TERMS & CONDITIONS

Australia & New Zealand Terms & Conditions

Thank you for selecting the iBodyshop management system (Service) offered by iBodyshop Pty Ltd ABN 646 022 743 59 and its related entities (collectively referred to as iBodyshop). Please read these terms (Terms) carefully, as they constitute a legally binding agreement between you and iBodyshop in relation to the Service.

1. AGREEMENT

1.1 These Terms sets out the basis on which we permit you to access the Service and enjoy a Subscription (as defined below). By clicking ‘I Agree’ or otherwise by installing, accessing or using the Service, you agree to be bound by:

(a) these Terms; and

(b) the iBodyshop policies applicable to the Service and your Subscription, as notified by us from time to time.

1.2 In these Terms, all references to:

(a) ‘us’, ‘we’ and ‘our’ are references to iBodyshop; and

(b) ‘you’ and ‘your’ are references to our customers and other individuals who we permit to access and use the Service.

Changes to Terms

1.3 We may update or modify these Terms from time to time.

1.4 If we change these Terms, we will update the ‘last modified’ date at the top of this page, and notify you via the ‘What’s New’ section of the Service that the Terms have been changed. You are responsible for reviewing any changes to the Terms. If you do not accept the changes, you must not use or access (or continue to use or access) the Service and you may cancel your Subscription in accordance with paragraph

1.5. Your continued use of the Service after any such change constitutes your acceptance of the new Terms.

Australia & New Zealand only

1.6 We do not represent that the Service is appropriate or available for use in jurisdictions outside Australia or New Zealand. You are responsible for compliance with all applicable laws pertaining to your use of, and access to, the Service in your jurisdiction.

2. LICENCE TO USE THE SERVICE

2.1 For such period that you have an active and paid subscription with us for the Service (Subscription Period), we grant you a non-transferable, non-exclusive, non-sub-licensable, revocable licence to access and use the Service solely for your internal business purposes, subject to these Terms (Subscription).

2.2 At all times during the Subscription Period and after, you must not commercialise, sub-licence, resell or otherwise exploit the Service or your Subscription in any way that is not expressly permitted by these Terms.

3. PERMITTED USAGE

3.1 The Service is intended for use by organisations or sole traders that primarily carry out the business of undertaking repairs to the bodywork of vehicles, caravans or vehicle suspension systems, or any other business that is authorised by us from time to time (Authorised Repairers).

3.2 If you are not operating as an Authorised Repairer, you are not permitted to use the Service. Similarly, you may not use the Service for purposes other than to operate as an Authorised Repairer, including for any purposes related to vehicle wrecking.

4. PAYMENT

4.1 In consideration for the Service, you must pay to us the fees (Fees) set out at www.ibodyshop.com/pricing, as updated from time to time (Pricing Terms).

4.2 You must pay the Fees in Australian dollars (if you are an Australian business) or New Zealand dollars (if you are a New Zealand business), plus any and all applicable taxes, including GST.

4.3 Fees must be paid by monthly direct debit in advance from your nominated bank or credit card account, unless agreed otherwise in writing. Payments are deducted from your nominated account on the first day of each month, unless agreed otherwise in writing.

4.4 If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your Subscription.

4.5 We will automatically renew your Subscription on a monthly basis, unless your access to the Service is cancelled or terminated in accordance with these Terms (see paragraphs 16 and 17 respectively).

4.6 If you fail to pay the Fees in accordance with these Terms and the Pricing Terms, we may suspend or cancel your Subscription.

4.7 You must provide 7 business days notice prior to your next billing cycle commencing for any account or subscription changes that alter the amount you are billed.

5. SERVICE PERFORMANCE

5.1 We commit to achieving a system up-time for the Service of not less than 95%, calculated and averaged over a period of 12 calendar months from the commencement of your Subscription. This calculation will exclude any scheduled downtime for which reasonable prior notice is provided to you.

