Last updated: 9 June 2020
ABOUT THESE TERMS AND CONDITIONS
A. The Netball ACT website <www.act.netball.com.au> and associated software applications and services (the Netball ACT App) are made available to you to allow you to record physical health, fitness and wellbeing information and to track progress and improve performance. Netball ACT also provides you access to health and sports science information and resources.
B. These Terms and Conditions (Terms) set out the basis on which you may access and use the Netball ACT App, as provided by ACT Netball .Association Incorporated ABN 85 800 220 698 (Netball ACT, us, we, our). Please read these Terms carefully before using the Netball ACT App.
C. Your access to and use of the Netball ACT App is conditioned on your acceptance of and compliance with the Terms.
NETBALL ACT AND YOU AGREE AS FOLLOWS:
1. Acceptance and variation
a) These Terms form a legally binding agreement between you and us regarding your use of the Netball ACT App (Agreement).
b) You acknowledge and agree to be bound by these Terms when you:
i. communicate to us either verbally or in writing your acceptance of these Terms;
ii. create an account to enable you to utilise the Netball ACT App; or
iii. otherwise commence using the Netball ACT App.
c) You must only use the Netball ACT App in accordance with these Terms.
d) We reserve the right at any time and without liability to you to:
i. modify, permanently or temporarily disable or discontinue any part of the Netball ACT App; and
ii. alter, amend or withdraw any part of these Terms or any information or material accessible through the Netball ACT App.
e) Where an amendment to these Terms will materially affect your rights or obligations, we will use our best endeavours to provide you with reasonable notice of such amendments in writing, or via the Netball ACT App, however it is your responsibility to review the Terms prior to any use of the Netball ACT App.
f) Your continued use of the Netball ACT App will constitute your acceptance of any alteration, withdrawal or amendment made by us to these Terms.
a) You must be at least 16 years of age and reside in Australia to create an account to access and use the Netball ACT App (Member Account).
b) If you are under the age of 16 (Minor) your Member Account must be created and these Terms agreed to by your parent or legal guardian on your behalf.
c) If you are creating a Member Account on behalf of a Minor you represent and warrant to us that you:
i. are over the age of 18 (or the age of legal majority in your jurisdiction) and are therefore eligible to use the Netball ACT App and create an account on behalf of a Minor;
ii. are the legal guardian of the Minor that will be using the account that you create as part of the Netball ACT App and have the authority to allow the Minor to use the Netball ACT App;
iiii. will take all necessary precautions to ensure that all activities undertaken by the Minor either directly or indirectly from the use of the Netball ACT App will be conducted in an appropriate and safe manner; will at all times closely monitor the Minor’s participation in and use of the Netball ACT App to ensure their safety;
iv. have the capacity to and are forming a binding contract with us;
v. will comply with these Terms and all applicable laws and will ensure any Minor using a Member Account that you have created does the same; and
vi. will be liable to Netball ACT in accordance with these Terms as if you created and controlled the Member Account.
This Agreement commences upon your acceptance of the Terms in accordance with clause 1 and will expire on the date this Agreement is terminated in accordance with clause 19.
4. Your account
a) In order for you to access the Netball ACT App you must create a Member Account.
b) By creating a Member Account you acknowledge that it will be necessary for us to process and use the data that you provide us in order for us to make our services available through the Netball ACT App and perform our obligations as set out in these Terms.
c) By creating a Member Account you agree to:
i. provide accurate and complete information about yourself and keep that information up to date;
ii. not register for more than one Member Account, create a Member Account on behalf of someone else (other than in the circumstances contemplated by clause 2(b)), or create a false or misleading Member Account;
iii. not transfer your Member Account to any other person, association or organisation;
iv. maintain the security of your user identification, password and any other confidential information relating to your Member Account;
v. notify us immediately in the event of any known or suspected unauthorised use of your Member Account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your Member Account password;
vi. take the necessary steps to prevent the continuance of any unauthorised use of your Member Account by contacting us to change your login security information; and
vii. update and keep your Member Account information accurate, including but not limited to, all email addresses, residential addresses, postal addresses and any other contact or personal information we may require upon creation of your Member Account.
