Terms and Conditions.

1.1 These Terms apply from the time you agree to these Terms, until the date these Terms are terminated in accordance with their Terms (Term).

1.2 Subject to your compliance with these Terms, we will provide you with access to the Services.

1.3 We will not be responsible for any other services unless expressly set out in these Terms or on our Site.

1.4 If we provide you with access to any new or beta services, you acknowledge that because of the developmental nature of such services, you use them at your own risk and we have no obligation to maintain or provide error corrections. Any new or beta services we provide you with access to are for evaluation purposes only and not for production use, and we may discontinue those services at any time at our sole discretion.

1.5 Where you engage third parties to operate alongside the Services (for example, any third-party software systems you wish to integrate with the Services), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services they provide, unless we expressly agree otherwise.

1.6 We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Services after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you should cease using the Services. If you have paid upfront for recurring access to any of the Services (excluding one-time purchases) and you would like to cancel them, please contact us in writing within 30 days of receiving notice to cancel that recurring access and we will issue you a pro-rata refund for such Services.

2.1 Where we conduct athletic performance testing (Testing), you agree to follow our reasonable directions and safety instructions at all times.

2.2 You acknowledge that Testing involves physical exertion and may expose you to risk of injury, illness or death, which may arise from strenuous exercise, your fitness level or technique, pre-existing conditions, equipment, or failing to follow our instructions. You are aware of and voluntarily accept these risks.

2.3 You warrant that you are physically fit to participate and know of no condition that makes it unsafe for you to do so. You must tell us of any relevant condition before Testing, and stop and seek medical advice if one arises during Testing.

2.4 If we cannot provide the Testing for any reason on a particular date, we will try to reschedule you for the next available Testing date. If we cannot reschedule, we will negotiate with you in good faith and provide a refund.

2.5 If you cannot attend your scheduled Testing, please tell us as soon as possible. If you tell us at least 24 hours before your Testing date, we will try to reschedule you for the next available Testing date.

2.6 If you tell us less than 24 hours before your Testing date, or you do not attend your scheduled Testing, you will not be entitled to reschedule your Testing date or a refund, except at our discretion. In deciding this, we may take into account the reason for your cancellation.

2.7 You consent to us taking photographs and video of the athlete at any testing event or activity, and to us using and publishing them on our website, social media and other marketing channels for promotional purposes. You agree that we own all rights in this content and that you will not be paid for its use.

3.1 You must be at least 15 years old to use the Services.

3.2 If you are under 18, your parent or guardian must accept these Terms on your behalf before you use the Services. By accepting these Terms as a parent or guardian, you confirm that:

(a) you are the parent or legal guardian of the athlete, or otherwise have authority to accept these Terms and provide the consents in them on the athlete's behalf;

(b) you consent to the athlete using the Services, and to us collecting, using and disclosing the Athlete Data in accordance with these Terms and our privacy policy, including the disclosure of that data to approved third parties for talent identification as described in clause 8; and

(c) you agree to be bound by these Terms together with the athlete, and references to “you” in these Terms include both you and the athlete.

4.1 You must sign up for an Account in order to access and use the Services.

4.2 While you have an Account with us, you agree to:

(a) keep your information up-to-date (and ensure it remains true, accurate and complete);

(b) keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; and

(c) notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account.

4.3 If you close your Account, you will lose access to the Services.

5.1 The initial fee you will pay is a one-time fee for us to conduct your athletic performance testing (Testing Fee). Once you have been tested, you can access your athlete profile, including your AQ Score, at no extra cost.

5.2 You may also choose to purchase an optional subscription for access to additional features, such as rankings and Intelligence (Subscription). Details of the Testing Fee and any Subscription are set out on our Site.

5.3 The Testing Fee is payable upfront when you book your testing. Your testing will not go ahead until we (or, where you participate through a school, the school) confirm your Testing Fee is paid and all required forms are completed.

