Terms of Use

These End User Licence Agreement and Terms of Use (collectively defined as Terms) govern the use and enjoyment of the Modiono (App). Persons using and accessing the App (defined herein as Users) do so at the discretion of W5 Pty Ltd (ACN 612 121 338) (we, us or our). By downloading, installing, accessing or using the App, you agree to be bound by these Terms.

If you do not agree to these Terms, you must not download, install, access or use the App in any way.

Definitions

In these Terms, unless the context otherwise requires:
ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth), being the Australian Consumer Law.
App means the Modiono application, including all Content, features, nutritional tools, workout programs, updates and related services made available to you through the App.
Claim includes any claim, demand, action, proceeding, judgment, damage, loss, liability, cost, expense or penalty however arising and whether present, unascertained, immediate, future or contingent.
Content means all text, images, graphics, nutritional data, workout programs, plans, exercises, meal plans, video, audio, software, data and other information made available through the App.
Intellectual Property Rights means all rights in and to patents, trade marks, copyright, design rights, trade secrets, know-how, confidential information and all other intellectual property rights, whether registered or unregistered, anywhere in the world.
Loss includes any loss, damage, liability, cost, charge, expense or outgoing of any kind, including legal costs on a full indemnity basis.
Obvious Risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person and includes:
risks that are patent or a matter of common knowledge;
something occurring can be an obvious risk even though it has a low probability of occurring; and
can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personnel our officers, employees, agents, contractors, volunteers and representatives.
Terms means these Terms of Use and the End User Licence Agreement, as amended from time to time.
User, you or your means any individual who accesses or uses the App.

Interpretation

Unless the context otherwise requires:
headings are used for convenience only and do not affect interpretation;
a reference to a statute or statutory provision includes any subordinate legislation made under it, and any amendment, consolidation, re-enactment or replacement of it;
the singular includes the plural and vice versa;
a reference to a person includes individuals, companies, partnerships, trusts and other entities;
a reference to legislation includes amendments or replacements of that legislation; and
the words “including” or “for example” do not limit what else might be included.

Nature of the Agreement and License

What is the App

The App is a mobile fitness application that provides users with access to an AI-powered exercise coaching system and a curated exercise library. Using computer-vision technology accessed via the user’s device camera, the application analyses movement and provides real-time form feedback during exercise sessions.

Grant of Licence

Subject to your compliance with these Terms, we grant you a limited, revocable, personal, non-exclusive and non-transferable licence to install, download, access and use the App. This licence does not include the right to:
copy, reproduce, distribute or commercially exploit any Content of the App;
modify, adapt, translate or create derivative works from the App or any Content;
reverse engineer, or otherwise attempt to derive the source code of the App;
sublicence, sell, resell, transfer, assign or otherwise deal with your rights under these Terms; or
use the App for any commercial purpose.
We may amend these Terms at any time by publishing updated terms on the App.
Reservation of Rights
All rights not expressly granted to you under these Terms are reserved by us. Nothing in these Terms shall be construed as granting any right, title or interest in the App, the Content, or any Intellectual Property Rights, beyond the limited licence set out in clause 3.2.

Eligibility and Registration

Membership

The App is intended for use by members of a training team only. By downloading, accessing or using the App, you confirm that you are a member of a training team. To the extent you are under 18 years of age, you must not download, access or use the App without the prior written consent of a parent or legal guardian, and only to the extent permitted by law.

Account Registration

To access the App, you may be required to register for an account. When creating an account, you acknowledge and agree to:
provide accurate, current and complete information;
maintain and promptly update account information to ensure it remains accurate, current and complete;
maintain the confidentiality of your login details and ensure these are not shared with any other person;
accept responsibility for all activities conducted or engaged on the App through your account; and
notify us immediately if you become aware of any unauthorised use of your account, including a breach or potential breach of your account’s security.
Access Conditions
Access to the App is granted to you solely by virtue of being an training team member. We reserve the right at all times to revoke, suspend or restrict your access to the App, without notice, where we reasonably consider that you have breached these Terms, are no longer a member or that your ongoing access to the App is otherwise inappropriate.

Risk Waiver & Assumption of Risk

Before commencing any exercise program or dietary regime as listed in the App, you acknowledge and confirm that you have consulted a qualified medical practitioner, if necessary, and agree that no Content in the App is intended to be relied on as a substitute for professional medical advice. The Content and App are not intended for use in the diagnosis of diseases or other medical conditions, or in the cure, mitigation, treatment or prevention of disease or medical condition.