5.2 Use of the Service may be available through a range of devices using Internet access and may require software which meets particular operating requirements. You are solely responsible for these requirements, including any applicable charges, updates and fees (including for SMS messages, data plans, and general usage), as well as the terms of your agreement with your mobile device and telecommunications provider. We make no warranties or representations of any kind as to the availability of your telecommunication services from your provider, or any loss or damage you may incur by use of your telecommunication services.

5.3 You may, from time to time, engage other suppliers to provide you with products and/or services that relate to the Service. We are not responsible for the performance of other suppliers engaged by you, or the integration of third party products or services with the Service.

5.4 We may update, modify, upgrade, develop, backup, add or remove features, redesign, improve or otherwise alter the Service in our discretion at any time. This may extend to changes to the Service in order to maintain consistency across our customer base.

6. YOUR OBLIGATIONS

6.1 You are responsible for ensuring that all information, data (including Customer Data (as defined in paragraph 10.1)) and materials uploaded or posted to, or stored by us through your use of, the Service (Content) complies with these Terms.

6.2 You agree not to use, nor permit any third party to use, the Service to upload, post, distribute, link to, publish, reproduce or transmit any of the following

(a) illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information, communications or Content of any kind;

(b) Content that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy;

(c) investment opportunities, solicitations, chain letters, pyramid schemes, or other unsolicited commercial communication which engage in spamming or flooding;

(d) any computer virus, Trojan horse, worm or other disruptive or harmful software or data; or

(e) any Content which is not legally yours and / or where you do not have the permission of the owner of the Intellectual Property (as defined in paragraph 7.1) in the Content to do so.

6.3 You agree not to use, nor permit any third party to use, the Service or Content in a manner that violates any applicable law or these Terms. You also agree you will not:

(a) provide access to or give any part of the Service to any unauthorised third party;

(b) reproduce, modify, copy, deconstruct, rent, lease, sell, trade, resell, adapt, translate, reverse engineer, de-compile or disassemble the Service or any related materials or information; or

(c) make the Service available on any file-sharing or application hosting service.

6.4 You are responsible for securely managing your log-in details and password(s) for the Service. You must immediately notify us if you become aware of any unauthorised access to your account or disclosure of your log-in details and password(s).

6.5 You agree to:

(a) provide us with such access, facilities, information, cooperation and assistance that we reasonably require in order for us to provide the Service and properly perform our obligations under these Terms;

(b) comply with our directions and restrictions regarding access to and use of the Service, including, where applicable, any instructions to remove any Content from the Service;

(c) ensure that all Content provided by you is and remains true and correct;

(d) immediately cease any use of the Service that, in our opinion, does not constitute acceptable use, and which has been detailed in a notice from us to you; and

(e) where you become aware of any actual or potential misuse of the Service, notify us in writing as soon as reasonably possible.

6.6 You are solely responsible for determining that the Service meets the needs of your business and is suitable for the purposes for which the Service is used. We accept no responsibility or liability for your use of or reliance on the Service.

6.7 You acknowledge that we may monitor your Content, and agree that we may disclose any information or Content to third parties if this is necessary to satisfy our legal obligations, protect iBodyshop or our customers, or operate the Service properly.

6.8 We may in our sole discretion review and inspect your use of the Service to ensure it complies with these Terms, any policies or directions notified to you, and any applicable laws. You are responsible for all such compliance, and you acknowledge that:

(a) we may or may not notify you of the findings of any review or inspection undertaken by us; and

(b) regardless of any review or inspection undertaken by us, you are fully responsible for ensuring compliance with these Terms, any policies or directions notified to you, and any applicable laws in connection with your use of the Service.

6.9 Use of Bots Prohibited. You agree not to use or launch any automated system that sends more request messages to the service in a given period of time than a human can reasonably produce in the same period when using the service, and you are forbidden from ripping content without prior written consent of iBodyshop Pty Ltd

6.10 You must not use any information available from the Platform or services made available by us for the purposes of sending unsolicited commercial communications (including SMS or similar) or which engage in spamming or flooding, and must at all times comply with all relevant legislation including the Spam Act 2003.

