TC Pro Pty Ltd ACN 639 096 647 and its related bodies corporate (“Company”) operate the TC Pro tool, database and display platform for gyms, studios, coaches, and personal trainers (“TC Pro”).
These Terms and Conditions (“Terms”) state the terms that govern the use of TC Pro.
The terms “you” or “your” refer to the person using TC Pro. By using TC Pro, you confirm that you agree to the Terms. If you do not accept the Terms, you must not use TC Pro.
The Company may amend or modify these Terms at any time and will post the updated Terms at [insert hyperlink to where the Terms will be posted]. When next you log in, you will be required to agree to the new Terms in order to continue to use TC Pro.
1. Purpose of TC Pro
1.1 TC Pro is an all-in-one design tool, database and display platform for your gym, studio, coaching, or personal trainer clients. TC Pro is further described in the product descriptions posted at the TC Pro website.
2. Access to TC Pro
2.1 In consideration for the payment of the Access Fee and Screen Fee set out below, the Company:
(a) grants to you the right to access and use TC Pro services in accordance with these Terms;
(b) will supply you one plug and play HDMI device ("HDMI Stick") for each Screen Fee you pay;
(c) will supply you one bluetooth keyboard & mouse ("Bluetooth Devices") for the first Screen Fee you pay; and
(d) will provide you with up to four 30 minute consultations through Skype, or other medium agreed with you, during business hours in New South Wales, Australia, to assist in your initial setup of TC Pro.
2.2 The Company will use reasonable commercial efforts to enable you to use TC Pro during business hours in New South Wales, Australia. You may contact the Company at any time to request support with your use of TC Pro. The Company will make reasonable commercial efforts to resolve your support request within a reasonable time.
2.3 If you are an employer, subject to clause 5.2, you may sub-licence your rights under these Terms to your employees and sub-contractors strictly for internal business purposes only, provided each sub-licensee is aware of these Terms and that they must not authorise any other person to use TC Pro.
2.4 Other than as explicitly stated in this clause 2, these Terms do not grant you the right to grant access to TC Pro, and you must not distribute, rent, loan, lease, sell, sublicense, transfer or otherwise exploit all or part of TC Pro, or any rights granted by these Terms to any other person. You must not modify, translate, adapt, arrange, or create any adaptation or modification to TC Pro for any purpose. Any rights not expressly granted in these terms are reserved by the Company and its licensees.
3. HDMI Stick and Bluetooth Devices ("Equipment")
3.1 The Company will deliver the Equipment to the address nominated by you on the applicable online order form as soon as reasonably practicable following your payment of the applicable fees.
3.2 The Company may supply you with, or make available on the TC Pro website, operating manuals for the Equipment.
3.3 The Company retains title to the Equipment until you have paid the applicable fees. Risk of loss or damage to the Equipment passes to you on delivery of the Equipment to your nominated address.
4. Additional Services
4.1 You may request the Company supply, or the Company may offer to supply, to you (or may arrange for a third party to supply to you), additional goods or services ("Additional Services").
4.2 Before supplying any Additional Services to you, the Company will confirm to you:
(a) the nature of the Additional Services that it will supply; and
(b) any additional fees and applicable terms and conditions that will apply to the Additional Services.
4.3 These terms will apply to those Additional Services except to the extent that any additional terms and conditions are expressly agreed for such Additional Services.
5. Your Responsibilities
- are responsible for your compliance with these Terms;
- are responsible for the use of TC Pro by your employees and contractors in compliance with these Terms;
- must take reasonable steps to keep usernames and passwords secure and prevent unauthorised access to or use of TC Pro, and notify the Company promptly of any such unauthorised access or use;
- are responsible for protecting the Equipment from loss or damage;
- are responsible for providing your own telecommunications, networks, systems, equipment and other facilities for accessing and making use of TC Pro other than those supplied by the Company under these Terms;
- must only use TC Pro for your internal business purposes; and
- must only use TC Pro in accordance with applicable laws and government regulations.
5.2 If you authorise any other person to use TC Pro, or any person gains access to TC Pro as a consequence of your breach or negligent act or omission, you agree that you are fully responsible for the actions of that person and any failure by that person to comply with these Terms. You agree to indemnify, defend and hold harmless the Company, its respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable legal fees) asserted by any person arising from or in connection with you authorising any person to use TC Pro, or such use arising as a consequence of your breach or negligent act or omission.
