Terms
Welcome to Fitafy, operated by Fitfam Findr Pty Ltd ACN 636 652 778 (“Fitafy”).
These are Fitafy’s Terms of Service (“Terms”). It is important that you read these Terms before using the Fitafy mobile application (“App”), our website (www.fitafy.com) (“Website”) or any services offered on them (collectively, the “Services”), because they govern the basis on which you may access, view and use the Services and explain your rights and obligations and our rights and obligations. When you access, view or use our Services, you establish a contractual relationship between you and Fitafy and agree to be bound by these Terms. If you do not agree to these Terms, you may not access, view or use the Services.
In these Terms:
“us”, “we” and “our” refer to Fitafy; and
“Affiliate” means any company or legal entity which controls, or is controlled by, or which is controlled by an entity, which controls Fitafy. “Control” means the ownership directly or indirectly of fifty percent or more of the voting rights in a company or other legal entity.
General:
These Terms supersede any prior agreements or arrangements with you. Fitafy may (in its sole discretion) immediately terminate these Terms or any Services provided to you, or generally cease offering or deny access to the Services or any part of them, at any time for any reason (without having to disclose any reason therefor).
Supplemental terms may apply to the offer of certain other goods or services, such as policies for a particular event, activity or promotion (“Additional Offering’’), and those terms will be disclosed to you if you participate in the Additional Offering. Supplemental terms are in addition to, and are deemed to be a part of these Terms for the purposes of the Additional Offering. Such supplemental terms prevail over these Terms if there is a conflict with respect to the Additional Offering to the extent of the conflict.
Fitafy may amend these Terms (including the terms of an Additional Offering) from time to time. Amendments will be effective upon Fitafy posting the amended Terms at this location or an applicable Service. Your continued access or use of the Services constitutes your consent to be bound by the amended Terms.
You acknowledge that Fitafy collects and uses information which you provide to us through your use of the Services. By accessing, viewing or using the Services, you consent to Fitafy collecting and using technical information about the device or operating system you use to access, view or use the Services. The privacy of your personal information is important to us and we will ensure that it is held, used and disclosed consistently with Fitafy’s Privacy Policy https://www.fitafy.com/privacy
Eligibility:
You must be at least 18 years old to create an account with Fitafy and use the Services. Further, you must be legally permitted to use the Services, meaning you are not barred from using the Services under any applicable laws.
Licence:
Subject to your compliance with these Terms, Fitafy grants you a non-exclusive, non-transferable and revocable licence to (i) access, view and use the Services; and (ii) access, view and use any content, information and related materials that may be available through the Services.
The licence is limited to your personal, non-commercial use of the Services and its related content, information and materials.
Any rights not expressly granted herein are reserved by Fitafy and its licensors.
The App, the Website and all rights therein are and remain Fitafy’s property or the property of its licensors.
Neither these Terms nor your use of the Services convey or grant to you any rights (i) in or related to the App, the Website, the Services or Fitafy’s intellectual property, except for the limited licence granted above; or (ii) to use or reference in any manner Fitafy’s intellectual property.
You must not customise, modify, alter or adapt the App, the Website or the Services.
Fitafy retains exclusive rights to customise, modify, alter or adapt the App, the Website and the Services.
User Accounts:
You must create an account with Fitafy (“Account”) before accessing, viewing or using the Services. You are responsible for maintaining the confidentiality of your Fitafy login credentials. You must not use another person’s account. You are solely responsible for all activities that occur under your Account. If you think someone has gained access to your Account, you should immediately contact Fitafy customer support through the App.
You may terminate your Account at any time, for any reason. Just go to the “Settings” menu in the App or the Website and follow the instructions.
Fitafy may terminate your Account at any time without notice.
Changes to the Services:
We may add, modify, or remove some functions and features of the Services from time to time. If these changes materially affect your rights or obligations, we will give you advance notice of the changes. If the changes do not materially affect your rights or obligations, we are not required to notify you of the changes.
Content:
When you access, view or use the Services, you will see content provided by you, other users of the Services and Fitafy (“Content”). There are certain types of Content which are not permitted on the Services. We prohibit any language or material that is:
An infringement of a third party’s rights, such as showing another person without that person’s consent or impersonating a third party;
Encouraging or conducting any illegal activity or purpose prohibited by these Terms;
Junk mail or spam;
Defamatory or libelous;
Used for the purpose of advertising, conducting, or soliciting commercial activities;
Offensive, obscene, inhumane or pornographic;
Embarrassing, abusive, harassing, threatening, discriminatory, hateful, sexist or racist; or
Malware or code designed to interfere with the Services’ functions or misappropriate any data from Fitafy.
Content you submit: Content that you submit will be viewed by other users of the Services. Without liability to you, we may (but are not obliged) to monitor or review your Content, and may remove, edit, block or delete any Content that violates these Terms, is in bad taste or might harm Fitafy’s reputation.
