FITBEAT – PLATFORM TERMS AND CONDITIONS
The Platform and its content is not medical advice. In no circumstances does the Platform provide treatment or diagnostic advice or establish a doctor-patient relationship and you should not use the Platform as a substitute for receiving specific professional medical advice, including dietary/nutrition advice. It is your responsibility to ensure that by participating in any activity using the Platform, you have* appropriate level of skills and abilities, including as to your physical condition.
Before acting on any content (including any nutrition or goal tracking applications) or activity we recommend that you consider whether it is appropriate for your situation, skills and abilities, conduct further research and, if necessary, consult with a medical professional to determine whether such content or activities are appropriate for you. Any reliance you place on the content or participation in an activity is at your own risk. To the maximum extent permitted by law we make no representation or warranty in relation to the content or activities you acknowledge and agree that all information you submit, including to register and update your account must be accurate, up-to-date and reflects your true identity. You will still be bound by these terms and conditions even if your details are not accurate, out-of-date or do not reflect your true identity.
- Where you have a Gym Membership Plan (as defined as Membership Plan in the Fitbeat gym membership terms and conditions entered into between you and us (Gym Membership Terms)) and where you are using the services provided in a Gym Membership Plan, we, us or our in these Terms means Your Gym (as defined in the Gym Membership Terms, however the ‘Reciprocal’ clause 7 in the Gym Membership Terms is replaced by the ‘Reciprocal’ clause 7 in these Terms).
- Where you have a Fitbeat Home Membership Plan (as defined as Membership Plans in the Fitbeat Home membership terms and conditions entered into between you and us (Fitbeat Home Membership Terms)) and you are using the Platform to access Fitbeat Home Membership Services, we, us, our in these Terms means Fitbeat Home Pty Ltd (ABN 11 643 108 614)Where you do not have a Gym Membership Plan and you do not have a Fitbeat Home Membership Plan, we, us or our in these Terms means Fitbeat (Operations) Pty Ltd ACN 629 709 637.
- We own or licence the software, including all instructions in hard copy or electronic form and any updates, modifications or releases of any part of that software (Software) which includes but is not limited to any Software that is accessible by downloading the Fitbeat application on Android or iOS, including the Fitbeat Home (Fitbeat Home) section of the Fitbeat application, or any software that is accessible on any electronic hardware within the Premises (as defined in the ‘Reciprocal’ clause 7 of these Terms), or any software that is accessible via any of our Fitbeat desktop or mobile websites or can be accessed via mobile phones, personal computers, lap tops, televisions, monitors, tablets and other forms of smart devices (collectively referred to as the Platform).
- These terms and conditions (Terms):
- set out the terms and conditions upon which we agree to grant you a right to use the Platform;
- begin from the date (Effective Date) on which we provide you with an account to enable you to access and use the Platform including any free membership plan (Account) until the date on which your Account is terminated in accordance with these Terms (Term); and
- your acceptance of these Terms warrants to us that you have legal capacity to enter into a legally binding agreement with us or (if you are under 18 years old but over 16 years old) you have your parent’s or legal guardian’s permission to access and use the Platform and they have agreed to the Terms on your behalf.
- To create an Account, you will be requested to input basic information in the applicable form on the Platform and/or by using your Google, Facebook or other social media network account (Social Media Account). If you create an Account on the Platform using your Social Media Account, you authorise us to access certain information on your Social Media Account. When signing up for an Account on the Platform you agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete and advise us of any changes to the information. To access Fitbeat Home, you will be required to agree to the Fitbeat Home Membership Terms and Conditions.
- If you access or download our mobile application from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.
- To the extent permitted by law, we may refuse to provide you with an Account at our sole discretion including if we believe that you are not a fit and proper person to be provided with an Account or if you fail to fulfil registration requirements.
- Please read these Terms carefully and where you do not agree with them do not create an Account.
2 Collection Notice
- We grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), personal and revocable licence to access and use the Platform for your own business purposes where engaged by us to provide specific services or where you are a gym user for your own personal purposes for the Term (Licence).
