Terms of service.
Welcome to Sandglass (the 'Application'). The Application provides activity tracking, locations maps and performance data analysis (the 'Services'). We want you to know and understand your rights and our rights relating to the provision of the Services (as defined below). Please review them carefully.
Here are a few highlights:
Your privacy is critically important to us. See how we collect and use your personal information in our Privacy Policy.
You can cancel your subscription or delete your account at any time.
You own your content, but give us a right to use it.
We expect you to be respectful and we can cancel your account if you act inappropriately.
Spacepixels is not liable for your activities and no warranties are made by Spacepixels.
We can cancel your account if you act inappropriately.
We want your feedback, and you allow us to use it.
You agree to arbitrate if there is a dispute between us.
There are easy ways to reach us if you have questions or need help.
Terms of Service
The Sandglass websites, related mobile applications and services (collectively, the “Services”) are made available to you by Spacepixels (ABN 98 487 851 882). Access to and use of the Application, or any of its associated Products or Services, is provided by Spacepixels. subject to these Terms of Service (the “Terms”) and in accordance with the Spacepixels Privacy Policy (the “Privacy Policy”). More information about the Services may be found at https://sandglassapp.com. You agree to comply with these Terms and any supplemental terms which Spacepixels makes available to you on the Services which shall form part of the Terms. BY ACCESSING, USING OR UPLOADING OR DOWNLOADING ANY INFORMATION OR MATERIALS TO OR FROM THE SERVICES, OR BY INDICATING YOUR ASSENT TO THESE TERMS BY CREATING AN ACCOUNT, CLICKING “SIGN UP” OR ANY SIMILAR MECHANISM, YOU ARE AGREEING TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICES. This agreement was written in English. To the extent a translated version of the Terms conflict with the English version, the English version controls.
If you access or use the Services on behalf of a company or other entity, you represent that you have authority to bind such entity and its affiliates to these Terms and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Services. These Terms contain disclaimers of warranties and limitations on liability that may be applicable to you.
The Spacepixels Services cannot be provided and the agreement described in these Terms of Service cannot be performed without Spacepixels processing data about you, and other Spacepixels paddlers, including your location data. Processing of the data you share with Spacepixels, including location data, is essential to the Services which we provide and a necessary part of our performance of the agreement we have with you.
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how disputes between you and Spacepixels are resolved, including an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration and limit you to claims against Spacepixels on an individual basis, unless you opt-out in accordance with the instructions below.
Registration and Accounts
The Services are intended solely for persons who are 13 years old or such higher age required in your country to use the Services. If you are under the legal age to form a binding contract in your jurisdiction, you represent that your parent or legal guardian has reviewed and agreed to these Terms on your behalf.
To use the Services, you must register. You agree to: (a) provide true, accurate, current and complete information about yourself (“Paddler Data”) and (b) maintain and promptly update the Paddler Data. You agree that Spacepixels may use your Paddler Data to provide Services that you access or use and as otherwise set forth in these Terms. If you provide any Paddler Data that is inaccurate or not current, or Spacepixels has reasonable grounds to suspect that such Paddler Data is inaccurate or not current, Spacepixels has the right to suspend or terminate your account and refuse current or future use of the Services. In consideration of your use of the Services, you represent that you are not a person barred from receiving services under the laws of any applicable jurisdiction.
You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password, your computer and mobile device while logged into the Services. You accept responsibility for all activities that occur under your account or from your computer and mobile devices. We endeavour to use reasonable security measures to protect against unauthorised access to your account. We cannot, however, guarantee absolute security of your account, your Content (as defined below) or the personal information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Services or its contents. You agree to immediately notify Spacepixels of any unauthorised use of your account or password, or any other breach of security, and confirm that you understand all risks of unauthorised access to Paddler Data and any other information or content you provide to Spacepixels.
