These Terms are not intended to answer every question or address every issue raised by the use of the Software. We reserve the right to change these Terms at any time, effective upon the posting of modified Terms. We will make every effort to communicate these changes to you via email or notification via the Website. It is likely the Terms of Service will change over time. It is your obligation to ensure that you have read, understood and agree to the most recent Terms available on the Website. If we make any changes to these terms and conditions and you decide to continue to use the Software then in those circumstances you will be deemed to have accepted the changes and will be bound by the new terms and conditions implemented from time to time. Notwithstanding the foregoing, in no event will a change in the Terms increase the Fees or costs applicable to the Software or Additional Services except with written notice to you with respect to any renewal term, and in no event will we be allowed to change Material Terms without your consent. Material Terms include Sections 7 through 12, inclusive, and Sections 16, 17 and 19.
Means to enable Users to store data, manage report and/or analyse data or otherwise approach or make use of a Site.
1.2 “Additional Costs”
Means the fees associated with additional SMS messages over your allocated limit and for video and attachment storage and transfer over and above 1GB per month per user.
1.3 “Additional Services”
Means the fees associated with additional Services that you require for your Project including but not limited to customisation of forms, performance standards, data‐analysis or training.
Means a User that you can nominate to permit new Users to Access your Site, set up access and sharing capabilities between Users and set up the Hierarchical structure of Users within your organisation.
1.5 “Confidential Information”
Means all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Software but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
1.6 “Build Fee”
Means the upfront fee (excluding any applicable taxes and duties) payable by you in accordance with Our Pricing Schedule (which may change from time to time), and/or in accordance with any written quotes provided by us and accepted by you.
Fusion Sport Pty Ltd
76 Neon Street, Sumner
QLD, 4074, Australia
Means any Templates, Data, personal data or information inputted by you or us into your Software Site.
1.8 “Data Protection Laws”
Means the applicable legislation that governs the protection of personal data, and the individual’s right to privacy with respect to the processing of personal data.
1.9 “Data Controller”
Means a person who determines the purposes for which, and the manner in which, Data and personal information is to be processed or transferred. This may be an individual or an organisation and the processing may be carried out jointly or in common with other persons.
1.10 “Data Processor”
Means any person who obtains, records, or holds the Data, or carries out any operation or set of operations on Data on behalf of the Data Controller.
Means the Licence Fee, Build Fee, Additional Costs and Additional Services.
1.12 “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.
1.13 “License Fee”
Means the annual license fee (excluding any applicable taxes and duties) payable by you in accordance with our Pricing Schedule (which may change from time to time), and/or in accordance with any written quotes provided by us and accepted by you.
1.14 “Our”, “We”, “Us”
Means Fusion Sport and all its affiliated entities.
1.15 “Pricing Schedule”
Means any pricing material produced by us detailing the structure and cost of the Fees.
Means the development of a private Site by Us on your behalf, together with the Services to be performed by us.
Means access to the on‐line help manual, email and phone support services, and any additional services requested and accepted by you for an additional cost.
Means your version of all Fusion Sport-owned and operated products including, but not limited to, the web apps and mobile apps that may be associated with each product (as may be changed or updated from time to time by us).
Means the unique implementation that is developed for each Project which is available via the Internet on the World Wide Web at the following URLs: https://my.smartabase.com/Name (project name), or https://my.smartabase.co.uk/Name, or https://my.smartabase.eu/Name (project name), or a custom installed site which shall be password protected.
Means the structure of the Data that is going to be recorded in your Site. For example, specific fitness tests, questionnaires and training logs.
Means a customer who has been granted a non‐transferable license by the us to facilitate Access to a Site for a period of twelve (12) months.
Means the Internet site at the domain https://my.smartabase.com , https://my.smartabase.co.uk and www.fusionsport.com , or any other site operated by us.
Means you and includes your employees, consultants, representatives, athletes, coaches and sports professionals.
2.0 Your use of the software
2.1 We grant you the right to access an existing implementation or use your custom-built version of the Software via the Site/Website for the agreed license period. This right is non‐exclusive and non-transferable and limited by these Terms.
2.2 In order to use the Software, you must first agree to these Terms. You may not use the Software if you do not accept the Terms.