5.4 If you purchase a Subscription, you will be billed at the beginning of each billing cycle.

5.5 Cancelling your Subscription: Your Subscription continues for the agreed Service Term you selected when purchasing it (Service Term). At the end of each Service Term, provided you have paid all fees owing, your Subscription will be automatically renewed for the same term. If you wish to cancel your Subscription, you may do so through your Account. Your cancellation will take effect at the end of your current Service Term, and the Subscription will not be renewed (meaning you will need to continue paying all fees due up until your current Service Term ends). If you are on an annual Service Term, we will provide you with a renewal reminder at least 30 days prior to the Subscription renewing.

5.6 Our payments methods will be set out at the time you purchase the Services. If you choose to pay your fees using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out at the time you make payment).

5.7 You must not pay, or attempt to pay, any fees due under these Terms or as a result of your use of the Services by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your bank account, and you confirm that you are either the holder or an authorised signatory of that bank account.

5.8 If any fees due under these Terms or as a result of your use of the Services are not paid on time, we may:

(a) suspend your access to the Services; and

(b) charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.

5.9 You are responsible for paying any levies or taxes associated with your use of the Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).

6.1 During the Term, we grant you a right to use the Services in accordance with these Terms. This right cannot be passed on or transferred to any other person.

6.2 Once you have paid your Testing Fee, we grant you a right to access your athlete profile, subject to these Terms. If you also purchase a Subscription, we grant you a right to access the additional subscription features for as long as you continue to pay for that Subscription. These rights cannot be passed on or transferred to any other person.

6.3 You must not:

(a) access or use the Services in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;

(b) interfere with or interrupt the supply of the Services, or any other person’s access to or use of the Services;

(c) introduce any viruses or other malicious software code into the Services;

(d) use any unauthorised or modified version of the Services, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Services;

(e) attempt to access any data or log into any server or account that you are not expressly authorised to access;

(f) use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;

(g) circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or

(h) access or use the Services to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

7.1 While we strive to always make the Services available to you, we do not make any promises that these will be available 100% of the time. The Services may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance.

7.2 The Services may interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.

7.3 We will try to provide you with reasonable notice, where possible, of any disruptions to your access to the Services.

8.1 We own all intellectual property rights in the Services. This includes how the Services look and function, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on the Services.

8.2 We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.

Athlete Data

8.3 We do not own any of your Athlete Data, but whether we collect your Athlete Data through Testing or you enter or upload it into the Services, you grant us the right to access, analyse, backup, copy, store, transmit, and otherwise use your Athlete Data for the duration of your use of the Services (and for a reasonable period of time afterwards). We may use your Athlete Data (or disclose it to third party service providers) to:

(a) supply the Services to you (for example, to enable you to access and use the Services), and otherwise perform our obligations under these Terms;

(b) diagnose problems with the Services;

(c) improve, develop and protect the Services;

(d) send you information we think may be of interest to you based on your marketing preferences;

(e) perform analytics for the purpose of remedying bugs or issues with the Services; or

(f) perform our obligations under these Terms (as reasonably required).

Sharing your data for talent identification

8.4 You consent to us disclosing your Athlete Data in identifiable form to users we approve for talent identification, including scouts, agents, sporting clubs and leagues. Where we make Athlete Data or Intelligence available publicly, or to any other third party, we will ensure it does not identify, and cannot reasonably be used to identify, you, unless we have obtained your consent to do otherwise.

8.5 We may develop Intelligence from Athlete Data (including through machine learning). We own all right, title and interest in the Intelligence, and all associated models, methodologies and outputs, and nothing in these Terms transfers any rights in them to you.

8.6 You acknowledge and agree that because of the nature of the internet, the processing and transmission of your Athlete Data by us may occur over various networks.

8.7 You are responsible for (meaning we are not liable for):

(a) the integrity of your Athlete Data on your systems, networks or any device controlled by you; and

(b) backing up your Athlete Data.

8.8 When you use the Services, we may create anonymised statistical data from your Athlete Data and usage of the Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of your Athlete Data identifiable.

