GOYA EULA - end User License Agreement

End User License Agreement (EULA)

In this End User License Agreement “GOYA or “We” means GOYA Sport Pty Ltd (ABN 24 619 772 664).

This End User License Agreement is a legal agreement between You and GOYA. Permission to use any GOYA Software, is conditional upon you agreeing to the terms set out below. By clicking on the accept button You will be deemed to have accepted this Agreement. By purchasing, downloading, installing, using or otherwise accessing any GOYA Software You are also agreeing to be bound by this Agreement. If You do not agree to all of the terms and conditions of this Agreement then You are not permitted to purchase, download, install or use any GOYA Software.

1.Definitions

Agreement: this End User License Agreement, as may be renewed and/or amended from time to time.

IP Rights: means (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights.

GOYA Promotional Materials: any and all trademarks, names, signs, logos, banners, and any other materials in whatever form owned and/or used by GOYA for the promotion of its company, its products and activities.

GOYA Software: the software distributed by GOYA for human development purposes including but not limited to GOYA, as well as any future versions, improvements, developments, programming fixes, updates and upgrades.

You: You, the end user of the GOYA Software, either as an individual or an entity, also used in the form “Your” where applicable.

2.License and Restrictions

◦ 2.1 License: Subject to the terms and conditions of this Agreement, GOYA hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable, license to download, install and use the GOYA Software. GOYA may offer a free of charge license to download a particular product from GOYA Software either for a limited or unlimited time, or may charge a license fee.

◦ 2.2 License Limited to three computers: You will not have GOYA Software installed, accessed, displayed, run, shared or used concurrently on or from more than three different computers, including a workstation, terminal or other device.

◦ 2.3 No Granting of Rights to Third Parties: You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the GOYA Software either in part or its entirety.

◦ 2.4 No Modifications: You will not undertake, cause, permit or authorise the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the GOYA Software or any part of the GOYA Software except to the extent permitted by law.

◦ 2.5 Exclusive Ownership: Any and all IP Rights in the GOYA Software, the GOYA website and any GOYA Promotional Materials are and shall remain the exclusive property of GOYA and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardise, limit or interfere with GOYA’ IP Rights. Any unauthorised use of GOYA’ IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.

◦ 2.6 No Removal of Notices: You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or GOYA rights and ownership, irrespective of how such Notices are included or displayed.

◦ 2.7 Use of GOYA Software: You may make use of the GOYA Software provided that:

  1. You comply with the GOYA Terms of Use at www.TheGoya.Life
  2. Your use of the GOYA Software is for legitimate purposes only and shall not adversely affect the functionality or performance of the GOYA Software or services provided by GOYA;
  3. You do not use any internet-based services associated with GOYA Software in any manner that could damage or impair such services or interfere with any other party’s use and enjoyment of them; and
  4. You do not attempt to gain unauthorised access to any service, account, computer systems or networks associated with the internet-based services associated with GOYA Software.

3.What You should and should not expect from GOYA Software

◦ 3.1 No Warranties: Installing and using GOYA Software assists You in monitoring of personal wellness, specific planning and goal setting that is relevant to your life journey. GOYA cannot guarantee your results by using this software.

◦ 3.2 New Versions of GOYA Software: GOYA, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades to the GOYA Software (collectively known as “updates”). All provisions in this Agreement apply to all such updates unless new or additional terms and conditions are expressly provided with an update. GOYA may determine that an upgrade will be offered at an additional cost to You either as a further one off payment or on a subscription model.

◦ 3.3 Suspension: GOYA may, in its sole discretion, modify or discontinue or suspend Your ability to use any version of the GOYA Software, and/or disable any GOYA Software You may have already accessed or installed without notice to You, for the repair, improvement and/or upgrade of the underlying technology or for any other justifiable reason including but not limited to, a break or change in the service from a third party or circumstances where You, at GOYA discretion, are in breach of this Agreement, the Terms of Use, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.

4.What we expect from You

◦ 4.1 Payment: You will pay all fees or charges to your account based on GOYA payment terms. If you are purchasing software by GOYA on a subscription model, you may be required to provide GOYA with a valid credit card as a condition to signing up for an account. You are responsible for paying any taxes that may apply and will ensure that the nominated credit card account is valid and has available credit to enable scheduled payments to be withdrawn by GOYA.  If you do not pay on time or if GOYA cannot charge your credit card for any reason, GOYA reserves the right to either suspend or terminate your access to the GOYA Software and/or the services and account and terminate this Agreement. If you have a balance due on any account, you agree that GOYA may charge such unpaid fees to your credit card.

◦ 4.2 Representations: You represent and warrant that You are authorised to enter into and comply with this Agreement. In addition, you represent and warrant that You will at any and all times meet with Your obligations under this Agreement and the Terms of Use, as well as any and all laws, regulations and policies that may apply to the use of the GOYA Software and/or services.