- 2.2.1 You accept these Terms when you click on accept when this option is made available to you on the Site, and/or by actually using the Software. In this case, you understand and agree that we will treat your use of the Software as acceptance of these Terms from that point onwards.
2.3 The Software which you use may be automatically update from time to time by us. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit us to deliver these to you) as part of your use of the Software/Site.
2.4 In addition, the Smartabase Athlete App which you use will collect, monitor and use anonymised application logs to continuously improve the performance of the application and to identify and fix functional problems within the application. This data will be used primarily to monitor the impact of changes to the application, correlate customer bug reports with real error data, and reproduce errors using detailed diagnostic data. The Smartabase Athlete App has no user analytics, no advertising plugins and no third party code and no external party can access these logs
3.0 Your Obligations
3.1 Payment obligations:
You are responsible for paying the software fees, support fees, service fees and additional costs as detailed in your Smartabase subscription agreement and the user license fees for all professional users (including upgrades as required). You are additionally responsible for payment of all taxes and duties (if any) for all costs associated with your Software.
Fusion Sport’s standard payment terms are thirty (30) days from the invoice date.
Subscriptions to Smartabase shall be automatically renewed on an annual basis unless either party requests termination through a written communication at least thirty (30) days prior to the end of the then-current term. Should custom renewal terms be agreed in writing as part of your Smartabase subscription agreement, your subscription shall automatically renew for additional periods of the same duration as your initial subscription.
For subscription renewals, Fusion Sport will raise an invoice sixty (60) days before the renewal month. Full payment for invoices issued in any given month must be received by Fusion Sport thirty (30) days from the invoice date. Failure to pay the invoice by the renewal date’s anniversary may result in restriction to access the Site.
Invoices will be sent via email to the contacts we hold on record for You. Any amendment to your contact information should be submitted in writing at least thirty (30) days prior to the end of the current term.
- 3.1.1 Consequences of Non-payment:
Upon default of the above payment obligations, Fusion Sport will issue a request for immediate payment, and send reminders to the account contact at 14 and 21 days overdue. If payment is not received within 30 days of the due date, Fusion Sport reserves the right to restrict access to the Site until payment is received, or may bring into effect the actions outlined in Section 17 of this document (Termination).
3.2 General Obligations:
You must only use the Software and Site/Website for your own lawful internal business purposes, in accordance with these Terms and any notice sent by us or by condition posted on the Website.
4.0 Access Conditions
You will ensure that all usernames and passwords required to access the Software are kept secure and confidential. You will immediately notify us of any unauthorised use of your passwords or any other breach of security and we will reset your password.
4.2 As a condition of these Terms, when accessing and using the Software, you must:
- 4.2.1 Not attempt to undermine the security or integrity of our computing systems or networks or, where the Software is hosted by a third party, that third party’s computing systems and networks;
- 4.2.2 Not use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or impair the ability of any other User to use the Software or Website;
- 4.2.3 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 Software is hosted;
- 4.2.4 not transmit, or input into the Software, any: files that may damage 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);
- 4.2.5 Not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software except as is strictly necessary to use them for normal operation.
- 4.2.6 unless you have been specifically permitted to do so in a separate agreement with Us, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Software for any purpose.
5.0 Service Conditions
As a condition of these Terms, if you use any communication tools available through the Website or as part of the Services (such as any forum, chat room or message center); you agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Software including (but not limited to): offers of goods or services for sale, files that may damage any other person’s computing devices or software, content that may be offensive to any of our other users, 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).
When you make any communication or enter Data on the Website and/or Site, you represent that you own the content of the communication. We are under no obligation to ensure that the communications on the Website is legitimate or that they are related only to the use of the Software. We reserve the right to remove any communication at any time at our sole discretion.
You indemnify Us against all claims, costs, damage and loss arising from your breach of any of these Terms or any obligation you may have to Us, including (but not limited to) any costs relating to the recovery of any Fees that have not been paid by you.
