Introduction

The YDS (Yes, Drill Sergeant) website and mobile application is an online mechanism for performing guided fitness activities. It is provided to you by CodeKiwi Pty Ltd. ("us" or "we" or "our" or YDS), in connection with our partners, service providers, sponsors, or other affiliates. So that we may safely and responsibly manage this site for all of our users, your use of this site and the mobile application is subject to certain terms and conditions. The terms and conditions set forth below ("Terms of Use"), as well as the privacy policy set forth at yesdrillsergeant.com/privacy apply to your use of the services and functionality provided on or through the yesdrillsergeant.com site and mobile application (the "Services").

All sections of these Terms of Use that, by their nature, should survive termination will survive termination, including but not limited to the sections entitled User Content, Disclaimer of Warranties, Limitation of Liability and Damages, Not Medical Advice, Indemnity, and Feedback.

General

The Services are not intended for and are not designed for children under 13 years of age.   If you are 13 or older but under the age of 18, then you agree to review the agreement with your parent(s) or guardian(s) to ensure that both you and your parent(s) or guardian(s) understand and consent to the agreement and that the user and his or her parent(s) or guardian(s) review and accept the agreement on the user's behalf through the YDS registration process. If the reader of the agreement is a parent or guardian entering this agreement for the benefit of a child over 14, then he or she agrees and accepts full responsibility for his or her child's use of YDS and the services, including all financial charges and legal liability that such child may incur.

YDS reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the services or any portion thereof with or without notice. You agree that YDS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the services or any portion thereof. Furthermore, YDS may modify these Terms of Use and the Privacy Policy at any time and such modification will be effective upon posting to the Services.

By accessing and using the Services, you acknowledge that you have read, understood, and agree to be bound by these Terms of Use and the Privacy Policy. If you do not accept these Terms of Use and the Privacy Policy, you are not authorized to use the Services. By continuing to use the services, you are indicating your agreement to the terms and all revisions thereof. By using YDS or the services, you therefore agree, represents and warrant that:

¥       you are 13 years or older but under the age of 18 and you have reviewed and consented to the terms with your parents per; or

¥       you are 18 years or older; and have consented to and agreed to the terms; and

you have received consent from your physician to participate in health and fitness programs, workouts, exercises, or any other related activities provided by YDS.

Further, you acknowledge and agree that YDS has offered the services and set its prices in reliance upon the warranty disclaimers, releases and limitations of liability set forth in the terms. You also acknowledge and agree that these warranty disclaimers, releases and limitations of liability reflect a reasonable and fair allocation of risk between you and YDS, and that these warranty disclaimers, releases and limitations of liability form an essential basis of the bargain between you and YDS.

Privacy Policy

YDS's Privacy Policy is hereby incorporated into the Terms by reference. Please review the Privacy Policy set forth at yesdrillsergeant.com/privacy carefully for disclosures relating to YDS's security protocols and its collection, use, and disclosure of your personal information and geographic location information.

Ownership and Licensing

The Services are owned and operated by YDS. You acknowledge and agree that the Services, any software used in connection with the Services and any content offered as part of the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws.

YDS grants you a personal, non-transferable and non-exclusive right and license to access and use the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services. You agree not to access the Services by any means other than through the interface that is provided by YDS for use in accessing the Services.

Except as expressly permitted by applicable law or authorized by YDS or applicable third party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or any Content offered as part of the Services (other than User Content as that term is defined below), in whole or in part.

Use of the Services

The Services allow for the delivery of software, text, graphics, images, video, audio, data and other material (collectively referred to as the "Content"). The Content may be owned by us or may be provided through an arrangement we have with others, including other users of the Services, or our partners, sponsors, or affiliates. The Content is protected by copyright under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you may not use the Content except as permitted under these Terms of Use. No other use is permitted without prior written consent from us or the owner of the Content. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose, except to utilize features of the Services that, by their nature, involve publishing or sharing of Content with the public. If you violate any part of these Terms of Use, your permission to access and/or use the Content and Services automatically terminates and you must immediately destroy any copies you have made of the Content.

Various company, product, and service names displayed on the Services may be trademarks or service marks owned by others (the "Third-Party Trademarks"). Your use of the Services should not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Third-Party Trademark displayed on this Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trademarks.

The Services include access to links to, and content and data from, third-party websites ("External Services"). These links, content, and data are provided solely as a convenience to you and not as an endorsement by us of the content on such External Services. The content of such External Services is developed and provided by others. In addition, the Services permit access to content posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.

The Services are for personal use only and may not be used in connection with any commercial endeavors except those that are specifically approved by us. The following activities are expressly prohibited: (i) collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications, (ii) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof, (iii) use of web scraping, web harvesting, or web data extraction methods from the Services even if the Services account owner gives permission; and (iv) any use of the Services which is unlawful or in violation of these Terms of Use.