- You agree that we reserve the right at any time and from time to time to: (i) refuse any request in relation to the Platform that we deem inappropriate, unreasonable, illegal or otherwise non-compliant with these Terms; and/or (ii) modify or discontinue, temporarily or permanently, access to the Platform (or any part thereof) with notice.
- You must not access or use the Platform except as permitted by the Licence and you must not do, or omit to do, any act that would or might invalidate or be inconsistent with our intellectual property rights in the Platform or Software. Without limiting the foregoing provisions, you must not:
- use the Platform in any way which is in breach of any applicable laws or which infringes any person’s rights, including intellectual property rights;
- use the Platform to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
- use the Platform in any way that damages, interferes with or interrupts the supply of the Platform;
- introduce malicious programs into our hardware and software or systems, including viruses, worms, trojan horses and e-mail bombs;
- reveal your Account’s password to others or allow others to use your Account;
- use the Platform to carry out security breaches or disruptions of a network. Security breaches include accessing data where you are not the intended recipient or logging into a server or Account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
- use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Platform;
- to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use the Platform in breach of any person’s privacy (such as by way of identity theft or “phishing”);
- use any extraction method, including data mining, robots or spiders on the Platform; or
- use the Platform to circumvent user authentication or security of any of your networks, accounts or hosts.
5 Intellectual Property Rights
Intellectual Property means copyright, registered or unregistered, design, patent or trade mark rights; trade, business, company or domain names; know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Our Intellectual Property
- All Intellectual Property developed, adapted, modified, created or licenced by us or our personnel (including in connection with these Terms, the Software and the Platform) is and will remain owned exclusively by us, our assignees or our third party service providers.
- When using Fitbeat Home Membership Services, subject to your compliance with these Terms and the Fitbeat Home Membership Terms and Conditions, we grant you a limited, non-transferable, non-exclusive, revocable licence to access and use Fitbeat Home Membership Services for your own personal, non-commercial use and for no other purpose whatsoever.
- You must not, without our prior written consent:
- copy or use, in whole or in part, any of our Intellectual Property;
- reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
- reverse assemble, reverse engineer, reverse compile or enhance the Platform;
- breach any Intellectual Property rights connected with the Software or the Platform, including altering or modifying any of our Intellectual Property;
- cause any of any of our Intellectual Property to be framed or embedded in another website or creating derivative works from any of our Intellectual Property;
- resell, assign, transfer, distribute or make available the Platform to third parties;
- “frame”, “mirror” or serve any of the Platform on any web server or other computer server over the Internet or any other network;
- alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Platform or Software;
- Notwithstanding anything to the contrary in these Terms or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymized format (Analytics), including to sell Analytics to third parties or for the purpose of commercial partnerships. You agree that we may make such Analytics publicly available, provided that it:
- does not contain identifying information;
- is not compiled using a sample size small enough to make the underlying data identifiable.
- We and/or our licensors and assignees own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property rights in the foregoing.
Your Intellectual Property
- As between you and us, (i) all information, documents and other data you provide to us and any content you upload or which we otherwise access in providing the Platform (Data) is and remains your property, and (ii) you retain any and all rights, title and interest in and to the Data, including all copies, modifications, extensions and derivative works thereof.
- Licence: You grant us a perpetual licence to copy, transmit, store and back-up or otherwise access the Data to:
- supply the Platform to you (including to enable you and your personnel to access and use the Platform);
- diagnose problems with the Platform;
- enhance and otherwise modify the Platform;
- monitor, analyse and compile statistical and performance information;
- develop other services, provided we de-identify the Data; and
- as reasonably required to perform our obligations under these Terms.
- General: You must, at all times, ensure the integrity of the Data and that your use of the Data is compliant with all laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all your Data to us and to grant the rights granted to us in these Terms; and (ii) the Data and its transfer to and use by us, as authorised by you under these Terms do not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.
- We assume no responsibility or Liability for the Data. You are solely responsible for the Data and the consequences of using, disclosing, storing or transmitting it.