5.3 You must not (and must not permit or direct any third party to):
- use TC Pro for anything false, defamatory, harassing or obscene;
- use TC Pro in a manner that contravenes any third party's rights, including intellectual property rights, or applicable law;
- circumvent or modify any security mechanisms or user restrictions employed by the Company in TC Pro or the Equipment;
- reverse engineer, decompile, or disassemble TC Pro or the Equipment;
- imply any affiliation or endorsement of you or any organisation by the Company;
- upload, provide, submit, or host any personal information on TC Pro except to the extent necessary to enjoy the benefit of TC Pro;
- operate TC Pro as a bureau service;
- use TC Pro to store or transmit any viruses, trojan horses, backdoors or similar types of code designed to disrupt or interrupt any computer system or service;
- interfere with or disrupt the integrity or performance of TC Pro or any transaction being conducted through TC Pro, or any other person's use of TC Pro;
- attempt to gain unauthorised access to TC Pro or its related systems or networks, or any part of them;
- interfere with or disrupt the servers or networks connected to TC Pro, or breach any requirements, procedures, policies or regulations of networks connected to TC Pro;
- use any automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of TC Pro;
- use the Equipment in a manner not reasonably contemplated by the Company;
- modify the Equipment in a manner not authorised by the Company; or
- subject the Equipment to any unusual or unrecommended physical, environmental or electrical stress.
- Access to TC Pro services is granted subject to the payment of a fee for that service in accordance with the applicable online order form (“Access Fee”).
- You will be charged a one off fee for each screen you want to display TC Pro on, in accordance with the applicable online order form ("Screen Fee").
- You are required to pay all taxes applicable to the supply of TC Pro and any Additional Services in your jurisdiction, and the value of any Access Fee, Screen Fee, and fees for Additional Services may be increased on a Company invoice by the value of, without limitation, any GST or similar tax.
7. No reliance
- You acknowledge that although the Company will use its reasonable endeavours and due care and skill to determine that the content on TC Pro is accurate and up-to-date, including all data displayed, the Company does not warrant that such content will be complete or error free.
- You acknowledge and agree that:
(a) you are solely liable and responsible for your business and other activities, and your performance and compliance with laws;
(b) you had a reasonable opportunity to examine and satisfy yourself as to the TC Pro platform and the minimum specifications required to use, access, and operate TC Pro and the Equipment before subscribing to it;
(c) TC Pro is prepared on a general basis and may not be appropriate or complete for your specific circumstances or requirements;
(d) TC Pro is designed to assist you with your business, but is not designed nor intended to guarantee the success of your business; and
(e) there are limitations to TC Pro's ability to assist in your business and training programs, and in particular TC Pro does not detect faulty input data, does not take into account all of the matters that should be considered in your business and training programs, and should not be used as a substitute for your independent and appropriately qualified decisions regarding your business and training programs.
8. Your Data and Backups
- As between you and the Company, you retain ownership of all the data that you input into TC Pro ("Customer Data"). You acknowledge Customer Data will be processed, stored, reproduced, transmitted and used by the Company to operate TC Pro (“purpose”). You grant to the Company a perpetual, irrevocable, royalty free, sub-licenseable, transferrable license to store, access, use, reproduce, modify and adapt Customer Data for the purpose. To the extent that you obtain Customer Data from another party, you warrant that you have obtained from that party any required consents for the Company to exercise these rights and you will, on request from the Company, provide such documents as are reasonably necessary to satisfy it that you have those consents. You agree that you have sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights of ownership in all Customer Data.
- The Company does not guarantee that it will have a complete copy of Customer Data at any time, nor does it guarantee that TC Pro will operate uninterrupted or error free. You acknowledge that the Company will have no liability to you or any third party under any circumstances resulting from any loss of Customer Data.
- You acknowledge that the Company (or its licensors) own all of the intellectual property rights in TC Pro including the programs, templates, databases and proprietary systems which form part of TC Pro or that arise or are created from the operation of TC Pro, excluding the Customer Data. Nothing in these Terms gives you any title, claim or right in or to TC Pro or any part of it. You acknowledge that TC Pro including its "look and feel" (e.g. text, graphics, images, logos and icons), photographs, content, notices and other material are protected under copyright, trademark and other intellectual property laws and treaties, and all such intellectual property rights are owned or licensed by the Company.
- If you provide us with any feedback about TC Pro, you grant us a perpetual, irrevocable, royalty-free licence to use, adapt, and incorporate it into any future goods and services the Company creates.
- You grant the Company a limited, royalty-free, non-exclusive, irrevocable license to use anonymized and aggregated Customer Data to create an anonymized and aggregated data set (“Usage Data”) for its own business purposes, including improving TC Pro. The Usage Data will be created on an aggregated basis together with the anonymized data of other TC Pro customers. All rights, title, and interest in the Usage Data will be owned by the Company and will not be considered your confidential information.
9. Usage Restrictions and Availability
- You understand and agree that the internet is a public communications network that cannot be controlled by the Company, and any data intended to be delivered by means of TC Pro may be delayed or may not be delivered.
- You agree that the Company is not liable for any delays, failure to deliver, or misdirected delivery of any data, for any errors in the content of data, or for any actions taken or not taken by you or any third party in reliance on data.
- TC Pro may be subject to access or other restrictions on use or availability.
- You acknowledge that your access and use of TC Pro may be interrupted from time to time including scheduled and emergency maintenance, equipment malfunction, updates to TC Pro, and other actions that the Company may reasonably elect to take.
- The Company will make reasonable efforts to provide you with advance notice of any changes that may affect your use of TC Pro.
