Privacy Policy
Last updated 8 January 2026
We know you care about how your personal information, or the information of your athletes, is used and shared and we take privacy seriously. We have therefore documented how we deal with personal information in this Privacy Policy. Please read it carefully and share it with your athletes so everyone involved knows how their information is handled by us. Also, if you are an athlete manager, please be aware that before using GymAware Cloud* or our website, you must gain appropriate consent from any athlete you plan to enter into our system, including parental consent for any athlete under minimum age required to legally provide consent under applicable data protection laws in their jurisdiction.
References to ‘you’ or ‘your’ throughout the remainder of this Policy refer to the person whose information is being collected. When you use GymAware Cloud, or when you access our website or use other services provided by us, you agree that you accept the practices and policies outlined in this Privacy Policy. You consent to Kinetic Performance Technology Pty Ltd (‘KPT’) collecting, using and managing your information in the ways detailed in this Policy. This Policy explains how we deal with your personal information in as clear a method as possible, but if you have any questions or concerns please contact us via office@kinetic.com.au.
*GymAware Cloud refers to any Cloud based service offered by Kinetic Performance Technology.
Who are we?
KPT is an Australian based hardware and software company working with coaching staff to help them better understand their athletes’ performance. GymAware Cloud is a Software as a Service (SaaS) product that synchronizes data among your iPads and provides management, insights and reporting tools that extend the usefulness of the GymAware PowerTool. GymAware Cloud is hosted on servers in the United States of America.
What does this Privacy Policy cover?
This Privacy Policy covers treatment of personal information – all the things we know about you or that we gather when you are using GymAware Cloud or accessing or using our Website or services. It does not cover the practices of companies we don’t own or control, or people that we don’t manage. This Policy provides a standard for KPT with respect to its treatment and protection of personal information globally. Certain local laws may require stricter standards. Where local laws are stricter than this Policy, we will handle personal information in accordance with applicable laws and regulations at the place where the personal information is collected. Where applicable local law provides a lower level standard of protection than established by this Policy, then the requirements of this Policy will govern how we treat the personal information collected in that location. Questions about compliance with local law may be addressed to office@kinetic.com.au. Sensitive information: The Privacy Act 1988 (Cth) defines some types of personal information as sensitive. Except as set out below, we don’t commonly collect sensitive information, which includes information about a person’s race, ethnic origin, political opinions, health, religious or philosophical beliefs, gender identification, sexual orientation and criminal history. In the event we require any sensitive information, we would only collect this with your permission, and we will only use it for the purpose for which you provided it.
Will we ever change this Privacy Policy?
We’re constantly trying to improve our services, so we may need to change this Privacy Policy from time to time, but we will alert you to changes by placing a notice on kinetic.com.au, by sending you an email, and/or by other means. Please note that if you’ve opted not to receive legal notice emails from us (or you haven’t provided us with your email address), those legal notices will still govern your use of GymAware Cloud, our Website and services, and you are still responsible for reading and understanding them. If you use GymAware Cloud, the Website or our services after any changes to the Privacy Policy have been posted, that means you agree to all of the changes.
Why do we collect personal information?
We gather various types of personal information from our users, as explained in more detail below, and we use this personal information internally in connection with providing GymAware Cloud, the Website and services, including to personalise, provide, and improve our services, to allow you to set up a user account and profile, to contact you and allow other users to contact you, to fulfil your requests for certain products and services, and to analyse how you use GymAware Cloud, our Website and services. In certain cases, we may also share some personal information with third parties, but only as described below.
We may send you marketing communications with your consent or as permitted by law. You may opt-out at any time via unsubscribe link or contacting us.
What information do we collect?
Information you provide to us: We receive and store any information you knowingly provide to us. For example, through the registration process and/or through your account settings, we may collect personal information such as your name, date of birth, email address, street address, phone number, jersey number, photo, sport and position and squad-related information. Certain information may be required to register with us or to take advantage of some of our features. If you choose not to provide your personal information, we may not be able to provide you with the services you have asked for or give you the level of service you expect. We may also collect information about how and where you purchase and use our Website and services. We may communicate with you if you’ve provided us with the means to do so. For example, if you’ve given us your email address, we may send you promotional email offers on behalf of other businesses, or email you about your use of our Website and services. Also, we may receive a confirmation when you open an email from us. This confirmation helps us make our communications with you more interesting and improve our services. If you do not want to receive communications from us, please select the relevant opt out options when you sign up for Our Services, or unsubscribe option from the newsletter.
Information collected automatically: Whenever you interact with our Website or services, we automatically receive and record information on our server logs from your browser or device, which may include your IP address, device identification, “cookie” information, the type of browser and/or device you’re using to access our Website or services, and the page or feature you requested. “Cookies” are identifiers we transfer to your browser or device that allow us to recognize your browser or device and tell us how and when pages and features in our Services are visited and by how many people. You may be able to change the preferences on your browser or device to prevent or limit your device’s acceptance of cookies, but this may prevent you from taking advantage of some of our features. We may use this data to customize content for you that we think you might like, based on your usage patterns. We may also use it to improve our Website or services – for example, this data can tell us how often users use a particular feature of the Website or services, and we can use that knowledge to make the Website or services interesting to as many users as possible.