7. INTELLECTUAL PROPERTY

7.1 In these Terms, Intellectual Property means all intellectual property rights throughout the world, whether registered or unregistered, including rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and any right to apply for registration of such rights.

7.2 Except as expressly provided in these Terms, nothing in these Terms transfers ownership in, or otherwise grants to the other party any rights in, the Intellectual Property of a party.

7.3 You acknowledge that we and/or our third party licensors (as the case may be) own and retain all Intellectual Property in the Service and anything else supplied or made available by us under these Terms (iBodyshop IP).

7.4 Without limiting paragraph 7.3, any:

(a) Intellectual Property developed by us under or in connection with these Terms; and

(b) changes, additions or improvements to iBodyshop IP, immediately and directly vests in us upon its creation and will form part of the iBodyshop IP.

7.5 You acknowledge and agree that you have no ownership rights, title or interest in or to the iBodyshop IP and must not dispute our ownership of the same.

7.6 To the extent permitted by applicable laws, you grant iBodyshop a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, royalty-free, non-exclusive license to store, host, use, copy and modify any Content provided through your use of the Service, including Intellectual Property comprised in such Content. We will treat such Content in accordance with these Terms.

7.7 You may choose or we may invite you to submit feedback, suggestions, or ideas about the Service, including in relation to future modifications of the Service, other products or services, advertising or marketing materials, which includes without limitation any suggestions for improvements submitted through the iBodyshop ‘Wish List’ function (Feedback). To the extent permitted by laws, by providing any Feedback to us, you:

(a) agree that we may use such Feedback for our business and commercial purposes without any compensation to you, including without limitation for development and improvement of the Service; and

(b) grant iBodyshop a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, royalty-free license to store, host, use, copy and modify the Feedback (including Intellectual Property in the Feedback) you provide to iBodyshop in any way.

7.8 Notwithstanding any other provision of these Terms, you agree that we may use your Content or any other data set which relates to your use of the Services on an anonymised and aggregated basis, for the purpose of creating or providing to third parties statistical or analytic-based information about the Service, our business, or the activities of our customers.

7.9 You must do all acts and things necessary to give effect to this paragraph 7.

8. CONFIDENTIALITY

8.1 In these Terms, Confidential Information means, in relation to a disclosing party (Discloser), all information or knowledge that:

(a) is by its nature confidential;

(b) is designated by the Discloser as confidential or proprietary to the Discloser or its Related Bodies Corporate (as defined in the Corporations Act 2001 (Cth)); or

(c) the party that receives the Confidential Information (Recipient) reasonably ought to know is confidential, but does not include:

(i) information or knowledge rightfully obtained, whether or not in confidence, by the Recipient from a third party;

(ii) information or knowledge that is publicly available (otherwise than as a breach of these Terms); or

(iii) information or knowledge that was known to the Recipient at the time of receipt.

8.2 Except as otherwise permitted by these Terms, including (without limitation) paragraph 7.8, the Recipient must:

(a) only use that Confidential Information for the purposes of exercising its rights and performing its obligations under these Terms;

(b) keep the Confidential Information confidential, and may only disclose the Confidential Information:

(i) to its officers, employees, agents, contractors and subcontractors (Personnel), related bodies corporate (as defined in the Corporations Act 2001) (Related Bodies Corporate) or subcontractors who have a need to know for the purposes of fulfilling the Recipient’s obligations under these Terms;

(ii) to its professional advisors, upon obtaining a similar undertaking of confidentiality from such advisors;

(iii) to the extent permitted under these Terms, or as required by any law or order of any court, governmental agency or body having the power to compel disclosure; or

(iv) with the prior written consent of the Discloser;

(c) ensure that its relevant Personnel, Related Bodies Corporate and subcontractors are made aware of and are bound in writing by, the duty of confidence that is owed by the Recipient; and

(d) on discovery of any breach of this paragraph by the Recipient or any person in possession of Confidential Information through the Recipient, immediately notify the Discloser of such breach and co-operate with the Discloser in every reasonable way to help the Discloser regain possession of the Confidential Information and prevent its further unauthorised use or disclosure.

