End User Licence Agreement for JetBlack Cycling (EULA)
Please read this EULA carefully, as it sets out the terms and conditions upon which we license our Audio Files for use.
Before you download the Audio Files from our website, we will ask you to give your express agreement to the terms and conditions of this EULA. You further agree that any person you authorise to use the Audio Files will also be bound by the terms and conditions of this EULA.
If you do not agree to this EULA, you must not use the Audio Files for any purpose whatsoever.
1. Definitions and interpretation
1.1 In this EULA:
“Computer” means a desktop, notebook, netbook, iPad, iPhone, iPod, Smart Phone, Tablet or similar computer owned by and in the control of the Licensee;
“Documentation” means the documentation concerning the Audio Files supplied by the Licensor or by the Audio Files supplier to the Licensee with the Audio Files;
“Effective Date” means the date when the Licensee agrees to the terms and conditions of this EULA, as detailed in the preamble to this EULA;
“EULA” means this end user licence agreement (including the preamble), and any amendments to it from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Licensee” means the licensee of the Audio Files under this EULA;
“Licensor” means Jet Black Products (ACN 106 395 055);
“Audio Files” means any .mp3 file that is downloaded from the JetBlack Coaching website;
1.2 In this EULA, a reference to a statute or statutory provision or regulation includes a reference to that statute or statutory provision or regulation as modified, consolidated and/or re-enacted from time to time.
1.3 The Clause headings do not affect the interpretation of this EULA.
2. Term of EULA
This EULA will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 7.
3.1 The Licensee may only use the Audio Files and Documentation for the Licensee’s own private and non-commercial purposes and in accordance with the provisions of this Clause 3.
3.2 Subject to the payment by the Licensee of the relevant charges and fees in respect of the Audio Files licence, and the Licensee’s compliance with Clause 3.4 and the other provisions of this EULA, the Licensor grants to the Licensee a non-exclusive non-transferable licence to:
(a) download 1 instance of the Audio Files and Documentation;
(b) install 1 instance of the Audio Files and Documentation;
(c) use 1 instance of the Audio Files in accordance with the Documentation; and
(d) use 1 instance of the Documentation,
on 1 Computer anywhere in the world.
3.3 Subject to the payment by the Licensee of the relevant charges and fees in respect of the Audio Files licence, and the Licensee’s compliance with Clause 3.4 and the other provisions of this EULA, the Licensor further grants to the Licensee the rights to:
(a) print not more than 1 copy of the Documentation; and
(b) make not more than 1 back-up copy of the Audio Files and Documentation,
in each case anywhere in the world.
3.4 The Licensee must not:
(a) copy or reproduce the Audio Files or Documentation or any part of the Audio Files or Documentation other than in accordance with the licence granted in this Clause 3;
(b) sell, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Audio Files or Documentation or any part of the Audio Files or Documentation;
(c) modify, alter, adapt, translate or edit, or create derivative works of, the Audio Files or Documentation or any part of the Audio Files or Documentation;
(d) reverse engineer, decompile, disassemble the Audio Files or Documentation or any part of the Audio Files or Documentation;
(e) use the Audio Files other than in accordance with the Documentation; o
(f) circumvent or remove or attempt to circumvent or remove the technological measures applied to the Audio Files and Documentation for the purposes of preventing unauthorised use,
providing that nothing in this Clause 3.4 will prohibit or restrict the Licensee or any other person from doing any act expressly permitted by applicable law.
3.5 All Intellectual Property Rights in the Audio Files and Documentation are and will remain, as between the parties, the property of the Licensor.
3.6 The Licensee must provide to the Licensor, or procure for the Licensee, upon reasonable notice and during normal business hours, reasonable access to:
(a) any Computers and/or media upon which the Audio Files and/or Documentation are stored, installed or used; and
(b) any premises at which any such Computer and/or media is situated from time to time,
for the purpose of the investigating whether the Licensee is complying with the terms of this EULA.
4. Other Users
4.1 The Licensee may permit any person to exercise the rights granted by the Licensor to the Licensee under Clause 3.2(c) and (d), subject always to the restrictions set out in Clause 3.
5. Limited warranties
5.1 The Licensee warrants to the Licensor that it has the legal right and authority to enter into and perform its obligations under this EULA.