The GymAware App automatically collects data on each of the athletes registered to use it. This data includes time and displacement from which velocity, acceleration, power, force and range of other associated metrics are calculated.
Information we collect from others: Other people might give us personal information about you. For example, we might be given personal information by your employer, trainer or manager, or by your parent or guardian if you are under 16, or the minimum age required to legally provide consent under applicable data protection laws in their jurisdiction. We may also collect personal information from other companies that are able to disclose it to us.
Payment details such as credit/debit card info: We do not store credit/debit card information. This information is handled directly by our payment processing services to complete a transaction you requested.
Will we share any of the personal information we collect?
We do not rent or sell your personal information to anyone other than with third parties as described in this section: Information that’s no longer personally identifiable We may anonymise your personal information so that you are not individually identified, and provide that information to our partners for research purposes. We may also provide aggregate usage information to our partners, who may use such information to understand how often and in what ways people use our products, Website or services. However, we never disclose aggregate usage information to a partner in a manner that would identify you personally, as an individual. Agents We employ other companies and people to perform tasks on our behalf and need to share your information with them to provide products or services to you; for example, we may use a payment processing company to receive and process your credit card transactions for us. Unless we tell you differently, our agents do not have any right to use the personal information we share with them beyond what is necessary to assist us. Managers and Trainers If you are an athlete, your manager or trainer may access and request your personal information. Business Transfers We may choose to buy or sell assets, and may share and/or transfer customer information in connection with the evaluation of and entry into such transactions. Also, if we (or our assets) are acquired, or if we go out of business, enter bankruptcy, or go through some other change of control, personal information could be one of the assets transferred to or acquired by a third party. Protection of KPT We reserve the right to access, read, preserve, and disclose any information that we reasonably believe is necessary to comply with law or court order; enforce or apply our terms of service, policies and other agreements; or protect the rights, property, or safety of KPT, our employees, our users, or others.
Is your personal Information secure?
We take reasonable steps to protect the personal information we hold from misuse, interference, loss, unauthorised access, modification or disclosure, in accordance with APP 11. We use a range of security measures to protect your personal information, including:
- Password-protected user access
- Encryption of data **in transit** using **Transport Layer Security (TLS) 1.3 or higher**
- Encryption of data **at rest** using **AES-256 standard**
- Role-based access control (RBAC) and administrator approval for high-permission functions
- Secure authentication and password storage using industry best practices (e.g., salted hashing)
- Secure cloud storage hosted in professionally managed data centres
- Firewalls, routine monitoring, regular security patching and system updates
While we take reasonable steps to protect your data, no system can guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information at any time. If you believe your account or personal data may have been compromised, please contact us immediately.
User accounts are password protected, and users are responsible for maintaining the confidentiality of their passwords and account access. This means that you must prevent unauthorized access to your account and personal information by selecting and protecting your password appropriately and limiting access to your computer or device and browser by signing off after you have finished accessing your account.
When data is stored or processed overseas (e.g. on servers in the USA), we take reasonable steps to ensure that overseas recipients do not breach the Australia Privacy Principles (APPs). These steps include conducting vendor due diligence assessment and privacy risk assessments before engaging overseas services providers, requiring contractual commitments that impose privacy obligations no less protective than the APPs, ensuring data is encrypted both in transit and at rest, implementing access controls to authorised personnel only and monitoring compliance and taking appropriate remedial action when required. We only engage overseas recipients who demonstrate robust privacy and data protection practices consistent with our legal obligations under the Privacy Act.
What personal information can you access?
You have the right to request a copy of any personal information we hold about you. However, there are circumstances under Australian privacy laws where we may not give you access to the personal information we hold about you. For example, we can’t give you access if it would unreasonably affect someone else’s privacy or if giving you access poses a serious threat to someone’s life, health or safety. There is generally no cost for accessing the personal information we hold about you, unless the request is complex or resource intensive. If there is a charge, it will be reasonable and we will let you know what it is going to be so that you can agree to it before we go ahead. You have the right to request us to rectify or erase your personal information and the right to lodge a complaint with a supervisory authority if you are not satisfied with our response to your request. We will respond to this request in a timely manner, not exceeding 30 days. When you update information, however, we may maintain a copy of the unrevised information in our records. Some information may remain in our records after deletion of such information from your account. We may use any aggregated data derived from or incorporating your personal information after you update or delete it, but not in a manner that would identify you personally. We aim to keep the personal information we hold about you accurate, up-to-date and complete. If you wish to access, correct, or delete your personal information, or to complain about our privacy practices, please contact us at office@kinetic.com.au. We will respond to any access or correction request within 30 days. If you are not satisfied with our response, you may raise the matter with the Office of the Australian Information Commissioner (OAIC).
Where is your personal information held?
Your personal information is held:
- in your GymAware Cloud account;
- on each of the iPads you have synchronized with the server; and
- in an application you have granted permission to access through your API tokens.
When will we remove your personal information?
We retain personal data only for as long as necessary to fulfil the purposes for which it was collected, or as required by law. In general: account registration and profile data (including personally identifiable information) is deleted within 30 days after an account is deactivated or deleted. Staff and athlete personally identifiable information is also deleted within this timeframe. Performance metrics and related data are de-identified within 30 days of account renewal overdue or deactivation or deleted, and retained only in de-identified form for analytics, research or service improvement purposes. Once data is de-identified, it is no longer considered personal information under the Privacy Act. We do not retain personally identifiable information longer than necessary and take reasonable steps to ensure all data is securely deleted or de-identified in accordance with our data retention and destruction policies.