RepairConnection

8.3 Notwithstanding any other provision of these Terms, you agree that we may list your company id, company name, address, post code, state, phone number and email address of your operations on & in RepairConnection (including Request for Quotations and Purchase Orders). Your details will be visible and contactable by registered users of RepairConnection. These details will not be generally available to be viewed by persons that are not registered users of RepairConnection.

9. PRIVACY

9.1 In these Terms, Personal Information has the meaning in the Privacy Act 1988 (Cth) or the Privacy Act 2020 (NZ), as applicable (Privacy Act), and in broad terms includes information or an opinion about a person which is reasonably capable of identifying that person.

9.2 You acknowledge and agree that:

(a) in order to provide you with the Service, we may need to collect Personal Information of your Personnel (as defined in paragraph 8.2) or customers;

(b) the primary purposes for which we collect such Personal Information is to manage your Subscription and access to and use of the Service;

(c) we will collect and handle such Personal Information in accordance with iBodyshop’s Privacy Policy, located at www.ibodyshop.com/privacy-statement/ (Privacy Policy), as amended from time to time; and

(d) we use cookies on our websites for system health analytics and anonymous web usage analytics. To the extent (if at all) the data obtained from these cookies results in our collection of Personal Information, such information will also be handled in accordance with our Privacy Policy.

9.3 Each of us must comply with the Privacy Act and any other applicable laws governing Personal Information with respect to:

(a) any Personal Information which is shared between you and us; and

(b) any act done or practice engaged in by you or us, for the purposes of these Terms.

9.4 Each of us will implement reasonable technical and organisational measures to protect against the misuse, loss or unauthorised disclosure of any Personal Information that is collected or received by either party under these Terms. Such measures will be in accordance with generally accepted industry practice and in any event will be at least as protective as the measures adopted by a party to protect its own data of a similar nature or importance.

9.5 Despite anything else in these Terms, you must ensure that:

(a) you have obtained all necessary consents from, and/or issued all necessary privacy collection notices to, any individuals whose Personal Information may be submitted to the Service or to us directly, prior to submitting that Personal Information; and

(b) such consents and/or collection notices permit our proposed uses for Personal Information as set out in these Terms or otherwise notified to you.

9.6 Each of us must provide reasonable assistance to the other in relation to any privacy-related complaints or regulatory enquiries.

9.7 Each of us must notify the other if it becomes aware of a data breach that is or may reasonably be an ‘eligible data breach’ within the meaning of the Privacy Act, with respect to any Personal Information held in connection with these Terms.

10. CUSTOMER DATA

General

10.1 We acknowledge that data specific to you that is entered into the Service (Customer Data) is owned by you.

10.2 You are responsible for the accuracy, quality and legality of Customer Data, and we accept no liability for the content of Customer Data.

Data Transfer to Ancillary Services

10.3 If applicable, we may give you the option to request that we transfer some of your Customer Data from the Service to certain supported ancillary services (Ancillary Services), for example via APIs with insurers and other providers or bodyshop management systems, in order to facilitate certain interoperability, data integration, and data access between the Service and the Ancillary Services (Data Transfer).

10.4 In order for you to select the Data Transfer option, you:

(a) must have registered select versions of the Service;

(b) must have Internet access;

(c) must have an active Subscription; and

(d) may need to be an active subscriber to the Ancillary Services.

10.5 If you select the Data Transfer option, portions of your Customer Data will be transferred to the Ancillary Services; where you grant the providers of the Ancillary Services the right and license to:

(a) host and maintain your Customer Data;

(b) use and transfer your Customer Data to the Ancillary Services; and

(c) reformat and manipulate your Customer Data as reasonably necessary for the Customer Data to function with the Ancillary Services.

