account details, including your login details and password. You will be responsible for any unauthorised use of your Subscription, including any activity by unauthorised users.
The Fees payable for:
(a) Services are as specified in your Subscription. FLOE may increase its Fees at any time on providing notice to you, including by posting information on such Fee increases on the FLOE Platform. Any such Fees will only apply upon the expiry of your Initial Subscription Period or Renewal Period (as applicable).
(b) Products are specified on the FLOE Platform at the time you order Products.
As part of entering a Subscription, you must provide FLOE with valid payment information, including your credit card or debit card, or other payment account information accepted by FLOE. By providing such payment information and entering a Subscription or order for Products from time to time, you authorised FLOE to charge your nominated payment account for the Fees as they become due and payable. Fees are to be charged:
(a)for Services, monthly in advance; and
(b)for Products, in advance, for the full value of the Products.
FLOE will provide you with an invoice on or around the time when we charge you for the Fees. All Fees are non-refundable other than as expressly provided in this Agreement. You must notify FLOE as soon as reasonably practicable of any change in your payment information or method of payment.
If FLOE is unable to charge you the Fees in accordance with clause 6.2 when due, FLOE may suspend your right to access and use the Service, provided that FLOE has given you notice of the failure and you have not rectified the failure within 7 days of the date of such notice, until the date that the overdue amounts are paid by you.
Unless otherwise specified at the time of purchase, the Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, VAT, sales tax, or other consumption tax payable in relation to the supply. All such taxes must be paid at the time any payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).
All Intellectual Property Rights in and to the Services and FLOE Platform vests or remain vested in FLOE or its licensors at all times. You do not receive any right, title or interest in or to the Services or FLOE Platform other than the right to access and use expressly granted to you under this Agreement.
You must immediately notify FLOE upon becoming aware of any:
(a) infringement or unauthorised use of the Service or FLOE Platform by any person; or
(b) claim by any person that use of the Service or FLOE Platform by you infringes any Intellectual Property Rights owned by that person (IP Claim).
FLOE warrants that it has, and will maintain, all necessary rights, title and interest necessary to provide the Services and FLOE Platform in accordance with this Agreement.
If the Services or FLOE Platform are the subject of an IP Claim, FLOE may (at its cost and option) either:
(a) procure the right for you to continue using the Services and FLOE Platform;
(b) modify the Services or FLOE Platform such that it no longer infringes the relevant Intellectual Property Rights; or
(c) terminate this Agreement and provide you with a pro-rated refund of any Fees you have pre-paid in relation to any period of your Subscription Term on and after the effective date of termination under this clause.
All Intellectual Property Rights in and to Your Data vest or remain vested in you or your licensors at all times. FLOE does not receive any right, title or interest in or to Your Data other than the rights expressly granted to FLOE under this Agreement.
You grant FLOE and its Affiliates, or must procure the grant to FLOE and its Affiliates of, a non-exclusive, worldwide, and royalty-free licence to use Your Data to the extent required to enable FLOE to:
(a) exercise its rights and discharge its obligations under this Agreement;
(b) develop enhancements to the Services and FLOE Platform, including new service offerings which may be offered to FLOE’s customers from time to time; and
(c) aggregate or derive data in a form in which the details of any individual is not identifiable (Aggregated Data), and freely use, develop, disclose, process and commercialise such Aggregated Data for FLOE’s business purposes
FLOE may grant a sub-licence of its rights under this clause to its third party services providers, contractors, professional advisers and auditors to the extent required for such third parties to provide services or deliverables to FLOE or its Affiliates. FLOE is responsible for ensuring that its Affiliates and any sub-licensee complies with this Agreement in respect of Your Data.
You warrant that:
(a) you have obtained all consents, licences and approvals necessary to enable FLOE to Process Your Data in accordance with this Agreement, and that such Processing will not infringe the rights of any person (including rights to confidentiality, privacy or Intellectual Property Rights); and
(b) Your Data will not contain any content, information or material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory.
