Terms of Service

Introduction

The Company provides the “Arete” digital platform to improve athletic performance and well-being. Use of the Platform is subject to these Terms of Service.

Definitions

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ABN means Australian Business Number.
(b) ACN means Australian Company Number.
(c) Access Code means a unique code linked to a Club Account.
(d) Account means a registered account with the Platform.
(e) Athlete means a person that is granted a licence to access and use the Platform.
(f) Authorised User means any registered user of the Platform authorised to access an Account.
(g) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(h) Challenges means any games and interactive challenges available for completion by Athletes via the Platform, as updated from time-to-time.
(i) Chatbot means the 24/7 artificial intelligence chatbot service accessible via the Platform.
(j) Club means a sports organisation that is granted a licence to access and use the Platform, subject to the Commercial Terms.
(k) Commercial Terms means any additional terms agreed between the Company and the Club with respect to the Club’s licence for the
Platform, including Fees, and includes any written proposal or quotation accepted by the Club.
(l) Company means Arete Pty Ltd ABN 51 633 416 323.
(m) Confidential Information means any written or verbal information that:

(i) Is about each party’s business or affairs;
(ii) Is about the conduct of each party under these Terms of Service, during the term of these Terms of Service;
(iii) A party informs the other party that it considers it confidential and/or proprietary;
(iv) A party would reasonably consider to be confidential in the circumstances; and
(v) Is personal information within the meaning of the Privacy Act. but does not include information that a party can establish:
(vi) Was in the public domain at the time it was given to that party;
(vii) Became part of the public domain, without that party’s involvement in any way, after being given to the party;
(viii) Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
(ix) Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

(n) Fee means any Fee charged by the Company for access and use of the Platform.
(o) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(p) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(q) Mobile Application Marketplace means an online marketplace for access to the Platform and other applications for mobile devices, such as the App Store.
(r) Platform means the “Arete” performance and well-being digital platform accessible from the Site and/or Mobile Application Marketplace from time-to-time.
(s) Privacy Act means the Privacy Act 1989 (Cth).
(t) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.
(u) Results means the results generated from completed Wellness Surveys.
(v) Reward means the in-app reward “coins” awarded to Athletes for completing Challenges.
(w) Site means the Company’s website accessible at https://www.getarete.com/.
(x) Subscription Fee means a Fee charged by the Company for use of the Platform in accordance with such features and pricing described on the Site or as otherwise agreed between the User and the Company.
(y) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(z) Terms of Service means the terms and conditions of using the Platform, as updated from time-to-time, which can be found at the Site.
(aa) User means any Club, Athlete or Authorised User.
(bb) User Content means any designs, graphics, wireframes, images, videos, audio, information, documents or other data that is uploaded into, or created using the Platform by the User, or that otherwise forms part of the User’s Intellectual Property, but excludes any background Intellectual Property that is owned by the Company, or licensed to the Company.
(cc) Wellness Survey means the online questionnaire to be completed by Athletes via the Platform, as may be updated from time-to-time.

2. Agreement

2.1. The licence granted under these Terms of Service shall be ongoing until terminated in accordance with these Terms of Service and/or the Commercial Terms.
2The User agrees that all use of the Platform is subject to these Terms of Service and must immediately cease to use the Platform if the User can no longer agree or adhere to these Terms of Service.
2The Company may suspend an Account or restrict the access of any User that breaches these Terms of Service.
2Where there is a conflict between these Terms of Service and any Commercial Terms, the Commercial Terms shall prevail to the extent of the inconsistency.

3. Using the platform

3.1. General

(a) To use the Platform, the User must have set up their Account (either as a Club or Athlete, as the case may be).
(b) The User agrees that it is responsible for the conduct of any Authorised User of its Account, who each must enter into and comply with these Terms of Service.
(c) Persons under 18 years of age must not use the Platform without their parent or guardian’s consent. By accepting these Terms of Service, the User, where a person, is representing to the Company that either:

i. They are 18 years of age and above; or
ii. They have their parent or guardian’s consent.

