These Terms of Use (“ToU”) apply to any use by you (the “User”) of the HeadUp Mobile Application, including without limitation the application, functionality, insights, and content, (collectively, the “Mobile Application”) created by HeadUp Labs Pty Ltd, 11/320 Carlisle Street, Balaclava, Victoria, Australia, 3183 (“HeadUp”).

By using the Mobile Application, you agree to be bound by these ToU which constitute a binding agreement between you and HeadUp. Please read these ToU carefully so that you know what your rights and obligations are when using the Mobile Application.

1.    General Terms

1.1  These ToU apply to the use of, and access to, the HeadUp Mobile Application by User. If the User does not agree with these ToU, the User may not use the Mobile Application.

1.2  HeadUp may amend these ToU at any time. By continuing to use the Mobile Application after the ToU have been amended, the User accepts the amended ToU. If the User does not agree with the ToU at any time, the User’s exclusive remedy is to stop using the Mobile Application.

1.3  If any provision in these ToU are held to be invalid or unenforceable, the other provisions of these ToU shall remain in full force and effect.  In such a case, HeadUp will replace the void or unenforceable provisions with new ones. In doing so, the purpose and meaning of the void or unenforceable provisions will be taken into account as far as possible.

2.    Licence and Use

2.1 HeadUp hereby grants the User a limited, revocable, non-exclusive, non-transferable, right to access and use the Mobile Application pursuant to these ToU (the “Licence”).

3.    Mobile Application Content

3.1 The Mobile Application is created and built by HeadUp. For any and all content created and/or uploaded to the Mobile Application, HeadUp shall be deemed to be the owner of such content and/or have in its possession a license and/or permission to use the content.

3.2 HeadUp may temporarily or permanently prohibit you from using the Mobile Application and take measures to keep you out of the Mobile Application, if HeadUp determines that you have abused the right to use the Mobile Application, breached these ToU or performed any act which is harmful or likely to be harmful to HeadUp or other parties.

4.    Compliance With Applicable Law

4.1 You will comply with all applicable laws, rules and regulations in connection with your use of the Mobile Application, including without limitation, compliance with data privacy laws, applicable export control laws and other relevant, applicable regulations.  You will be responsible for all activities conducted under your Member Account.

5.    Acceptable Use Policy

5.1  Use of the Mobile Application to do any of the following, as determined by HeadU in its sole discretion, is strictly prohibited:

5.1.1       include software such as viruses or Trojans that can damage or erase, make unavailable or inaccessible any computers or data of HeadUp, other Users or third parties;

5.1.2       bypass technical security measures of the computer systems of HeadUp, other Users or third parties;

5.1.3       impede the functionality of the Mobile Application or any of its features;

5.1.4       infringe any of HeadUp’s or any third party’s intellectual property rights, privacy rights or any other rights;

5.1.5       promote or provide instructions or information about how to engage in illegal conduct, commit illegal activities or promote physical harm or injury;

5.1.6       involve any illegal activities or activities that are contrary to morality or public order;

5.1.7       involve false or misleading information;

5.1.8       involve otherwise inappropriate use;

5.1.9       breach these ToU; and/or

5.1.10    be unlawful in any way whatsoever

6.    Intellectual Property Rights

6.1  User acknowledges and agrees that, except as specifically set forth in these ToU, HeadUp retains all rights, title and interest, including without limitation domain names, copyrights, trademark, tradename and trade dress rights, patent rights, and know-how (“Intellectual Property Rights”), in and to the technology, programming code, mobile application content, and all other assets relating to the Mobile Application, as well as to any modifications, adaptations or translations thereof.  The User acknowledges and agrees that it does not acquire any rights therein, express or implied, except for any rights expressly granted under these ToU.

6.2  User is not permitted to sell, rent out, transfer or copy the Mobile Application or make it available to third parties in any way or for any purpose not expressly permitted in these ToU.

6.3  HeadUp will be permitted to install technical provisions for the purpose of protecting the Mobile Application. User is not allowed to remove or circumvent such technical provisions.

7.    Privacy Provisions

Please refer to our Mobile Application Privacy Policy.

8.      Disclaimer

8.1 The Mobile Application is provided on an “as is” basis without warranty of any kind. Moreover, HeadUp does not warrant that the Service will be error free, complete or up-to-date at all times.

8.2 HeadUp  does not guarantee that the Mobile Application or any part thereof will be accessible at all times and without any interruptions or failures. Failures in the Mobile Application can occur as a result of failures in the Internet or phone connection or as a result of viruses and/or faults/defects.

8.3 HeadUp does not warrant in any way whatsoever that any terms and conditions applicable to third party software or services – including but not limited to the hosting provider or third party devices – allow the use of and/or interaction with the Service.

8.4  Use of the Mobile Application is at the User’s own risk. The User is responsible for meeting the technical and functional requirements and using the electronic communication facilities that are necessary to be able to access and use the Mobile Application. The risk of loss, theft or damage to any data will at all times be borne by the User.

