General User Terms and Conditions
Agreement to these Terms
By signing up as a user with Fitvoo Pty Ltd (ACN 610 678 610) (“we”, “us” or the “Company”), and accessing the application or any other derivative platform of the Company, you agree to be bound by these terms (the “Terms”).
By using the application and derivative platforms you represent and warrant to the Company that you are over the age of 18 years. Should the Company suffer any damage or other losses as a result of a transaction entered into by a minor, we reserve the right to seek compensation for such losses from his/her parents or guardians.
Your use of the application and derivative platforms is subject to the rules set out in Schedule 1 below.
Without limiting any other remedies available to the Company at law or in equity, the Company reserves the right to, without notice:
- temporarily or indefinitely suspend, or terminate, your access to the application and derivative platforms or refuse to provide services to you if:
- (i) you breach any provision of these Terms;
- (ii) the Company is unable to verify or authenticate any information that you provide to us; or
- (iii) the Company believes that your actions may cause damage and/or legal liability to the Company, any of its customers or suppliers or any other person; and
- remove or block access to any information and/or materials (in whole or in part) that the Company, at its sole and absolute discretion, regards in any way to be objectionable or in violation of any applicable law, any person's intellectual property rights or these Terms.
You indemnify and hold harmless the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from and against any losses, liabilities, costs, expenses or damages (including actual, special, indirect and consequential losses or damages of every kind and nature, including all legal fees on a solicitor-client basis) suffered or incurred by any of them due to, arising out of, or in any way related to (directly or indirectly):
- any material or information that you submit, post, transmit or otherwise make available through the application and derivative platforms;
- your use of, or connection to, the application and derivative platforms; or
- your negligence or misconduct, breach of these Terms or violation of any law or the rights of any person.
The Company reserves the right to make any parts of the application and derivative platforms accessible only to Users who have registered.
Upon registration with the application and derivative platforms, you will be given the opportunity to select a username and password to access your account. You are responsible for maintaining the security of your password for the application and derivative platforms. The Company will not be liable for any loss or damage arising from or in connection with your failure to comply with this security obligation. You agree that the Company will be entitled to assume that any person using the application and derivative platforms with your username and password is you or your authorised representative and any provision or collection of information is authorised.
You must notify the Company at [email protected] immediately of any known or suspected unauthorised use of any password or any other breach of security.
We will notify the relevant supervisory authority of a data breach within 72 hours of becoming aware of a data breach unless the breach is unlikely to impact your rights and freedoms. Where a data breach is likely to result in a high risk to your rights and freedoms, we will notify you without undue delay.
In order to register an account with the application and derivative platforms, you must agree to these Terms and provide the Company with:
- a valid email address; and
- any other information that may be required by the Company during the registration process.
This information is used by the Company to identify you as the user and provide you with support, services, billing, and to meet contractual obligations. You must promptly update this information to maintain its accuracy at all times.
You represent and warrant to the Company that all information provided to the Company by you, including the information provided by you through our account registration module or entered into your account profile, is true and not misleading and does not violate any applicable law or regulation or any person's intellectual property or other rights.
One person may not maintain more than one account on the application and derivative platforms without notification to the Company of other accounts. Accounts registered by "bots" or other automated methods are not permitted.
The Company reserves the right to terminate an account with the application and derivative platforms in its sole discretion, and without notice.
You have the right to request personal data we have on you. Where this data is no longer needed for the purposes for which it was collected, we will take reasonable steps to destroy or de-identify the information. Data where you have withdrawn consent and there is no other legal ground for processing your data will be deleted.
You have the right to object at any time to certain types of processing of your personal data, including:
- where the legal basis for processing is legitimate business interest; or
- direct marketing (including profiling).
There are some exceptions that permit the Company to continue processing despite an objection.
Dealings with third parties
The application and/or derivative platforms may an online portal that allows third parties to advertise services for sale to Users through the application and derivative platforms and to upload information and other content directly to the application and derivative platforms for Users to access. We do not act as agent for any such third parties and we take no responsibility, and assume no liability, for:
- any such content that is, or may reasonably be considered to be, abusive, harassing, harmful, obscene, indecent, inflammatory, violent, profane, racially, ethnically or otherwise objectionable, libellous, defamatory, deceptive, pornographic, sexually explicit, unlawful or plagiarised;
- any of the information supplied by such third parties (including opinions, ideas, suggestions, comments, observations, text, photographs, videos, data, music, sounds, chat messages, files or any other material); and/or
- any loss or damage that results from any dealings that you may have with such third parties.
