TERMS OF USE

Thank you for choosing FinkeChess to assist in helping meet your fitness and performance goals. FinkeChess provides personalised performance coaching and sport specific plans that are easy to access and easy to understand. 

These Terms of Use (‘Terms’) are a binding agreement between you, as an individual user (‘you’, ‘your’) and Kelvin Szewen Finke trading as Kelvin Szewen Finke (ABN 92 325 193 654) and known as FinkeChess (‘FinkeChess,’ ‘we,’ ‘us,’ or ‘our’) governing your use of the content and materials provided by FinkeChess through the mobile software application, TeamBuildR, (‘App’), and through the FinkeChess website located at https://finkechess.com.au, and any other properties, content or materials owned or controlled by or on behalf of FinkeChess (collectively with the App, the ‘Services’). FinkeChess  offers the Services to you, subject to and conditional upon your acceptance of these Terms and the Privacy Policy, which forms part of these Terms. 

By accessing, installing, registering for, browsing or otherwise using  the Services, you acknowledge that you have read, understood and agree to be bound by these Terms. 

SUBSCRIPTION REGISTRATION 

Registration of Account. While you may always browse the  publicly available sections of the Services without registering with us, in order to enjoy the full benefits of the Services, you must download the App and register an account with us (‘Account’) for the subscription services (‘Subscription Services’). For the avoidance of doubt, in these Terms, the Subscription Services form part of the Services. 

Access to Subscription Services. The Subscription Services provided through the App will be accessible via a mobile phone, tablet, or other wireless device. You will be responsible for (a) all costs associated with downloading the App, or accessing or using the App or the Subscription Services, including all data download or internet access charges; and (b) ensuring that you are able to download, install and/or use the App or on your mobile device.

Account Security. You are responsible for the security of your Account and are responsible for all activities that occur through the use of your Account. You may not share the log in details for your Account with any third party. You agree to notify FinkeChess immediately at [email protected] if you suspect or know of any unauthorised use of your Account or any other breach of security with respect to your Account. FinkeChess will not be liable for any loss or damage arising from unauthorised use of your Account prior to you notifying FinkeChess of such unauthorised use, or if you lose the log in details for your Account. 

Accuracy of Information. When creating an Account, you must provide true, accurate, current, and complete information to FinkeChess. You must update the information about yourself promptly, and as necessary, to keep it current and accurate. 

User names. We reserve the right to disallow, cancel, remove, or reassign certain usernames in appropriate circumstances, as determined by us in our sole discretion.

SUBSCRIPTION FEE

Fee. You agree to pay the subscription fee advertised on the Services on a recurring monthly basis in order to access our Subscription Services through your Account (‘Subscription Fee’). 

Payment method. Payment of the Subscription Fee may be made through Stripe, Inc (‘Payment Service’). You authorise FinkeChess to automatically charge the monthly recurring Subscription Fee through the Payment Service, together with any processing or other associated fees charged by the Payment Service.

Reoccurring Payment. The Subscription Fee will be charged to you on a recurring monthly basis without further authorisation from you, unless your Account has been terminated in accordance with these Terms. 

Increase or Change. FinkeChess reserves the right to increase or change the Subscription Fee at any time and without notice, subject to your right to terminate your Account in accordance with these Terms.

Payment Failure. You are responsible for ensuring that sufficient funds are available, and/or that your credit card details are correctly listed on your Account or with the Payment Service at the time we process your Subscription Fee each month. If we are unable to process the Subscription Fee for any reason other than a fault by the Payment Service, FinkeChess reserves our right to: (a) recover payment from you as a liquidated debt; (b) cancel or suspend your Account ; and/or (c) charge you interest at a rate of 1.5% per month on the amount due until we receive full payment.

Currency. All payments under these Terms are in Australian Dollars (AUD).

LICENCE GRANT

Non-exclusive Licence. FinkeChess grants to you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to access the Services, and if you have created an Account, to interact with and use our Subscription Services through your Account for the term of your subscription, solely in connection with your rights under these Terms (‘License’).

Licence Termination. The Licence may be terminated at any time, in our sole discretion, if you use the Services in any way other than as permitted by these Terms. 

Automatic Termination. Upon termination of your Account pursuant to these Terms, your Licence to use our Subscription Services will also automatically terminate. 

USER CONTENT 

Definition. User Content includes, but is not limited to, any content that you upload, post or transmit to or through your Account for the Subscription Services including, without limitation, any text, comments and other works subject to protection under the laws of Australia or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, and excludes any and all FinkeChess content (‘User Content’). 