By using the Services, you represent and warrant that you are 13 years of age or older. Your account may be terminated without warning, if we believe that you are under 13 years of age.

Your use of the Services is subject, in our sole discretion, to termination at any time.

User Content

The Services may now or in the future include functionality to permit the submission of Content at the direction of users of the Services ("User Content") and the hosting, sharing, and/or publishing of such User Content. You understand that whether or not such User Content is published, we do not guarantee any confidentiality with respect to any submissions.

You shall be solely responsible for User Content you submit and the consequences of our posting or publishing such User Content. In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and these Terms of Use; and (ii) you have the express consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and these Terms of Use.

By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the User Content in connection with our provision of the Services and our (and our successors') business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Services a non-exclusive license to access your User Content through the Services, if you have permitted such access through your account settings, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Services and under these Terms of Use. We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.

Disclaimer of Warranties

The services, including the mobile applications, and any third-party software, services, or applications made available in conjunction with or through YDS are provided "as is" and without warranties of any kind either express or implied.

YDS and its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers disclaim all warranties, express or implied, including, but not limited to, accuracy, reliability, completeness, timeliness, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights.

Neither we nor our affiliates or partners shall be subject to liability for truth, accuracy, or completeness of any information conveyed to users of the services or for errors, mistakes or omissions therein or for any delays or interruptions of the data or information stream from whatever cause. You agree that you use the services and the content at your own risk.

We make no warranty that the services will be available error free or that the services or the content are free of computer viruses or similar contamination or destructive features. If your use of the services or the content results in the need for servicing or replacing equipment or data, we shall not be responsible for those costs.

In no event shall we be liable for any damages (including, without limitation, incidental and consequential damages, lost profits, or damages resulting from lost data or business interruption) resulting from the use or inability to use the services and the content, whether based on warranty, contract, tort (including negligence), or any other legal theory, in excess of one hundred dollars, even if a we have been advised of the possibility of such damages.

YDS further disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of any and all information or material provided in connection with, or by the services, any search results generated by or through the services, or displayed and/or presented through the services.  

YDS also disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any and all information or material, including YDS content and user content.

You understand and agree that when you download or otherwise obtain material or data via YDS or the services, you do so at your own discretion and risk. YDS disclaims any responsibility for any harm to you that results from downloading or accessing any information or material through YDS or the services..

Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such jurisdictions, our liability shall be limited to the greatest extent permitted by law.

Limitation of Liability and Damages

You acknowledge and agree that under no circumstances, including, without limitation, negligence, will YDS, and its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers be liable to you for any special, indirect, incidental, punitive, reliance, consequential, or exemplary damages related to or resulting from: (a) the use, disclosure, display, or maintenance of a user's personal information or location information; (b) your ability or inability to use the services; (c) the services generally, including the systems that make the services available; or (d) any other interactions with YDS or any other user of the services, even if YDS or a YDS authorized representative has been advised of the possibility of such damages.  This limitation shall also apply with respect to damages incurred by reason of other services or goods received through or advertised on YDS or the services, or through the services, or received through any links provided by YDS, as well as by reason of any information or advice received through or advertised on YDS or the services, or received through any links provided by YDS or the services.

This limitation shall also apply, without limitation, to the costs of procurement of substitute goods or services, lost profits, or lost data. Such limitation shall further apply with respect to the performance or non-performance of YDS or the services or any information or merchandise that appears on, or is linked or related in any way to YDS or the services. Such limitation shall apply notwithstanding any failure of essential purpose of any limited remedy and to the fullest extent permitted by law.

Without limiting the foregoing, under no circumstances shall YDS be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

In no event shall YDS, and its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers, total liability to you for all damages, losses, and causes of action arising out of or relating to these terms or your employment of the Services whether in contract, tort (including without limitation negligence), warranty, or otherwise exceed the amounts paid by you for accessing the services during the twelve (12) months immediately preceding the date of your claim.

You further agree that the limitations of liability set forth above will survive any termination or expiration of these terms and will apply even if any limited remedy specified herein is found to have failed of its essential purpose.

Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages. Accordingly, the exclusions, and limitations set forth above may not apply in their entirety to you, however, agree that YDS's liability will be limited to the extent permitted by law.

Not Medical Advice

You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet or exercise program. YDS requires that you consult with your physician before you use YDS or the services, undertake to follow any health and fitness instructions received via YDS or the services, or participate in any event announced by YDS.  YDS is not a licensed fitness or medical care provider and represents that it has no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. YDS is not intended to be a substitute for professional medical advice, diagnosis, or treatment. You acknowledge that when participating in any exercise or exercise program, there is the possibility of physical injury and or death.

