In these Terms, the following Definitions shall apply:
“ Agreement ” means these Terms as amended by Tilt and communicated to you pursuant to these provisions;
“ Client ” means Your Client as inputted into the System;
“ Client Data ” means any data inputted by You in relation to Your Client or with Your authority using the Service and the Website in relation to Your clients e.g. Athlete Programs, Athlete Results, Athlete Dietary Requirements, Performance Measurements.
“ Confidential Information ” includes all information exchanged between You and Tilt whether in writing, electronically or verbally, including through the Service and Website in relation to You or Your Clients but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party;
“ Data ” means any information you input into the Service or through the Website and includes Client Data including by way of example training programs, articles written by you, Advice to Clients.
” Intellectual Property Right ” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered;
“ Service” means Tilt’s provision to You of a subscription based on-line software service, provided and hosted by Tilt to support Your public website and on-line business portal including Your subscription based community with Your clients.
“ Subscription Fee ” means the monthly subscription fee (excluding any taxes and duties) payable by You in consideration for Tilt providing You with the Services (which Subscription Fee Tilt may change from time to time on notice to You);
“ Subscriber ” means You, the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf you register to use the Service;
“ Tilt ” means “Tilt Software Limited” and its successors and ancillary Companies;
“ You ” means the Subscriber, and “ Your ” has a corresponding meaning;
“ Website ” means the internet site at the domain www.trainingtilt.com or any other site operated by Tilt.
2.2 The Terms may be amended over time by Tilt and are not intended to be exhaustive. Tilt reserves the right to amend these Terms at any time, and will make every effort to communicate any amendments to You via email or notification via the Website. It is Your obligation to ensure that You have read, understood and agree to the most recent terms available on the Website.
2.3 By registering to use the Service, and the Website you acknowledge that You have read and understood these Terms, have the authority to act on behalf of the Subscriber and You hereby agree to the Terms and are bound by them. Your acceptance of these terms constitutes an Agreement between You and Tilt.
2.4 Tilt hereby grants You the right to access and use the Service via the Website. This right is revocable by Tilt, non-exclusive, non ‑ transferable, and limited by and subject to the Terms. You acknowledge and agree that, subject to any applicable written agreement between You and Your Clients, or any other applicable laws:
(a) You determine who is Your Client;
(b) You are responsible for all of Your Clients and their Client Data;
(c) You control each Client’s use of the Service and the Website at all times and revoke or change access, any time and for any reason;
(d) if there is any dispute between You and Your Client regarding access to the Service or the Website, You shall decide if access is granted to Your Client.
3. YOUR OBLIGATIONS
3.1 Payment Obligations :
(a) You are obliged to pay the Subscription Fee, monthly in advance to Tilt’s third party provider, Swipe HQ;
(b) You hereby authorise Tilt to collect the Subscription Fee by using the payment information obtained from you and provided to Swipe HQ;
(c) Your account may be cancelled at any time by Tilt;
(d) Tilt does not retain any details of your bank account or credit card account, such details are retained with Swipe HQ.
3.2 Your General Obligations
You must only use the Service and Website for Your own lawful business purposes, in accordance with the Terms and notices sent to You by Tilt or posted on the Website. You may use the Service and Website in order to provide services to Your Clients but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept the Terms. All provision of service by You to Your clients is at Your risk.
3.3 Access conditions – usernames and passwords
(a) All usernames and passwords required to access the Service shall be kept confidential to You. You must immediately notify Tilt of any unauthorised use of Your password or username or any other breach of security. Where any breach of security has occurred, You must take all actions that Tilt reasonably deems necessary to maintain or enhance the security of Tilt’s computing systems and networks and Your access to the Service. Tilt will not be liable for any acts or omissions by You, including any damages for any acts or omissions arising as a result thereof;
(b) As a condition of these Terms, when accessing and using the Service, You must:
(i) not attempt to undermine the security or integrity of Tilt’s computing systems or networks or, where the Service is hosted by a third party, that third party’s computing systems and networks;
(ii) not use, or misuse, the Service in any way which may impair the functionality of the Service or Website, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
(iii) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Service is hosted;
(iv) not transmit, or input the Website, any: files that may damage or any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(v) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programmes used to deliver the Service or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.4 Communication Conditions
(a) As a condition of the Terms, when communicating through the Website, You agree only to communicate for lawful and legitimate purposes. You must not post or disseminate, communicate or use any such communication tool for posting or disseminating any material that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Service or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use);
(b) When You make any communication on the Website, You represent that You are permitted to make such communication. Tilt is under no obligation to ensure that the communications on the Website are legitimate. Tilt reserves the right to remove any communication at any time in its sole discretion.
4. WARRANTIES AND ACKNOWLEDGEMENTS
4.1 Your Authority
You hereby warrant that where You have registered to use the Service, You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
4.2 Your Acknowledgement
You hereby acknowledge that:
(a) You are authorised to use the Service and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Service (whether that information and Data is Your own or that of anyone else);
(b) Tilt has no responsibility to any person other than You and nothing in the Terms confers, or purports to confer, a benefit on any person other than You. If You use the Service or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
(i) You are responsible for ensuring that You have the right to do so;
(ii) You are responsible for authorising any person who is given access to information or Data, and You agree that Tilt has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
(iii) You will indemnify Tilt against any claims or loss relating to:
A. Tilt’s refusal to provide any person access to Your information or Data in accordance with these Terms;
B. Tilt making available information or Data to any person with Your authorisation.
(c) The provision of, access to, and use of, the Service and the Website is on an “as is” basis and at Your risk.