Screening of User Content. FinkeChess offers you the ability to submit User Content to or transmit User Content through your Account for the Subscription Services. FinkeChess does not pre-screen any User Content, but reserves the right to remove, disallow, block, or delete any User Content in its sole discretion. FinkeChess does not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content, and under no circumstances will FinkeChess be liable in any way for any User Content.

No Illegal or Offensive Content. You agree that you will not submit any User Content that is unlawful, fraudulent, in breach of any intellectual property, privacy, publicity or other rights, defamatory, obscene, derogatory, pornographic, sexually inappropriate, violent or abusive, harassing, threatening, objectionable with respect to race, religion, origin or gender, unsuitable for viewing by children aged under 18, or otherwise unsuitable for publication.

Licenses to User Content. While you retain ownership of any rights you may have in your User Content, you hereby grant FinkeChess an unrestricted, assignable, sublicensable, revocable, royalty-free licence throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from external sites, and otherwise exploit and use all or any part of all User Content you post to or through the Services by any means and through any media and formats now known or hereafter developed, for the purposes of (a) advertising, marketing, and promoting FinkeChess or the Services; (b) displaying and sharing your User Content to other users of the Services; and (c) providing the Services as authorised by these Terms. You further grant FinkeChess a royalty-free licence to use your username, image, voice, and likeness to identify you as the source of any of your User Content. Any User Content posted by you to or through your Account for the Subscription Services or transmitted to FinkeChess will be considered non-confidential and non-proprietary, and treated as such by FinkeChess and may be used by FinkeChess in accordance with these Terms without notice to you and without any liability to FinkeChess.

Acknowledgement. You acknowledge and agree (a) that we may publish, transmit, display, store, distribute, reproduce, modify, re-arrange, and otherwise use all or any portion of the User Content for the purposes of administering the Services; (b) that third parties who provide services to FinkeChess may have access to your User Content and use it in connection with their policies and practices and subject to any agreement they may have with FinkeChess; (c) that User Content is public and accessible by anyone with an Account for the Subscription Service; and (d) to evaluate and bear all risks associated with, the use of any User Content, including reliance on the accuracy, completeness or usefulness of User Content and any risk that others may be able to identify you based on your User Content. 

OBLIATIONS AND WARRANTIES

Obligations. You agree to (a) exercise reasonable care, skill and diligence in using the Subscription Services; (b) use the Subscription Services in a responsible manner and only in accordance with their intended use; (c) be liable for giving any third-party access to the Subscription Services and your Account; (d) advise FinkeChess of any issues with the Subscription Services as and when they occur; (g) keep secure all log in details for your Account and notify FinkeChess immediately of any unauthorised access to your Account; and (h) implement, maintain and enforce suitable virus protection in relation to use of the Subscription Services.

Warranties. You warrant that you are (a) legally permitted to use and access the Subscription Services; (b) solely responsible for the accuracy of all information provided to FinkeChess; and (c) aware of the risks associated with using the Subscription Services. 

PHYSICAL ACTIVITY DISCLAIMER 

Acknowledgement of Risk. The fitness, strength and conditioning, and training information and recommendations provided by the Services are not intended as a substitute for medical advice from your health care provider. FinkeChess is not a medical organisation. You acknowledge that all fitness activities, including performance coaching and sport specific programs, present inherent risk of possible physical stress and injury, and you acknowledge and agree to assume this entire risk in purchasing and using the Subscription Services. You further acknowledge that the Services and training recommendations are intended for an individual user, based on specific input regarding that user, and are not intended for the use of anyone besides that specific user.

Consult your Doctor. The Subscription Services are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using or purchasing any Services from FinkeChess, engaging in an exercise program or changing your diet. If you experience a medical emergency, consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through FinkeChess. If you engage in any exercise program you receive or learn about through the Services or otherwise from FinkeChess, you agree that you do so at your own risk and are voluntarily participating in these activities.

LIMITATION OF LIABILITY & INDEMNITY

Release. To the extent permitted by law, you agree to release and forever discharge FinkeChess (including its officers, employees, agents, affiliates, licensors, suppliers, and any other party involved in creating, producing or delivering Services) from and against any and all claims, demands, liability, damages or causes of action (however named or described), and any loss or damage, whether direct, indirect, punitive, incidental, special or consequential, (including but not limited to loss of actual or anticipated profit, loss of goodwill, loss of reputation, loss of opportunity, loss of savings, loss of data and/or loss of contract) or for personal injury or death caused to any person, arising out of or in any way related to the Services or use of the Services, including, but not limited to, where arising out of (a) inability to access or use the Services; (b) User Content; (c) unauthorised access to or use of your Account or User Content; (d) statements or conduct of any third party on the Services; (e) physical stress or injury you suffer; or (e) or misuse of the Services. 