We hereby agree to defend, indemnify, and hold harmless You, Your owners, and their respective partners, owners, employees, agents, officers, directors, affiliates and shareholders from and against any and all claims, debts, liabilities, demands, obligations, costs, fees, expenses, actions, and causes of action of any kind or nature whatsoever (including reasonable attorneys’ fees) related to third-party claims (collectively “Claims”) arising out of or in any way related to this Agreement, including but not limited to all Claims related to any allegation that the services We provide pursuant to this Agreement infringe upon the rights, including but not limited to intellectual property rights, of any third party, any Security Breach, or Our breach of any of the terms or conditions of this Agreement.
7.1 Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- 7.1.1 Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms;
- 7.1.2 Each party assumes responsibility for the actions of its employees, agents and consultants who have access to Confidential Information to an extent reasonably necessary and for the purposes of providing the Services in accordance with these Terms. Each Party will ensure that their employees, agents and consultants who have access to the Confidential Information are aware of and adhere to the warranties and obligations created under these Terms.
- 7.1.3 Each party’s obligations under this clause will survive termination of these Terms.
7.2. The provisions of clauses 7.1.1 to 7.1.3 shall not apply to any information which:
- 7.2.1 Is or becomes public knowledge other than by a breach of this clause;
- 7.2.2 Is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- 7.2.3 Is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
- 7.2.4 Is independently developed without access to the Confidential Information.
7.3. In the event We receive a subpoena or other order/request related to Your Data, we agree to provide You prompt notice and to reasonably cooperate with You in seeking an appropriate protective order or in otherwise responding to the request.
8.0 Privacy and Data Protection
8.2 Data Protection Warranties: You warrant that any instruction given to us regarding your Data or Templates will not breech any Data Protection Law’s relevant to you or your Data.
8.3 Insurance: To the fullest extent permitted by law, We shall, at all times carry (i) broad form commercial general liability insurance with minimum limits of one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate, including liability coverage for but not be limited to: protection against claims arising from death, bodily injury, personal injury, and damage to property resulting from actions, failures to act, operations or equipment of the insured, or by its employees, agents, or by anyone directly or indirectly employed by or acting on behalf of the insured; (ii) excess or umbrella coverage with a minimum limit of two million dollars ($2,000,000); (iii) cyberliability insurance with a minimum limit of five million dollars ($5,000,000); and (iv) errors and omission coverage with a minimum limit of five million dollars ($5,000,000).
The above policies shall be primary and any insurance maintained by You is excess and non-contributory. We shall provide You with thirty (30) days’ notice of the cancellation or nonrenewal of any of the above polices. It is understood and agreed that all such insurance, and the additional insurance coverage provided to You under this Agreement SHALL BE INDEPENDENT OF ANY OF THE INDEMNITY PROVISIONS OF THIS AGREEMENT AND SHALL NOT BE TIED TO SUCH INDEMNITY PROVISION
8.4 Secure Socket Layer (SSL) of Protection: We utilise some of the most advanced technology for Internet security available today. When you access our Site’s using an Internet Browser such as Firefox and Chrome, a Secure Socket Layer (SSL) system protects your information using both server authentication and data encryption. This means your data is safe, secure, and available only to registered Users in your organisation with a Licence to your Site.
8.5 Data Encryption: We encrypt the information, so all data transferred between the Users the Our Servers is kept safe according to industry standards.
8.6 User Restricted Access: We provide each User in your organisation with a unique username and password that must be entered each time a User logs on to their Site. We take precautions to ensure that User account information is kept private. We use reasonable measures to protect User information that is stored within our database. We restrict access to User information to those employees who need access to perform their job functions, such as our customer service personnel and technical staff.
8.7 User Responsibility: It is the User’s responsibility to keep their passwords safe. It is the Administrator’s responsibility to ensure that any Users that are invited to use your Project/Organisation’s Site have permission to enter and view information stored about them or other Users on your Site. Please note that we cannot guarantee the security of User account information. Your unauthorised entry or use, hardware or software failure, and other factors may compromise the security of User information at any time.
9.0 Intellectual Property
9.1 Any existing Intellectual Property is not altered, transferred or assigned merely by virtue of its use by either party for the purposes of the Project.
Title to, and all Intellectual Property Rights in the Software, the Website, the Site and any documentation relating to the Software remain the property of Fusion Sport.
