VELOGIC LIMITED

TERMS OF TRADE

1. AGREEMENT

1.1 Agreement

Welcome to the online bicycle fitting Services offered by Velogic Limited (referred to as “Velogic”, “we”, “our” or “us”). These terms of trade, our privacy policy and website terms of use (collectively, the “Terms”) are intended to explain our obligations as a Services provider and your obligations as a retailer subscribing to use the Services we offer (referred to as “retailer”, “you” or “your”).

1.2 Acknowledgement

Please read these Terms carefully. By clicking the “I agree” box when accessing the Services, you agree to comply with, and to be bound by, these Terms. You may not use or access the Services if you do not agree with these Terms. If you are agreeing to these terms on behalf of a company or other legal entity, then a reference to a “retailer” or “you” will mean the company or legal entity you represent and you are binding your company or other legal entity to these Terms.

1.3 Effective Date and Amendment

These Terms are binding when you subscribe for our Services and will apply on and from the time that Velogic provides you access to the Services. We reserve the right to change these Terms at any time, effective on the date that those amended terms are posted. Velogic will make every effort to communicate these changes to you through email or notification through our Website. It is your obligation to ensure you have read, understood and agree to the most recent terms available on our Website.

1.4 Authority

By registering to use the Services you acknowledge that you have read and understand these Terms and warrant that you have the authority to act on behalf of any person you are accessing the Services on behalf of. You are also deemed to have agreed to these Terms on behalf of any legal entity you subscribe to use the Services on behalf of.

2. PRICING AND PAYMENT

2.1 Subscription Fee

You agree to pay our Subscription Fee, charges and other costs in accordance with these Terms and as set out on our website. You agree to pay the Subscription Fee and all other amounts payable by you irrespective of who uses our Services and without set off or deduction.

2.2 Payment Method

We accept payment of all amounts payable by you by credit card payment, including Visa, MasterCard and American Express. Payments are to be made in advance of each subscription period and are non-refundable.

2.3 GST and Currency

All amounts payable by you are inclusive of any Goods and Services Tax ("GST") unless stated to be otherwise and are exclusive of delivery charges (if any). All amounts are in US dollars unless stated otherwise.

2.4 Amendments

We may change our Subscription Fees and payment policies for the Services from time to time. We will give you notice of these changes by posting them on our Website. You agree that the changes will apply to you in relation to any Services that you purchase through our Website after those changes have been posted.

2.5 Risk

(a) Risk in the subsequent use of the Services by Third Party Customers will pass to you upon use of the Services. We accept no responsibility for subsequent uses of the Services.

(b) We do not guarantee any outcomes to you, beyond provision of the Services.

3. YOUR OBLIGATIONS

3.1 Use of Services

You must only use our Services and Website for your own lawful internal business purposes, in accordance with these Terms, any notice sent to you by Velogic or any conditions posted on our Website. You may use the Services and Website on behalf of others or in order to provide Services to your client’s and customer’s and in doing so you must ensure that you are authorised to do so and that all persons who receive those services comply with and accept these Terms.

3.2 Security

You must ensure that all usernames and passwords required to access the Services are kept secure and confidential. You must immediately notify Velogic of any unauthorised use of your passwords or any other breach of security and Velogic will reset your password and you must take all other actions that Velogic reasonably deems necessary to maintain or enhance the security of Velogic's computing systems and networks and your access to the Services.

3.3 Protection of Services

As a condition of these Terms, when accessing and using the Services, you must:

(a) not attempt to undermine the security or integrity of Velogic's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;

(b) not use, or misuse, the Services in any way which may impair the functionality of the Services or our Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;

(c) not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Services are hosted;

(d) not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use); and

(e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website.

4. INDEMNITY

4.1 Indemnity

You agree to indemnify, hold harmless and defend Velogic and its directors, employees and contractors (together “Velogic Group”), at your expense, for any and all third-party claims, actions, proceedings and suits brought against anyone in the Velogic Group, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by anyone in the Velogic Group, arising out of or relating to your:

(a) breach of any term of this Agreement;

(b) unauthorised access or use of the Services; or

(c) breach of applicable laws, rules or regulations in connection with the Services.

4.2 Third Party Indemnity

You agree to indemnify, hold harmless and defend Velogic everyone in the Velogic Group, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Velogic or anyone in the Velogic Group, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by Velogic, or anyone in the Velogic Group, arising out of or relating to:

(a) any representations and warranties made by you concerning any aspect of the Services to Third Parties;

(b) any claims made by or on behalf of any Third Party relating directly or indirectly to your use of the Services;

(c) breaches of your obligations of privacy to any Third Party; and

(d) any claims with respect to acts or omissions of Third Parties in connection with the Services.