We do not recommend or endorse any third party goods or services that are listed, advertised or referred to in the application and derivative platforms or the content of any third party applications. We are not responsible for the content of linked third party applications, applications framed within the application and derivative platforms or third party advertisements and we do not make any representations, or provide any guarantees or warranties, regarding their content or accuracy. These links may unintentionally connect with applications containing information that some Users may find inappropriate or offensive. Your use of any third party applications is at your own risk and subject to their respective terms and conditions of use.
You acknowledge that the Company does not:
- check the truth or currency of any of the material or information that third parties provide or make available through the application and derivative platforms;
- control, endorse, approve or warrant to you the merchantability or fitness for any particular purpose of any of the services of any third parties referred to in the application and derivative platforms or whose identities become known to you through the application and derivative platforms, including suppliers of content that is published or made available in or through the application and derivative platforms;
- offer professional advice on the quality or suitability of any services or information supplied by any such third parties;
- endorse or recommend any trainer or any third party services, including where details of the relevant trainer are provided by the Company to you or otherwise become known to you through the application and derivative platforms; or
- process or provide your data to third parties without your explicit consent. Explicit consent is given by providing a statement or clear affirmative action that signifies an agreement to the data processing or provision. You maintain the right to withdraw your consent.
The trainer, and not the Company, is:
- the supplier of the services that you offer to purchase; and
- solely responsible for supplying you with those services and for those services themselves.
We do not act as agent for the trainer and we make no representation or warranty, and provide no guarantee, that the trainer will provide you with the services that you offer to purchase through the application and derivative platforms, or that those services will meet your expectations. You should satisfy yourself through your own enquiries as to the quality or suitability of any trainer listed on the application and derivative platforms and any services supplied, offered or recommended by or on behalf of a trainer.
Any dealings with a trainer or third party will create a contract between you and the trainer and/or third party. The Company is not a party to that contract. That contract will be subject to relevant trainer’s own terms and conditions of supply. You will be responsible for investigating and reviewing the trainer’s terms and conditions of supply – including its policies on refunds, returns, cancellations and rescheduling, as applicable – prior to placing any order through the application and derivative platforms.
As between you and the Company, all amounts paid through the application and derivative platforms are non-refundable. If, pursuant to the terms and conditions of the contract that is formed between you and any trainer upon the acceptance of any offer that you make through the application and derivative platforms, you are entitled to any refund, the relevant trainer is solely responsible for providing you with that refund. The Company does not guarantee the provision of that refund to you and you must take action against the trainer directly, and not against the Company, in order to enforce your entitlement to that refund.
You are solely responsible for your interactions with trainers listed on the application and derivative platforms and the Company is not a party to any transactions between you and such trainers. We reserve the right, but have no obligation, to monitor and take action regarding any disputes between Users and trainers.
If you believe that any trainers from which you have purchased any goods or services through the application and derivative platforms has failed to provide those services to you, or that those services did not meet your expectations, please contact us to let us know. While we have no obligation to discipline or otherwise deal with these issues on your behalf, we retain the right to do so. As a rule, the Company will not act on your behalf, or on behalf of any trainer, in respect of any dispute between you and a trainer.
Overseas transfers of personal data
If you are visiting our application or derivative platforms from outside of Australia, please be aware that you are sending information (including your personal data) to Australia where our servers are located. That information may then be transferred within Australia or back out of Australia to other countries outside of your country of residence, depending on the type of information and how it is stored by us.
These countries may not necessarily have data protection laws as comprehensive or protective as those in your country of residence. However, our data collection, storage, and use of your personal data will at all times continue to be governed by these Terms.
In these Terms, the term "Proprietary Content" means:
- the application and derivative platforms;
- all of its content (including all of the text, graphics, designs, software, data, sound and video files and other information contained in the application and derivative platforms, and the selection and arrangement thereof); and
- all software, systems and other information owned or used by the Company in connection with the services offered through the application and derivative platforms (whether hosted on the same server as the application and derivative platforms or otherwise).
All Proprietary Content is the property of the Company or its licensors (as appropriate) and is protected by Australian and international copyright laws. You must not reproduce, transmit, republish or prepare derivative works from any of the Proprietary Content, except as expressly authorised by these Terms or with the prior written consent of the Company or other copyright owner (as appropriate).
You may download and print out content from the application and derivative platforms only for your own personal and non-commercial use and provided that you do not remove or modify any copyright, trademark or other proprietary notices.