4.3 Negative Warranties – Tilt
(a) Tilt does not warrant that the use of the Service and the Website will be uninterrupted or error free. Amongst other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. Tilt is not in any way responsible for any such interference or prevention of the Subscriber’s access or use of the Service;
(b) It is Your sole responsibility to determine that the Service meets the needs of You and are suitable for the purposes for which they are used;
(c) You remain solely responsible for complying with all applicable tax and other laws. It is Your responsibility to check that storage of and access to your Data via the Software and the Website will comply with laws applicable to you.
4.4 Tilt gives No Warranties
Tilt gives no warranty about the Service. Without limiting the foregoing, Tilt does not warrant that the Service will meet Your requirements or that it will be suitable for any particular purpose. For the avoidance of doubt, all implied conditions or warranties are excluded insofar as is permitted by law, including (without limitation) warranties of merchantability, fitness or purpose, title and non-infringement.
4.5 Consumer Guarantees
You warrant and represent that You are acquiring the right to access and use the Service for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service, the Website or the Terms.
5. TILT’S LIMITATION OF LIABILITY
5.1 Tilt hereby excludes all liability to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data including Client Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
5.2 If You suffer loss or damage as a result of Tilt’s negligence or failure to comply with these Terms, any claim by You against Tilt arising from Tilt’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Service paid by You in the previous 3 months.
5.3 If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with these provisions.
6. CONFIDENTIALITY AND PRIVACY
(a) Each of You and Tilt will preserve the Confidential Information of the other obtained in connection with these Terms. Neither You, nor Tilt will disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as a contemplated by the Terms, without the prior written consent of the other;
(b) For the avoidance of doubt, Tilt will not disclose, rent or sell any information of Yours or in relation to your Clients;
(c) Each party’s obligations hereunder do not merge on termination of this Agreement.
7. INTELLECTUAL PROPERTY
Title to, and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service remains the property of Tilt.
7.2 Ownership of Your Data including Client Data
Title to, and all Intellectual Property Rights in, Your Data (including Your Client Data) remains Your property. However, Your access to the Client’s Data is subject to full payment of the Subscription Fee being made when due. You hereby grant Tilt a licence to use, copy, transmit, store and back-up Your Data for the purposes of enabling You to access and use the Service and for any other purpose related to provision of the Service to You.
7.3 Backup of Data
You must maintain copies of all Data inputted into the Service. Tilt adheres to its best practice policies and procedures to prevent data loss, but does not make any guarantees that there will be no loss of Client Data. Tilt expressly excludes liability for any loss of any Data no matter how caused.
7.4 Third Party Applications and Subscriber’s Data
If Tilt enables third party applications for use in conjunction with the Service, You acknowledge that Tilt may allow the providers of those third party applications to access Your Data as required for the inter ‑ operation of such third party applications with the Service. Tilt shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third party application providers.
8.1 No Fault Termination
The Terms will continue for the period covered by the Subscription Fee paid or payable under these provisions. At the end of each billing period the Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Subscription Fee when due, unless either party terminates the Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Subscription Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of the Terms.
Default is where You:
(a) breach any of the Terms (including, without limitation, by non-payment of any Subscription Fees) and such breach is not remedied within 14 days after receiving notice of the breach, if the breach is capable of being remedied;
(b) breach any of these Terms and the breach is not capable of being remedied (which includes any payment of Subscription Fees that are more than 30 days overdue); or
(c) You become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or You become insolvent personally, or make any arrangement with its’ creditors, or becomes subject to any similar insolvency event in any jurisdiction;
In the event of Default, Tilt may take any or all of the following actions, at its sole discretion:
(d) terminate this Agreement and Your use of the Service and the Website;
(e) suspend for any definite or indefinite period of time, Your use of the Service and the Website;
(f) suspend or terminate Your access to all or any Data;
For the avoidance of any doubt, if payment of any invoice for Subscription Fee due is not made in full by the due date, Tilt may: suspend or terminate Your use of the Service, the authority, Your rights of access to all or any Data.
8.3 Accrued Rights
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
(a) remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(b) immediately cease to use the Services and the Website.
8.4 Tilt’s remedies under this agreement and at law shall not merge on termination of this Agreement.
9. TECHNICAL SUPPORT
9.1 Technical Problems
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Tilt.
9.2 Service Availability
Whilst Tilt intends that the Service should be available 24 hours a day, seven days a week, it is possible that on occasions the Service or Website may be unavailable to permit maintenance or other development activity to take place.
9.3 If for any reason Tilt has to interrupt the Services for longer than Tilt would normally expect, Tilt will use reasonable endeavours to publish in advance details of such activity on the Website.
10. GENERAL TERMS
10.1 Entire Agreement
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
10.4 Prohibition on Assignment
You may not assign or transfer any rights to any other person without Tilt’s prior written consent.
10.5 Governing Law and Jurisdiction
You acknowledge that these Terms, the provision of the Service and the Website are governed by New Zealand law. You are a tax resident in the United States of America at the time You accept these Terms then the State of California law governs this Agreement and You submit to the exclusive jurisdiction of the state courts of San Francisco County, California or federal court for the Northern District of California for all disputes arising out of or in connection with this Agreement. If You are a person who is a tax resident in New Zealand at the time that You accept these terms then New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. If You are a person who is a tax resident in Australia at the time that You accept these terms then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Tilt must be sent to email@example.com or to any other email address notified by email to You by You. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
10.8 Rights of Third Parties
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.