5.2 The Licensor warrants to the Licensee:
(a) that it has the legal right and authority to enter into and perform its obligations under this EULA;
(b) that the use of the Audio Files by the Licensee in accordance with the terms of this EULA will not infringe the Intellectual Property Rights of any third party;
5.3 The Licensee acknowledges that:
(a) the Audio Files may not be error-free and that non-material errors in the Audio Files will not constitute a breach of this EULA;
(b) the Audio Files have not been developed to meet the specific requirements of the Licensee, and accordingly the Licensee will be responsible for ensuring that the Audio Files is suitable to meet the Licensee’s requirements.
5.4 The Licensor warrants that all goods sold are free from defects in materials and
workmanship as at the date of dispatch by The Licensor. To the extent permissible by law, the Licensor excludes all representations or warranties not expressly set out in these conditions.
5.5 To the extent permissible by law, The Licensor’s liability for breach of any warranty set out in these Conditions or any warranty which The Licensor is not entitled to exclude is limited to, at the option of The Licensor the:
- replacement of the goods, or
- refund of the cost of the relevant goods.
5.6 You may exercise your rights under this clause by notifying The Licensor in writing at JetBlack Cycling, PO Box 6564, Baulkham Hills, 2153, Australia.
5.7 The benefits provided to you by the warranties contained in this clause are in addition to other rights and remedies available to you under the law.
5.8 The Licensor’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure or for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
5.9 You acknowledge and agree that The Licensor has made no warranty or representation that the goods are suitable for any purpose or application
6. Limitations and exclusions of liability
6.1 Nothing in the EULA will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law,
and, if you are a consumer, any statutory rights which you have, which cannot be excluded or limited, will not be affected by the EULA.
6.2 The limitations and exclusions of liability set out in this Clause 6 and elsewhere in the EULA:
(a) are subject to Clause 6.1; and
(b) govern all liabilities arising under the EULA or in relation to the subject matter of the EULA, including all liabilities arising in contract and/or in tort.
6.3 To the extent permitted by law, we assume no liability for any loss or damage suffered by you through the provision of the services.
6.4 The Licensor will not be liable to the Licensee for any losses arising out of a Force Majeure Event.
6.5 The Licensor will not be liable to the Licensee in respect of any business losses, such as loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.
6.6 Where the Licensee is a business customer, the Licensor will not be liable to the Licensee in respect of any loss or corruption of any data, database or Audio Files.
6.7 Where the Licensee is a business customer, the Licensor will not be liable to the Licensee in respect of any special, indirect or consequential loss or damage.
6.8 Where the Licensee is a business customer, the Licensor’s aggregate liability to the Licensee will not exceed the purchase price of the Audio Files.
6.9 The Audio Files are designed to assist people during cycling training. Following the instructions set out in the Audio Files involves significant physical exertion. Before conducting any training using the Audio Files you should consult with your medical practitioner to consider and assess your ability to undertake the physical activity intended by the Audio Files.
This EULA will terminate immediately and automatically if:
(a) the Licensee or any person authorised by the Licensee to use the Audio Files and/or Documentation breaches any provision of this EULA;
(b) the Licensee: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(c) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Licensee;
(d) an order is made for the winding up of the Licensee, or the Licensee passes a resolution for its winding up; or
(e) (where the Licensee is an individual) the Licensee dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
8. Effects of termination
8.1 Upon termination all the provisions of this EULA will cease to have effect, save that the following provisions will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 6 and 9].
8.2 Termination of this EULA will not affect either party’s accrued rights and liabilities.
8.3 Save as expressly provided in this EULA, the Licensee will not be entitled to a refund upon the termination of this EULA.
9.1 No breach of any provision of this EULA will be waived except with the express written consent of the party not in breach.
9.2 If a Clause of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this EULA will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
9.3 The Licensor may freely assign this EULA and/or its rights and/or obligations under this EULA without the Licensee’s consent. Save as expressly provided in this EULA, the Licensee must not assign, transfer, charge, license or otherwise dispose of or deal in this EULA and/or any its rights and/or obligations under this EULA.
9.4 This EULA is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
9.5 This EULA constitutes the entire agreement and understanding of the parties in relation to the subject matter of this EULA, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of this EULA. Subject to Clause [6.1], each party acknowledges that no representations or promises not expressly contained in this EULA have been made by or on behalf of the other party.
9.6 This EULA will be governed by and construed in accordance with the laws applicable in New South Wales, Australia; and the courts of New South Wales, Australia will have non-exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.