3.2. Disclaimer

(a) The Company does not provide personalised physical training, mental health or well-being services, and the Platform is not intended as a substitute for professional healthcare advice, diagnosis, or treatment.
(b) The User should always seek the advice of your physician or other qualified health providers with any questions they may have regarding a medical condition and must not disregard professional medical advice or delay in seeking it because of this Platform. The User should reach out to independent professional health care professionals or support platform as published within the Platform.
(c) The Company makes no representation that the User will achieve particular results or benefits from using the Platform, in particular improved mood or athletic performance.

3.3. Features

(a) The Company shall provide the User with access to and use of the features as made available within the Platform from time-to-time, which shall include (without limitation) the Wellness Survey, Chatbot and Challenges.
(b) The User acknowledges that the Chatbot is automated based on artificial intelligence technology and is not a real person. Any conversations shall remain confidential and anonymous at all times.

3.4. Wellness Survey & Results

(a) Athletes will be prompted to individually complete Wellness Surveys via the Platform.
(b) The Athlete must ensure that the Wellness Survey is completed accurately and truthfully, and by the Athlete personally and not on their behalf or upon the instruction of any third party.
(c) The Company may add, vary and/or remove elements of the Wellness Survey at its complete discretion.
(d) Where the Athlete is linked to a Club’s Account, they acknowledge and agree that the Results may be shared with the Club and will not be anonymous.
(e) It is the Club’s sole responsibility to ensure that they meet their privacy obligations with respect to any personal information received from Results.
(f) The Club acknowledges and agrees that the Results provide only guidance on the general well-being of Athletes and is based solely on completed Wellness Surveys. The Club must not regard the results as accurate and must not rely on the results without regard to other considerations and due diligence.

3.5. Rewards

(a) The Company incentivises the Athlete to complete Challenges by providing Rewards, which generally take the form of in-app currency referred to as ‘Coins’.
(b) Rewards are not redeemable for cash however may be redeemed for offers from third-party partners that the Company may engage from time-to-time (Partners).
(c) The User acknowledges that where the User elects to redeem a Reward with a Partner:

i. The Company makes no representation that the Partner will honour a Reward or is capable of fulfilling a request to redeem a Reward;
ii. The Partner remains responsible in relation to any discount, good or service that the Partner agrees to provide the User by honouring a request to redeem a Reward;
iii. In no event will the Company be liable to the User with regard to the redemption (or failure to redeem) a Reward, or any goods or services the User acquires by redeeming a Reward.

4. Fees, Payments and Refunds

4.1. Fees

(a) The primary Fee to use the Platform shall be the Subscription Fee, which is payable in advance (after any free trial period has expired).
(b) The User agrees to make payment monthly in advance for all Subscription Fees due via the online payment gateway within Platform, or in such other manner as the Company may direct from time-to-time.
(c) The User agrees that it has no right to access the Platform if it fails to make payments when Fees are due.
(d) The Club shall be liable to pay the Fees as set out in the Commercial Terms.
(e) The Club will be provided with an Access Code to distribute to selected Athletes to use the Platform and connect to its Account in its complete discretion, subject to any limitations as agreed in the Commercial Terms.
(f) For clarity:

i. Clubs shall pay on behalf of Athletes they authorise access to the Platform via the Access Code; and
ii. Any Athlete who uses the Platform in their personal capacity with no connection to a Club shall be responsible for paying the Subscription Fees.

4.2. Currency

All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).

4.3. GST

For Users in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the User with a Tax Invoice for any payments.

4.4. Refunds

No refunds of Fees are offered other than as required by law.

4.5. Late Payment

(a) If the User does not pay the Fees as required, the Company may suspend all User access to the Platform for that Account. This may, in time, result in termination of access to the Platform for all Athletes linked to a Club’s Account.
(b) The User agrees that the Company shall not be liable in any way for any valid termination or suspension of the User’s access to the Platform.

5. General conditions

5.1. Licence

(a) By accepting these Terms of Service, the User is granted a limited, non-exclusive and revocable licence to access and use the Platform for the duration of these Terms of Service, in accordance with these Terms of Service.
(b) The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
(c) The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in these Terms of Service by the User.