FLOE may immediately, and without providing notice to you, remove or delete any of Your Data from the FLOE Platform or Services where FLOE believes, in its sole discretion, that you have breached any obligation or warranty in respect of Your Data under this Agreement, or that removal or deletion of any of Your Data is otherwise in the best interests of the users of the FLOE Platform or Services.
Your access to or use of any content that is transmitted or uploaded to, generated on, or communicated via the FLOE Platform and Services by any other third party user of the FLOE Platform and Services (User Generated Content) is solely at your own risk. FLOE accepts no responsibility or liability for any harm, damage or loss that you suffer as a result of accessing or using any User Generated Content. FLOE will take reasonable steps to address any concerns raised by you in respect of User Generated Content, but is not responsible or liable for the removal or deletion of any User Generated Content.
FLOE must comply with all Privacy Laws applicable to it in Processing any Personal Data comprised in Your Data. By entering this Agreement, You consent to FLOE Processing Personal Data in accordance with the FLOE Privacy Policy.
FLOE must implement reasonable technical and organisational security controls to protect Your Data from Data Breaches in accordance with applicable Privacy Laws and its Privacy Policy.
Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 10.
The Recipient may disclose Confidential Information of the Discloser:
(a) to the Affiliates, personnel, third party services providers, contractors (including in the case of FLOE, trainers), professional advisers and auditors of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;
(b) to the extent required by law or the rules of any stock-exchange; and
(c) with the prior written consent of the Discloser.
This clause applies if you are a Consumer for the purpose of the Australian Consumer Law. FLOE’s Products and Services come with Consumer Guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:
(a) to cancel your Services contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with Products. If a failure with the Products or Services does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the Products and to cancel the contract for the Service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Products or Service.
FLOE warrants, for a period of 12 months from the date of delivery of any Products to you, or such longer period required under Australian Consumer Law, that the Products will be free from material defects, and errors or omissions in design, materials and workmanship. To make a warranty claim in respect of a Product you must notify FLOE that you wish to make a warranty claim via the Contact Us form on the Website.
Subject to clause 11.1, FLOE must, as your sole and exclusive remedy, in FLOE’s sole discretion, either rectify or resupply any Product which does not comply with the warranties in this clause within a reasonable period of confirmation of the non-compliance. FLOE reserves the right to charge you for administration and shipping expenses where a returned Product is found to be compliant with applicable warranties.
To the extent permitted by law and subject to clause 11.1, other than the warranties expressly set out in the Agreement, FLOE excludes all conditions, warranties and guarantees, whether express or implied, and provides the Services and Products on an “as is” and “as available” basis. Without limitation, FLOE does not warrant:
(a) that the Services will be continuous, free from errors, omissions, defects, security risks or vulnerabilities, fit for any purpose, or will meet your requirements;
(b) that any information or suggestions provided to you on or via Services or FLOE Platform will be accurate, complete, or appropriate for any purpose; and
(c) the accuracy, legality or appropriateness of any third party content, including User Generated Content accessible via the Services or FLOE Platform, or accessible through any links to websites operated by third parties accessible through the Services or FLOE Platform.
Any information provided by FLOE on or via the Services or FLOE Platform does not constitute professional advice, and you must not use or rely on any such information as a substitute for professional advice from a licensed practitioner in the applicable area, which may include your physician or other healthcare professional.
FLOE must indemnify you against all loss and damage suffered or incurred by you arising out of or in connection with any breach under clause 10 by FLOE, in each case, except to the extent that the claim or breach is caused or contributed to by you.
You indemnify FLOE and its Affiliates, service providers and other users (those indemnified) against, and must pay on demand, all loss and damage suffered or incurred by any of those indemnified, arising out of or in connection with:
(a) any third party claim relating to the Processing of Your Data by FLOE in accordance with this Agreement; and
(b) any breach of clause 3.3, 8.3 or 10 by you,
in each case, except to the extent that the claim or breach is caused or contributed to by FLOE.