If an account becomes due for renewal, it will automatically revert to a Basic Licence. In such cases, the associated personal information will continue to be securely retained and linked to the account. All personal data will remain securely stored in accordance with this Privacy Policy and applicable legal and contractual retention requirements. To permanently remove personal information from our systems, the authorised user must perform the “Delete Account” operation.
We may also delete your personal information:
- when you contact us and ask us to delete your account;
- when your trainer or manager has archived your data – your personal information is removed after a period of inactivity (Configurable in your settings); or
- when the “Delete Account” action is performed on our platform by an authorised user.
Citizens of the EUR have all rights according to Regulation (EU) 2016/679 (GDPR – General Data Protection Regulation). Residents of the European Economic Area You may choose not to provide Us with your personal information. However, if you choose not to provide your personal information (or Personal Data as defined in the GDPR), you may not be able to enjoy the full range of Services that We offer. You have the following rights: 1. Right of access to your Personal Data (Art. 15 GDPR): You have the right to ask us for confirmation on whether we are processing your Personal Data, and access to the Personal Data and related information on that processing (e.g., the purposes of the processing, or the categories of Personal Data involved). 2. Right to correction (Art. 16 GDPR): You have the right to have your Personal Data corrected, as permitted by law. 3. Right to erasure (Art. 17 GDPR): You have the right to ask us to delete your Personal Data, as permitted by law. This right may be exercised among other things: (i) when your Personal Data is no longer necessary for the purposes for which it was collected or otherwise processed; (ii) when you withdraw consent on which processing is based according to Art. 6 (1) (a) or Art. 9 (2) (a) GDPR and where there is no other legal ground for processing; (iii) when you object to processing pursuant to Art. 21 (1) GDPR and there are no overriding legitimate grounds for the processing, or when you object to the processing pursuant to Art. 21 (2) GDPR; or, (iv) when your Personal Data has been unlawfully processed. 4. Right to restriction of processing (Art. 18 GDPR): You have the right to request the limiting of our processing under limited circumstances, including: when the accuracy of your Personal Data is contested; when the processing is unlawful and you oppose the erasure of your Personal Data and request the restriction of the use of your Personal Data instead; or when you have objected to processing pursuant to Art. 21 (1) GDPR pending the verification whether the legitimate grounds of KPT override your grounds. 5. Right to data portability (Art. 20 GDPR): You have the right to receive the Personal Data that you have provided to us, in a structured, commonly used and machine-readable format, and you have the right to transmit that information to another controller, including to have it transmitted directly, where technically feasible. 6. Right to object (Art. 21 GDPR): You have the right to object to our processing of your Personal Data, as permitted by law. This right is limited to processing based on Art. 6 (1) (e) or (f) GDPR, and includes profiling based on those provisions, and processing for direct marketing purposes. After which, we will no longer process your Personal Data unless we can demonstrate compelling legitimate grounds for the processing that override your interests, rights and freedoms or for the establishment, exercise or defence of legal claims.
What consent is required for children and minors?
We recognise the importance of protecting children’s privacy. This section sets out how GymAware (including GymAware Cloud and FLEX) manages personal information in relation to children and minors across different jurisdictions.
1. Age Thresholds and Consent Requirements
Our Website and Services are not intended for use by children under the age 16 years or the minimum age for valid consent as determined by applicable data protection laws.
If you are under the applicable age of consent in your local jurisdiction, you must not use our Services or provide any personal information without verifiable parental or guardian consent.
2. Our Approach to Data Entry and Consent
We provide Services in environments where data about minors may be entered by authorised adults (e.g., coaches, gyms, schools). These operational scenarios apply:
Case 1 – Coach or Gym-Entered Data
When a coach, gym, or authorised representative enters personal information about an athlete who is under the applicable age of consent:
- It is the responsibility of that coach or organisation to obtain, document, and retain verifiable parental or legal guardian consent prior to entering such information.
- GymAware acts as the data processor relying on the introducer’s compliance with consent requirements.
- We reserve the right to request evidence of consent at any time.
Case 2 – Direct User Access (FLEX)
Users may create a FLEX account and provide personal information without disclosing their date of birth. However, access to the FLEX mobile application is restricted through age-based controls applied within the Apple App Store and Google Play Store. These settings require users to be above the minimum age permitted in their jurisdiction (for example, 16 years or older), and prevent underage users from downloading the app unless they meet the platform’s age requirements or have parental or guardian approval configured on their device.
- If we become aware that a user under the applicable age of consent has registered without proper authorisation, we will:
- Take reasonable steps to delete the personal information; or
- Seek verifiable parental or guardian consent within a reasonable time.
3. Contact and Remedial Action
If you are a parent or guardian and believe that your child under the age of consent has submitted personal information to us without your authorisation, please contact us at: office@kinetic.com.au.
What happens if there is a data breach?
We take all data breaches seriously and will comply with all applicable breach-notification laws in the regions where affected individuals reside – including the Australian Notifiable Data Breaches (NDB) scheme, the EU / UK GDPR (72-hour supervisory-authority notification rule), and US federal and state data-breach notification laws.