Not Medical Advice

The App and all Content, including, but not limited to, nutritional advice and regimes, exercise programs, caloric information and wellness/recovery recommendations, are provided for general informational purposes only. We are not a registered medical practitioner, dietitian, exercise physiologist and/or other heath professional, and the App does not constitute, or is intended to be constituted as, medical advice, nutritional advice, clinical guidance or any other form of professional health consultation. By installing, downloading, accessing or using the App, you agree and acknowledge:
the App is not a substitute, nor intended to act as a substitute for medical advice from a qualified practitioner, exercise physiologist, dietitian or other registered health professional;
if necessary, you should obtain professional medical advice before commencing (and during or after) any fitness or nutritional program listed in the App, particularly if you have, or suspect you have, any pre-existing medical conditions, injuries, disabilities or illness that may affect your ability to participate in any App program;
all nutritional advice and information listed in the App is of a general nature only and may not take into account an individual User’s dietary requirements, allergies, intolerances, body composition, currently administered medications, or other personal information; and
you should not delay seeking professional medical advice, disregard any professional medical advice itself or discontinue currently administered medication because of information or programs listed in the App.

Assumption of Risk

By installing, downloading, accessing or using the App, you agree and acknowledge that;
physical exercise, fitness, training and dietary modification involves inherent risks of personal injury, illness, disability or death;
Users are solely responsible for assessing your own physical capacity and fitness capabilities prior to participating in any exercise program or activity listed in the App;
Users voluntarily assume all Obvious Risks;
Users voluntarily assume all known and unknown risks associated with your participation in any exercise program or physical activity facilitated by or through use of the App, including risks that may arise from your failure to seek the appropriate and/or necessary professional medical clearance prior to commencing such activities;
we have no obligation or means to independently verify your fitness levels, health status or medical history; and
it is your sole responsibility to determine whether you are physically and medically fit enough to perform any exercise or activity listed in the App.
Allergies and Nutritional Information
Any and all nutritional information listed in the App is of a general nature, and Users’ are solely responsible for verifying that any food, ingredient, supplement or dietary regime is appropriate for your individual circumstances, including any known or potentially known food allergies, intolerances or required or preferential dietary restrictions. We expressly disclaim all responsibility and liability in relation to food safety, allergen information and/or contraindications to medications.

Fitness to Participate

By installing, downloading, accessing or using the App, you acknowledge and agree that:
you have consulted, or have had a reasonable opportunity to consult, a qualified medical professional prior to the commencement of any exercise program or dietary regime as listed in the App;
you currently have no medical condition, injury, physical limitation or other circumstance that would make it unsafe for you to participate in any exercise program or dietary regime as listed in the App; and
you will immediately cease access to or use of the App and seek professional medical advice if you experience any adverse effects or symptoms during or following the use of the App.

Release of Liability

To the maximum extent permitted by law, the App and all Content are provided on an “as is” and “as available” basis, and we make no representation as to warranties of any kind, whether express or implied, statutory or otherwise. We expressly disclaim all warranties, including regarding the quality, accuracy, timeliness, truthfulness, completeness, availability, or reliability of any of the App or any Content.
To the maximum extent permitted by law, each User releases us and our Personnel from any Claim arising from or in connection with:
personal injury;
illness;
death;
property loss or damage; and
any other Loss,
that may arise from or be in connection with your use of the App, including but not limited to as a result of your failure to obtain appropriate professional medical advice or clearances.
Nothing in this clause excludes liability to the extent such liability cannot lawfully be excluded.
We make no guarantee that the App will be continuously available, error-free, virus-free, or free from other harmful, or potentially harmful elements. We reserve the right to suspend, modify, discontinue or restrict your access to the App at any time without notice.
Whilst we will take reasonable steps to ensure the Content within the App is accurate and up-to-date, we make no guarantee or warranty as to the accuracy, completeness or reliability of any Content, and Users acknowledge and agree to rely on any Content at your own risk.

Indemnity

To the maximum extent permitted by law, you indemnify and hold harmless us and our Personnel against any Claim or Loss arising from:
your use of the App;
your use of, or reliance on, the Content;
your breach of these Terms; and
your negligent or unlawful conduct.

Intellectual Property

Ownership

All Intellectual Property Rights in and to the App and all Content are and shall remain our exclusive property. These Terms do not transfer any ownership of Intellectual Property Rights to the Content within the App.

User Content

By uploading, submitting or providing User Content via the App, you grant us and our Personnel a non-exclusive, royalty-free, worldwide, sublicensable licence to access, store or process your User Content for the purpose of App operations and improvements. In relation to all uploaded, submitted or provided User Content, you agree to and acknowledge;
you own or have the necessary rights, permissions and consents to provide this information; and
this information does not infringe on any Intellectual Property Rights of a third-party.