The look and feel of the application and derivative platforms (including all button icons, scripts, custom graphics and headers) are the trademarks, service marks and/or trade dress of the Company. These trademarks, service marks and trade dress may not be used, copied or imitated, in whole or in part, without the prior written consent of the Company.
In these Terms, the term "User Content" means any and all content that is submitted, posted or otherwise added to the application and derivative platforms by any user, such as comments, forum posts, chat room messages, reviews, ratings and feedback.
The application and/or derivative platforms contain some features that enable you and other Users to upload User Content. The Company reserves the right to display, refuse to display, remove and/or amend all or any part of any User Content at its absolute discretion. In respect of any User Content that you upload, you:
- represent and warranty to the Company that your sharing of that User Content does not infringe any copyright or other legal right of any other person; and
- grant to the Company a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform and otherwise exploit all or any part of that User Content in any way at the Company’s absolute discretion.
If you believe that our application or derivative platforms contain any material that infringes upon any copyright that you hold or control, or that Users are directed through a link on the application and derivative platforms to a third party application that you believe is infringing upon any copyright that you hold or control, you may report this potentially infringing content by making use of the ‘report content’ button. In making such a report, you should identify the works that are allegedly being infringed upon and the allegedly infringing material and give particulars of the alleged infringement. Alternatively, you may notify us of any infringing content by emailing us at [email protected]
In response to such a notification, we will take reasonable steps to give a written notice of a claim of copyright infringement to the provider of the allegedly infringing material. If the provider of that material does not respond to us in writing denying the alleged infringement within 14 days after receipt of that notice, we will remove or block the allegedly infringing material as soon as is reasonably practicable. If the provider of that material responds to us in writing denying the alleged infringement, we will, as soon as is reasonably practicable, send a copy of that response to the original notifying party. If the original notifying party does not, within a further 14 days, file an action seeking a court order against the provider of the allegedly infringing material, we may restore any removed or blocked material at our discretion. If the original notifying party files such a legal action, we will remove or block the allegedly infringing material pending resolution of that legal action.
To the maximum extent permitted by law, the company and its officers, employees, agents, consultants, licensors, partners and affiliates expressly disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the application and derivative platforms and any services purchased or obtained through the application and derivative platforms, including any implied warranty/guarantee of merchantability, fitness for a particular purpose or non-infringement.
The application and/or derivative platforms are provided strictly on an "as is" basis. To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the application and derivative platforms or any of its content. Whilst all efforts are made to ensure that the application and derivative platforms is secure, error-free and uninterrupted, these efforts do not constitute a representation, warranty or guarantee that:
- the use of the application and derivative platforms will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;
- the application and derivative platforms will meet your requirements or expectations;
- anything on the application and derivative platforms, or on any third-party application referred or linked to in the application and derivative platforms, is reliable, accurate, complete or up-to-date;
- the quality of any services, information or other material purchased or obtained through the application and derivative platforms will meet any particular requirements or expectations;
- errors or defects will be corrected; or
- the application and derivative platforms or the servers that make it available are free of viruses or other harmful components.
To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to you or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, these Terms or the use of the application and derivative platforms by you or any other person.
Any supply of training services and all other ancillary goods and services to you while using the application and derivative platforms will, in the ordinary course of business, be supplied by a third party supplier. All such supply between you as a user and a third party supplier will constitute a separate commercial dealing, and it is understood that the Company will not be a party to such a dealing.
Where, for whatever reason, this is determined not to be the case, the following statutory exclusion applies:
To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates expressly limit their liability for breach of any non-excludable condition or warranty/guarantee implied by virtue of any legislation to the following remedies (the choice of which is to be at the Company's sole discretion):
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
You agree that your use of the application and derivative platforms is at your own discretion and risk. You agree to release the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from any claim, demand or cause of action that you may have against any of them arising from these Terms or the use of the application and derivative platforms by you or any other person. The Company may plead this release as a bar and complete defence to any claims or proceedings.
To the maximum extent permitted by law, and without limiting any other provision of these Terms, the Company excludes liability for any delay in performing any of its obligations under these Terms where such delay is caused by circumstances beyond the reasonable control of the Company, and the Company shall be entitled to a reasonable extension of time for the performance of such obligations.
In these Terms, the following rules of interpretation apply:
- headings are for reference purposes only and in no way define, limit or describe the scope or extent of any provision in these Terms;
- these Terms may not be construed adversely against the Company solely because the Company prepared them;
- the singular includes the plural and vice-versa;
- a reference to a "person" includes an individual, a firm, a corporation, a body corporate, a partnership, an unincorporated body, an association, a government body or any other entity; and
- the meaning of general words is not limited by specific examples introduced by "including", "for example", "in particular" or similar expressions.