If we become aware of a breach that is likely to result in a risk of serious harm or a high risk to individuals’ rights and freedoms, we will:
- Conduct an immediate assessment of the breach (generally within 30 days or any short period required by law);
- Take steps to contain the breach and minimise any harm;
- Notify affected individuals as soon as practicable with:
- A description of the breach,
- The information affected,
- Steps we are taking in response,
- Recommendations for individuals to protect themselves;
- Notify the Office of the Australian Information Commissioner (OAIC) via formal notification.
Our internal Privacy Officer is responsible for coordinating breach response, investigations, and notifications.
If you believe your data may have been compromised, please contact our Privacy Officer immediately at office@kinetic.com.au.
Who do I contact if I have concerns?
For any enquiries, concerns or complaints about privacy, please contact our Privacy Officer: office@kinetic.com.au, Postal address: 3/24 Girrahween St,Braddon ACT 2612, AUSTRALIA, or phone: (+61) (2) 61621770.
Terms of Use
Last updated: 8 January 2026
Please read these Terms of Use and our Privacy Policy carefully because they affect your legal rights.
1.Introduction
- We offer a variety of products and services, including the GymAware app and related websites and applications, wearables, application programming interfaces – APIs, devices and other hardware and content and all other current and future digital products and service offerings we make available for fitness and wellness. This Agreement covers Your use of all of Our products and services (“Services”).
- By downloading the GymAware app, accessing content through our software applications, or using our Services, you (an individual), or, if applicable, the legal entity on whose behalf you are accessing the Services, (“You, Your”) are unconditionally agreeing to be bound by, and are becoming a party to, an agreement with Kinetic Performance Technology Pty Ltd, ABN 61 091 982 473 (“Us, We, Our”) (“the Agreement”).
- Your Agreement with Us includes these Terms of Use (“Terms”) and our Privacy Policy.
- This Agreement outlines the terms and conditions that apply to Your use of Our Services. You acknowledge that you have read and understood the Agreement, accept the Agreement, and agree to be bound by it. If you do not agree with (or cannot comply with) the Agreement, then you may not use the Services.
- In order to use the Services, you need to be 16 years old, or the age of majority in your jurisdiction, and have the legal capacity to enter into this Agreement. If you are under 16 or do not have such capacity, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by this Agreement on your behalf.
- We collect, use, disclose and protect your personal information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles. You can read more about how We handle your information, including biometric and training data, in Our Privacy Policy. We implement industry-standard security measures, including encryption of data in transit and at rest, to protect your information. By using Our Services, You consent to Our handling of Your personal information in accordance with these standards.
- We are committed to protecting Your data. If We experience a data breach that is likely to result in serious harm to individuals, We will notify affected users and the Office of the Australian Information Commissioner (OAIC) as required under the Notifiable Data Breaches (NDB) scheme. You can contact Us at office@kinetic.com.au.
2. Changes to the Agreement
- Occasionally We may, in Our discretion, make changes to the Agreement. When We make material changes to the Agreement, We’ll provide You with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the GymAware app or by sending You an email. In some cases, We will notify You in advance, and Your continued use of the Services after the changes have been made will constitute Your acceptance of the changes. Please therefore make sure You read any such notice carefully. If You do not wish to continue using the Services under the new version of the Agreement, You may terminate the Agreement by contacting Us through office@kinetic.com.au
3. Changes to the Services
- The Services may change from time to time and their form and functionality may change without prior notice to You.
- We may provide updates (including automatic updates) for certain Services as and when We see fit. This may include upgrades, modifications, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Certain features or functionality of Our Services may be impaired if You do not install all Updates. You acknowledge and agree that the Service may not work properly if You do not allow such Updates and You expressly consent to automatic Updates. Further, You agree that this Agreement (and any additional modifications of them) will apply to any and all Updates to the Services.
- We may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or content. In addition, we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any Service. We may also impose limits on certain Services or restrict Your access to part or all of the Services without notice or liability.
4. Rights we grant you
- Except as expressly provided in this Agreement, all intellectual property rights relating to the Services, software, technology, techniques or trade marks that are used in or provided by Us as part of the Services, or in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any third party relating to the Services (“Intellectual Property”) will be owned by Us or will vest in Us on creation or is licensed to Us. You will not copy, distribute, reproduce or use any of the Intellectual Property except as expressly permitted under this Agreement.
- We grant You a limited, personal, non-exclusive, revocable, non-transferable license to access and make use of our Services (“the Licence”) for the purposes of monitoring your training performance. If You are a trainer or manager of a team or number of athletes, the Licence enables You to monitor the training performance of the people You coach or train.
- The Licence will remain in effect until and unless terminated by You or Us.
- You agree that You will not redistribute or transfer the Services nor commercially exploit any right in the Services.
- The GymAware software applications and the content are licensed, not sold, to You and We retain ownership of all copies of the software applications and content, even after installation on Your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).
- All Kinetic Performance Technology and GymAware trademarks, service marks, trade names, logos, domain names, and any other features of Our brand (“Brand Features”) are Our sole property. The Agreement does not grant You any rights to use any Brand Features whether for commercial or non-commercial use.
- You agree not to use Our Services, or any part thereof in any manner not expressly permitted by the Agreement. Except for the rights expressly granted to you in this Agreement, We grant no right, title, or interest to You in the Services.