10.6 Your original Customer Data will remain in the Service.

10.7 If you sign up for any Ancillary Services, you may request that iBodyshop send your Customer Data to any of those supported Ancillary Services. If a supported Ancillary Service is provided by a third party, you authorise us to perform the Data Transfer to and from the third party provider to enable provision of the Ancillary Services to you.

10.8 We will support and maintain the Data Transfer service as part of the Service. You agree that the third party provider may transfer your data from the Ancillary Service to us, and that we may collect and use such Customer Data subject to these Terms.

10.9 You agree and acknowledge that iBodyshop has no control over any third party provider or any third party Ancillary Services. Your use of the Ancillary Service is subject to additional third party terms and conditions as may be specified by the provider of the Ancillary Service.

10.10 You further agree and acknowledge that your Customer Data, including your financial or Personal Information, may be transferred to a third party service provider who may be located in a country that does not have adequate security controls to protect your Customer Data.

10.11 Please carefully review any such third party provider’s terms and conditions, including their privacy policy. If you do not agree with their terms and policies, you should not use or access the third party Ancillary Service and you should not authorise the Data Transfer to the third party Ancillary Service.

Data Storage

10.12 Provided that you pay us the data storage subscription fee as set out in the Pricing Terms (Data Storage Subscription Fee), we will keep a copy of your Customer Data for 12 months from the effective date of termination of these Terms or cancellation of your Subscription (Initial Data Retention Period). This is known as the Data Storage Subscription.

10.13 During the Initial Data Retention Period, your Customer Data file (and all related data and content such as images and digitized documents) will be put into a “read only” mode. It is entirely your responsibility to download or print all of your Customer Data and related files before the Initial Data Retention Period ends.

10.14 If you do not wish to subscribe to a Data Storage Subscription, all Customer Data may be permanently deleted from our servers, without further notice to you, after 30 days from the effective date of termination of these Terms or cancellation of your Subscription, or the end of the Initial Data Retention Period (as applicable). We have no liability to you in such case.

10.15 If you wish us to continue to store your Customer Data beyond the Initial Data Retention Period, you must renew the Data Storage Subscription by paying the relevant Data Storage Subscription Fee prior to the expiration of the then-current Data Retention Period. Data storage subscription details are available in the Pricing Terms and are also available upon request.

11. PERMITTED DISCLOSURES

11.1 You acknowledge and agree that in order to manage your account for the Service, we may provide your access information and account data (including any Personal Information) to:

(a) your employee or agent who is identified in the registration data as the current system administrator for your account (Current Administrator); and

(b) such other employee or agent who may be designated by you to us in writing as a replacement administrator for your account by following the procedures required by iBodyshop to effectuate such replacement.

11.2 Any other person you identified as an authorised user of the Service will have access to the account data, subject to any access permissions you or the Current Administrator have assigned to them.

12. FINANCIAL INSTITUTION SERVICES DATA

12.1 In connection with your Subscription and as part of the functionality of the Service, you may wish to integrate or have access to your online account(s) and financial information, including your account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information used to access your financial institution(s) (collectively, your FI Login Data) and the data made available by your financial institutions(s) with such data, which may include bank balances, transaction activity, credit card charges, debits and deposits, and any messages or notices between you and the financial institution(s) (FI Account Data).

12.2 The Service is designed to enable you to access and download your FI Account Data through the Service, to allow iBodyshop to access your financial institution account(s) using your FI Login Data, download and use your FI Account Data, and aggregate and combine your FI Account Data with other data.

12.3 If you lose or forget your username or password, it will be necessary for you to return to the appropriate financial institution if you have any problems with respect to that user name or password.

12.4 You acknowledge and agree that except as set out in these Terms, iBodyshop:

(a) has no control over your FI Login Data or any access to your FI Account Data;

(b) does not guarantee that you will be able to use the Service and functionality described in this paragraph 12, as this might depend on issues outside our control, such as the requirements of your particular financial institution(s); and

(c) has no liability whatsoever for any actions or inactions on the part of any financial institution(s) which results in your inability to use the Service to access your accounts, obtain data, download transactions, or otherwise use or access your FI Account Data.