The Company may provide any notification for the purposes of these Terms by email and/or by adding the notification into your User control panel.
Except as specifically provided in these Terms, each party must bear its own legal, accounting and other costs associated with these Terms.
You may not assign, transfer or sub-contract any of your rights or obligations under these Terms without the Company's prior written consent. Your registration with the application and derivative platforms is personal to you and may not be sold or otherwise transferred to any other person.
The Company may assign, transfer or sub-contract any of its rights or obligations under these Terms at any time without notice to you.
Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver. Any failure by the Company to act with respect to a breach by you or others does not waive the Company's right to act with respect to that breach or any subsequent or similar breaches.
The provisions of these Terms are severable and, if any provision of these Terms is held to be illegal, invalid or unenforceable under present or future law, such provision may be removed and the remaining provisions shall be enforced.
The Company reserves the right to amend these Terms and any other policy on the application and derivative platforms at any time in its sole discretion and any such changes will, unless otherwise noted, be effective immediately. Your continued usage of the application and derivative platforms will mean you accept those amendments. We reserve the right, without notice and at our sole discretion, to change, suspend, discontinue or impose limits on any aspect or content of the application and derivative platforms or the services offered through the application and derivative platforms.
You may only vary or amend these Terms by written agreement with the Company.
These Terms will be governed in all respects by the laws of Victoria. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and the courts of appeal from them.
Schedule 1 – Prohibited conduct
YOU MUST NOT:
- use any device, routine or software that interferes, or attempt to interfere, with the proper working of the application and derivative platforms;
- engage in any action that requires, or may require, an unreasonable or excessively large load on our infrastructure;
- use the application and derivative platforms to decipher passwords or security encryption codes, transmit any worms, viruses or Trojan horses, transfer or store illegal, threatening or obscene material or otherwise violate the security of any computer network;
- use the application and derivative platforms to violate any applicable local, state, national or international law, to engage in any misleading or deceptive online marketing practices or for any fraudulent or malicious purposes;
- use any spider, robot or search/retrieval application or any screen scraping, data mining or similar data gathering device, process, program or means to access, retrieve or index any portion of the application and derivative platforms;
- use the application and derivative platforms by any automated means;
- use the application and derivative platforms to transmit junk mail, spam or chain letters or pyramid schemes or engage in other flooding techniques or mass distribution of unsolicited email;
- access, retrieve or index any portion of the application and derivative platforms for use in constructing or populating any database that is searchable online or for the purpose of soliciting or sharing reviews;
- interfere with the display of any advertisements appearing on or in connection with the application and derivative platforms;
- reverse engineer, decompile, disassemble, adapt, modify, translate, frame or reformat any of the material contained on the application and derivative platforms;
- reproduce, duplicate, copy or store any of the material appearing on the application and derivative platforms other than for your own personal and non-commercial use;
- falsely imply that any other application is associated with the application and derivative platforms;
- do anything that leads, or may lead, to a decrease in the value of the Company's intellectual property rights in the application and derivative platforms;
- use or exploit any of the material appearing on the application and derivative platforms for, or in connection with, any business or enterprise (whether for profit or otherwise), including any business or enterprise that is in competition with the application and derivative platforms;
- release to the public any news release, advertising material, promotional material or any other form of publicity or information relating to the Company without the Company's prior written consent; or
- use the application and derivative platforms to transmit any information or material that is, or may reasonably be considered to be:
- (i) abusive, threatening, harassing, harmful, obscene, indecent, lewd, inflammatory, violent, vulgar, profane, racially, ethnically or otherwise objectionable or offensive in any way;
- (ii) libellous, defamatory, pornographic, sexually explicit, unlawful or plagiarised;
- (iii) infringing upon or violating any copyright, trademark, patent or other intellectual property or proprietary right;
- (iv) in breach of any duty of confidentiality by which you are bound, whether by way of a fiduciary or contractual relationship;
- (v) in breach of any person’s privacy or publicity rights;
- (vi) a misrepresentation of facts, including the impersonation of any person or entity or a misrepresentation of an affiliation with any person or entity (including any sponsorship or endorsement);
- (vii) in violation of any applicable law, statute, ordinance or regulation, or encouraging of others to do so;
- (viii) containing any political campaigning material, advertisements or solicitations; or
- (ix) likely to bring the Company or any of its staff into disrepute.