5. CONFIDENTIALITY

5.1 Covenant

Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms.

5.2 Disclosure

Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.

5.3 Survivorship

Each party's obligations under this clause will survive termination of these Terms.

5.4 Exceptions

The provisions of clauses 5.1 and 5.2 will not apply to any information which:

(a) is or becomes public knowledge other than by a breach of this clause;

(b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

(c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

(d) is independently developed without access to the Confidential Information.

6. PRIVACY

Velogic maintains a privacy policy that sets out the parties’ obligations in respect of personal information. We recommend that you read that policy.

7. GRANT OF SOFTWARE LICENCE

7.1 Grant of Rights

Velogic grants you a limited licence to access and use the Services via the Website with the particular Services available to you according to your subscription type. This licence is non-exclusive, non-transferable and limited by and subject to these Terms. This licence will terminate on the termination or expiry of your subscription for the Services.

7.2 Acknowledgment

You acknowledge and agree that:

(a) you are responsible for determining those Third Party Customers who will be provided with information based on your use and access of our Services; and

(b) Third Party Customers have provided their consent for us and you to use their Data and personal information.

8. INTELLECTUAL PROPERTY

8.1 Velogic Rights

Title to, and all Intellectual Property Rights in, the Services, the Website and any documentation relating to the Services is the exclusive property of Velogic (or its licensors) and nothing in these Terms will confer any right or entitlement on you to those rights.

8.2 Your Data

(a) Title to, and all Intellectual Property Rights in, the Data that you upload to access and use the Services remain your property or the property of your Third Party Customer.

(b) Your access to that Data uploaded or inputted to our System is contingent on full payment of the Subscription Fee when due. You grant, and you will procure that any Third Party Customer grants (where applicable), Velogic a licence to use, copy, transmit, store, and back-up your information and Data and that of any Third Party Customer.

(c) You must maintain copies of all Data inputted into the Services. Velogic adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Velogic expressly excludes liability for any loss of Data no matter how that loss is caused.

8.3 Third-Party Applications

If you enable third-party applications for use in conjunction with the Services, you acknowledge that Velogic may allow the providers of those third-party applications to access your Data as required for the interoperation of such third-party applications with the Services. Velogic will not be responsible for any disclosure, modification or deletion of that Data resulting from any such access by third-party application providers.

8.4 Covenants

You agree not to (and to not allow any Third Party Customer to):

(a) allow any Third Party Customer access to the Services, other than the outputs that relate to that Third Party Customer as a result of your use of the Services;

(b) sublicense, distribute, or use the Services outside of the scope of the rights granted to you under these Terms; or

(c) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile any of the relevant software or otherwise attempt to discover any source code or trade secrets related to the Services; or

(d) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without our prior express written consent; or

(e) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with us;

(f) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services.

9. WARRANTIES AND ACKNOWLEDGEMENTS

9.1 Your Warranties

You warrant and represent to us that:

(a) you are authorised to use the Services and the Website and to access the information and Data that you input into the Website, including any information or Data input into the Website by any person you have authorised to use the Services;

(b) you are also authorised to access the processed information and Data that is made available as a result of your use of the Website and the Services (whether that information and Data is your own or that of anyone else); and

(c) you warrant and represent that you are acquiring our Services in trade and, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.

9.2 Third Party Benefit Exclusions

Notwithstanding your use of the Services in relation to Third Party Customers, Velogic has no responsibility to any person (including your clients and retailers) other than a Third Party Customer, and nothing in these Terms confers, or purports to confer, a benefit on any person other than a Third Party Customer. If you use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:

(a) you are responsible for ensuring you have the right and entitlement to do so;

(b) Velogic has no obligation to provide any person access to such information or Data without your authorisation; and

(c) you will indemnify Velogic against any claims or loss relating to:

 (i) Velogic's refusal to provide any person access to your information or Data in accordance with these Terms,

 (ii) Velogic’s making available information or Data to any person with your authorisation.

9.3 No Warranty

(a) Velogic does not warrant that the use of the Services will be uninterrupted or error free. The operation and availability of the systems used for accessing the Services, including public telephone Services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Velogic is not in any way responsible for any such interference or prevention of your access or use of the Services.

(b) Velogic gives no warranty about the Services. Velogic does not warrant that the Services will meet your requirements or that it will be suitable for any particular purpose. All implied conditions or warranties are excluded to the extent permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

10. LIMITATION OF LIABILITY

10.1 We (including our officers, employees and agents) will not be liable (whether in contract, tort or otherwise whatsoever) to you or any third party claiming through you, for any direct, indirect or consequential damage, loss, cost or expense (including loss of profits, loss of data or revenue, loss of use, lost business or missed opportunities, wasted expenditure or savings which you might have had) arising from your use of the Services.