All Content you submit must be accurate, truthful and kept up-to-date. You may not:
Display any personal contact or banking information, whether yours or that of any other person;
Publish any Content which represents (or which may have the effect of representing) to other users of the Services that you are a different person;
Represent that any of your Content is endorsed by Fitafy;
Use, access, or publish the programming interface of the App or the Website, or compromise the security of the Services or other users of the Services;
Exploit or use any part of the Services without Fitafy’s express authorisation, including but not limited to, “framing” or “mirroring”;
Use or develop any third-party applications that interact with the App, the Website or the Services;
Employ meta tags or any other devices containing a reference to Fitafy for the purpose of directing any person to any other website for any purpose;
Modify, sublicence, sell, decompile or in any way alter or disassemble any portion of the App, the Website or the Services, or cause others to do the same;
Disguise the origin of any information transmitted through the App or the Website;
Use any device, method, or process to access, index, or in any way reproduce or circumvent the navigational structure or presentation of the App, the Website or their content; or
Edit, copy, modify, adapt, reproduce, translate, or create derivative works from any copyright material, images, trade marks, trade names, service marks, or other intellectual property, content or proprietary information accessible through the App, the Website or the Services.
Content provided by you is entirely your responsibility, which means that you are liable for and will indemnify, defend, release and hold Fitafy harmless from any and all claims, demands, losses, liabilities and expenses of any nature whatsoever (including but not limited to legal fees) suffered or incurred by Fitafy arising out of or in connection with your Content.
By providing or uploading your Content, you represent and warrant to us that you have all rights, authorisations and licences to do so, and hereby grant us a non-exclusive, royalty-free, perpetual, transferable worldwide licence to use your Content for the purpose of operating, developing and improving the Services, incorporating such material in Fitafy’s advertising, promotional and marketing campaigns and researching and developing new services, subject to applicable laws (“User Licence”). This means you grant us permission to host, store, use, copy, display, reproduce, adapt, edit, publish, market, modify and distribute information you have provided us through the Services.
We may assign or sublicence the User Licence without any further approval by you.
Content of other users: Other users of the Services will also provide Content that you may see. That Content is stored and displayed by us, but it is created and owned by the user who posted it. Fitafy will use its reasonable endeavours to remove any Content that violates these Terms, but we do not guarantee that all Content will comply with these Terms at all times. You acknowledge and agree that you access, view or use the Services at your own risk.
If you see Content that violates these Terms, please immediately contact Fitafy customer support through the App.
Fitafy Content: All Content, other that Content provided by you and other users of the Services, belongs to us (“Fitafy Content”). All graphics, user interfaces, logos, artwork, text, sounds, trade marks, and intellectual property comprised in Fitafy Content is owned, controlled, or licensed by us and are protected by various copyright, trade mark, and intellectual property laws, and such right, title, or interest remains with us at all times. Fitafy Content is made available to you provided to you solely for your use of the Services and may not be used for any other purpose without Fitafy’s prior written consent.
Adverising: You acknowledge that Fitafy and our third party partners may advertise on the App, the Website and the Services, offer promotions by third parties and provide links to other websites or resources. Fitafy is not responsible for the availability (or lack of availability) of such promotions or any external websites or resources. If you choose to interact with a third party through the App, the Website or the Services, such third party’s terms of contract will govern their relationship with you. Fitafy is not responsible or liable for any interaction you may have with any such third party.
Safety:
You agree to use caution and exercise careful judgment in all interactions with other users of the Services, particularly if you decide to communicate “off” the App or the Website or meet in person.
When you submit Content to Fitafy, it instantly becomes visible to other users of the Services all over the world. We stress that you must use extreme caution in disclosing personal details about yourself to third parties you meet using the Services. Fitafy takes the safety of its users extremely seriously but is unable to control your interactions with other users (particularly if you meet another user in person).
If you choose to reveal any personal information about yourself to others, by text message, email or otherwise, you acknowledge and agree that it is entirely at your own risk. Do not provide your financial information or send money to other users. Fitafy it is not responsible for the conduct of any user of the Services on or “off” the App or the Website.
You agree that we may access and disclose information in your Account and you Content if required to do so by law or if in our opinion, reasonably formed, disclosure is reasonably necessary to comply with applicable laws, to enforce these Terms, to respond to any legal claim, or to protect the rights, safety or property of others.
We may investigate and take legal action in response to any illegal or unauthorised use of the Services. We may pass on information you provide (including your Content) to law enforcement authorities to the extent we determine necessary. We may also terminate your Account without refund of any subscription fees if you have breached these Terms or used the Services in any way that Fitafy deems inappropriate or unlawful, including inappropriate or unlawful behaviour that occurs “off” the App or the Website between users who met through Fitafy.
YOU AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, FITAFY WILL NOT BE LIABLE FOR ANY CLAIMS, DEMANDS, LOSSES, LIABILITIES, AND EXPENSES OF ANY NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LEGAL FEES) SUFFERED OR INCURRED BY FITAFY ARISING OUT OF OR IN CONNECTION WITH YOUR INTERACTIONS WITH ANY USER OF THE SERVICES EITHER ON OR “OFF” THE APP OR THE WEBSITE. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT FITAFY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR OTHERWISE INVESTIGATE THE BACKGROUND OF USERS OF THE SERVICES. FITAFY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. HOWEVER, FITAFY RESERVES THE RIGHT TO CONDUCT CRIMINAL BACKGROUND CHECKS OR OTHER SCREENINGS AT ANY TIME USING AVAILABLE PUBLICALLY AVAILABLE INFORMATION.