All rights, title and interest in the Data, including Intellectual Property Rights, transferred to or acquired by or on behalf of US under this Agreement shall vest and remain vested solely in you.
You acknowledge that:
10.1 You are authorised to use the Software and the Site/Website and are authorised to view the User’s information that you Access, and/or to act as a Data Controller who transfers Personal Data using the Software and the Website (whether that information is your own or that of anyone else).
10.2 If you are using the Software and accessing the Site on behalf of or for the benefit of an organisation (whether a body corporate or not) then we will assume that you have the right to do so and that organisation will be liable for your actions or omissions (including any breach of these Terms).
10.3 THE PROVISION OF, ACCESS TO, AND USE OF, THE SOFTWARE/SITE IS ON AN “AS IS, WHERE IS” BASIS AND AT YOUR OWN RISK.
10.4 WE DO NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. AMONG OTHER THINGS, THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING THE SOFTWARE, 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 SOFTWARE. WE ARE NOT IN ANY WAY RESPONSIBLE FOR ANY SUCH INTERFERENCE OR PREVENTION OF YOUR ACCESS OR USE OF THE SOFTWARE. WE ADHERE TO OUR BEST PRACTICE POLICIES AND PROCEDURES TO PREVENT DATA LOSS, INCLUDING A SYSTEM DATA BACK‐UP REGIME EVERY TWO MINUTES, BUT DO NOT MAKE ANY GUARANTEES THAT THERE WILL BE NO LOSS OF DATA. WE EXPRESSLY EXCLUDE LIABILITY FOR ANY LOSS OF DATA NO MATTER HOW CAUSED.
10.5 IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE THAT THE SOFTWARE, SITE AND PROJECT MEET YOUR NEEDS.
11.0 No Software Warranties
WE GIVE NO WARRANTY ABOUT THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT IT WILL BE SUITABLE FOR YOUR PURPOSES. TO AVOID DOUBT, ALL IMPLIED CONDITIONS OR WARRANTIES ARE EXCLUDED IN SO FAR AS IS PERMITTED BY LAW, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, TITLE AND NON‐ INFRINGEMENT.
12.0 Our Obligations and Warranties
We acknowledge that:
12.1 We will act diligently, efficiently and in accordance with industry best practices;
12.2 Use appropriately skilled, qualified and experienced personnel to provide the Services, where all Authorised Personnel and/or personnel and/or appointees shall comply in all respects with the provisions of these Terms;
12.3 Provide all personnel, processes and resources required to provide the Services;
12.4 Keep you fully advised of the progress of the Services and changes or possible changes to the scope or timing of the Services. No unauthorised expenditure or costs will be incurred without your written consent in advance;
12.5 The Software will perform materially in accordance with the requirements set out in written correspondence provided to you;
12.6 That it is free and entitled to produce these Terms and to perform the obligations undertaken by it hereunder and that it has not entered into any agreement with any third party which might conflict with the Terms hereof.
13.0 Your and our Combined Obligations and Warranties
13.1 Nothing expressed or implied in these Terms will constitute either party as the partner, agent, employee or officer of, or as a joint venture with, the other party.
13.2 Neither party will damage or adversely affect the business operations or assets of the other party or act in any manner which may be prejudicial to or may bring either parties reputation into disrepute.
13.3 Both parties will at all times throughout the Project provide sufficient and appropriate personnel and resources to ensure that the Services provided are in accordance with the provisions of these Terms.
13.4 The Customer is responsible for notifying Fusion Sport of any changes to contact details for its System Administrator(s) and keeping such details accurate and up to date at all times; Ensuring the security of all User IDs, Passwords and other IDs necessary to access the Service, Provision of all personal computers.
14.0 Service Commitment
14.1 We are committed to providing you with Software and a level of Service that meets your needs. In the event of an increase in the scope of the Services or the time required to provide the Services, you may notify us in writing of the need for such Additional Services. Upon receipt of a notice in writing, we will quote for any changes in Service and then seek written approval from you prior to initiating any work;
14.2 If additional levels of Service are requested and accepted by you in writing, we shall inform you immediately of any failure or anticipated failure to supply any element of the Services.