5. Permitted use
a) We grant you a non-exclusive, worldwide, non-transferable licence to use the Netball ACT App in accordance with these Terms.
b) You are only authorised to use the Netball ACT App for the following:
i. creating a Member Account;
ii. updating, amending or editing your Member Account information;
iii. allowing a Minor you are responsible for to utilise the Netball ACT App;
iv. viewing educational content and materials;
v. monitoring and tracking your health, fitness and performance;
vi. comparing your health, fitness and performance with other Members;
vii. retrieving our contact details;
viii. reviewing our policies; or
ix. contacting us.
c) You agree that you must comply with any reasonable directions we give in relation to the Netball ACT App.
a) The Netball ACT App may include functionality that allows you to share content by uploading or communicating such content through the platform (Contributions).
b) When making Contributions you agree that you will:
i. not do anything, unlawful, malicious or discriminatory;
ii. not bully, intimidate or harass any person;
iii. be respectful, courteous and considerate;
iv. not upload viruses or other malicious code;
v. ensure that you do not promote the unauthorised copying of another person’s copyrighted work;
vi. ensure that your Contribution does not infringe upon the rights of any third party, including intellectual property rights; and
vii. ensure that the content is not hateful or threatening, inciting of violence, pornographic, or contains graphic violence.
c) In order to maintain the Netball ACT App in a manner that we deem appropriate, in our sole discretion, we may remove, reject, refuse to post, display, delete or monitor any Contributions by you without notice or liability to you or any third party.
d) Notwithstanding clause 7(c), you acknowledge that we do not have any obligation to remove, reject, refuse to post, display, delete or monitor any Contributions by you, or any content, materials or communications made through the Netball ACT App by any other user of the Netball ACT App.
e) You acknowledge that we do not control Contributions from other users of the Netball ACT App and accordingly do not guarantee the accuracy, integrity or quality of them. You acknowledge that all Contributions through the Netball ACT App are the responsibility of the person that makes the Contribution.
f) You specifically acknowledge we are under no obligation to monitor the Netball ACT App and we accept no responsibility for any Contributions made by other users.
You agree that you will not:
a) use any automated processes or means to access the Netball ACT App;
b) use any software or manual repetition that will or is likely to interfere with the Netball ACT App;
c) attempt to cause stress or detriment to the proper working of the Netball ACT App, such as by acting in any way likely to cause an unreasonable strain to the infrastructure of the Netball ACT App;
d) use the Netball Act App for any commercial means;
e) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Netball ACT App or make the Netball ACT App available to any third party for commercial gains;
f) solicit, collect or use the login credentials of other Netball ACT App users;
g) use the Netball ACT App to defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate any person or entity;
h) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Netball ACT App;
i) reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the content provided via the Netball ACT App;
j) use the Netball ACT App as an emergency aid, a means of obtaining or providing emergency services, or a means for delivering or receiving medical treatment or medical or health services;
k) share health information with third parties using the Netball ACT App;
l) use the Netball ACT App for any illegal or unauthorised purpose;
m) attempt to reverse engineer or attempt to interfere with the operation of any part of the Netball ACT App unless expressly permitted by law;
n) download, reproduce, duplicate, copy, sell, resell, use or otherwise exploit any of the Netball ACT App for any commercial purpose without express written permission from Netball ACT;
o) change, modify, adapt or alter the Netball ACT App, or change, modify or alter another website so as to falsely imply that it is associated with the Netball ACT App or Netball ACT;
p) interfere with or disrupt the Netball ACT App or servers or networks connected to the Netball ACT App, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature;
q) alter or interfere with the way any the Netball ACT App page is rendered or displayed on a device;
r) create accounts with the Netball ACT App through unauthorised means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper;
s) crawl, scrape, cache or otherwise access any content on the Netball ACT App via automated means;
t) attempt to restrict another user from using or enjoying the Netball ACT App;
u) attempt to gain unauthorised access to any computer system or network hosting the Netball ACT App; and
v) violate these Terms or any other terms or reasonable directions of Netball ACT.