- Our Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you may your own investigations with respect to the suitability of those websites.
- This clause will survive the termination or expiry of these Terms.
6 Technical problems
In case of technical problems, you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need help, please check the support we provide as stated on our Platform or failing that please email us at the address at the end of these Terms.
7 Reciprocal clause (if applicable)
- Premises is as defined in the Gym Membership Terms.
- You acknowledge that a Fitbeat gym other than us may provide you with the Platform.
- By booking a class at another Fitbeat gym or by entering the Premises of another Fitbeat gym, you will be deemed to have entered into a separate contractual arrangement with the gym providing the Platform and whose legal name is listed in your Account settings on the Platform. The contract will be between you and the relevant gym and will consist of these Terms with references to we or us being amended to be references to the relevant gym.
8 Indemnity and liability
- Despite anything to the contrary, to the maximum extent permitted by the law:
- our maximum aggregate liability arising from or in connection with the Platform and these Terms (including the Platform or the subject matter of these Terms) must not exceed $1; and
- we will not be liable to you for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
- You agree that the description or presentation of any goods or services on our Platform may not be accurate, complete, reliable, current, or error-free, or, for products, that the packaging may not match the actual product received.
- Despite anything to the contrary, to the maximum extent permitted by the law, we have no liability, and you release and discharge us from all liability, arising from or in connection with:
- any breach of these Terms or delay or non-performance of obligations under these Terms due to a Force Majeure Event;
- the coronavirus disease (COVID-19), severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) (or any mutation or variation thereof), including, but not limited to, the outbreak or contraction of, COVID-19 or SARS-CoV-2 (or any mutation or variation thereof), or any action taken in controlling, preventing, suppressing or in any way relating to any outbreak of COVID-19, SARS-CoV-2 (or any mutation or variation thereof); or
- injury, damage or loss to any person or property;
- failure or delay in providing the Platform;
- unavailability, outage or interruption to the Platform or your computing environment; or
- breach of these Terms or any laws,
where caused or contributed to by any:
- event or circumstance beyond our reasonable control;
- a fault, defect, error or omission in your computing environment or Data; or
- act or omission of you, your related parties or a third-party service provider,
and, in any event, any error, omission or lack of suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Platform.
- Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions which are not guaranteed by the ACL are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
- You acknowledge and agree that:
- you use the Platform at your own risk;
- you should seek advice from a dietician or other medical professional before relying on any nutrition information and you release and discharge us from all liability, arising from or in connection with any nutrition information we, or our personnel, were to provide;
- the technical processing and transmission of the Platform, including your Data, may be transferred unencrypted and involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices;
- we may use third-party service providers to host the Platform. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any refund, credit, or other compensation;
- the Platform may use third party products, facilities or services. We do not make any warranty or representation in respect of the third-party products, facilities or services; and
- we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
- Despite anything to the contrary, to the maximum extent permitted by the law, you must indemnify us and hold us harmless from and against any loss, cost, liability or damage, howsoever arising, suffered or incurred by us and arising from or in connection with any claim relating to your Data, your use of the Platform, any breach of our Intellectual Property rights or any breach of these Terms by you.
- This clause 8 will survive termination of the Account.
- Where, in accordance with the Fitbeat Gym Membership Terms and Conditions or the Fitbeat Home Membership Terms and Conditions, you have no active Fitbeat Gym Membership Plan or Fitbeat Home Membership Plan in place:
- you may terminate your Account by creating the appropriate support ticket within the help desk section of the Platform, or by emailing our support staff;
- we may, at any time and at our sole discretion, suspend or terminate your Account for any reason. You must ensure that all your Data on the Platform is backed up so that you do not lose your Data if we suspend or terminate your Account. We will generally alert you when we take such action and give you a reasonable opportunity to remedy any breach of these Terms, but if we determine that your actions endanger the operation of the Platform or other users, we may suspend or terminate your Account immediately without notice; and
- your termination rights and our termination rights will be determined by the Fitbeat Gym Membership Terms and Conditions or the Fitbeat Home Membership Terms and Conditions.
