Last Revised: 25 March 2022
Omnibus157 Pty Ltd ACN 646 020 233 (“eo”, “us”, “we”) trades under the “eo” brand name and designs connected devices and wearable products predominantly focused on the sports industry and elite level athletes.
These Terms of Service (“Terms”) govern the use of our products and devices (“eo Products”) including associated firmware, applications, software, websites, APIs, products, and services (“eo Service”).
You must accept these Terms to create an eo Account and to access or use the eo Service. If you do not accept these terms, do not create an account, do not visit the website, and do not use the eo Service.
1. Limited warranty
Without prejudice to your consumer rights and statutory warranties, the purchase and use of eo Products comes with a limited warranty as provided for in these Terms. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE LIMITED WARRANTY.
2. Use of the eo Service
Children are not permitted to access or use the eo Service unless their parent has consented in accordance with applicable law. Additionally, you cannot access or use the eo Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the eo Service.
You may only connect to the eo Service using (i) a product that is manufactured, distributed, or sold by eo or through its authorised resellers or agents; (ii) our mobile applications and platform software, or approved third-party applications, software, or devices; or (iii) our website (“Authorised Connections”).
Subject to these Terms and all applicable laws, you may only use the eo Services and eo Content (as defined below) for your own lawful, personal use for non-commercial purposes or as part of a swim coaching environment. Use of eo Service or eo Content for any other purpose or in any other manner is strictly prohibited.
3. Creating an eo Account
Full use of the eo Service requires that you create an eo Account by providing us with information such as your full name, country of residence and a valid email address, as well as a password. You warrant that any information you provide to us in opening an account is true and correct. You are responsible for all activity that occurs in association with your account. eo is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact eo if you discover or suspect any security breach related to your eo Service or your account.
4. Storing Your Content on the eo Service
eo Products enable you to upload, store, share or send data and other information and content (“Your Content”) to and via the eo Service. You retain all rights to Your Content that you upload to the eo Service. By making Your Content available on or through the eo Service you hereby grant to eo a non-exclusive, transferable, sublicensable, worldwide, royalty-free licence to use, copy, modify, reproduce, and distribute Your Content in connection with operating and providing the eo Service.
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a licence to use Your Content as described in these Terms. You also represent and warrant that Your Content and the use and provision of Your Content on the eo Service will not: (a) infringe, misappropriate or violate a third-party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading or deceptive; (d) be defamatory, obscene, pornographic, vulgar or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
To the extent not prohibited or limited by applicable laws, eo retains the right to use or share any Aggregated Data generated by anyone using the eo Service, including you and other users of the eo Service, for any purpose including developing, enhancing, and providing eo Service and eo’s other current and future products and services. “Aggregated Data” means data that does not contain personal information and which has been manipulated or combined to provide generalised, anonymous information.
You are solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including the eo Products), software and services (including Internet access and mobile data services) necessary for your use of eo Service, eo Content and Your Content and all data used in connection with the eo Service.
Even though eo Service may store Your Content in accordance with this Agreement, eo Services are not ongoing or permanent data storage or backup services. eo is not responsible or liable for any loss or damage to Your Content. If your Account is not renewed or is terminated for any reason, eo in its discretion may immediately permanently delete and destroy all copies of Your Content stored in eo Service without notice or liability to you or any other person subject to our obligations under applicable privacy laws.
5. eo’s rights and IP
For purposes of these Terms, “eo Content” means and includes any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided, or otherwise made available through the eo Service to you. Except for Your Content, the eo Content, the eo Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws applicable in the jurisdiction. You agree not to remove, change, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the eo Service.
6. eo Service
The eo Service is intended for your personal, non-commercial use. eo grants you a limited, non-exclusive, non-transferable, non-sublicensable licence to: (1) access and view the eo Content; (2) access and use the software and mobile applications provided by the eo Service; and (3) use the software that is embedded into eo Products as authorised in these Terms. Unless otherwise permitted by the terms any licence granted to You, is provided solely for your personal use and enjoyment of the eo Service as permitted in these Terms. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, licence, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the eo Content, eo Service or any portion thereof, except as expressly permitted in these Terms. No licences or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by eo or its licensors, except for the licences and rights expressly granted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the eo Service:
(1) Use, display, mirror or frame the eo Service or any part of the eo Service, eo’s name, any eo trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page of eo’s website, without eo’s express written consent.
(2) Access or tamper with non-public areas of the eo Service, eo’s computer systems, or the technical delivery systems of eo’s providers.
(3) Test the vulnerability of any eo system or breach any security or authentication measures.
(4) Circumvent any technological measure implemented by eo or any of its service providers or any other third party (including another user) to protect the eo Service or eo Content.
(5) Access the eo Service other than through the use of an Authorised Connection.
(6) Modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that eo provides to you or any other part of the eo Service.