8.5. By using the HeadUp Mobile Application, you certify that you are healthy and that your physical condition allows you to perform moderate to intense exercise. If you experience any physical symptoms such as abnormal or sudden blood pressure changes, fainting, dizziness, or irregular heart beat or any other physical symptoms which seem abnormal to you while participating in the Mobile Application or undertaking any of the proposed experiments, stop exercising immediately and consult your doctor without delay. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR LEARNED THROUGH YOUR PARTICIPATION IN THE HEADUP MOBILE APPLICATION. The information We provide is for educational and informational purposes only and should not be considered medical advice, diagnosis or treatment. If you have any healthcare-related questions, please call or see your physician or other qualified health care provider without delay. HeadUp shall not be liable for any diagnostic or treatment decision made by you in reliance on any information provided by HeadUp (e.g. through the Mobile Application content, insights, or experiments). Should any unexpected medical event occur while you are participating in the Mobile Application, please seek medical advice, diagnosis or treatment without delay. Your reliance on any information made available through your Membership is solely at your own risk.

9.    Limitation of liability

9.1 HEADUP, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS (THE “INVOLVED PERSONS”) SHALL NOT BE LIABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE, AND LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACTUAL, OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE MOBILE APPLICATION OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OR AVAILABILITY OF THE APPLICATION , OR FROM ANY FAULT, OR ERROR MADE BY THE INVOLVED PERSONS’ STAFF OR ANYONE ACTING ON THEIR BEHALF, OR FROM YOUR RELIANCE ON CONTENT AVAILABLE ON OR THROUGH THE APPLICATION, OR FROM ANY COMMUNICATION, INTERACTIONS, DEALINGS OR ENGAGEMENTS MADE OR ATTEMPTED THROUGH THE APPLICATION – WHETHER OR NOT THE INVOLVED PERSONS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ANY EVENT, YOUR SOLE REMEDY SHALL BE TO UNINSTALL AND CEASE ANY USE OF THE APPLICATION. ANY AND ALL USE OF THE APPLICATION, INCLUDING WITHOUT LIMITATION THE TRANSMISSION, DISTRIBUTION AND MAKING AVAILABLE THEREOF,  BY OR ON BEHALF OF THE USER, PLATFORM PROVIDERS (SUCH AS THE APPLE APP STORE OR THE GOOGLE PLAY STORE) AND/OR END-USERS IS FOR THE USER’S OWN RISK AND RESPONSIBILITY. HEADUP IS NOT LIABLE OR RESPONSIBLE FOR THE CONTENT, THE APPLICATION OR ANY USE MADE OF THE APPLICATION BY USERS, NOTWITHSTANDING ARTICLE 8.

10. Indemnification

10.1 The User indemnifies and holds HeadUp harmless against any and all claims by third parties in connection with or resulting from User’s use of the Mobile Application, a violation by the User of these ToU, and/or any unlawful activities. This includes, without limitation, any activities that constitute an infringement of Intellectual Property Rights or any other rights of third parties.

11. Term and Termination

11.1 HeadUp may terminate these ToU, including your licence to use the Mobile Application at any time by giving you notice of such termination. Upon termination by HeadUp, you must discontinue all use of the Mobile Application and uninstall the Mobile Application from all devices in your control.

11.2 You may terminate these ToU at any time by uninstalling the Mobile Application from your device(s).

12. Contact Information

12.1 HeadUp can be contacted at legal@headuplabs.com.

13. Applicable Law and Competent Court

13.1  These ToU and the use of and access to the Mobile Application are governed by the laws of Victoria, Australia, unless a mandatory or peremptory rule of international law prescribes another applicable law.

13.2  All controversies, disputes or claims arising out of or relating to these ToU, and/or the use of or access to the Mobile Application will be exclusively and finally settled by the competent court in the state of Victoria, Australia, unless a mandatory or peremptory rule of international law prescribes another competent court.

14. Third Party Links

14.1 The Mobile Application may contain information that is derived from and/or may refer to websites, products or services (for instance through hyperlinks, banners or buttons) of third parties. HeadUp is not responsible, nor liable for the content of such information. HeadUp urges you to review any terms governing such websites before using or purchasing products or services offered thereby.

15. Modification to the Mobile Application

15.1                 HeadUp is entitled to change and/or update the Mobile Application and replace the design and layout of any of the features or functionality of the Mobile Application without any prior notification and without being obliged to pay any compensation whatsoever to the Users.

15.2                 HeadUp is entitled to put the Mobile Application out of service and/or to reduce the use of it without any prior notification and without being obliged to pay any compensation whatsoever to the User, if in the opinion of HeadUp such action is necessary, for example, in connection with required maintenance of the Mobile Application or due to force majeure (such as site or building blockades, strikes, riots, civil disruption, war, terrorist acts, inclement weather, epidemic, specific work interruptions, delay in transportation, earthquake, fire, storm, flood, or water damage, delay in or cancellation of the delivery parts, goods or services ordered from third parties, or governmental, legal or regulatory restrictions).

16. Entire Agreement

16.1 This Agreement (including, for clarity, the documents incorporated by reference), supersedes all prior discussions, negotiations and agreements between the parties with respect to the Mobile Application, and this Agreement constitutes the sole and entire agreement between the parties with respect to the Mobile Application.

17. Severability

17.1 If any provision or portion of any provision of this Agreement is determined to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining provisions or portions (unless otherwise specified)  shall remain in full force and effect.

18. Waiver

18.1 HeadUp’s failure to exercise any right or remedy under this Agreement shall not operate as a waiver of such right or remedy.  HeadUp’s express waiver or assent to your breach of or default in any term or condition of this Agreement shall not constitute a waiver of or an assent to any future breach of or default in the same or any other term or condition.