8.9 If you do not provide your Athlete Data to us, it may impact your ability to receive the Services.

8.10 This clause 8 will survive the termination or expiry of these Terms.

9.1 While using the Services, you may share confidential information with us, and you may become aware of confidential information about us. Each party agrees to keep the other party's Confidential Information confidential and to take reasonable steps to protect it from unauthorised access or disclosure. Each party may only disclose the other party's Confidential Information to its employees, contractors, professional advisors and agents on a need-to-know basis, and to its third party service providers for the purposes of assisting it to perform its obligations under these Terms, provided in each case that those parties keep the Confidential Information confidential in accordance with this clause 9.

9.2 The obligations in this clause 9 do not apply to Confidential Information that:

(a) is or becomes publicly available other than through a breach of confidence;

(b) is independently created by the receiving party without reference to the disclosing party's Confidential Information; or

(c) is rightfully known by the receiving party prior to receipt from the disclosing party.

9.3 Either party may disclose Confidential Information to legal or regulatory authorities if required by law to do so, provided that the disclosing party uses reasonable efforts to give the other party prior written notice where permitted by law.

9.4 Each party acknowledges that a breach of this clause may cause irreparable harm for which damages may not be an adequate remedy, and that either party may seek injunctive or other equitable relief to protect its confidential information in addition to any other remedies available at law.

9.5 This clause 9 will survive the termination or expiry of these Terms.

10.1 We collect, hold, disclose and use any Personal Information you provide to us or that we otherwise collect through Testing or your use of the Services, in accordance with our privacy policy, available on the Site, and applicable privacy laws.

10.2 You must only disclose Personal Information to us if you have the right to do so (such as having the individual’s express consent).

10.3 We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).

10.4 Where we are required by law to report on our activities, you acknowledge that from time to time we may request certain information from you in order to meet our requirements, and you agree to provide us with such information within the timeframes reasonably requested by us.

10.5 This clause 10 will survive the termination or expiry of these Terms.

11.1 In some jurisdictions, you may have guarantees, rights or other remedies provided by law (Consumer Law Rights), and these Terms do not restrict your Consumer Law Rights. We will only be bound by your Consumer Law Rights and the express wording of these Terms.

11.2 Subject to your Consumer Law Rights, we do not provide a refund for a change of mind or change in circumstance.

11.3 If you accept these Terms in Australia, nothing in these Terms should be interpreted to exclude, restrict or modify the application of, or any rights or remedies you may have under, any part of the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

11.4 This clause 11 will survive the termination or expiry of these Terms.

12.1 To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:

(a) your computing environment (for example, your hardware, software, information technology and telecommunications services and systems);

(b) any loss arising from the deletion of your Athlete Data following termination or expiry of these Terms in accordance with clause 13.5;

(c) any use of the Services by a person or entity other than you;

(d) any injury or harm you suffer during or as a result of your athletic performance testing, which you undertake at your own risk; or

(e) any dealings between you and any third party (including any scout, agent, club or league) arising from the disclosure of your Athlete Data.

12.2 Regardless of whatever else is stated in these Terms, to the maximum extent permitted by law:

(a) neither we or you are liable for any Consequential Loss;

(b) a party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss;

(c) (where the Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and

(d) our aggregate liability to you for any Liability arising from or in connection with these Terms will be limited to the amount of any fees paid by you to us during the 12 months immediately preceding the event giving rise to the Liability, or if you have not paid for the Service, to AU$1,000.

12.3 This clause 12 will survive the termination or expiry of these Terms.

Suspension

13.1 We may suspend your access to the Services where we reasonably believe there has been any unauthorised access to or use of the Services (such as the unauthorised sharing of login details for the Services). If we suspend your access to the Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate these Terms and your access to the Services will end.

Termination

13.2 We may terminate these Terms (meaning you will lose access to the Services, and any Subscription will be cancelled) if:

(a) you fail to pay your fees when they are due;

(b) you breach these Terms and do not remedy that breach within 14 days of us notifying you of that breach;

(c) you breach these Terms and that breach cannot be remedied; or

(d) we decide to discontinue the Services, in which case we will provide you with at least 90 days’ written notice and if you have paid upfront for ongoing access to any Subscription we will issue you a pro-rata refund for such Subscription.