12.5 By entering into these Terms, you:

(a) acknowledge that in accessing your financial institution account(s) through the Service, your FI Login Data and FI Account Data may be collected, converted, stored in encrypted form and used by iBodyshop in Australia or New Zealand for the purpose of providing the Service;

(b) authorise iBodyshop to:

(i) collect and store in encrypted form your FI Login Data,

(ii) access the financial institution(s)’ websites using your FI Login Data, from time to time;

(iii) download and store your FI Account Data;

(iv) reformat and manipulate your FI Account Data;

(v) create and provide hypertext links to your financial institution(s) FI Account Data;

(vi) enhance the type of data and services we can provide to you in the future, and

(vii) take such other actions as are reasonably necessary to perform the actions described in these Terms as it relates to your use of the Service;

(c) hereby represent that the financial institution(s)’ account(s) and FI Login Data you provide or describe are yours, and you have the right to use the FI Login Data and FI Account Data and the authority to appoint, and hereby expressly do appoint, iBodyshop as your agent with all necessary power and authority to use your FI Login Data and to access and retrieve your FI Account Data, as described above, on your behalf;

(d) acknowledge that iBodyshop does not review your FI Account Data and agree that iBodyshop is not responsible for its completeness or accuracy;

(e) acknowledge that any transactions or informational activities performed at any financial institution(s)’ website are not made through the Service and iBodyshop assumes no responsibility for any such transactions or activities; and

(f) acknowledge that you are solely responsible for any charges, fees or costs associated with your financial institution account(s) when accessed through the Service by you or by iBodyshop.

12.6 You acknowledge that:

(a) some financial institution(s) may not permit iBodyshop or other third parties to have access to FI Login Data or to allow the Service to access your FI Account Data;

(b) financial institution(s) may make changes to their websites, with or without notice to you or iBodyshop, that may affect the overall performance of the Service and prevent or delay aggregation of data from such websites; and

(c) the Service refreshes your Service account data by collecting the FI Account Data automatically or manually (depending on your financial institution(s) or any changes by you that may require an update), so your most recent transactions may not always be reflected in the account balances or other account information presented to you by iBodyshop through the Service.

12.7 If you see a discrepancy in your Service account data as compared to your FI Account Data, and in any case before making any transactions or decisions based on such account data presented in the Service, you should check the last refresh date for your financial institution account(s) and confirm the accuracy of the Service account data against your FI Account Data and manually update such data as necessary.

13. SERVICE USE, STORAGE AND ACCESS

13.1 We will maintain security controls over Customer Data and Content in accordance with our Security Policy, located at www.ibodyshop.com/security-policy/?country=au (please ensure you select either ‘Australia’ or ‘New Zealand’ as the relevant region). Without limiting our Security Policy, you acknowledge that the Service is hosted on the servers of reputable third parties that administer security controls consistent with good industry practice.

13.2 Despite paragraph 13.1, we may, in our sole discretion and with reasonable notice to you via publication on the Service site or email to the address provided in your registration data, revise, update, or otherwise modify the Service and establish or change limits concerning use of the Service, temporarily or permanently, including but not limited to:

(a) the amount of storage space you have on the Service at any time, and

(b) the number of times (and the maximum duration for which) you may access the Service in a given period of time.

13.3 We may make changes referred to in paragraph 13.2 effective immediately to maintain the security of the Service or user’s access information or to comply with any laws, and will provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Service to which such changes relate.

13.4 Your continued use of the Service will constitute your agreement to the changes referred to in this paragraph 13.

13.5 We may, from time to time, perform maintenance upon the Service resulting in interrupted service, delays or errors in the Service. We will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided.

14. WARRANTIES

14.1 Each party represents and warrants to the other party that:

(a) it is duly authorised to enter into these Terms; and

(b) it has obtained all relevant licences, permissions, authorisations, consents and approvals required to perform its obligations under these Terms.