- Third party software (for example, open source software libraries) included in the Services are licensed to You either under the Agreement or under the relevant third party software library’s license terms as published on Our website.
5. APIs
- We grant You a limited, non-exclusive, non-sub licensable (except to independent contractors so they may host, develop, test, operate, modify or support Your application), non-transferable, non-assignable licence under Our intellectual property rights (a) to use the APIs to develop, test, operate and support Your application; (b) to distribute or allow access to Your integration of the APIs within Your application to end users of Your application; and (c) to display the content accessed through the APIs within Your application.
- You have no right to distribute or allow access to the stand-alone APIs.
- You will only access (or attempt to access) an API by the means described in the documentation of that API. If We assign you developer credentials (e.g. client IDs), You must use them with the applicable APIs. You will not misrepresent or mask either Your identity or Your API client’s identity when using the APIs or developer accounts.
- We may set and enforce limits on Your use of the APIs (e.g. limiting the number of API requests that You may make or the number of users You may serve), in Our sole discretion. You agree to, and will not attempt to circumvent, such limitations documented with each API. If You would like to use any API beyond these limits, You must obtain Our express consent (and We may decline such request or condition acceptance on Your agreement to additional terms and/or charges for that use). To seek such approval, contact office@kinetic.com.au.
- Some of the software required by or included in Our APIs may be offered under an open source licence. Open source software licences constitute separate written agreements. For certain APIs, open source software is listed in the documentation or on Our website. To the limited extent the open source software licence expressly supersedes the Terms, the open source licence instead details Your agreement with Us for the applicable open source software.
- The APIs are designed to help You enhance Your use of our Services (“API Client(s)”). You agree that We may monitor use of the APIs to ensure quality, improve Our products and Services and verify Your compliance with this Agreement. This monitoring may include Us accessing and using Your API Client, for example to identify security issues that could affect Us or Our users. You will not interfere with this monitoring. We may use any technical means to overcome such interference. We may suspend access to the APIs by You or Your API Client without notice if We reasonably believe that You are in violation of this Agreement.
- You will use commercially reasonable efforts to protect user information collected by Your API Client, including personal information, from unauthorised access or use and will promptly report to Your users any unauthorised access or use of such information to the extent required by applicable law.
- We do not acquire ownership in Your API Clients, and by using Our APIs, You do not acquire ownership of any rights in Our APIs or the content that is accessed through Our APIs.
- Your application must include Your own user agreement and privacy policy. These must be prominently displayed where users access, register for, or download Your application. Your privacy practices must comply with all applicable legal standards and must obtain valid, informed consent from users for the collection, use, storage and sharing of personal data, where required by law (including under the Australia Privacy Act. GDPR, CCPA or other applicable legislation). Your privacy policy must also outline users’ rights, including the right to request deletion or correction of their personal data, and must provide a process to exercise such rights.
- Each party acknowledges that the other party may be independently creating applications, content and other products or services that may be similar to or competitive with those of the other party and nothing in this Agreement will be construed as restricting or preventing each party from creating and fully exploiting such applications, content and other items, without any obligations to the other party.
6. User-Generated Content
- For the purposes of this Agreement:
- “Content” means any form of information, data or creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, tools, text, ideas, communications, replies, “likes,” comments, software, scripts, executable files, graphics, maps, routes, geo-data, workouts and workout data, biometric data and data elements, training plans, sleep activity, annotations, nutrition information, recipes, interactive features, designs, copyrights, trademarks, service marks, branding, logos, and other similar assets, patents, sounds, applications and any intellectual property in such content, any of which may be generated, provided, or otherwise made accessible on or through the Services;
- “User Content” means any Content that a user of the Services submits, transfers, or otherwise provides to or through the use of the Services.
- GymAware users may post, upload, and/or contribute (“post”) User Content.
- You promise that, with respect to any User Content You post, You have the right to post such User Content and such User Content, or its use by Us as contemplated by this Agreement, does not violate the Agreement, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of You or Your User Content by Us.
- We may, but have no obligation to, monitor, review, or edit User Content or accounts and/or activities conducted through or in any way related to the Services. In all cases, We reserve the right to remove or disable access to any User Content or an account or Service for any or no reason, including but not limited to, User Content or conduct by You that, in Our sole discretion, violates this Agreement. We may take these actions without prior notification to You or any third party. Removal or disabling of access to User Content, an account or the Services will be at Our sole discretion, and We do not promise to remove or disable access to any specific User Content, account or Services.
- You are solely responsible for all User Content that You post. We are not responsible for User Content nor do We endorse any opinion contained in any User Content. You must hold, and continue to hold, all necessary intellectual property rights in Your data and contents (including, without limitation, copyright and trade mark rights), or be licensed to do so. The terms under which You hold or license Your data and content must permit Us to carry out Our obligations to You in providing the Services. You grant Us a non-exclusive, royalty-free, irrevocable licence to use and reproduce all Your data and content in order to fulfil Our obligations under this Agreement.
- You agree that if anyone brings a claim against Us related to User Content that You post, then, to the extent permissible by law, You will indemnity and hold Us harmless from and against all damages, losses and expenses of any kind (including reasonable attorney fees and costs) arising out of such claim.