- The term of your access to TC Pro is set out on the applicable online order form at the time of purchase. TC Pro services that are purchased on a subscription basis will automatically renew for further periods of one month each, at TC Pro's then current prices, unless either party gives notice to the other at least 30 days before the end of the then current term.
- The Company may suspend your access to TC Pro if the Company reasonably determines that: (a) you are using TC Pro in breach of these Terms; or(b) there is a threat or attack on TC Pro or other event that may create a risk to TC Pro, you or any other user of TC Pro.
- The Company will make reasonable efforts to provide information to you about the reasons for any suspension, and updates regarding resumption of your access to TC Pro following any suspension.
- The Company is not liable for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any suspension of TC Pro.
- The Company may terminate your access to TC Pro if you have breached these Terms and that breach is not remedied within 14 days of notice.
- The Company may terminate TC Pro, any part of TC Pro, or its agreement with you, at any time. The Company will use commercially reasonable endeavours to provide you with reasonable notice of the termination of TC Pro. You acknowledge that the Company’s sole liability to you for termination under this clause 12.2 will be to provide you with a pro rata refund of any Access Fees paid in advance by you.
- You may terminate your access to TC Pro at any time, but if you do so you acknowledge that any Access Fees you have paid in advance will not be refunded, and the Company has no further liability to you.
- Clauses 8, 13, 14, and 16 survive termination of these Terms, as well as any other provision which by its nature should survive.
13. Limitation of Liability
- Other than warranties, conditions, rights or guarantees implied by relevant legislation, the exclusion of which from an agreement would contravene a statute or cause part or all of this agreement to be void (“Non-Excludable Rights”), the Company provides you with TC Pro “as is”, and the Company does not warrant uninterrupted use or operation of TC Pro, or that any data sent by or to you will be transmitted in uncorrupted form or within a reasonable amount of time. Except for any Non-Excludable Rights, the Company disclaims all representations, warranties and conditions of any kind, whether express, implied or written, oral, contractual or statutory.
- Except for liability in relation to breach of any Non-Excludable Rights, the payment of fees, liability referred to in clause 13.3, and the indemnity in clause 13.4, each party's maximum aggregate liability to the other in contract, including for one or more breaches of these Terms, tort (including negligence), statute or otherwise, is limited to the total amount paid by you to the Company in connection with TC Pro in the 12 month period before the event giving rise to liability arises. For liability in relation to breach of any Non-Excludable Rights, to the extent permitted by applicable law, the Company’s liability is limited, at its option, to the cost of repairing or replacing any defective goods, or supplying again or paying the cost of having supplied again any defective services.
- Except for Non-Excludable Rights, neither party is liable for any special, incidental, indirect, punitive or consequential damages, including damages for loss of profits, revenues, privacy, or data, business interruption, failures to transmit or receive data or any other pecuniary loss arising out of or in any way related to the use of or inability to use TC Pro or otherwise in connection with any provision of these Terms, even if that party has been advised of the possibility of such damages.
- You agree to indemnify, defend and hold harmless the Company, its respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable legal fees) by a third party due to or arising from or in connection with the Company's use of the Customer Data, including a failure by you to obtain the rights referred to in clause 8.1 above.
14. Confidentiality and Data Protection
- Each party must maintain the confidentiality of the other party's confidential information (which includes all information disclosed by one party to the other in circumstances where an obligation of confidence can or should reasonably be implied) and will not without the prior written consent of the other, use, disclose, copy or modify the other party's confidential information (or permit others to do so) other than as necessary for the performance of its rights and obligations under these Terms. Each party must take all precautions reasonably necessary to prevent any unauthorised use, disclosure, copying, publication or dissemination of the other party's confidential information, including at a minimum those taken by that party to protect its own confidential information.
- You acknowledge that the Company may disclose to its third party service providers, including IT suppliers, so much of your confidential information as is necessary for the Company to properly supply its services to you.
- The Company will take reasonable commercial measures to protect the security and integrity of TC Pro and Customer Data processed by means of TC Pro.
- The Company will:
(a) comply at all times with applicable privacy and data protection laws; and
(b) take all reasonable steps to protect the security of your confidential information.
15. Notices from the Company
- You agree that you will receive all notices required under these Terms electronically, by any means reasonably nominated by the Company from time to time, including by email, by posting on our website or by means of TC Pro.
- These Terms are the entire agreement between you and the Company relating to TC Pro and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to TC Pro, or any other subject matter covered by these Terms.
- Any part or all of any clause of these Terms that is illegal or unenforceable must be severed from these Terms and will not affect the continued operation of the remaining provisions of this agreement
- Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.
- You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the Company not to be unreasonably withheld. 1.1 The Company is not liable for any delay or failure to perform its obligations under these Terms if such delay is due to a circumstance beyond its reasonable control, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, pandemic, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes. If a delay or failure by the Company to perform its obligations due to force majeure exceeds thirty days, it may immediately terminate these Terms on providing notice in writing to you.
- This Agreement, and your relationship with the Company, is governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia, and any dispute resolution procedure or legal proceedings in connection with these Terms or TC Pro must be conducted in New South Wales, Australia.