◦ 4.3 Indemnification: You agree to indemnify, defend and hold GOYA and its affiliates harmless from and against any and all liability and costs, including reasonable legal fees incurred by such parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced in this Agreement, or (b) violation of any rights of any third party, or (c) use or misuse of the GOYA Software.

5.Termination and Updates

◦ 5.1 Termination: Without prejudice to any other rights, GOYA or You may terminate this Agreement at any time. Upon termination, (a) all licenses and rights to the GOYA Software shall immediately terminate; and (b) GOYA will disable the GOYA Software associated with your account.

◦ 5.2 New Versions: GOYA reserves the right to change this Agreement at any time by publishing the revised Agreement on the GOYA Website. The revised Agreement shall become effective within thirty days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or Your continued use of the GOYA Software after expiry of the thirty date notice period shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at www.TheGOYA.Life .

  1. Disclaimer of Warranties and Limitation of Liability

◦ 6.1 No Warranties: The GOYA Software is provided “as is” with no warranties whatsoever.  does not, either expressed, implied or statutory, make any warranties, claims or representations with respect to the GOYA Software, including without limitation, warranties or conditions of quality, performance, non-infringement, merchantability, or fitness for use for a particular purpose. In addition, GOYA does not represent or warrant that the GOYA Software will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free nor does GOYA warrant any connection to or transmission from the internet. GOYA Software is provided “as is” with no warranties whatsoever. GOYA does not, either expressed, implied or statutory, make any warranties, claims or representations with respect to the GOYA Software, including without limitation, warranties or conditions of quality, performance, non-infringement, merchantability, or fitness for use for a particular purpose. In addition, GOYA does not represent or warrant that the GOYA Software will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free nor does GOYA warrant any connection to or transmission from the internet.

◦ 6.2 Your own Risk: You acknowledge and agree that the entire risk arising of Your use of the GOYA Software remains with You, to the maximum extent permitted by law.

◦ 6.3 Limitation of Liability: In no event shall GOYA, its affiliates, its licensors or its staff, directors or shareholders be liable, whether in contract, warranty, tort (including negligence), product liability or any other form of liability, for:

irrespective of whether or not GOYA,  its affiliates, its licensors, its staff, directors or shareholders have been advised of the possibility of such losses or damages arising.

▪ 6.3.1 Any direct, indirect, incidental, special or consequential damages (including without limitation any loss of or corruption to data, interruption, computer failure or pecuniary loss) arising out of the use or inability to use the GOYA Software;

▪ 6.3.2 Any loss of income, business or profits (whether direct or indirect) arising out of the use or inability to use the GOYA Software;

▪ 6.3.3 Any loss or damage which may be incurred by you as a result of:

  1. any claims brought by third parties arising out of Your obtaining or using the GOYA Software;
  2. any claims brought by third parties arising out of Your using information obtained from the GOYA Software;
  3. the suspension or termination of this Agreement by You or GOYA for any reason; or
  4. the release or the decision not to release new versions of the GOYA Software to You

◦ 6.4 Nothing in this Agreement is intended to exclude or restrict the liability of GOYA for (i) the death or personal injury caused by the negligence of GOYA, its staff or agents, or (ii) any liability which cannot be limited or excluded by law.

◦ 6.5 Jurisdiction’s Limitations: As some jurisdictions do not allow certain exclusions or limitations by statutory instrument, the liability will be limited to the extent possible within the applicable legislation. To the fullest extent permitted by law, GOYA liability for breach of any implied warranty or condition which cannot be excluded or limited is limited to the amount paid by you to GOYA for the GOYA Software out of which liability arose.

7.Miscellaneous

◦ 7.1 Entire Agreement: This Agreement constitutes the entire agreement between You and GOYA with respect to the subject matter and will supersede and replace all prior understandings and agreements, in whatever form, relating to the subject matter.

◦ 7.2 Partial invalidity: If any provision of this Agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the terms in this Agreement which will continue in full force and effect.

◦ 7.3 No waiver: The failure to exercise, or delay in exercising, a right, power or remedy provided to GOYA by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If GOYA waives a breach of any provision of this Agreement this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.

◦ 7.4 Applicable Law and Competent Court: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Victoria, Australia and shall be subject to the jurisdiction of the courts of Victoria, Australia.

◦ 7.5 Survival: The terms of sections 2.5, 5 and 6 of this Agreement shall survive termination of this Agreement.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS CONTAINED WITHIN THIS AGREEMENT. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE GOYA SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO GOYA ALL RIGHTS CONTAINED WITHIN THIS AGREEMENT.

Promulgation Date: 22 June 2020