You may register for or log-in to your account via a third-party network, such as Facebook or Google. If you do so, you hereby authorise Spacepixels to pre-populate the registration and other relevant information fields of your account and/or to use such third-party credentials to log you into your account. If you connect your account to a third-party network, you agree to comply with the terms and conditions and policies applicable to such third party.
By virtue of certain Services connecting to the Google Maps API, you hereby agree to be bound by the Google Maps/Google Earth Additional Terms of Service (including the Google Privacy Policy) in connection with your use of such Services.
Payments and Fees
Payments
All payments made in the course of your use of the Services are made using 'Apple' or 'Google'. In using the Application, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the 'Apple' or 'Google' terms and conditions which are available on their Application.
Fees
In order to access certain functionality of the Services, you may be required to pay subscription fees. Subscription fees, along with any required taxes, may be paid on a monthly or annual basis. All subscription fees are payable in advance. Paddlers changing from monthly to annual subscriptions will have the annual rates take effect at the beginning of the next billing date.
You agree to pay the subscription fees, and other charges you incur in connection with your Sandglass account, whether on a one-time or subscription basis. Spacepixels reserves the right to increase subscription fees, any associated taxes, or to institute new fees at any time upon reasonable advance notice.
You acknowledge and agree that where a request for the payment of the Subscription Services Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Subscription FeeServices Fee.
Auto-Renewal
Subscription fees will be billed automatically at the start of the monthly or annual period, as applicable. These fees will auto-renew until your subscription is downgraded or terminated.
You agree and acknowledge that Spacepixels can vary the Subscription FeeServices Fee at any time and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period.
Cooling Off
If you reside outside the United States, you may be entitled to change your mind and receive a full refund within fourteen (14) days (the “Cooling-off Period”), provided that you have not logged in or otherwise redeemed or started to use the Services as a subscriber during the Cooling-off Period.
Cancellation
Cancellation of Subscription
If you signed up through the Google Play or iTunes store, you may cancel your subscription by downgrading through the corresponding store. The cancellation of a subscription will go into effect at the end of your current billing cycle. When your subscription ends, your account will remain and become a free subscription. You can renew your subscription at any time without opening a new account, although the subscription fees may have increased. You can delete your account at any time.
Free Trials
Your subscription may start with a free trial. The free trial period for any subscription will last for the period of time specified when you signed up. Free trials may not be combined with certain other offers, as specified. If you begin your subscription with a free trial, we will begin billing your Payment Method for subscription fees at the end of the free trial period of your subscription unless you cancel your subscription prior to the end of the free trial period. Your Payment Method will be authorised for up to approximately one month of service as soon as you register for a free trial. In some instances, your available balance or credit limit may be reduced to reflect the authorization; however, no charges will be made against the Payment Method unless you do not cancel prior to the end of your free trial period. You may cancel your subscription at any time by going to your account settings.
Content and Conduct
Content
You own the information, data, text, software, sound, photographs, graphics, video, messages, posts, tags, or other materials you make available in connection with the Services (“Content”), whether publicly posted, privately transmitted, or submitted through a third party API (e.g. a photograph submitted via Instagram). You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display any Content and any name, username or likeness that you post on or in connection with the Services in all media formats and channels now known or later developed without compensation to you. This licence ends when you delete your Content or your account.
You understand that you, and not Spacepixels, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Services. Spacepixels does not routinely screen or monitor the Content posted to the Services by others and, as such, does not guarantee the accuracy, integrity or quality of such Content. Spacepixels may, in its sole discretion, screen, monitor, hide, refuse or remove any Content, or remove any Content that violates the Terms or is otherwise objectionable. Under no circumstances will Spacepixels be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available on the Services. You agree to bear all risks associated with the use of any Content available in connection with the Services, including any reliance on the accuracy, completeness, or usefulness of such Content.