15. LIMITATION OF LIABILITY AND INDEMNITY

15.1 Your access to and use of the Service is entirely at your own risk.

15.2 To the maximum extent permitted by law, and except as otherwise expressly set out in these Terms:

(a) all express or implied guarantees, warranties or representations relating to these Terms or its subject matter are excluded; and

(b) the Service is provided to you on an ‘as is’ basis.

15.3 If any guarantee, warranty or representation is implied into these Terms and cannot be excluded at law but can be limited, then the liability of iBodyshop for breach of such guarantee, warranty or representation is limited to (at our option) to:

(a) supplying the Service again; or

(b) the payment of the cost of supplying the Service again.

15.4 We do not warrant that:

(a) the Service will be error free, free from viruses, operate without interruption (including as a result of interference or prevention of access to the Service as a result of the operation of public telephone services, computer networks and/or the internet) or appear precisely as described to you by us;

(b) external or third party systems connected via integrations by us, will at all times be functional; or

(c) the Service will meet the particular requirements of your business.

15.5 If the commitment at paragraph 5.1 is not realised, we will refund your payment for the final month of the relevant 12 month period, provided that:

(a) your Subscription Period has been continuous for longer than 12 months at such time;

(b) any claim for such a refund must be made within 60 days of the end of the relevant 12 month period; and

(c) the remedies and liabilities described in this paragraph 15.5 will represent your sole remedy, and iBodyshop’s sole liability, in respect of any service failure or breach of paragraph 5.1.

15.6 Any other claim against iBodyshop in respect of a failure to comply with our obligations under these Terms must be made within 60 days of you becoming aware of the alleged breach.

15.7 Except as provided above, iBodyshop’s maximum aggregate liability to you (whether incurred in contract, tort, negligence, breach of warranty, indemnity, in equity or in any other way) arising under or in connection with these Terms, the Services or your Subscription will in no circumstances exceed one months’ subscription Fees.

15.8 iBodyshop, its Personnel, affiliates and suppliers will not be liable for any indirect or consequential loss or damage suffered or incurred by you in any way which arises from your Subscription or use of the Service or otherwise in relation to these Terms.

15.9 You agree to indemnify, keep indemnified and hold iBodyshop and its affiliates and suppliers harmless from any and all claims, liability and expenses, including legal costs, arising out of your use of the Service or breach of these Terms.

15.10 You acknowledge that a breach of any provisions of these Terms, or any infringement of our or our suppliers’ Intellectual Property may cause iBodyshop irreparable damage for which recovery of money damages would be inadequate. Accordingly, you agree that we will be entitled, in addition to any other remedies available to us, to seek in any court of competent jurisdiction any relief (whether equitable or otherwise) to prevent or restrain any such breach or infringement.

16. CANCELLATION

16.1 You can cancel your Subscription at any time by providing at least 7 days’ written notice to us prior to the end of the current Subscription Period.

16.2 We can cancel your Subscription at any time by providing at least 7 days’ written notice to you prior to the end of the current Subscription Period.

16.3 If cancelled under paragraph 16.1 or 16.2, your Subscription will end at the conclusion of the then-current Subscription Period.

16.4 Without limiting paragraph 16.2, we can cancel your Subscription at any time by providing at least 30 days’ written notice to you, in which case such cancellation will become effective at the end of that notice period irrespective of the date of conclusion of the then-current Subscription Period.

16.5 Upon your cancellation of the Service and with effect from the end of the last Subscription Period:

(a) your access to the Service will cease;

(b) your access to your Customer Data will be governed by paragraphs 10.12 to 10.15;

(c) these Terms will automatically terminate; and

(d) you will not be entitled to any refund or reimbursement of the Fees.

17. TERMINATION

17.1 If you fail to comply with these Terms, we may, in our sole discretion, terminate these Terms or suspend your Subscription:

(a) if you fail to remedy the breach within 7 days’ of receiving a notice from us which sets out the particulars of the breach; or

(b) immediately, if your breach is incapable of remedy.