8. Updates to the Netball ACT App
a) Netball ACT may from time to time provide enhancements or improvements to the features/functionality of the Netball ACT App, which may include patches, bug fixes, updates, upgrades and other modifications (Updates).
b) Updates may modify or delete certain features and/or functionalities of the Netball ACT App. You agree that Netball ACT has no obligation to:
i. provide any Updates; or
ii. continue to provide or enable any particular features and/or functionalities of the Netball ACT App to you.
c) You further agree that all Updates will be:
i. deemed to constitute an integral part of the Netball ACT App; and
ii. subject to these Terms.
a) When using the Netball ACT App you are sending information and communicating electronically.
b) By making such electronic communications you acknowledge and consent to receiving communications (including legal notices) from us electronically. We may communicate with you by email, private message or by posting notices through the Netball ACT App.
c) Notwithstanding clause 9(b), we may deliver communications (including legal notices) to you at any street address detailed in your Member Account, if any.
10. Off Site conduct
a) It is a direct violation of these Terms for you to engage in an activity using:
i. information obtained from the Netball ACT App to abuse, harass or harm any other user; and
ii. the Netball ACT App in a manner that is illegal, immoral, offensive, or unethical, or that involves the offering for sale of any illegal or illicit goods, services or substances of whatsoever nature.
11. Consequences of violation
a) If you breach these Terms in any way, we may, in our sole discretion and without notice or liability to you:
i. take any legal action available against you;
ii. terminate or suspend your Member Account;
iii. restrict your ability to make Contributions; or
iv. disclose information about you and your use of the Netball ACT App for investigation by any enforcement body for your unlawful activity.
b) You agree and acknowledge that monetary damages may not be sufficient where your actions cause damage to us, whether by tarnishing our goodwill, causing a loss to our sales or increasing our expenses.
c) You agree and acknowledge that we may seek injunctive or other equitable relief against you as a consequence of your violation of these Terms.
12. Third party sites and Content
a) the Netball ACT App may contain links to third party websites or applications outside our control (Linked Sites).
b) We take no responsibility for content contained in any Linked Sites, and do not endorse any aspect of these third party services. We cannot and do not guarantee, represent or warrant that the content contained in any Linked Site is accurate, legal, or inoffensive. Such links are provided for convenience only. You use these Linked Sites entirely at your own risk.
c) We do not assume any responsibility or liability for the actions, products, services and content of any Linked Site. We advise that users should carefully review each Linked Site’s privacy policies and terms and conditions of use. If you choose to purchase goods or services from a third party via a Linked Site, including one accessed from the Netball ACT App, then you are entering a separate agreement with that third party, and expressly agree that we are not a party to that transaction.
d) Opinions, advice, statements, or other information made available through the Netball ACT app by third parties, are those of their respective authors, and should not be relied on.
e) We hold third party authors fully responsible for any information that they create. We do not:
i. guarantee the accuracy, completeness, or usefulness of any third-party information; or
ii. adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice or statement made by a third-party, in the Netball ACT App.
f) Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted on the Netball ACT App that:
i. we have not expressly endorsed; or
ii. has been transmitted to you by any third-party via the Netball ACT App.
a) In order to allow you to use the Netball ACT App, we will be required to collect certain personal information and sensitive information from you.
b) We will only collect, use, store or disclose personal information and sensitive information as required to operate the Netball ACT App and in accordance with the applicable provisions of the Privacy Act 1988 (Cth), Privacy Regulation 2003 (Cth), the Australian Privacy Principles and any other regulations introduced and as amended or varied.
14. Intellectual Property Rights
a) You must not, without our prior express written authority, engage in the use, copying, reproduction, display modification or distribution of any of the content available through the Netball ACT App including any text, software, scripts, flash files, graphics, photos, sounds, music, videos, business names, company names and logos.
b) You must not utilise any tool, program, script or application for the purpose of scraping, indexing, surveying or otherwise data mining any portion of the Netball ACT App.
c) You must not attempt to gain unauthorised access to or impair any aspect of the Netball ACT App, or otherwise undertake or engage in actions that impede the operation or functionality of the Netball ACT App.
d) The Netball ACT App, including without limitation all copyrights, patents, trademarks, trade secrets and other intellectual property rights, and its original content, features and functionality are and will remain the exclusive property of Netball ACT.
e) Nothing in these Terms is to be construed as an assignment or transfer to you of any ownership rights in the intellectual property rights in Netball ACT, or any other content and materials belonging or licenced to us.
f) You will be provided with the ability to post or upload content, data and information to the Netball ACT App. Where you have posted or uploaded content, data or information, you grant us a perpetual, irrevocable, world-wide, royalty free, non-exclusive licence (including the right to novate or assign the licence, and to sub-licence) to use, reproduce, adapt, modify and communicate all such material for any purpose including incorporating such material into our own advertising, promotional and marketing campaigns.