Limitation. These Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, FinkeChess limits its liability for claims relating to these Terms, to one (1) month of the Subscription Fee for the relevant Subscription Services. 

Indemnity. You agree to indemnify FinkeChess (including its officers, employees and agents) from and against any and all claims, demands, liability, damages or causes of action (however named or described), and any loss or damage, whether direct, indirect, punitive, incidental, special or consequential, (including but not limited to loss of actual or anticipated profit, loss of goodwill, loss of reputation, loss of opportunity, loss of savings, and/or loss of contract) or for personal injury or death caused to any person, arising out of or in any way related to (a) your use or misuse of the Services; (b) your breach of these Terms; or (c) your User Content. 

Third party content. The owners of any content licensed to FinkeChess for use in the Services are intended beneficiaries of these Terms and shall have the right to enforce these Terms against you for any unauthorised use of their content in any court of competent jurisdiction. 

COPYRIGHTS AND CLAIMS OF IP RIGHTS 

Ownership of IP. FinkeChess and its licensors retain full ownership, rights and protection in all material contained in the Services (including, but not limited to all images, audio recording, video recordings, software, HTML code and other codes, business methods or other works subject to protection under the laws of Australia or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws) (‘Intellectual Property’), and all intellectual property rights therein, with the exception of User Content. Except as otherwise expressly provided in these Terms, you may not copy, distribute, transmit, display, perform, reproduce, publish, license, rewrite, create derivative works from, transfer or sell the FinkeChess’s Intellectual Property or any material contained in the Services, without the prior consent of FinkeChess. 

No sale or transfer. These Terms do not constitute a sale or transfer of any of FinkeChess’s Intellectual Property and you must not use, post or upload any part of the Intellectual Property or any version of it on any application, media platform or forum that enables other people to create and share content or use our Intellectual Property on the internet including on any social networking websites or applications. 

REFUND POLICY 

Cooling-off period. If you are not satisfied with the Subscription Services, you are entitled to a full refund of the first month of the Subscription Fee, if you terminate your Account within the first two (2) weeks of the Subscription Services.

Final and Non-refundable. Except as required by law, after the first two (2) weeks of the Subscription Services, any Subscription Fee paid by you is final and non-refundable.

TERMINATION OF SUBSCRIPTION 

Continuation. These Terms will continue to apply until terminated by either you or by us. 

Termination by You. You may terminate your Account for the Subscription Services at any time through the cancellation option in your Account. If you experience problems regarding your cancellation, please email your request to [email protected] and we will process your cancellation within 48 hours. Cancellation will be effective from the date of your emailed request being sent.  

Termination by Us. We may terminate your Account for the Subscription Services without notice to you if, in our sole opinion, (a) you breach these Terms; (b) you do anything which might cause damage to or impair the Subscription Services (c) you are making unauthorised or improper use of the Subscription Services; (c) we are required to do so by law; (d) you violate any applicable laws or regulations; or (e) your conduct impacts our name or reputation; or (f) you do anything which violates the rights of other parties or users. 

No Refund. Termination of your Account for the Subscription Services, after the first two (2) weeks, is not a ground for refund of any Subscription Fee that has already been paid. 

Cancellation of Subscription Fee. Upon termination of your Account for the Subscription Services, you will not be required to pay any further reoccurring Subscription Fee.   

DISPUTE RESOLUTION 

Before commencing proceedings. If a dispute arises in relation to these Terms, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause.

Notification. The complainant must inform the respondent in writing of (a) the nature of the dispute; (b) the outcome the complainant desires; and (c) the action the complainant believes will settle the dispute.

Endeavour to resolve dispute. On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 15 business days.

Mediation. Any unresolved dispute or difference whatsoever arising out of or in connection with these Terms shall be submitted to mediation under the Mediation Rules of the Resolution Institute.

No Class Action. You may only resolve disputes with FinkeChess on an individual basis, and you may not bring a claim as a class member in a class, consolidated, or representative action. 

Survival of this clause. This clause survives termination of this agreement.

PRIVACY POLICY

Please refer to our ‘Privacy Policy’ which forms part of these Terms. 

GENERAL

Update to these Terms. We reserve the right to update these Terms from time to time. 

Governing Law. These Terms and the resolution of any disputes shall be governed by and construed in accordance with the laws of the State of Queensland, Australia to the exclusion of any other law. You agree to submit any lawsuits to the exclusive jurisdiction of the courts of that State. 