8. Enforcement rights
We are not obligated to monitor access or use of the eo Service, eo Content, or Your Content or to review or edit any eo Content or Your Content, but we have the right to do so for the purpose of operating the eo Service, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the eo Service, any eo Content, or Your Content at any time and with or without notice, and at our sole discretion, if we determine that the eo Content, Your Content, or your use of the eo Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the eo Service.
9. eo Service used at Your own risk
The information provided by eo Service, including the eo Content, is not to be interpreted as a recommendation for a specific treatment plan, product, or course of action. eo Service do not provide specific medical advice, and is not engaged in providing medical services. eo Service does not replace consultation with a qualified healthcare or medical professional who sees you in person, for the health and medical needs of yourself or any other person. In addition, while eo Service frequently updates the content it provides, medical, health and fitness information changes rapidly, and therefore, some information may be out of date. Please see a physician or healthcare professional immediately if you suspect you may be ill or injured.
We are not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the eo Service and any reliance on the eo Content or the eo Service is undertaken solely at your own risk.
The eo Service are not intended to diagnose, treat, cure, or prevent any illness, disease, or health issue. Use of the eo Service should not replace your good judgment and common sense. If you have a medical condition, consult your doctor before using the eo Service.
Any use of the eo Service is subject to the disclaimers and warnings, which are incorporated and made part of these Terms.
As part of your use of the eo Service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You are responsible for any messaging or data fees you may be charged by your mobile carrier.
You may unsubscribe from any email notifications by clicking the unsubscribe link.
11. Third-Party Services
The eo Service may contain links to third-party websites, software applications, services, and resources (collectively “Third-Party Services”) that are not under eo’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
12. Changes to eo Service
eo may amend or discontinue, temporarily or permanently, any feature or component of the eo Service at any time without notice. eo is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the eo Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by eo devices without prior notice to you.
If you violate these Terms, we reserve the right to terminate and/or deactivate your eo account and access to the eo Service, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You may close your account at any time by contacting our customer support team at: email@example.com. Upon any termination, discontinuation, or cancellation of the eo Service or your account, the following provisions of these Terms will survive:
THE eo SERVICE AND eo CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED AT LAW, WE EXPRESSLY DISCLAIM ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
We make no warranty that the eo Service or eo Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the eo Service or any eo Content. You acknowledge and agree that if you rely on any eo Content or the eo Service, you do so solely at your own risk.
You indemnify and hold harmless eo and its officers, directors, employees and agents, from and against any and all claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal fees arising out of or in any way connected with: (i) your access to or use of the eo Service; (ii) Your Content; or (iii) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defence of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defences.
15. Limitation of Liability
NEITHER eo, ITS MANUFACTURERS AND SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE eo SERVICE WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE eo SERVICE OR PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT eo HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 14 APPLY TO THE FULL EXTENT THEY ARE NOT PROHIBITED BY APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL eo’s TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE eo SERVICE OR PRODUCTS EXCEED THE AMOUNT YOU HAVE PAID TO eo FOR THE PURCHASE OF THE PRODUCTS AND THE eo SERVICE OR THE COST OF REPAIRING OR REPLACING THE PRODUCTS, WHICHEVER IS GREATER.
WITHOUT LIMITING THE GENERALITY OF SECTION 25(a), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW eo IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORISED ACCESS TO, OR USE, ALTERATION, THEFT OR DESTRUCTION OF, YOUR CONTENT, WHETHER THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD.
16. General Terms
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between eo and you regarding the eo Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between eo and you regarding the eo Service and eo Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
eo may amend any part of this Agreement by adding, deleting, or varying its terms from time-to-time in its discretion. eo will provide you with notice of the proposed amendment by posting an amended version of this Agreement with a new “Last Updated” date and alerting you of such amendment by email or through a notification on the eo Service.
eo may change or discontinue, temporarily or permanently, any feature, component, or content of the eo Service at any time without notice. eo is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the eo Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by eo products without prior notice to you.
You may not assign or transfer these Terms, by operation of law or otherwise, without eo’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. eo may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms, as amended from time to time, will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by eo under these Terms, including those regarding modifications to these Terms, will be given: (i) via email to the email address connected to your eo Account; or (ii) by posting to the eo Service at www.eolab.com. For notices made by email, the date of receipt on the message will be deemed the date on which such notice is transmitted.
eo’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorised representative of eo. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
This Agreement will be governed by and interpreted in accordance with the laws of Australia and the parties submit to the jurisdiction of the Courts of Australia.
18. Dispute resolution
You agree that any dispute between you and eo will be governed by the arbitration procedure outlined below.
(a) Governing law
Except as otherwise required by applicable law, the Terms and the resolution of any disputes shall be governed by and construed in accordance with the laws of Australia without regard to its conflict of laws principles.
(b) Informal dispute resolution
We want to address your concerns without needing a formal legal case. Before filing a claim against eo, you agree to try to resolve the dispute informally by contacting us. We'll try to resolve the dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or eo may bring a formal proceeding.
(c) Agreement to arbitrate
You agree that any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.