- If you provide feedback, ideas or suggestions to Us in connection with the Services (“Feedback”), You acknowledge that the Feedback is not confidential and You authorize Us to use that Feedback without restriction and without payment to You. Feedback is considered a type of User Content.
- You are solely responsible for dealing with persons who access Your data and You will not refer complaints or inquiries in relation to such access to Us. We are not responsible to You or any third party for unauthorised access to Your data or the unauthorised use of the Services. You are responsible for the use of the Services by any employee of Yours, any person You authorise to use the Services, any person to whom You have given access to the Services, and any person who gains access to Your data or the Services as a result of Your failure to use reasonable security precautions, even if such use was not authorised by You.
- You agree that We may collect and generate data with respect to and report on aggregate measures of the Services’ performance and use and make available such data for Our business purposes.
7. User guidelines
- You may need to register for an account to access or use certain Services. Your account may also automatically provide You with access and a means to use any new Services.
- When you create an account for any of Our Services, You promise that any registration information that you submit to Us is true, accurate, and complete, and You agree to keep it that way at all times.
- You are responsible for maintaining the confidentiality of any and all actions that take place while using Your account.
- When using Our Services, You agree that You will not:
- copy, redistribute, reproduce, “rip”, record, transfer, perform or display to the public, broadcast, or make available to the public any part of the Services, or otherwise making any use of the Services which is not expressly permitted under this Agreement or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Services;
- use the Services to import or copy any local files You do not have the legal right to import or copy in this way;
- transfer copies of cached content from an authorized Device to any other Device via any means;
- reverse-engineer, decompile, disassemble, modify, translate, or create derivative works based on the Services, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software or software applications, documentation or data related to the Services unless permitted by applicable law;
- circumvent any technology used by Us or any third party to protect the Services;
- sell, rent, sublicense or lease any part of the Services;
- circumvent any territorial restrictions applied by Us;
- manipulate the Services by using a script or other automated process;
- remove or alter any copyright, trademark, or other intellectual property notices contained on or provided through the Services (including for the purpose of disguising or changing any indications of the ownership or source of the Services);
- provide Your password to any other person or use any other person’s username and password except where You are authorised to manage a team, group, or organisation account, in which case shared access credentials may be used strictly within Your authorised role and solely for the purpose of administering the account. In such cases, You are responsible for ensuring that all individuals with access comply with this Agreement and maintain the confidentiality and security of all login credentials;
- “crawl” the Services or otherwise use any automated means (including bots, scrapers, and spiders) to collect information from Us; or
- Sell, rent or otherwise transfer control of a user account, or otherwise accept any compensation, financial or otherwise, to influence the name of an account or the content included on an account.
- You agree that You will not engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:
- is offensive, abusive, defamatory, pornographic, threatening, or obscene;
- is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of Ours or a third party;
- includes Your password or purposely include any other user’s password or purposely include personal data of third parties or is intended to solicit such personal data;
- includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Services;
- is intended to or does harass or bully other users;
- impersonates or misrepresents Your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
- uses automated means to artificially promote content;
- involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar;
- involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by Us;
- links to, references, or otherwise promotes commercial products or services, except as expressly authorized by Us;
- interferes with or in any way disrupts the Services, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Services or Our computer systems, network, usage rules, or any of Our security components, authentication measures or any other protection measures applicable to the Services; or
- conflicts with this Agreement, as determined by Us.
- You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of Your account. You also agree that We may also reclaim your username for any reason.
- Your password protects Your user account, and You are solely responsible for keeping Your password confidential and secure. You understand that You are responsible for all use of Your username and password on the Services. If Your username or password is lost or stolen, or if You believe there has been unauthorized access to Your account by third parties, please notify Us immediately and change Your password as soon as possible. You will cooperate with Us in establishing a password or other procedures for verifying that only You have access to any administrative functions of the Services.
8. Service limitations and modifications
- We will make reasonable efforts to keep the Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to You, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature of the Services.
- You understand, agree, and accept that We have no obligation to maintain, support, upgrade, or update the Services, or to provide all or any specific content through the Services.
9. Payment terms
- All charges payable by You to Us for the Services will be detailed in a quotation sent to You by Us or in Our online store https://www.kinetic.com.au/gymaware-shop.html (‘Fees’).
- We will not provide Services to You until you have paid Our Fees or we have received a purchase order from You. In cases where You supply Us with a purchase order, all Fees will be due and payable within 30 days of Your receipt of Our invoice, or on other terms separately agreed with Us by You.
- Upon registration of a credit card account, You give Us authorisation to debit Your credit card for all fees by You to Us. You must have authority to use the payment method You provide to Us.
- Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. You agree to pay such taxes unless You have provided Us with a valid exemption certificate. In the case of any withholding requirements, You will pay any required withholding Yourself and will not reduce the amount paid to Us on account of such withholding.
- Without prejudice to Our other rights and remedies under this Agreement, we will not commence or continue provision of the Services to you if any sum payable is not paid on or before the due date, We reserve the right, at Our discretion, to suspend the provision of Services to You until we receive the required payment (including any late payment fees, interest, debt recovery charges and reactivation fees) in full.
10. Export control
- You agree to comply with all applicable export and reexport control laws and regulations, trade and economic sanctions. Specifically, You agree that You will not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Us under this Agreement to any destination, entity, or person prohibited by any applicable laws or regulations without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause will survive termination or cancellation of this Agreement.