15. Member Warranties and Indemnity
You hereby warrant to us that:
a) you will not breach the rights of any third party in your use of the Netball ACT App;
b) where a third party has intellectual property rights in content and materials you have uploaded to the Netball ACT App, you have the required authority and consent to grant us a license to use such content and materials in the manner contemplated by these Terms;
c) you will not upload content and material to the Netball ACT App that is misleading, deceptive or false, obscene, indecent or offensive in nature;
d) you will not remove any copyright, trade mark or other proprietary rights notices contained in or on the Netball ACT App;
e) you will not breach any laws, regulations, codes or applicable rules (whether statutory or at common law) in your use of the Netball ACT App; and
f) subject to clause 2(b), you have the authority and capacity to enter into this agreement with us and to be bound by your obligations under these Terms.
a) For the purposes of this clause 15.2 the term “Loss” includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any demand, claim, action, dispute or proceeding) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
b) You agree to indemnify and keep us indemnified against any Loss that may be incurred or suffered by us arising from or in connection with:
i. any breach or default by you of these Terms (including any breach of warranty);
ii. a negligent act or omission by you;
iii. your failure to comply with any applicable law, regulation, code or rule;
iv. your failure to comply with your contractual obligations to any third party insofar as such obligations arise or relate to the use by you, or by a party you are responsible for, of the Netball ACT App; and
v. any demand, claim, action, dispute or proceeding made or brought against us as a result of an act or omission by you or resulting in any way from the upload or posting of content and materials to the Netball ACT App by you.
c) This clause 15.2 survives the termination of this Agreement.
16. Member Acknowledgements
a) You acknowledge and agree that:
i. computer and software services are not fault free and occasional periods of downtime may occur with regard to the Netball ACT App; and
ii. we have not made any representations or warranties that the Netball ACT App will be error free, free of viruses or available without interruption; and
iii. your personal information collected through the Netball ACT App may be disclosed to other Members and users of the Netball ACT App.
b) Your personal information collected through the Netball ACT App may be disclosed to other Members and users of the Netball ACT App.
c) We do not endorse, make any warranties or bear any responsibility with regard to third party content or Contributions by other users.
d) Whilst all due care has been taken in providing the information on the Netball ACT App, to the extent permitted by law, we do not provide any warranty either express or implied, including without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose.
e) You join and participate in interactions with other users of the Netball ACT App at your own risk.
f) To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is excluded.
g) We may, at our discretion, undertake various identity checks or utilise other security measures in order to ensure the Netball ACT App platform remains secure and that you are not breaching any laws in your use of the Netball ACT App. We reserve the right to cancel your account immediately and without notice where you fail, or we suspect that you are likely to fail, any such checks, or you are otherwise a risk or likely to be a risk to the security of the Netball ACT App.
h) If we think it is reasonable to do so, we may immediately suspend your access to the Netball ACT App, remove or amend any content or material you have uploaded to the Netball ACT App, or take any other steps we deem reasonably necessary or appropriate to protect our interests or those of third parties.
i) We will not be responsible for any loss, damage or expense you may suffer or incur, whether direct or consequential, arising from or relating to the exercise of our rights in accordance with these Terms.
a) You acknowledge and agree:
i. that all documentation and materials provided through the Netball ACT App are provided for general information purposes only;
ii. that none of the information contained in the documentation and materials provided through the Netball ACT App platform constitutes health, medical or wellness advice and is not intended to be a substitute for professional medical advice, diagnosis or treatment. You should seek the advice of qualified medical and health professionals with any health or medical queries that you have and should never disregard or refrain from obtaining professional medical advice due to something you have read on the Netball ACT App; and
iii. that Netball ACT is not liable for any loss or damage you suffer, directly or indirectly, through your use of the Netball ACT App
a) To the maximum extent permitted by law, we will not be liable for any loss of profit, loss of goodwill, loss of opportunity or any special, punitive, indirect or consequential loss or damage incurred by you or by any other person whether directly or indirectly related to a breach of these Terms.