10.2 If, despite clause 10.1, a court of competent jurisdiction holds us (or any of our officers, employees or agents) liable in respect of any matter arising under or incidental to these Terms, our liability will be limited to the will be lesser of:

(a) the cost of the Services; or

(b) the cost of remedying the defect in provision of the Services.

10.3 If any term, condition or warranty is implied into these Terms which by law cannot be excluded, but may be limited, then, subject to that law, our liability in respect of such term, condition or warranty (including to any person claiming through you) is limited, at our option, to either:

(a) resupplying our Services on substantially similar terms; or

(b) payment of the cost of having Services supplied on substantially similar terms.

10.4 You confirm that you are acquiring all the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993, accordingly the provisions of Consumer Guarantees Act 1993 do not apply to Services we provide under these Terms.

11. TERMINATION

11.1 When you first sign up for access to the Services you can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services. If you choose to continue using the Services, you will be billed from the day you first added your billing details into the Services. If you choose not to continue using the Services, you may delete your organisation.

11.2 These Terms will continue for the period covered by the Subscription Fee paid or payable under clause 3.1. At the end of each billing period, these Terms will automatically continue for another period of the same duration as that period, provided that you continue to pay the Subscription Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If you terminate these Terms you will be liable to pay all relevant Subscription Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms and we will not be liable to refund any Fees paid by you for the Services.

11.3 If:

(a) you breach any of these Terms (including, without limitation, by non-payment of any Subscription Fees) and do not remedy the breach within 10 days after receiving notice of the breach if the breach is capable of being remedied;

(b) you breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Subscription Fees that are more than 30 days overdue); or

(c) you or your business becomes insolvent or your business goes into liquidation or has a receiver or manager appointed of any of its assets or if you become insolvent, or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction,

Velogic may take any or all of the following actions, at its sole discretion:

(d) terminate this Agreement and your use of the Services and the Website;

(e) suspend for any definite or indefinite period of time, your use of the Services and the Website;

(f) suspend or terminate access to all or any Data.

11.4 Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement you will:

(a) remain liable for any accrued charges and amounts which become due for payment before or after termination; and

(b) immediately cease to use the Services and the Website.

12. GENERAL

12.1 Entire agreement

These Terms, together with the Velogic Privacy Policy and the Website terms of use and any other notices or instructions given to you under these Terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between you and Velogic relating to the Services and the other matters dealt with in these Terms.

12.2 Waiver

If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

12.3 Delays

Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control.

12.4 No Assignment:

You may not assign or transfer any rights to any other person without Velogic's prior written consent.

12.5 Governing law and jurisdiction

These Terms are governed by and are to be construed in accordance with New Zealand law and you accept the exclusive jurisdiction of the New Zealand courts.

12.6 Severability

If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.

12.7 Notices

Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Velogic must be sent to nicky@velogicfit.com or to any other email address notified by email to You by Velogic. Notices to you will be sent to the email address which you provided when setting up your access to the Services.

12.8 Rights of Third Parties

A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.

13. DEFINITIONS

13.1 In these Terms the following terms will have the following meanings:

"Agreement" means these Terms, the Privacy Policy and Website Terms of Use.

"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Services but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

"Data" means any data inputted by you or by us with your authority into the Website.

"Intellectual Property Right" means any patent, trade mark, services mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

Force Majeure Circumstance” is any circumstance beyond our reasonable control which impacts on supply or delivery of the Goods, including (without limitation) delays by suppliers, delays by you, strikes and labour unrest, acts of war, acts of terrorism, government intervention, fire, flood, drought, accident, natural disaster or any other event commonly referred to as an "Act of God".

"Services" means the online bike fitting Services made available (as may be changed or updated from time to time by Velogic) via the Website.

"Website" means the Internet site at the domain www.Velogicfit.com or any other site operated by Velogic.

"Velogic" means Velogic Limited (New Zealand Company Number 4585719).

Pricing Schedule” means our pricing schedule setting out the Subscription Fees payable by you

Privacy Policy” means the privacy policy of Velogic accessible from our website and as amended by us from time to time.

"Subscription Fee” means the monthly fee (excluding any taxes and duties) payable by you in accordance with the fee schedule a set out on the Website.

"Third Party Customer" means any person or entity that obtains services from you from time to time and including an individual cyclist obtaining bike fitting Services.