5.2. Modification of Terms

(a) The terms of these Terms of Service may be updated by the Company from time-to-time.
(b) Where the Company modifies the terms of these Terms of Service, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using the Platform.
(c) The modified terms shall come into effect the next time the User accesses the Platform following notice of the updated Terms of Service.
(d) If the User does not accept any changes to the terms of these Terms of Service, the User may terminate these Terms of Service and must immediately cease using the Platform.

5.3. Software-as-a-Service

(a) The User agrees and accepts that the Platform is:

i. Clubs shall pay on behalf of Athletes they authorise access to the Platform via the Access Code; and
ii. Any Athlete who uses the Platform in their personal capacity with no connection to a Club shall be responsible for paying the Subscription Fees.

(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Platform.

5.4. Support

The Company shall provide reasonable support services in the manner agreed in the Commercial Terms and/or notified in writing to the User from time-to-time.

5.5. Use & Availability

(a) The User agrees that it shall only use the Platform for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
(b) The User is solely responsible for the security of its username and password for access to the Platform. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its the Platform account.
(c) The User agrees that the Company shall provide access to the Platform to the best of its abilities, however:

i. Access to the Platform may be prevented by issues outside of its control; and
ii. It accepts no responsibility for ongoing access to the Platform.

5.6. Use & Availability

(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.
(b) The Privacy Policy does not apply to how the User handles personal information.  If necessary, under the Privacy Act, it is the User’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.
(c) The Platform may use cookies (a small electronic file) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.
(d) The Company may use User Content and other information collected via the Platform for research, developmental, statistical and analytical purposes, subject to and in accordance with the Privacy Policy with respect to personal information.

5.7. Data

(a) Security. The Company takes the security of the Platform and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
(b) Transmission.  The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards.  It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
(c) Liability. The Company has no liability to the User for any User that:

i. Exports any data from the Platform;
ii. Shares any information contained within the Platform; and/or
iii. Accesses any User Data via the Platform.

5.8. Intellectual Property

(a) Trademarks.  The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information.  The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.  The User warrants that it shall not infringe on any third-party rights through the use of the Platform.
(c) The Platform.  The User agrees and accepts that the Platform is the Intellectual Property of the Company and the User further warrants that by using the Platform the User will not:

i. Copy the Platform or the services that it provides for the User’s own commercial purposes; and
ii. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.

(d) Content.  All content (excluding User Content) submitted to the Company, whether via the Platform or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the Platform.
(e) Reservation. Nothing in this Agreement shall grant the User, any right, title or interest in any of the Intellectual Property of the Company, including and especially the Platform.

5.9. Third Party Dependencies

The User agrees and acknowledges that the Platform has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

5.10. Confidentiality

(a) The Company agrees to keep all other User Content in the strictest confidence, and to the extent User Content is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
(b) Each party acknowledges and agrees that:

i. the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii. it owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii. it must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
iv. all Intellectual Property rights remain vested in the Discloser, but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v. any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.  Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

(c) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

i. any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
ii. any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii. any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.

(d) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

i. any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
ii. any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

5.11. Liability & Indemnity

(a) The User agrees that it uses the Platform at its own risk.
(b) The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
(c) The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with the Platform, including any breach by the User of these Terms.
(d) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use the Platform, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
(e) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified.  Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law.  To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

i. The re-supply of services or payment of the cost of re-supply of services; or
ii. The replacement or repair of goods or payment of the cost of replacement or repair.

5.12. Termination

(a) Unless otherwise agreed in the Commercial Terms, either party may terminate these Terms of Service by giving the other party written notice, and access to the Platform shall terminate at the end of the User’s billing cycle active at the expiry of that notice period.
(b) Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.

5.13. Despute Resolution

(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

i. Includes or is accompanied by full and detailed particulars of the Dispute; and
ii. Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

5.14. Electronic Communication, Amendment & Assignment

(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service.  The Company will notify the User of a change of details from time-to-time.
(c) The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The User may not assign or otherwise create an interest in these Terms of Service.
(g) The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.

5.15. General

(a) Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
(b) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with, the terms of any Special Conditions made under these Terms of Service, the terms of the Special Conditions shall prevail.
(c) Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
(d) Relationship.  The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
(e) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
(g) Governing Law.  These Terms of Service is governed by the laws of Victoria, Australia.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability.  Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.