TERMS & CONDITIONS

Please read these Terms of Use (“Terms”) carefully, they constitute a legally binding contract. By (i) having created a user account with us; (ii) using the OnTracka App, you have agreed to be bound by these Terms.

 

YOU SHOULD BE AWARE THAT ONTRACKA IS NOT A PROVIDER OF MEDICAL ADVICE. BEFORE YOU TAKE ANY ACTION THAT MAY AFFECT YOUR HEALTH OR SAFETY OR THE HEALTH OR SAFETY OF YOUR FAMILY, PLEASE CONSULT A PROFESSIONAL. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR LOCAL URGENT HEALTHCARE PROVIDER IMMEDIATELY.


We reserve the right to change these Terms from time to time, and such changes will become applicable to you if you continue to use the OnTracka App or access OnTracka.com at any time after such changes are posted on our Website. Where we believe that any changes are material, we will notify you through an in-app notification, alerts on our Website and/or an email to the address you have provided us, but regardless of whether you receive such notice, any changes will become effective if you use the OnTracka App or access the Website at any time after such changes are published on this page. We recommend that you visit this page periodically to be sure you are aware of the most recent terms of this agreement. If you do not agree to these Terms, do not use any of the OnTracka App or www.OnTracka.com, and if you do not wish to agree to any changes to these Terms, please terminate your account.

 

The Parties to this Agreement.


These Terms describe a contractual agreement between you, the user of OnTracka App (“you”, “your”), and OnTracka Australia Pty Ltd and its subsidiaries and affiliates regarding your use of the applications offered by us through iPhones, Android phones and the internet, our website, Ontracka.com (“Website”), or any other element of our service. OnTracka has the right to refuse registration of, or cancel your user account in its discretion for any reason or for no reason. Without limiting the generality of the foregoing, you specifically acknowledge that OnTracka has the right to terminate or limit your account in the event that OnTracka determines, in its sole discretion, that you have violated the policies of the Services.

 

You Must Be Eligible to Use Our Services.


To be eligible to use the Services, (i) you must be at least 16 years old or you must be at least 13 years old and have the permission of your parent or legal guardian, (ii) you (or your parent/guardian) must agree to be bound by these Terms. If you do not meet any and all of these criteria, please delete OnTracka from your systems and do NOT use the Services. Any consideration of your health is important. While the OnTracka is offered to help you down this journey, it is not a substitute for professional support from a doctor or
healthcare provider.

OnTracka Does Not Offer Medical Advice.


The contents of the OnTracka App, the Website, and Services, including but not limited to text, graphics, images, advice, recommendations, any information provided is for your information only. These Contents do not constitute professional medical advice, diagnoses, or treatment, and you should not rely on them as such. Your physician has particular medical knowledge about you and should always be consulted if you have a medical emergency or questions about a medical condition. Your decision to rely on any information you obtain in connection with your use of the services is at your sole discretion and risk. While we believe in our information, we take no responsibility for its accuracy or applicability to your situation before you make any material decisions based on it. Finally, you should be aware that OnTracka does not promise any particular results for your health or well-being.

What OnTracka is Providing.


Subject to your acceptance of these Terms, OnTracka grants to you a non-exclusive, non-transferable, revocable limited license to use any or all of the OnTracka App, the Services and related software and to display the results of such Services for your personal non-commercial use. You agree not to use the Services for any other purpose, or to copy or distribute the content of the Service except as specifically allowed in

these Terms. You also agree that you have no right to access, view or alter any source code or object code of OnTracka.

 

Medical Emergencies


If you think you may have a medical emergency, call your local medical emergency number immediately

Your Privacy and the Use of Your Data


We recognize the importance of protecting the privacy of our users, particularly given the nature of that information. You should be aware that OnTracka may collect and collate a variety of information regarding the use of the Services by you, and may cause the Service to communicate to OnTracka information about its operations even if you are not connected to the internet or a mobile service.

 

OnTracka is the sole owner of all such information it collects, unless you are directly informed and consent to this. Collection and management of such information is governed by our Privacy Policy which is hereby made part of this agreement. OnTracka uses industry-standard security measures to protect the loss, misuse and alteration of the information under our control. Although we make good faith efforts to store the non-public information uploaded through the Services or collected by OnTracka in a secure operating environment that is not available to the public, we cannot guarantee complete security. We cannot and do not guarantee that our security measures will prevent third party & hackers from illegally accessing our site and obtaining access to content or information thereon. You should also be aware that we may from time to time disclose or transfer some of the information that you provide through your use of the Services as more fully described in our Privacy Policy. Please review our Privacy Policy for details; by agreeing to these Terms you are also agreeing to our Privacy Policy as if all of such policy were repeated here. If you do not want us to use your data as described in our Privacy Policy, please do NOT use the Services.