You agree that Spacepixels is not responsible for, and does not endorse, Content posted on the Services. If your Content violates these Terms, you may bear legal responsibility for that Content. As between you and Spacepixels, any Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with Spacepixels is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place Spacepixels in a position that is any different from the position held by members of the general public, including with regard to your Content. Your Content will not be subject to any obligation of confidence on the part of Spacepixels other than as set forth in our Privacy Policy and your privacy controls, and Spacepixels will not be liable for any use or disclosure of any Content you provide.
Conduct
We expect you to honour the Spacepixels Community Standards. The Services are for your personal and noncommercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell for any commercial purposes any portion of the Services, use of the Services or access to Content. You may not use the Services, or assist or encourage any other party, to engage in any of the following Prohibited Activities:
Copying, framing or mirroring any part of the Services;
Accessing the Services to monitor its availability, performance or functionality;
Permitting any third party to access the Services;
Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Services or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to Spacepixels;
Publishing, transmitting, distributing or storing content, material, information or data that: (1) is illegal, obscene, defamatory, threatening, harassing, abusive, or hateful or that advocates violence; (2) is harmful to or interferes with the Services or any third party’s networks, equipment, applications, services or websites (e.g., viruses, worms, Trojan horses, etc.); (3) infringes, dilutes, misappropriates or otherwise violates any privacy, intellectual property, publicity or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets or other proprietary information (including unauthorised use of domain names); or (4) is fraudulent or contains false, deceptive or misleading statements, claims or representations (such as “phishing”);
Attempting to disrupt, degrade, impair or violate the integrity or security of the Services or the computers, services, Accounts or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Spacepixels internet protocol space;
Avoiding payment of charges or fees payable by you with respect to the Services;
Committing any act that may be harmful to minors;
Distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”;
Using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to Spacepixels than a human can reasonably produce in the same period of time by using a conventional web browser;
Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
Collecting or harvesting any information relating to an identified or identifiable individual, including account names and information about users of the Services, from the Services;
Using the Services for any inappropriate commercial solicitation purposes;
Accessing any content on the Services through any technology or means other than those provided or authorized by the Services;
Submitting to the Services or to Spacepixels any personally identifiable information, except as necessary for the establishment and operation of your account;
Submitting to the Services or to Spacepixels any information that may be protected from disclosure by applicable law;
Bypassing the measures we may use to prevent or restrict access to the Services, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein;
Violating any applicable law, statute, ordinance or regulation, or encouraging any conduct that could constitute a criminal offence or give rise to civil liability;
Removing any copyright, trademark or other proprietary rights notices contained in or on the Services; or
Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Service’s servers or any data not intended for you.
You are granted a limited, non-exclusive right to create a text hyperlink to the Services for non-commercial use only, provided such link does not portray Spacepixels or any of its products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any pornographic, illegal, offensive, harassing or otherwise objectionable material.We reserve the right to revoke this licence generally, or your right to use specific links, at any time, with or without cause.
You understand that use of certain features of the Services may require you to purchase third party equipment or materials (e.g., GPS systems). While Spacepixels may recommend the equipment or materials of certain third party suppliers, Spacepixels shall have no responsibility for your acquisition or use of any third party equipment or materials and does not guarantee that third party equipment or materials will function with the Services or will be error-free.
You understand that you are responsible for any charges associated with sending communications via your device. You hereby acknowledge that you have the right to communicate with your contacts via the Services
You represent and warrant that: (i) you are authorised to create your account, whether individually or on behalf of an organisation; (ii) you own the Content posted by you on or through the Services or otherwise have the right to grant the rights and licences set forth in these Terms; (iii) the posting and use of your Content on or through the Services does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy and data protection rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iv) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Services.
Third Parties
Third party products and services made available on the Services are made and offered directly by the applicable third party. When you pursue or purchase any such product or service, you acknowledge that you are contracting directly with such third party and not with Spacepixels. Your interaction with, or participation in promotions of, third parties found on or through the Services, including payment and delivery of goods or services, and any other terms, are solely between you and such third party. You are not obligated to use or transact business with any third party that appears on the Services. YOU AGREE THAT Spacepixels SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU AS THE RESULT OF ANY OF YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES.