11. International terms
- If You are not an Australian resident and you are accessing Our Services from outside Australia, You agree to transfer certain information outside Your home country to Us, and that You will comply with all laws that apply to You.
- If You are located in the European Union, European Economic Area (EEA), or the United Kingdom, We process Your personal data in accordance with the General Data Protection Regulation (EU) 2016/679 (GDPR), the UK GDPR, and other applicable data protection laws. For more information on how We process personal data and the rights available to You under these laws, please refer to Our Privacy Policy.
- We provide Our Services for a global community of users. Our company however, is based in Australia and Our server is based in the United States (this is where Our Cloud data is stored). Our policies and procedures are based primarily on Australian law. Because of this, the following provisions apply specifically to users located outside of Australia:
- You consent to the transfer, storage, and processing of Your information, including but not limited to User Content and any personal data, in jurisdictions outside Your country of residence, including in the United States and Australia;
- if You are using the Services from a country embargoed by Australia, the United States, or the European Union, or are on any applicable government sanctions list (such as the United States Treasury Department’s list of “Specially Designated Nationals,”) You are not authorized to access or use the Services; and
- You agree to comply with all local laws, rules, and regulations applicable to You including, without limitation, all laws, rules, and regulations in effect in the country in which You reside and the country from which You access the Services (including consumer protection laws, privacy and data protection law, tax regulations, content and communications laws and laws governing the use of online platforms and digital services).
- The Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or that would subject Us to any registration requirement within such jurisdiction or country.
12. Archiving and Backup of Your Data
- We will archive Your data on a regular basis for the purposes of disaster recovery. While We will use our best endeavours to maintain an up to date back-up of Your data, we do not guarantee that we will hold the latest version at the time of equipment failure or data corruption. In the event of equipment failure or data corruption, We will restore from the last known good archive of Your data that we hold.
- You acknowledge and agree that You are solely responsible for maintaining separate and up-to-date backups of any critical data or content that You upload or store using Our Services. We will not be liable for any loss of data or content where You have failed to maintain such backups.
- If You are subject to data protection laws (including but not limited to GDPR or similar international laws), You agree to promptly and securely delete or anonymise a user’s personal data upon their verified request, unless You have a lawful basis for retaining it. You are solely responsible for responding to and fulfilling such requests.
13. Returns and Refunds
- Thanks for purchasing Our products and Services. If You are not entirely satisfied with Your purchase, We’re here to help.
- To initiate a return or request a refund, please contact Us at office@kinetic.com.au with details of Your purchase and the reason for return. We will provide instructions on how to proceed, which may include completing a return or providing proof of purchase.
- For physical products, You have 30 calendar days to return an item from the date You received it. To be eligible for a return, Your item must be unused and in the same condition that You received it. Your item must be in the original packaging. Your item needs to be returned with the receipt or proof of purchase.
- Once we receive Your item, We will inspect it and notify You that we have received Your returned item. We will immediately notify You on the status of Your refund after inspecting the item.
- If Your return is approved (in Our absolute discretion), We will initiate a refund to Your original method of payment. Refund processing times may vary depending on Your card issuer’s policies.
- You are responsible for paying for Your own shipping costs for returning Your item. Shipping costs are non refundable.
- The following restocking fees apply:
- FLEX: $50 restocking fee for 1 unit; $100 for 2 or more units
- GymAware: $110 restocking fee per unit; $220 for 2 or more units
- For digital products and Services, including subscriptions or digital software downloads, refunds are generally not provided once the Service has been accessed or delivered, unless required under Australian Consumer Law or otherwise agreed by Us in writing.
- If You cancel a digital subscription, You will continue to have access to the Service until the end of Your current billing cycle, unless We determine otherwise. No pro-rata refunds will be issued for unused portions of the subscription period, unless required under law.
14. Term and termination
- The Agreement will continue to apply to You until terminated by either You (via formal notification to Us or You returning goods to Us) or Us.
- We may suspend or terminate this Agreement, Your account or the Services if:
- You breach this Agreement and fail to rectify any remediable breach within 7 days of Us notifying You to do so;
- the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on Your behalf;
- You become insolvent;
- You are declared bankrupt;
- We are ordered to do so by a court, law or government body or pursuant to an arbitration award;
- We, in our sole discretion, determine You have created risk or possible legal exposure for Us, the general public, any third party, any user of Our Services;
- We determine to discontinue or modify the Services; or
- there is another event for which We reasonably believe that the termination or suspension of the account or Service is necessary to protect Our Services or Our other customers.
- In addition to any other rights We may have under this Agreement, You agree that We may, without notice to You and without any liability to Us, amend, alter or take down Your data or content if We:
- receive an order from a court or other competent body requiring Us to do so;
- are directed to do so by any regulatory body or authority or industry association;
- consider in Our sole discretion that You are breaching this Agreement including without limitation, by infringing third party intellectual property rights, or because Your data or content is defamatory, illegal, obscene or breaches a person’s privacy.
- If Your account has been suspended or terminated due to Your breach, reactivation of Your account will be at Our discretion. If We agree to reactivate Your account, We will require payment in full of all outstanding amounts.
- You may terminate Your account with Us for any reason at any time by giving Us 30 days notice advising Us that You will do so. Unless You are terminating Your account due to a breach of this Agreement by Us, refunds for monies paid in advance are not provided.