Jurisdictional Issues. The Services are controlled and operated by FinkeChess in Australia. FinkeChess makes no representation that materials on the Services are appropriate, lawful, or available for use in any locations other than Australia. Those who choose to access or use the Services from locations outside Australia do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Services from jurisdictions where the contents or practices of the Services are illegal, unauthorised or penalised is strictly prohibited.

Entire Agreement. These Terms and our Privacy Policy shall constitute the entire agreement between the parties, and it completely excludes any other agreement, arrangement, or understanding, that concerns the matters contained herein.  

No Waiver. Any failure on our part to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.

No Third Party Rights. An agreement under these Terms is for our benefit and your benefit and is not intended to benefit or be enforceable by a third party, unless expressly stated otherwise in these Terms. 

Severability. Each provision, part of a provision, clause, part of a clause, paragraph, part of a paragraph of these Terms is separable from the others and the severance of a part of the Terms does not affect the remainder of the Terms.

Force Majeure. Neither party shall be liable for any default or delay in the performance of its obligations hereunder (except for payments) if and to the extent such default or delay is caused, directly or indirectly, by acts of God, governmental acts, accidents, wars, terrorism, riots, civil unrest, fires, storms, earthquakes, floods or elements of nature, or any other similar cause beyond the reasonable control of such party, provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing party through the use of commercially reasonable alternative sources, workaround plans or other means. 

Consent to Electronic Communication. By using the Services, you consent to receiving electronic communications from us. 

PRIVACY POLICY

Your privacy is important to FinkeChess. We designed our Privacy Policy to cover how we collect, use, and retain your information. All information is collected, used, and retained in accordance with the Australian Privacy Principles as governed by the Privacy Act 1988 (Cth). 

INTERPRETATION

Terms of Use. This Privacy Policy forms part of the Terms of Use for the Services provided by FinkeChess, which are available at https://teamathlon.com.au. The Terms of Use contain important provisions, including provisions disclaiming, limiting, or excluding the liability of FinkeChess for your use of the Services, and provisions determining the applicable law and exclusive jurisdiction for the resolution of any disputes regarding your use of the Services. Each of the provisions of the Terms of Use applies to any disputes that may arise in relation to this Privacy Policy and the collection, use and disclosure of your personal information and are of the same force and effect if they had been reproduced directly in this Privacy Policy.

Definitions. Defined terms in the Terms of Use shall have the same meaning in this Privacy Policy. 

SCOPE OF PRIVACY POLICY 

Application. This Privacy Policy applies to information we may collect in connection with your use of the Services. By using the Services, you signify your consent to the collection, use and disclosure of your personal information in accordance with this Privacy Policy, which may be revised from time to time. 

Personal Information. We may collect personal information from you in order to provide the Services to you. We do not collect personal information unless it is reasonably necessary for, or directly related to, one or more of the Services we provide or functions we carry out. We may collect personal information including, but not limited to your (a) name; (b) date of birth; (c) residential address; (d) postal address; (e) email address; (f) signature; (g) images or videos; (h) health, biometric or genetic information; (i) location; and (j) telephone number.

Non-personal Information. We may also collect non-personal information, which is data in a form that does not permit direct association with you or any specific individual (‘Non-Identifying Information’). Non-Identifying Information is aggregated and used to help improve our Services by providing a better way to understand your experience with FinkeChess. We may collect, use, transfer and disclose Non-Identifying Information for any purpose. 

Third Party Collection. This policy applies to the information you prove to FinkeChess through the Services. This policy does not apply to information collected by third parties linked in any way to the Services. We have no control over, and no responsibility or liability for, any third party’s collection, use, disclosure, or retention of the personal information that is provided directly to them, and that collection, use, disclosure, and retention is not subject to this policy.

ACCOUNT SECURITY AND USER ELIGIBILITY 

Account Security. As a registered user of the Services, you provide all information at your own risk and you are solely responsible for all use, security, loss prevention and protection of any confidential information and for all activity that occurs on or through your Account including, but not limited to, name, address, email address, credit card or billing information, health or medical information, and all other personal information entered by you on your personal profile or given for the purpose of using the Services. 

Notification. You agree to immediately notify FinkeChess of any security breach to your Account. FinkeChess is not responsible for any losses arising out of the unauthorised use of your Account. 

User Eligibility. You must be 18 years of age or older to use the Services. We do not collect or retain information from anyone under 18 years of age. If you are under 18 years of age, or you believe someone under 18 years of age has provided us with personal information, please contact us at [email protected].