Intellectual Property.


All content, design, graphics, compilation, magnetic translation, digital conversion and other matters making up the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and owned by OnTracka. Use of the Services does not give you ownership of any intellectual property rights in any of the Content, documents or other materials you access. Our posting of information or materials on the Services does not constitute a waiver of any right in such information and materials. You may not copy, redistribute or publish any part of the Services unless we expressly permit you to in these Terms.

We do NOT Make Warranties Regarding the Services. Other than as expressly set out in this agreement, neither OnTracka nor any of our affiliates make any promises about the Services. We disclaim all warranties express or implied and all services are provided “as-is”. OnTracka makes no commitments about the reliability, availability, or security of the Services or their ability to predict your cycles and related transmission of sensitive data other than that it will use commercially reasonable efforts to protect your information as described in our Privacy Policy.


THE SERVICES AND THE WEBSITE (INCLUDING ANY MOBILE APPLICATION) IS PROVIDED BY
ONTRACKA ON AN “AS IS” BASIS. ONTRACKA AND ITS LICENSORS AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE ONTRACKA APP, THE WEBSITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON ANY OF THE ONTRACKA APP OR THE WEBSITE OR IN ASSOCIATION WITH THE SERVICES.

 

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, ONTRACKA AND AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. ONTRACKA AND ITS LICENSORS AND AFFILIATES FURTHER DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN OR AVAILABLE ON ANY
ONTRACKA APP OR THE WEBSITE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

 

POTENTIAL UNAVAILABILITY.

 

THE SERVICES MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. ONTRACKA SHALL NOT BE LIABLE FOR ANY FAILURE OF THE ONTRACKA APP, THE WEBSITE OR THE SERVICES. SUCH FAILURE MAY RESULT FROM ANY CAUSE, INCLUDING, BUT NOT LIMITED TO, THOSE BEYOND ONTRACKA’S REASONABLE CONTROL, SUCH AS MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION (INCLUDING “LINE-NOISE” INTERFERENCE). YOU AGREE THAT ONTRACKA SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OF MATERIALS, CONTENT, OR ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICES.


OnTracka is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or applications on account of technical problems or traffic congestion on the internet or at any
site or combination thereof, including injury or damage to your or to any other person's computer, mobile
phone, or other hardware or software, related to or resulting from using or downloading materials in connection with OnTracka App, usage of the Website and/or in connection with the Services. Under no circumstances will OnTracka be responsible for any loss or damage, including any loss or damage to any content or personal injury or death, resulting from anyone's use of the OnTracka App, the Website, the Services, the Website or the Services transmitted to users. The Services may contain or deliver advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in the advertisers or sponsors materials.

Limitation of Our Liability.


Your use of the Services and the content of the Services is at your own risk. OnTracka and its partners have no
liability whatsoever for your use or reliance on any product or service you use or encounter on the
OnTracka App or the Website. In particular, but without limitation, you are agreeing that OnTracka is not liable
under any theory of law for any compensatory, indirect, special, incidental, punitive or consequential damages,
including but not limited loss of profits, business interruption, loss of information or data, issues with your health, any information or advice found on our site or in the OnTracka App, or any aspect of your relationship with a spouse, partner, or other third party, whether based on breach of contract, breach of warranty, tort, product liability or otherwise. Our Services would not be provided without these limitations and if you do not agree to these limitations, please do not use the Services. No advice or information you obtain from us through the Services or in support of the Services shall create any warranty, representation or guarantee not expressly stated in these Terms. Some states do not allow the exclusion or limitation of incidental or consequential damages, so certain of the above limitations and exclusions may not apply to you. In the event, that notwithstanding the foregoing, OnTracka is found to have a liability to you, you agree that its aggregate liability for any cause whatsoever, and regardless of the form of action, will at all times be limited to the amount paid, if any, by you to OnTracka, with respect to the On Tracka App in question, use of the Website and/or the Services, or One Hundred dollars, if greater. In addition, you specifically agree and acknowledge that OnTracka is not liable for the content submitted by any other user, or any defamatory, offensive or illegal conduct of a third party.

 

Third Party Rights.

 

If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and OnTracka only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this
Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

Protection of Your Account Information.


Each user of the Services is responsible for taking all reasonable steps to ensure that no unauthorized person
has access to his or her passwords or accounts.

 

Complete Agreement Between You and Us.


Except as expressly provided, these Terms constitute the entire agreement between you and OnTracka with
respect to the use of OnTracka App. Your use of the Services is also subject to our Privacy Policy.