- If We wish to terminate your Services for reasons other than a breach of this Agreement, We can do so by giving You 30 days written notice. In this circumstance, We will refund any remaining unused credit on your account.
- All provisions of this Agreement that, by their nature, should survive termination will do so, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
- If Your account is closed for whatever reason You must pay all outstanding charges immediately.
- Subject to Our legislative obligations, We are under no obligation to provide You with a copy of Your data or content if We have suspended or terminated Your access to the Service for Your breach. If We provide You with a copy of Your data or content in such circumstances, We are entitled to charge a fee for doing so. If We terminate Your account or any Services in such circumstances, We may also at Our discretion destroy Your data or content. If Your data or content is destroyed it may not be recoverable.
15. Warranty and disclaimer
- We endeavour to provide the best service We can, however You understand and agree that the Services are provided on an ‘as is’ and ‘as available’ basis, without express or implied warranty or condition of any kind. You use the Services at Your own risk.
- To the fullest extent permitted by law:
- We make no representations and disclaim any warranties or conditions of satisfactory quality, merchantability, fitness for purpose, or non-infringement;
- We do not warrant that the Services are free of malware or other harmful components;
- We make no representation, warranty, endorsement or guarantee and assume no responsibility for any third party applications (or content), User Content, or any other product or service advertised or offered by a third party on or through the Services;
- We make no guarantee that unauthorized third parties will not be able to defeat Our security measures; and
- We do not warrant that the Services provided under this Agreement will be uninterrupted, error free or completely secure, will meet Your requirements, other than as expressly set out in this Agreement, will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Ours, or will produce any particular results, data, sales or other return.
- Our Services are not intended to diagnose, treat, cure, or prevent any medical condition or to be a substitute for professional health advice. You use the Services at Your own risk. You should consult a healthcare professional before starting any fitness program.
16. Limitation of Liability
- You agree that, to the extent permitted by law, Your sole and exclusive remedy for any problems or dissatisfaction with the Services is to uninstall any of Our software and to stop using the GymAware app and/or return goods to Us.
- To the extent permitted by law, in no event will We be liable for any indirect, special, incidental, punitive, exemplary or consequential damages, any loss of use, data, business or profits (whether direct or indirect), in all cases arising out of the use or inability to use the Services.
- To the maximum extent permitted by law, we exclude all warranties and representations (express or implied) not expressly set out in this Agreement. In particular, we do not warrant that the Services will be error-free, uninterrupted or meet Your requirements.
- To the extent permitted by law, aggregate liability for all claims relating to the Services will not exceed the amount paid by You to Us in the 12 months prior to the claim being made by You in aggregate.
- Nothing in this Agreement removes or limits Our liability for fraud, fraudulent misrepresentation, death or personal injury caused by Our negligence, and, if required by applicable law, gross negligence.
- To the extent permitted by law, We are not responsible for any loss of data, content, or User Content where You have failed to maintain adequate and up-to-date backup copies of such data or content independently of the Services. You acknowledge that maintaining separate and current backups of any critical data is Your sole responsibility.
- In the event that this Agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) nothing contained in this Agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon You pursuant to the Competition and Consumer Act 2010 (Cth) Our sole liability for breach of any such remedy or guarantee will be limited to the remedies available under that Act.
17. Indemnification
- To the fullest extent permitted by law, You agree to indemnify and hold Us harmless from and against all damages, losses, liabilities, claims, demands, and expenses of any kind (including reasonable attorney fees and costs) arising out of or relating to:
- Your breach of this Agreement;
- any User Content You submit, post or otherwise make available through the Services;
- any activity in which You engage on or through the Service; and
- Your violation of any law or the rights of a third party.
- Without limiting clause 17.1, You agree to indemnify and hold Us harmless from and against any losses, claims, damages, liabilities, or expenses (including legal fees) arising out of or related to Your failure to maintain adequate backups of data or content stored or processed using the Services.
- If you are using the Services on behalf of a minor, you represent and warrant that you are their legal guardian and agree to be fully responsible for all use of the Services, including any liability incurred.
18. Miscellaneous
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided in this Agreement.
- No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind Us in any respect.
- In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
- All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
- We will not be liable for any loss resulting from a cause over which We do not have direct control.
- This Agreement is governed by the laws of the Australian Capital Territory, Australia. Both parties submit to the non-exclusive jurisdiction of its Courts.
- We are permitted to use Your name and logos in sales and marketing materials and We may disclose that You are one of Our customers to any third-party at Our sole discretion.
19. Australian Consumer Law (ACL)
- Nothing in this Agreement excludes, restricts or modifies any rights, guarantees, warranties or remedies You may have under the Competition and Consumer Act 2010 (Cth) or any other applicable consumer protection laws in Australia, which cannot be excluded, restricted or modified by agreement (“Non-Excludable Rights”).
- Our goods and services may come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and 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.
- Where Our liability for breach of a guarantee under the Australian Consumer Law can be limited, it is limited to (at Our discretion):
- In the case of goods: the replacement of the goods, the supply of equivalent goods, the repair of the goods, or the payment of the cost of replacing the goods or acquiring equivalent goods;
- In the case of services: the resupply of the services or the payment of the cost of having the services supplied again.