The indemnification obligation of a party (indemnifying party) under clause 11.4 or 11.5 in respect of any third party claim is subject to the other party:
(a) promptly notifying the indemnifying party of the third party claim;
(b) permitting the indemnifying party to control the defence of the third party claim; and
(c) providing (at the indemnifying party’s cost) all information and assistance reasonably requested by the indemnifying party in connection with the defence of the third party claim.
Without prejudice to the termination rights of each party:
(a) clause 11.4 sets out your sole and exclusive remedy in respect of the matters indemnified by FLOE; and
(b) clause 11.5 sets out FLOE’s sole and exclusive remedy in respect of the matters indemnified by you.
To the extent permitted by law, each party excludes any and all liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity for any Indirect Loss.
Subject to clause 12.4, the liability of FLOE arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by you under the Agreement in that Subscription Year.
Subject to clause 12.4, your liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by you under the Agreement in that Subscription Year.
The limitation of liability in clause 12.2 and 12.3 does not apply to the liability of a party:
(a) for infringement of the other party’s intellectual property rights, including any breach of any licence granted under this Agreement;
(b) for breach of the party’s obligations of confidentiality under clause 10;
(c) for breach of clauses 3.3 or 8.3;
(d) to pay Fees that are due and payable; or
(e) for any matter in respect of which liability may not be limited at law.
You acknowledges that damages are not a sufficient remedy for any breach of clause 3.3, 8.3 or 10 of the Agreement and that FLOE is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or anticipated breach of those clauses (in addition to any other remedies).
FLOE may suspend the rights granted pursuant to clause 3.2 and your ability to access and use the Services and FLOE Platform (in whole or part):
(a) during any period in which you are in breach of the Agreement (subject to clause 6.3 in the case of late payment); or
(b) to prevent or mitigate actual or suspected illegal activity, damage to FLOE’s systems, or threat to the integrity of the Service or the FLOE Platform.
FLOE will lift any such suspension upon the matters giving rise to the suspension have been resolved to FLOE’s reasonable satisfaction.
Without prejudice to any other rights or remedies under this Agreement or at law, a party may terminate the Agreement with immediate effect on written notice if the other party:
(a) commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by you of clauses 3.3, 5.1, 6.2, 8.3 or 10 is a material breach for the purposes of this clause; or
(b) becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.
On termination or expiry of the Agreement:
(a) subject to clause 13.3(b), all rights to the Services and FLOE Platform granted under the Agreement cease immediately and you must immediately cease using the Services and FLOE Platform;
(b) FLOE has no further obligation to retain Your Data; and
(c) you must immediately pay FLOE all Fees due and payable as at the date of termination or expiry.
This clause 14.1 applies if you acquire the App from the Apple App Store (Apple Store App). You acknowledge and agree that:
(a) this Agreement is solely between you and FLOE, not Apple, Inc. (Apple) and that Apple has no responsibility for the Apple Store App or content thereof;
(b) your use of the Apple Store App must comply with the App Store Terms of Service;
(c) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Store App. In the event of any failure of the Apple Store App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple Store App to you;
(d) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Store App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to us as provider of the software;
(e) Apple is not responsible for addressing any claims by you or any third party relating to the Apple Store App or your possession and/or use of the Apple Store App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Store App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to FLOE as provider of the software; and
(f) in the event of any third-party claim that the Apple Store App or your possession and use of that Apple Store App infringes that third party’s intellectual property rights, FLOE, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
The parties acknowledge that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple Store App, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple Store App against you as a third-party beneficiary thereof.
This clause 14.2 applies if you acquire the App from the Google Play Store (Google Play App).You acknowledge that:
the Agreement is between you and FLOE only, and not with Google, Inc. (Google);
your use of Google Play App must comply with Google’s then-current Google Play Store Terms of Service;
Google is only a provider of the Google Play Store where you obtained the Google Play App;
FLOE, and not Google, is solely responsible for the Google Play App;
Google has no obligation or liability to you with respect to Google Play App or the Agreement; and
you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Google Play App.