How We Handle Disputes.


If a dispute arises between you and OnTracka, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact us to resolve your problem directly with us. You may contact us regarding any complaints or disputes at the Contact Us portion of
the Website.


Arbitration Provision.


THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS BY USING OUR SERVICE, WEBSITE, OR THE ONTRACKA APP.


Except as explicitly provided in these Terms, you hereby waive any right to a trial in any court in front of a jury or judge and any right to bring or participate in any “class action” suits. You agree that any dispute or claim relating in any way to your use of any OnTracka App, the Services, a product offered or provided by or through the Services, or otherwise arising out of or relating to these Terms that cannot be resolved directly between you and OnTracka shall be resolved by non- appearance based binding arbitration. Except as otherwise provided in these Terms, this includes any claims based in contract, statute, tort, fraud, misrepresentation or any other legal theory.

 

YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.


The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration and court review of an arbitration award is limited. However, an arbitrator can award an individual the same damages and relief as a court and must apply and follow these Terms as a court would. Either you or we can initiate arbitration through the alternative dispute resolution provider the American
Arbitration Association (the “AAA”) pursuant to the then- current Supplementary Procedures for Consumer- Related Disputes (“AAA Consumer Rules”). The arbitration shall be conducted by telephone, online and/or be solely based on written submissions, and the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless
the arbitrator determines that an in-person hearing is necessary based on the request of one of the parties and any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by
the arbitrator to be excessive, OnTracka will pay all arbitration fees and expenses. You and OnTracka each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial and agree to proceed only on an individual basis and not in a class,
consolidated, or representative action. The parties hereby appoint the arbitrator the exclusive power to rule on any challenges to the requirement for the use of alternative dispute resolution process in these terms. We also both agree that you or we may bring suit in court to obtain interim or preliminary injunctive relief necessary to protect the rights or property of you or OnTracka or our partners pending the completion of the arbitration.

 


How You Can Contact Us.


If you have questions or concerns, you should contact us at info@ontracka.com


Indemnification.


You agree to indemnify and hold OnTracka (and any employee, officer, director or affiliate of OnTracka, each Company Person) harmless (including costs and attorneys fees) from any claim or demand made by any third party due to or arising out of your access to or use of the Services, the violation of these Terms by you, the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity, or for any content posted through the Services by you (including claims related to defamation,
invasion of privacy, or other violation of a person's rights). Your obligations under the foregoing indemnity may not be offset against any other claim you may have against OnTracka or any Company Person. You remain solely responsible for all content that you upload, post, email, transmit, or otherwise disseminate using, or in

connection with, the Services. You agree that the provisions in this paragraph will survive any termination of your account(s) or the Services.


Term And Termination.


Unless terminated by OnTracka, these Terms will remain in full force and effect while you use any of the Services. Subject to the last sentence of this Section, you may terminate the agreement reflected in these Terms at any time by deleting OnTracka from any mobile device on which you have installed any element of the Services and ceasing to use the Services. OnTracka may terminate these Terms with respect to you at any time, particularly if you violate any provision of these Terms. Any termination of these Terms shall also terminate the licenses granted hereunder. Upon
termination of these Terms for any reason, you shall destroy and remove from all computers, and other storage media all copies of the any intellectual property owned by OnTracka. OnTracka shall have the right to inspect and audit your facilities to confirm the foregoing. If you or OnTracka terminate the agreement reflected in these Terms, or if OnTracka suspends your access to the Services, you agree that OnTracka shall have no liability or responsibility to you and OnTracka will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. Your representations, the Indemnity section, the Dispute Resolution section, the Liability Limitation section and any other provision which by their nature are designed to survive termination shall survive any termination or expiration of these Terms.

Complaints or Notices.


The Digital Millennium Copyright Act (DMCA) provides recourse to copyright owners who believe that their rights under the United States Copyright Act have been infringed by acts of third parties over the Internet. If you believe that your copyrighted work has been copied without your authorization and is available on or the App, the website or through the Services in a way that may constitute copyright infringement, you may provide notice of your claim to the Company. If You believe that any material on or in the Apps, the website or through the Services violates these Terms, please notify the Company as soon as possible by sending an email to info@ontracka.com.


Statute of Limitations.

 

You and OnTracka both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services, Terms or Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.


No Third Party Beneficiaries.

 

These Terms are between you and OnTracka. No user has any rights to force OnTracka to enforce any rights it may have against any you or any other user.

 


Government Use.

 

If you are a part of an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the any of our products or Services is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and any related software is a commercial item, commercial, computer software; and commercial computer software documentation. In accordance with such provisions, any use of the Service by the Government shall be governed solely by these Terms.

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