13.3 You may terminate these Terms if:

(a) we breach these Terms and do not remedy that breach within 14 days of you notifying us of that breach; or

(b) we breach these Terms and that breach cannot be remedied, and if you have paid Subscription fees upfront, you will be issued a pro-rata refund of any unused part of those fees based on the portion of the then-current Service Term remaining.

13.4 You may also terminate these Terms at any time by notifying us through your Account or to our email for notices (as set out in clause 14.7), and if you have purchased a Subscription, termination will take effect at the end of your current Service Term.

13.5 Following termination or expiry of these Terms, we may delete your Athlete Data (including copies) in our possession or control. If you request a copy of your Athlete Data following termination, we may, to the extent we still hold your Athlete Data, assist you with that request at our discretion. We reserve the right to charge a reasonable fee to cover our costs of doing so, which we will notify you of prior to fulfilling your request.

13.6 We will retain your Athlete Data where required to do so by law or regulatory requirements, and will otherwise handle any retained data in accordance with our privacy policy, and these Terms.

13.7 Termination of these Terms will not affect any other rights or liabilities that we or you may have.

13.8 This clause 13 will survive the termination or expiry of these Terms.

14.1 Assignment: You may not transfer or assign these Terms (including any benefits or obligations you have under these Terms) to any third party without our prior written consent. We may assign or transfer these Terms to a third party, or transfer any debt owed by you to us to a debt collector or other third party.

14.2 Disputes: Neither we or you may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) unless we and you first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent us or you from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

If the Dispute is not resolved at that initial meeting:

(a) where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation; or

(b) where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.

14.3 Events Outside Our Control: We will not be liable for any delay or failure to perform our obligations (including the Services), if such delay or failure is caused or contributed to by an event or circumstance beyond our reasonable control.

14.4 Governing law: These Terms are governed by the laws of New South Wales, and any matter relating to these Terms is to be determined exclusively by the courts in New South Wales and any courts entitled to hear appeals from those courts.

14.5 Illegal Requests: We reserve the right to refuse any request for or in relation to the Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with these Terms.

14.6 Nature of Legal Relationship: These Terms do not create, and should not be interpreted so as to create, a partnership, joint venture, employment or agency relationship between us and you.

14.7 Notices: Any notice you send to us must be sent to us by email set out on our Site. Any notice we send to you will be sent to the email address registered against your Account.

14.8 Professional Services Disclaimer: You acknowledge and agree that any information, advice, material or work provided by us as part of the Services, including the AQ Score, does not constitute legal, financial, medical, due diligence or risk management advice. The AQ Score is a fitness benchmarking tool only. It is not a medical clearance, injury risk assessment, or substitute for professional medical advice, and you and any parent or guardian should consult a medical professional for health-related decisions.

15.1 In these Terms:

Account means an account accessible to the individual who signed up to the Services.

Athlete Data means the raw testing results, athlete profile, unique athlete ID and other identifying information collected from you during the Services, together with any Personal Information collected, used, disclosed, stored or otherwise handled in connection with the Services. Athlete Data does not include any back-end or internal output generated from your use of the Services that is not generally made available to users.

Confidential Information means information which:

(a) is disclosed by one party to the other in connection with these Terms at any time;

(b) relates to a party's business, assets or affairs; or

(c) relates to the subject matter of, or any transactions contemplated by, these Terms,

whether or not such information is reduced to a tangible form or marked as “confidential”, and however it is received.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts for access to or use of the Services (including the Services) will not constitute “Consequential Loss”.

Intelligence means any data, scoring, benchmarking, trends or other analysis we generate from Athlete Data or your use of the Services, including where generated using data collected from multiple athletes or schools.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or us or you or otherwise.

Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.

Services means the athletic performance testing we conduct for you and the platform through which we host your athlete profile and make your athlete data available to approved third parties, as described at the beginning of these Terms.