15.0 Consumer Guarantees
You warrant and represent that you are acquiring the right to access and use the Software/Site and agree to these Terms for the purposes of business or personal use and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect business and personal users customers in any jurisdiction do not apply to the supply of the Software, the Website or these Terms.
16.0 Limitations of Liability
16.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL LIABILITY AND RESPONSIBILITY TO YOU (OR ANY OTHER PERSON) IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY LOSS (INCLUDING LOSS OF DATA, PROFITS AND SAVINGS) OR DAMAGE RESULTING, DIRECTLY OR INDIRECTLY, FROM THE USE OF, OR RELIANCE ON, THE SOFTWARE.
16.2 IF YOU SUFFER LOSS OR DAMAGE AS A RESULT OF OUR NEGLIGENCE OR FAILURE TO COMPLY WITH THESE TERMS, ANY CLAIM BY YOU AGAINST US ARISING FROM OUR NEGLIGENCE OR FAILURE WILL BE LIMITED IN RESPECT OF ANY ONE INCIDENT, OR SERIES OF CONNECTED INCIDENTS TO THE LICENCE FEES PAID BY YOU IN THE PREVIOUS 12 MONTHS.
16.3 IF YOU ARE NOT SATISFIED WITH THE SOFTWARE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THESE TERMS IN ACCORDANCE WITH CLAUSE 17.
17.1 Thirty day return policy: Within thirty days of being granted access to the Software by us for the first time, you may terminate these Terms by serving notice to us within those 30 days. No Licence Fee will be payable but Build Fees and any Additional Fees incurred during this 30 day period will still be charged.
17.2 No‐fault termination: These Terms will continue for the period covered by the Licence Fee. These Terms will automatically continue for the same period unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period.
17.3 Breach: If either party:
- 17.3.1 breaches any of these Terms and does not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
- 17.3.2 breaches any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any payment more than 30 days overdue); or
- 17.3.3 goes into liquidation or has a receiver or manager appointed of any of its assets or becomes insolvent, or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction,
17.4 the other party may take any or all of the following actions, at its entire discretion:
- 17.4.1 Terminate these Terms
- 17.4.2 In the case of default by you, terminate your use of the Site/Software and the Website;
- 17.4.3 in the case of default by you, we may suspend for any definite or indefinite period of time, your use of the Site/Software and the Website;
- 17.4.4 In the case of default by us, you may suspend for any definite or indefinite period of time, your payments under this agreement
- 17.4.5 Take either of the actions in clause 17.4.1 and 17.4.3 in respect of any other persons in your organisation or who have access to your information or that of your organisation.
17.5 Accrued Rights: Termination of these Terms is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement you will:
- 17.5.1 remain liable for any accrued charges and amounts which become due for payment before or after termination; and
- 17.5.2 Immediately cease to use the Software and the Site/Website.
17.6 Expiry or termination: Clauses 3.1, 6.0, 7.0, 8.0, 9.0, 10.0, 11.0, 13.0, 15.0, 16.0, 17.0, 18.0, 19.0 and 21.0 survive the expiry or termination of these Terms.
17.7 Data Export upon Termination: Upon Expiry or termination we will provide the customer with 30 days’ access to the site to export their data in CSV or Excel format, and download all attachments stored in the system.
17.8 Destruction of Data: Upon Expiry or termination, we will destroy and/or return all information in their possession, or control, relating to your Site and Project, on receipt of a written request from an authorised representative. If additional certification is requested, a certificate signed by our authorised representative will be sent confirming the destruction of the materials pertaining to your Project. In the case where legislation imposed on us prevents us from returning or destroying all or part of the personal data transferred, we warrant that we will guarantee the confidentiality of the personal data transferred and will not actively process the personal data anymore.
18.2 Waiver: 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.
18.3 Delays: 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.
18.4 No Assignment: You may not assign or transfer any rights to any other person without our prior written consent.
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 between you and us.
20.0 Our Commitment to all our Users
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 1 day (24 hours) after transmission. Notices to us must be sent to email@example.com or to any other email address notified by email to you by us. Notices to you will be sent to the email address which you provided when setting up your access to the Software.
22.0 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.