Feedback

If Users provide feedback or suggestions regarding the usability or other feature of the App, we may use such feedback without restriction or compensation to you, and any feedback or suggestions is considered User Content and is subject to these Terms.

Acceptable Use

Permitted Use

Users may only use the App for lawful purposes and in accordance with these Terms. The App is intended solely for training and development and personal health and fitness.
Prohibited Conduct
Whilst installing, downloading, accessing or using the App, Users agree and acknowledge not to:
use the App in a matter that may violate any applicable law or regulation;
attempt to gain unauthorised access to a part of the App or any servers and/or systems of networks in connection with the App;
upload, document or provide any Content that is harmful, offensive, discriminatory, defamatory or otherwise prohibited by these Terms;
use the App to promote and/or encourage behaviors and activities that may harm Users’ health;
harvest, collect or otherwise store Content from the App either automatically or manually;
post, transmit, input, upload or otherwise provide Content or material that contains any viruses, malware, ransomware or other harmful code;
impersonate any person or other User or entity or make false representations regarding your affiliation with any User or third-party individual and/or entity; and
assist, encourage or enable another User or third-party individual and/or entity to engage in any of the prohibited conduct listed above.

Updates and Changes to App Functionality

We reserve the right to make any update or change to the App from time to time, for any reason at all, at our absolute discretion, which may remove or restrict some or all functionality of the App. Updates will either download automatically or Users may need to install or trigger such updates themselves, depending on their device and its settings. We make no guarantee or warranty of the App’s usability, functionality, whether the App will work properly at all and/or potential exposure to security vulnerabilities if you do not keep the App updated to the latest available version.

Term and Termination

Term

These Terms shall commence on the date you first install, download, access or use the App and will remain in full force until terminated in accordance with this clause 11.

Termination by User

Users may end your access to the App at any time by deleting the App from your device. Ending your access to the App in this way will affect and/or restrict your ability to access the services within the App. Any User Content we have collected will be retained and/or destroyed in accordance with our Privacy Policy and any applicable laws or regulations.

Termination by us

We may terminate or suspend your access or use of the App immediately and without notice if:
you breach any provision of these Terms;
we are required to do so by law; or
our arrangement with the leader of your training team is terminated or the leader of your training team elects to discontinue the App.

Effect of Termination

Upon termination of these Terms or suspension or restriction of your access to the App;
the licence granted in clause 3.2 is automatically suspended and/or ceases immediately;
Users must immediately cease all use of or access to the App.
Clauses 5 (Risk Waiver & Assumption of Risk), 8 (Indemnity), 9 (Intellectual Property), 12 (Dispute Resolution) and 16 (General) survive termination of these Terms.

Dispute Resolution

Good Faith Negotiation

If a dispute arises between you and us in connection with or relating to these Terms or the App (Dispute), either party may give written notice of the Dispute to the other party. Following such notice, the parties must attempt to resolve the Dispute in good faith negotiations for a period of no less than thirty (30 day) from the date of the notice.

Privacy

Collection and Use of Personal Information

Personal Information collected from Users will be handled in accordance with our privacy policy, available at https://modiono.me/privacy. You acknowledge that the internet is an inherently insecure communication medium, and your use of the App and related services are done so at your own cost and risk. User Content that may be collected by us in connection with the App may include:
name and contact details, including email address and phone number;
gender, age, weight, height personal information;
health information, including your exercise habits, fitness goals and responses to any exercises performed and recorded through the use of the App;
location data if you choose to turn locations services on in relation to the App;
your reason or need to download, install, access and/or use the App;
information provided or uploaded to the App, including via online chat functionality or community forums offered via the App; and/or
your feedback, opinions and suggestions of the App as expressed by any User reviews that may be submitted.

Health Information

Users agree and consent to the App’s collection and use of User Content relating to health information, including but not limited to training and development, nutritional data, body metrics, and exercise records, in accordance with the Privacy Act 1988 (Cth).

User Content and Data

Users agree and consent to the App’s storage of User Content uploaded or provided to the App servers. We will take all reasonable steps necessary to ensure User Content is handled securely, but provides no guarantee or warranty that the App will not experience data breaches, loss or unauthorised access.

Third Party Integrations

The App integrates with OpenAI to provide customized training programs but Users’ name, email address and phone number are isolated and not sent to or accessed by OpenAI.
The App may in the future integrate with elected third-party platforms, devices or additional services. It is the sole responsibility of Users to ensure their understanding of and agreement to any third-party terms and privacy policies, and we accept no responsibility or liability for the data practices of any engaged third-party. Users acknowledge that to access and use the App, you must first download the App via a third-party provider, such as Google or Apple.