17.2 Upon termination, you must immediately cease accessing or using the Service, and any outstanding payments will remain due and payable. Any termination of these Terms will not affect our rights to any payments due to us.

17.3 We may terminate a free or trial account at any time and in our sole discretion.

17.4 Paragraphs 1.5, 2.2, 6, 7, 8, 9, 10.12 to 10.15, 12, 15, 16.5, 17.4 and 18 will survive and remain in effect after these Terms are terminated or expire, as well as any other paragraphs which by their nature are intended to survive and remain in effect after termination or expiry.

18. MISCELLANEOUS

18.1 These Terms will be governed by the laws of Victoria, Australia, and you irrevocably and unconditionally submit to the jurisdiction of the courts of Victoria, Australia.

18.2 These Terms constitute the entire agreement between you and us and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having jurisdiction, rules that any part of these Terms is invalid, that section will be read down or removed without affecting the remainder of these Terms.

18.3 You may not assign or transfer ownership of or your rights in these Terms to any third party without our written approval. We may assign or transfer its rights to or under these Terms without your consent.

19. TRIAL CONTENT

If you registered for a free 30-day trial period for the Service (Trial Period), you may decide to purchase a Subscription, at the current rate, within the Trial Period. However, if you purchase a Subscription, you will not be able to access or use any Content that you have entered through the Service during the Trial Period.

20. BETA FEATURES

20.1 From time to time, we may, in our sole discretion, include new and/or updated beta features (Beta Features) in the Service for your trial and use (fees may apply), and for which you may provide feedback to us.

20.2 You understand and agree that:

(a) your use of any Beta Features is voluntary and we are not obliged to provide you with any Beta Features;

(b) once you use the Beta Features, you may be unable to revert back to the earlier non-beta version of the same or similar feature; and

(c) if such reversion is possible, you may not be able to return or restore data created within the Beta Feature back to the earlier non-beta version.

20.3 The Beta Features are provided on an ‘as is’ basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from any connected device. You acknowledge and agree that all use of the Beta Features is at your sole risk.

21. SOCIAL MEDIA SITES

21.1 We may provide experiences on social media platforms such as Facebook, Twitter and LinkedIn that enable online sharing and collaboration among users who have registered to use such platforms.

21.2 Any content you post, such as pictures, information, opinions, or any Personal Information that you make available to other participants on these social platforms, is subject to the terms of use and privacy policies of those platforms.

22. THIRD PARTY PRODUCTS AND SERVICES

22.1 We may:

(a) tell you about third party products or services, including via the Service;

(b) offer products and services to you on behalf of third parties who are not affiliated with us (Third Party Products); and

(c) provide access or links to third party websites (Third Party Sites).

22.2 If you decide to use any Third Party Products or access any Third Party Sites, you are solely responsible for this and acknowledge that you should review the separate product terms, website terms and privacy policies of the relevant third parties. We will not be liable for any damages, claims or liabilities arising in relation to the third parties, Third Party Products or Third Party Sites.

23. COUNTRY SPECIFIC TERMS

New Zealand

23.1 In the event of any conflict between the above terms and the country specific terms in this paragraph (“Country Specific Terms”), the Country Specific Terms will prevail if you are accessing or using the Service in New Zealand.

23.2 Affiliate definition. An “Affiliate” means a Related Company as defined in section 2(3) of the Companies Act 1993 (read as if the expression ‘company’ in that subsection included any body corporate of any jurisdiction).

23.3 New Zealand Consumer Guarantees Act 1993. The New Zealand Consumer Guarantees Act 1993 does not apply.

23.4 Contracts (Privity) Act 1982. For the purposes of the Contracts (Privity) Act 1982, iBodyshop’s affiliates and subsidiaries are third party beneficiaries and will be entitled to enforce the terms of these Terms against you but any changes may be made to these Terms by Bodyshop without their consent.