You expressly agree that your athletic activities which may be guided by the Services (including but not limited to walking, running, squats, pushups, burpees, and various other exercises) carry certain inherent and significant risks of property damage, bodily injury or death and that you voluntarily assume all known and unknown risks associated with these activities even if caused in whole or part by the action, inaction or negligence of YDS or by the action, inaction or negligence of others.

You expressly agree to release YDS, its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors (the 'released parties') from any and all liability connected with your athletic activities, and promise not to sue the released parties for any claims, actions, injuries, damages, or losses associated with your athletic activities which may be guided by the Services. You also agree that in no event shall the released parties be liable to you or any third party for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with (a) your use or misuse of the services, (b) your use or misuse of equipment or programs created or licensed by YDS while engaged in athletic activities, (c) your dealings with third party service providers or advertisers available through the services, (d) any delay or inability to use the site experienced by you, (e) any information, software, products, services or content obtained through the services, whether based on contract, tort, strict liability or otherwise, even if YDS has been advised of the possibility of damages.

You expressly agree that YDS is not providing medical advice via the services.  All content provided through the services, including all text, photographs, images, illustrations, graphics, audio, video and audio-video clips, and other materials, whether provided by us or by other users or third parties is not intended to be and should not be used in place of (a) the advice of your physician or other medical professionals, (b) a visit, call or consultation with your physician or other medical professionals, or (c) information contained on or in any product packaging or label. Should you have any health related questions, please call or see your physician or other healthcare provider promptly. Should you have an emergency, call your physician or emergency services immediately.

The transmission and receipt of any content, in whole or in part, or communication via the internet, e-mail or other means does not constitute or create a doctor-patient, therapist-patient or other healthcare professional relationship between you and YDS.

Indemnity

You agree to defend, indemnify, and hold YDS and its subsidiaries, affiliates, officers, employees, agents, partners, licensors, and suppliers harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms of Use or your uploading of, access to, or use or misuse of the Content or the Services.

We shall provide notice to you of any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

Mobile Applications

To use or otherwise access the Services, you must have a mobile device that is compatible with the YDS mobile application. YDS does not warrant that the mobile application will be compatible with your mobile device.

YDS does not charge for use of some basic Services, however, a wireless carrier's normal messaging, data and other rates and fees will still apply. You should therefore check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using the Services may be prohibited or restricted by your carrier, and not all Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Services are available for your mobile device, and what restrictions, if any, may be applicable to your use of the Services.

By using the Services, you agree that YDS may communicate with you regarding YDS and the Services by SMS, Email, text message or other electronic means directed to your mobile device and that certain information about your usage of the Services may be communicated to YDS.

You acknowledge and agree that YDS may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the YDS Services that you employ on your mobile device. You expressly consent to such automatic upgrading on your mobile device, and agree that the Terms (and any additional modifications of the same) will apply to all such upgrades.  With respect to any open source or third-party code that may be incorporated in the Services, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.

Links to External Sites

The Services may provide, or third parties may provide, links to other websites or resources. You acknowledge and agree that YDS has no control over such websites and resources. Furthermore, you acknowledge and agree and that YDS is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such websites or resources.

Feedback

YDS welcomes your comments, feedback, suggestions, and other communications regarding the Services (collectively, "Feedback"). While you are not obligated to provide Feedback, in the event that you provide Feedback, you hereby grant to YDS a worldwide, non-exclusive, transferrable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback.

Applicable Laws

The Services are controlled by YDS from its offices within Australia. YDS makes no representation that User Content or YDS Content or the Services are appropriate or available for use in other locations, and access to them from territories where their content or use is illegal is prohibited. Those who choose to access the Services from locations outside of Australia do so on their own initiative and are responsible for compliance with applicable local laws.

Any action related to YDS, the Services, YDS Content, User Content, or the Terms shall be governed by Australian federal law, without regard to conflicts of laws thereof. You hereby consent and submit to the exclusive jurisdiction and venue in the state and federal courts located in Victoria, Australia for any legal proceedings related to the Site or the Terms.

Termination

You may terminate this agreement at any time by following the instructions on the website www.yesdrillsergeant.com. There are no refunds for any fees paid. You are responsible for terminating your account and this agreement and we are not responsible for your failure to properly terminate your service and this agreement nor for any credit card charges and fees that you incur as a result of your failure to properly terminate your service and this agreement.

We may terminate this agreement, disable your account, and/or put your account on inactive status, in each case at any time with reasonable cause or violation to these terms of service agreement, and with or without notice. We shall have no liability to you or any third party because of such termination or action.