Spacepixels or third parties may provide links to other internet sites or resources through the Services. Spacepixels does not endorse and is not responsible or liable for any content, information, advertising, products or other materials on or available from such sites or resources. You acknowledge and agree that Spacepixels is not responsible for the availability of such external sites or resources.
Electronic Communications
The Services may provide you with the ability to send or post messages to forums or chat rooms, speak via internet voice connections or send similar messages and communications to third party service providers, advertisers, your personal contacts, other paddlers and/or Spacepixels. You agree to use communication methods available on the Services only to send communications and materials related to the subject matter for which Spacepixels provided the communication method, and you further agree that all such communications by you shall be deemed your Content and shall be subject to and governed by the Terms and applicable law (including laws regulating direct marketing communications with which you will need to comply with, as applicable). By using communications methods available on the Services, you agree that (a) all communications methods constitute public, and not private, means of communication between you and the other party or parties, (b) communications sent to or received from third party service providers, advertisers or other third parties are not be endorsed, sponsored or approved by Spacepixels (unless expressly stated otherwise by Spacepixels) and (c) communications are not routinely pre-reviewed, post-reviewed, screened, archived or otherwise monitored by Spacepixels in any manner, though Spacepixels reserves the right to do so at any time at its sole discretion. You agree that all notices, disclosures and other communications that we provide to you electronically shall satisfy any legal requirement that such communications be in writing.
Copyright and Intellectual Property
The Application, the Services and all of the related products of Spacepixels are subject to copyright. The material on the Application is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Application (including but not limited to text, graphics, logos, button icons, video images, audio clips, Application, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Spacepixels or its contributors.
You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), any aggregated data based on Content on the Services, and any Content available or made available on the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorised by Spacepixels or applicable third party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or Content available on the Services (other than Content that you may submit), in whole or in part.
Spacepixels grants you a personal, revocable, non-transferable, non-sublicensable and non-exclusive right and licence to access and use the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services, except where permitted by law. You agree not to access the Services by any means other than through the interfaces that are provided by Spacepixels.
The term Spacepixels, the Spacepixels logo and other Spacepixels logos and product and service names are the exclusive trademarks of, and are owned by, Spacepixels, and you may not use or display such trademarks in any manner without Spacepixels’s prior written permission. Any third party trademarks or service marks displayed on the Services are the property of their respective owners.
Spacepixels reserves all rights not expressly granted hereunder.
Claims of Infringement
Spacepixels reviews claims of trademark infringement. If you believe in good faith that materials hosted by Spacepixels infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorised to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work or trademark claimed to have been infringed (or, if multiple copyrighted works or trademarks located on the Services are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Spacepixels to locate the material on the Services; (d) the name, address, telephone number, and e-mail address (if available) of the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorised by the copyright or trademark owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorised to act on behalf of the owner of an exclusive right that is allegedly infringed. Please be advised that Spacepixels will not respond to complaints that do not meet these requirements. If Spacepixels determines that the materials alleged to infringe your copyright or trademark rights do not require removal, Spacepixels will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.
Agent to Receive Notices of Claimed Infringement:
Spacepixels
PO Box 623
Broadway NSW 2007
AUSTRALIA
Attn: Copyright
Competitors
If you are in the business of providing similar Services for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of Spacepixels. Competitors are not permitted to use or access any information or content on our Application. If you breach this provision, Spacepixels will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
Your Feedback
We welcome your comments, feedback, suggestions, and other communications regarding the Services and the information and services we make available through the Services (collectively, “Feedback”). If you provide Feedback, you hereby grant to Spacepixels a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free licence to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not send Spacepixels any Feedback that you do not wish to license to us as set forth above.