b) If the above subclause clause a) is deemed void or unenforceable, to the maximum extent permitted by law, we will not be liable for any loss of profit, loss of goodwill, loss of opportunity or any special, punitive, indirect or consequential loss or damage incurred by you or by any other person, except as a direct result of a breach of these Terms by us, or any negligence of Netball ACT.
c) We are not liable for any loss or damage caused to you by reason of any delay, lack of supply, industrial action, fire, riot, war, embargo, civil commotion, act of God or any other event, which is beyond our control.
19.1 Termination by notice
a) You may terminate this Agreement at any time by:
i. deleting your Member Account and ceasing to use the Netball ACT App in all capacities; or
ii. requesting through the email account firstname.lastname@example.org that we delete your Member Account and that we terminate your access to the Netball ACT App, in which case, this Agreement will be terminated upon your Member Account being terminated.
b) We may terminate this Agreement with you at any time after the provision to you of two (2) days’ written notice.
19.2 Termination for breach
Nothing in this clause 19 will have the effect of limiting our rights to terminate, delete or suspend access to your account in accordance with clause 11(a), 16(f) or clause 16(g).
19.3 Termination for end of service
This Agreement will terminate automatically if at any time Netball ACT cease to operate the Netball ACT App.
20. Dispute Resolution
a) If a dispute arises between you and Netball ACT, an attempt to resolve a dispute in accordance with the below procedures, must be made before commencing legal proceedings.
b) Either you or Netball ACT, or both, may give written notice to the other (together the Disputing Parties) requiring that an attempt be made to resolve the dispute by discussions in good faith.
c) If a dispute is not resolved by good faith discussions within two weeks (or such period as agreed in writing by the Disputing Parties) after written notice of the dispute has been given, any Disputing Party may give the other a written notice requiring that the dispute be resolved by a mediator appointed jointly by the Disputing Parties (Mediation Notice).
d) If the Disputing Parties do not agree on the appointment of a mediator within 1 week after the Mediation Notice is given, the mediator is to be appointed by the Resolution Institute (Institute).
e) The mediation is to be conducted in accordance with the Institute’s Rules for the Conduct of Commercial Mediation and those rules are binding on the Disputing Parties.
f) The Disputing Parties must co-operate fully with the mediator and pay an equal share of the mediators fees, unless agreed otherwise during mediation.
g) Nothing in these Terms prevents either you or Netball ACT from seeking urgent injunctive, declaratory or other interlocutory or equitable relief before an appropriate Court.
21.1 General terms
a) We may. without further notice to you, assign or otherwise transfer the benefit of all or any part of these Terms to any other person or entity.
b) You must not assign, novate or otherwise transfer any rights, benefits or liabilities relating to these Terms without our prior written consent.
c) The non-exercise of or delay in exercising any power or right of Netball ACT does not operate as a waiver of that power or right. A power or right may only be waived in writing by Netball ACT.
d) These Terms constitute the entire agreement between you and Netball ACT regarding your use of the Netball ACT App and supersedes all prior written or oral agreements between you and Netball ACT.
e) These Terms are governed by the law in force in the Australian Capital Territory and each party submits to the exclusive jurisdiction of the courts of the Australian Capital Territory and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to these Terms.
f) Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of these Terms which shall remain in force.
In interpreting this document, unless the context provides otherwise:
a) the singular includes the plural and vice versa, and a gender includes all genders;
b) another grammatical form of a defined word or expression has a corresponding meaning;
c) a reference to a party means a party to this document and includes the party’s executors, administrators, successors, and permitted assigns;
d) a reference to a person includes a firm, individual, corporation, association, government body or other corporate body;
e) an obligation or liability assumed by two or more persons binds them jointly and severally and a right conferred on two or more persons benefits them jointly and severally;
f) a rule of construction does not apply to the disadvantage of the party that was responsible for the preparation of this Agreement, or any part of it;
g) a reference to a law or statute includes regulations under it, re-enactments and replacements; and
h) headings are for ease of reference only and do not affect interpretation.