Third Party Services and Links

The App may contain links to or integrations with third-party services, websites or additional applications. We make no representation as to any endorsement, control or responsibility of any third-party link or integration, and Users’ access to and use of such services is entirely at your own risk. For the avoidance of doubt, third-party services are governed by their own terms and conditions, which should be reviewed by all Users before use.

Australian Consumer Law

Nothing in these Terms excludes or restricts rights that cannot be excluded under the ACL.
To the maximum extent permitted by law:
we exclude all other warranties; and
we will not be liable for any indirect or consequential loss.
Where liability cannot be excluded under the ACL, our liability is limited to:
re-supplying the App’s relevant services; or
the cost of re-supplying those services.
Where use of and access to the App is free of charge, the value of the services supplied is nil.
To the extent that any Content within the App provided by us constitutes “recreational services” within the meaning of section 139A of the Competition and Consumer Act 2010 (Cth), we exclude all liability for death or personal injury arising from the Content to the extent permitted by law.

Limitation of Liability

To the maximum extent permitted by law, we exclude all liability for any Loss arising from or in connection to the use of or access to the App or Content, including arising in contract, tort (including negligence), statute or otherwise.
Where liability cannot be excluded, liability will be reduced to the extent that the User contributed to the Loss.

General

Severability

If any provision of these Terms is unenforceable it will be severed and the remaining provisions will continue in effect.

Entire Agreement

These Terms constitute the entire agreement between the parties in relation to the use of and access to the App and supersede all prior discussions or representations.
Assignment
Users may not assign, transfer or novate your rights or obligations under these Terms without our prior written consent.
Waiver
A failure or delay by us to exercise any right or remedy under these Terms does not constitute a waiver of that right or remedy. No waiver of any breach of these Terms constitutes a waiver of any subsequent breach. No waiver will be effective unless it is made in writing by our authorised Personnel.

Notices

Any notice or other communication required or permitted to be given under these Terms must be in writing and may be given via email, in-App pop-up notices, post or hand delivery. Notices to us must be sent to contact@modiono.me. Notices to Users will be sent to the email address provided at the time your App account is created.
Governing Law and Jurisdiction
These Terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales in respect of any dispute arising out of or in connection with these Terms.
Amendments to these Terms
We reserve the right to amend these Terms from time to time. We will notify Users of any material amendments via the App’s notification system or by other means as we deem appropriate. Your ongoing use of and access to the App from the effective date of any amendments constitute your acceptance of those amendments. If Users do not accept or agree to the amended Terms, you must immediately cease use of and access to the App.

Schedule 1 – Risk Acknowledgment & Waiver

This Schedule 1 forms part of the Terms and is accepted by you upon installing, downloading, accessing or using the App. By proceeding, you confirm that you have read and understood this Schedule 1 and agree to be bound by it.
I, the End User, acknowledge and agree as follows:
I understand that the App provides fitness, exercise and nutritional guidance that is of a general nature, and that such guidance is not considered, or intended to be considered, professional clinical advice.

I understand that physical exercise carries inherent risk of injury, illness, disability or even death, and that any dietary change may also carry health risks for individuals with pre-existing and/or particular medical and health conditions.

I confirm that I have consulted, or have had the reasonable opportunity to consult, a qualified medical professional before commencing any exercise program or adopting any dietary regime as listed in the app, and that I have received any appropriate clearances (or am satisfied that I require no clearances) to participate in the activities provided for in the App.

I accept sole responsibility for determining my own fitness capacity and physical capabilities to participate in exercises and activities provided for in the App.

I voluntarily assume all known and unknown risks associated with participation in any exercise program or activity listed in the App.

To the maximum extent permitted by law, I release W5 Pty Ltd (ACN 612 121 338), their related bodies corporate, officers, employees, contractors, agents and other personnel from any and all claims, demands, losses, liabilities or expenses (including legal costs) that arise or may arise from any injury, illness, loss or death sustained by me in connection with my participation in any activity as listed in or recommended by the App.

I understand that the content found in the App does not constitute, nor is intended to constitute, any medical advice and I will immediately cease use of the App and seek professional medical advice if I experience adverse symptoms as a result of my participation in any activities as listed in or recommended by the App.

I understand that nutritional information listed in the App is of a general nature and I am solely responsible for verifying that any of the dietary recommendations are appropriate for my individual circumstances, including any food allergies, intolerances or contraindications to currently administered medications.

By installing, downloading, accessing or using the App, I confirm that I have read and understood this Risk Acknowledgment and Waiver and I agree to be bound by its terms.