Disclaimer of Warranties and Liability
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY. SPACEPIXELS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. SPACEPIXELS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT: (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) YOUR CONTENT WILL BE AVAILABLE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (e) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
YOU EXPRESSLY AGREE THAT SPACEPIXELS IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICES. THE CONTENT PROVIDED THROUGH THE SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER ACCOUNT HOLDERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (a) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (b) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (c) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTH RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 000 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT ON THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND SPACEPIXELS.
YOU EXPRESSLY AGREE THAT YOUR PADDLING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, SURF SKI PADDLING, OUTRIGGER CANOEING, KAYAKING, SWIMMING, SURFING, SAILING, OR FOLLOWING A SPACEPIXELS TRAINING PLAN OFFERED ON THE SERVICES) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF SPACEPIXELS OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS.
YOU EXPRESSLY AGREE THAT SPACEPIXELS DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY RACE, CONTEST, CHALLENGE, OR GROUP ACTIVITY THAT UTILISES THE SERVICES, INCLUDING ANY THAT ARE ORGANISED BY A CLUB ADMINISTRATOR.
YOU EXPRESSLY AGREE TO RELEASE SPACEPIXELS, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, PARTNERS AND LICENSORS (THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY IN CONNECTION WITH YOUR ATHLETIC ACTIVITIES AND/OR USE OF THE SPACEPIXELS WEBSITES, MOBILE APPLICATIONS, CONTENT, SERVICES OR PRODUCTS (INCLUDING, WITHOUT LIMITATION, ANY SPACEPIXELS TRAINING PLAN), AND PROMISE NOT TO UNDERTAKE LEGAL ACTION AGAINST THE RELEASED PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGES, OR LOSSES ASSOCIATED WITH SUCH USE. YOU ALSO AGREE THAT IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (a) YOUR USE OR MISUSE OF THE SERVICES, (b) YOUR USE OR MISUSE OF EQUIPMENT OR PROGRAMS CREATED OR LICENSED BY SPACEPIXELS (INCLUDING, WITHOUT LIMITATION, ANY SPACEPIXELS TRAINING PLAN) WHILE ENGAGED IN ATHLETIC ACTIVITIES, (c) YOUR DEALINGS WITH THIRD-PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES, (d) ANY DELAY OR INABILITY TO USE THE SERVICES EXPERIENCED BY YOU, OR (e) ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SPACEPIXELS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
SPACEPIXELS DOES NOT ENDORSE YOUR CONTENT OR ANY OTHER PADDLER’S CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT ON THE SERVICES.
THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU PURSUANT TO THESE TERMS SHALL NOT EXCEED THE GREATER OF EITHER (a) FIFTY DOLLARS ($50) OR (b) THE AMOUNT OF FEES PAID BY YOU TO SPACEPIXELS IN THE 12-MONTHS PRIOR TO DATE OF THE CLAIM.
IF YOU ARE A CONSUMER RESIDING IN THE EUROPEAN UNION, YOU HAVE LEGAL REMEDIES IF WE CAUSE YOU LOSS BY OUR BREACH OR NON-PERFORMANCE OF OUR LEGAL OBLIGATIONS, OR BY OUR NEGLIGENCE, AND THESE TERMS DO NOT AFFECT THOSE STATUTORY REMEDIES.
Indemnity
You agree to indemnify and hold Spacepixels and its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise seek to make available through the Services, your use of the Services, your paddling activities which generate the Content you record on the Services (including, but not limited to, paddling activities in connection with any contests, races, group rides, or other events which Spacepixels sponsors, organises, participates in, or whose Services are used in connection with), your connection to the Services, your violation of the Terms, your violation of any data protection or privacy laws, or your violation of any rights of another person or entity. Your rights with respect to Spacepixels are not modified by the foregoing indemnification if the laws of your country of residence, applicable as a result of your use of our Services, do not permit it.
Dispute Resolution
Compulsory
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
Notice
A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
Resolution
On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:
Within '14' days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
If for any reason whatsoever, '28' days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the 'Australian Mediation Association' or his or her nominee;
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertaking to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
The mediation will be held in Sydney, Australia.
Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
Termination of Mediation
If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
Class-Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception—Litigation of Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Thirty-Day Right to Opt Out
You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: Spacepixels, Attn: Legal Department, PO Box 623, Broadway NSW 2007, Australia. The notice must be sent within 30 days of registering to use the Services; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt out of these arbitration provisions, Spacepixels also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Spacepixels may terminate your use of the Services.
Time Limitation on Claims
You agree that any claim you may have arising out of or related to your relationship with Spacepixels and these Terms must be filed within one year after such claim arose; otherwise, your claim is permanently barred. This provision does not apply if you are based in the European Union in which case time limitations shall be determined in accordance with governing law for EU users mentioned below.
Venue and Jurisdiction
The Services offered by Spacepixels is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Application, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
If you are a user based in the European Union, then Irish law shall apply to these Terms and the Irish courts shall have exclusive jurisdiction to hear disputes arising in relation to the Terms. Despite this, your local laws in your European Union Member State may allow you to take legal action against Spacepixels in your Member State and to invoke certain local laws against Spacepixels.
Australian Operation
These Services are controlled by Spacepixels from its offices within New South Wales of Australia. Spacepixels makes no representation that the Content or the Services are appropriate or available for use in other locations. Access to or use of the Content or the Services from territories where such access or use is illegal is prohibited. Those who choose to access the Services from locations outside of Australia do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Content in violation of Australian laws and regulations.
Termination
You agree that Spacepixels may, under certain serious circumstances and without prior notice, immediately suspend or terminate your account and/or access to the Services. Cause for such suspension or termination shall include, but not be limited to, (a) breaches or violations of the Terms or other incorporated agreements, policies or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your account may include (x) removal of access to all offerings within the Services, (y) deletion of your information, files and Content associated with your account, and (z) barring further use of the Services. Further, you agree that all suspensions or terminations for cause shall be made in Spacepixels’s sole discretion and that Spacepixels shall not be liable to you or any third party for any suspension or termination of your account or access to the Services. The following Sections shall survive termination of your account and/or the Terms: Content and Conduct, Clubs, Proprietary Rights, Your Feedback, Disclaimer of Warranties and Liability, Indemnity, Choice of Law and Forum, and General.
General
You agree that no joint venture, partnership, joint controllership, employment or agency relationship exists between you and Spacepixels as a result of the Terms or your use of the Services. The Terms constitute the entire agreement between you and Spacepixels with respect to your use of the Services. The failure of Spacepixels to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You may not assign, delegate or otherwise transfer your account or your obligations under these Terms without the prior written consent of Spacepixels. Spacepixels has the right, in its sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms and in connection with the Services. Spacepixels’s notice to you via email, regular mail or notices, posts, or links on the Services shall constitute acceptable notice to you under the Terms. A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Section titles and headings in the Terms are for convenience only and have no legal or contractual effect. Any rights not expressly granted herein are reserved.
Modification of the Terms and Services
Certain provisions of the Terms may be supplemented or superseded by expressly designated legal notices or terms located on particular pages on the Services. Spacepixels reserves the right to update the Terms at any time and for any reason in its sole discretion. Spacepixels will notify you of any material changes to the Terms or to any service or other features of the Services. By continuing to access or use the Services after we have provided you with notice of a modification, you are agreeing to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
Spacepixels and its third party service providers may make improvements and/or changes in the Services, products, services, mobile applications, features, programs, and prices described at any time and for any reason in its sole discretion. The mobile application may download and install upgrades, updates and additional features in order to improve, enhance, and further develop the Services. Spacepixels reserves the right at any time to modify or discontinue, temporarily or permanently, the Services or any portion thereof with or without notice. You agree that Spacepixels shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
Support and Questions
We will respond to any questions regarding the Services and these Terms via https://sandglassapp.com/contact.
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