Any notices to you may either be posted on the FLOE Platform, or given in writing (which may be by email) to the address registered on your account. Any notices to FLOE, and any questions, concerns or complaints relating to the Services or Products must be in writing via the Contact Us page at floefit.com.
Each party must comply with all laws applicable to it in performing this Agreement.
This Agreement is the entire agreement between the parties in respect of its subject matter.
Except in relation to your payment obligations, neither party is liable for any delay or failure to perform its obligations under this Agreement to the extent such delay or failure is due to a Force Majeure Event.
If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.
You must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of FLOE. FLOE may assign its rights or novate its rights and obligations under this Agreement to its Affiliates or any purchaser of substantially all of the FLOE business. FLOE may subcontract its obligations under this Agreement to its service providers and sub-processors.
A party waives a right under the Agreement only by notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
Other than as expressly provided under this Agreement, no person other than the parties has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.
The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.
The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.
In this Agreement, these terms have the following meanings:
Affiliatemeans of a party means an entity that Controls, is Controlled by, or is under common Control with that party.
Aggregated Data has the meaning given in clause 8.2(b)
Agreement has the meaning given in clause 1.
App has the meaning given in the Background to this Agreement.
Approved Purpose means your own personal, non-commercial use for fitness training purposes.
Australian ConsumerLaw means the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Compatible Device means a computer, mobile handset, tablet or other device that meets the minimum requirements specified on floefit.com.
Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:
(a) including the terms of the Agreement and, in the case of FLOE, all source code to, FLOE Data comprised in, and pricing for the Services, Products, and FLOE Platform; but
(b) excluding any such information that is in the public domain (other than as a result of a breach of confidence).
Consumerhas the meaning given to it by section 3 of the Australian Consumer Law.
Consumer Guarantee means a consumer guarantee under the Australian Consumer Law.
Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:
(a) direct or indirect ownership of more than 50% of the voting rights of such person; or
(b) the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.
Data Breachmeans any loss, unauthorised access to, or use or modification of Your Data.
Fees means the fees applicable to your Subscription or payable for any Products ordered by you.
FLOE Data means content, data, information or materials comprised in the Services or FLOE Platform, or relating to the Products, and that is provided, generated or otherwise made accessible by FLOE, but excludes Your Data and User Generated Data.
FLOE Cookie Policy means the FLOE cookie policy available at floefit.com.
FLOE Platform has the meaning given in the Background to this Agreement.
FLOE Privacy Policy means the FLOE privacy policy available at floefit.com.
Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.
Indirect Loss means:
(a) loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and
(b) any loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.
Initial Subscription Period has the meaning given in clause 2.1.
Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.
IP Claim is defined in clause 7.2(b).
Personal Datameans information about an identified individual or an individual who is reasonably identifiable, including ‘personal information’ and ‘personal data’ as defined in applicable Privacy Law.
Privacy Law means any applicable law governing the Processing of Personal Data, including (to the extent applicable) the Privacy Act 1988 (Cth), General Data Protection Regulation (EU) 2016/679, UK Data Protection Act 2018 (DPA), UK General Data Protection Regulation as defined by the DPA as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, the Privacy and Electronic Communications Regulations 2003, and California Consumer Privacy Act (2018).
Process means to collect, store, use, copy, disclose or perform any other set of operations on.
Products has the meaning given in the Background to this Agreement.
Renewal Period has the meaning given in clause 2.2.
Services has the meaning given in the Background to this Agreement.
Subscription means the subscription that you select when first setting up your account on the FLOE Platform.
Subscription Term means the Initial Subscription Period and each Renewal Period.
Subscription Year means a period of 12 months from the commencement of Subscription Term or an anniversary of that date.
User Generated Content has the meaning given in clause 8.5.
Website has the meaning given in the Background to this Agreement.
Your Data means any content, information, data or other materials that you transmit or upload to, generate using, or communicate via the FLOE Platform and Services, or that you otherwise provide to FLOE or its Affiliates in connection with this Agreement, and includes Personal Data in any such content, information, data or other materials.