- We may terminate your Account immediately and at our sole discretion:
- if you commit a repeated or serious breach of these Terms, of the Fitbeat Gym Membership Terms and Conditions or of the Fitbeat Home Membership Terms and Conditions;
- if you breach these Terms, the Fitbeat Gym Membership Terms and Conditions or the Fitbeat Home Membership Terms and Conditions, and if the breach is capable of remedy and you do not remedy the breach within 14 days of us giving you notice to do so;
- if you act in a manner that is dangerous or abusive towards any other person;
- if any payment has not been made within 7 days of the due date set out in the Fitbeat Gym Membership Terms and Conditions or the Fitbeat Home Membership Terms and Conditions (at our absolute discretion);
- if you consistently (on more than 3 occasions) make payment after the due date as set out in the Fitbeat Gym Membership Terms and Conditions or the Fitbeat Home Membership Terms and Conditions; or
- in accordance with clause 11(a)If we significantly amend these Terms, the Fitebat Gym Membership Terms and Conditions or the Fitbeat Home Membership Terms and Conditions in a way that adversely affects you and the amendment is not reasonably necessary to protect our legitimate interests, you may terminate your Account within 30 days of the amendment becoming effective without notice.
10 Notice regarding Apple
- To the extent that you are using or accessing the Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.
- Apple has no obligation to furnish you with any maintenance and support services with respect to the Platform.
- If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.
- Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to (1) product liability claims; (2) any claim that our mobile application 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, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.
- You agree to comply with any applicable third-party terms when using our mobile application, including any Usage Rules set forth in the Apple App Store Agreement of Service.
- Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
- 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.
- Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any Force Majeure Event. We will provide you with prompt notice of the occurrence of any Force Majeure Event. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate these Terms with you by giving you notice in writing. For the purpose of these Terms, a Force Majeure Event is any one, or combination, of the following events or circumstances: (1) fire, hurricane, typhoon, earthquake, cyclone, landslide, tsunami, mudslide or other catastrophic natural disaster; (2) civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities; (3) ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination; (4) disease (including any mutation or variation thereof), epidemic, pandemic, government sanctioned shutdown or any action taken in controlling, preventing, suppressing any outbreak of any disease (including any mutation or variation thereof), or global economic downturn; any goods and services provided by third parties, including, hosting providers or internet service providers, which the provision of any goods or services may be contingent on, or impacted by; or (5) blackouts; amended legislation; lockouts; strikes; disputes with landlord; or all other types of force majeure events, including events beyond our reasonable control.
- No commercial use: You must not use our Platform, or any of the Intellectual Property, for commercial purposes, including any advertising or advertising revenue generation activity on your own platform or any other platform, without obtaining a licence to do so from us.
- Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this provision).
- Notices: Any notice given under these Terms must be in writing and addressed to us at the applicable details as listed in your Account settings on the Platform, or to you at the details provided when setting up your Account (or as updated from time to time). Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
- Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
- Relationship of parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
- Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
- Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent. We may assign any rights or obligations under these Terms, whether in whole or in part, without your prior written consent.
- Amendment: We may, at any time and at our discretion, vary these Terms by notifying you and/or publishing varied terms on the Platform. The amended Terms are effective on the date we publish the varied terms on the Platform. Where you have an active Membership Plan, prior to the commencement of each billing cycle, we recommend you carefully read the Platform terms that are in effect at that time to ensure you understand and agree to them.
- Governing law: These Terms will be governed by and construed in accordance with the laws for the time being in force in the state in which we are located as listed in your Account settings on the Platform. The parties irrevocably submit to the exclusive jurisdiction of the courts in the state in which we are located. The Platform may be accessed in Australia and overseas. We make no representation that the Platform complies with the laws (including Intellectual Property laws) of any country outside of Australia. If you access the Platform from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place from which you access the Platform.
For any questions, please email us at [email protected]
Last update: 9 October 2020