COLLECTION OF INFORMATION 

Affirmatively Provided Information. When we collect personal information about you on the Services, you are asked to affirmatively provide the information or to take some action, such as in registering for an Account for the Subscription Services. Other information you affirmatively provide, such as your preferences (e.g., sport you are training for, strength and conditioning experience), and demographic information (e.g., gender or age) is generally maintained along with personal information. You can choose not to provide any information that is affirmatively requested of you; however, this may limit your ability to use the Services.

Automatically Collected Information. We may collect certain information for Subscription Services through the use of “cookies” and other tracking mechanisms. Information automatically collected may include, but is not limited to (a) your domain name and host for internet access; (b) the internet address of the site from which you came; (c) the date and time you access the Services; and (d) your computer or device’s IP address and information about its operating system, browser and host. We may use this information for any lawful purpose, including, for example, using your IP address to help diagnose problems with our server, to administer the Services, to help identify you and to gather broad demographic data.

USE OF INFORMATION 

Providing and Maintaining Services. FinkeChess may use information collected on the Services, which may include information gathered about you, for various purposes. In general, FinkeChess uses personal information it collects to pursue our mission and operations, including the management and provision of our Services, the operation of our business, and to engage in related activities. This may include storing information about you in connection with your profile so that we can recognise you when you access your account and make offers available to you based on information you provided. 

Lawful Purposes. You should assume that we will use all information for all lawful purposes except insofar as this Privacy Policy expressly limits our use of your information in some way. We reserve the right, but do not undertake a duty, to notify you of court orders, subpoenas or other legal process if allowed. If you do not want us to respond to a legal process compelling us to disclose your information, you need to seek a valid order permitting us to refuse to disclose it and serve the order on us at least three (3) business days before the response deadline.

ACCESS TO PERSONAL INFORMATION

Access. You can request at any time for us to inform you of the personal information we hold about you. We will respond within fourteen (14) days of receiving your request. 

Refusal. We may refuse to give you access to the personal information if we reasonably believe that giving you access would (a) pose a serious threat to the life, health or safety of an individual; (b) unreasonably impact on the privacy of other individuals; (c) be frivolous or vexatious; (d) be unlawful; or (e) any other matter FinkeChess considers relevant. 

Written Notice. If FinkeChess refuses to give access to the requested information, FinkeChess will give written notice of the refusal, including (a) the reasons for the refusal (except to the extent that it would be unreasonable to do so); and (b) the mechanisms available to complain about the refusal.

DATA RETENTION

Retention. We will retain your information for as long as your account is active or as needed to provide the Services. We will retain and use your information as necessary to comply with our legal obligation, resolve disputes, and enforce our agreement. 

Termination. Upon termination of your Account, any information that we collect from you will be deleted in accordance with this provision. Your personal information will be deleted 12 months after termination of your Account, unless such information relates to an ongoing dispute. 

THIRD PARTY COLLECTORS

Advertisements. Third-party advertisements may be displayed on the Services, which may contain cookies or other information-gathering technology. We have no control over, and no responsibility for, the cookies or other technologies used in the advertisements or for the use and disclosure of information collected through advertisement cookies or other technologies.  

Other Websites. The Services may contain hyperlinks to other websites or internet resources. When you click on one of those links you are contacting another website. We have no control over, and no responsibility or liability for, other websites or their collection, use and disclosure of your personal information. 

OVERSEAS RECIPIENTS 

FinkeChess is hosted and operated entirely in Australia and is subject to Australian law. Any personal information you provide will be hosted on the appropriate servers. By accessing and registering with FinkeChess, you consent to the transfer of your personal information to the servers. If you are accessing FinkeChess from outside Australia, please be advised that Australian law may not offer the same privacy protections as the law of your jurisdiction. 

SECURITY AND PASSWORDS

Security. FinkeChess takes what it believes to be commercially reasonable physical, electronic, and procedural safeguards to protect the personal information we collect. However, since no security system is impenetrable and "perfect security" does not exist on the internet or via applications, we cannot guarantee the security of personal information.

Passwords. If you create an Account for the Subscription Services, you will be asked to choose a password for your Account, which can be used to access information associated with your Account (including personal information). You should create a password that is difficult to guess, which includes numbers and symbols. Do not disclose your password to any other person. You are responsible for maintaining the confidentiality of your password and your Account, and we will attribute activities that occur using your Account information (e.g., through the use of your password) to you.

UPDATE TO PRIVACY POLICY 

Right to update. We reserve the right to update this Privacy Policy from time to time. When we do, we will update our ‘Effective Date’ at the top of this Privacy Policy. We encourage you to check this page periodically for any updates. If you continue to use the Services following the posting of an updated version of this Privacy Policy, we will treat your continued use as acceptance of the updated version.