Purchases:
In-App Purchases: Fitafy may offer products and services for purchase (“in-app purchases”) through iTunes, Google Play or other authorised application platforms (“Store”). If you make an in-app purchase, you will need to enter account details in the Store (“Store Account”), and your Store Account will be charged for the in-app purchase in accordance with the terms disclosed to you at the time of purchase and the general terms for in-app purchases that apply to your Store Account. Some Stores may also charge you a sales or value added tax.
In-app purchases include, but are not limited to, one time purchases or monthly Fitafy Premium subscriptions.
Fitafy Premium subscription: Fitafy Premium subscription fees are monthly subscriptions (e.g. one month, three month, six month and/or twelve months) for upgraded features. Premium subscriptions are charged in one lump sum (e.g. if you purchase a three month subscription, you will be charged for all three months at once on day 1 of your subscription).
If you purchase an auto-recurring periodic subscription through an in-app purchase, your Store Account will be charged for the subscription until the subscription is cancelled. Your subscription will automatically renew unless auto-renew is turned off at least 24 hours before the end of the current subscription period. Your Store Account will be charged for the renewal within 24 hours prior to the end of the current subscription period, and will renew for the same amount of time as the previous subscription period. For example, if you chose a three-month subscription, at the end of each three-month subscription period you will be charged for additional three-months at the price you agreed to when subscribing until your subscription is cancelled.
Subscriptions may be managed or cancelled by you, and auto-renewal may be turned off anytime, by going to the Account Settings in your Store Account. If you do not want your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your Store Account and follow the instructions to cancel your subscription. Deleting your Fitafy Account or deleting the App from your device does not cancel your subscription. It is your sole responsibility to manage your subscription settings.
Fitafy will retain all funds charged to your Store Account until you cancel your subscription through your Store Account. Any unused portion of a free trial period, if offered, will be forfeited when you purchase a subscription for the Services, where applicable.
To request a refund:
If you subscribed using your Apple ID, refunds are handled by Apple, not Fitafy. To request a refund, go to iTunes, click on your Apple ID, select “Purchase history,” find the transaction and hit “Report Problem”. You can also submit a request at https://getsupport.apple.com.
If you subscribed through the Google Play Store, to request a refund, contact Fitafy customer support through the App with your order number for the Google Play Store (you can find the order number in the order confirmation email or by logging in to Google Wallet). You may also mail or deliver a signed and dated notice which states that you, the buyer, are cancelling these Terms, or words of similar effect. Please also include the email address or telephone number associated with your account along with your order number.
DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY:
DISCLAIMERS
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FITAFY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING ANY CONSUMER GUARANTEES OR IMPLIED WARRANTIES THAT THE SERVICES WILL BE OF ACCEPTABLE QUALITY, FIT FOR THE PURPOSE DISCLOSED, OR CARRIED OUT BY FITFAY WITH DUE CARE AND SKILL. IN ADDITION, FITAFY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
YOU MAY HAVE CERTAIN RIGHTS UNDER LAW INCLUDING CONSUMER GUARANTEES OR IMPLIED WARRANTIES THAT THE SERVICES WILL BE OF ACCEPTABLE QUALITY, FIT FOR THE PURPOSE DISCLOSED, AND CARRIED OUT BY FITAFY WITH DUE CARE AND SKILL. THESE TERMS DO NOT EXCLUDE OR LIMIT THESE GUARANTEES, IMPLIED WARRANTIES OR ANY OTHER STATUTORY RIGHTS THAT YOU MAY HAVE UNDER APPLICABLE LAWS.
FITAFY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ACTIONS OF OTHER USERS OF THE SERVICES. FITAFY TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU OR ANOTHER USER OR THIRD PARTY POSTS, SENDS OR RECEIVES THROUGH THE SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICES OR GOODS REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL FITAFY, ITS AFFILIATES, AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, LICENSORS, AGENTS AND SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM (DIRECTLY OR INDIRECTLY) YOUR USE OF THE SERVICES, EVEN IF FITAFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FITAFY IS NOT LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES (OF ANY KIND) OR OTHER ECONOMIC LOSSES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, UNDER ANY STATUTE OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH: (I) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (II) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON, THROUGH, OR FOLLOWING USE OF THE SERVICES; OR (III) UNAUTHORISED ACCESS, USE OR ALTERATION OF YOUR CONTENT, EVEN IF FITAFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FITAFY IS NOT LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND FITAFY’S REASONABLE CONTROL. IN NO EVENT WILL FITAFY’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS IN CONNECTION WITH YOUR USE OF THE SERVICES EXCEED THE AMOUNT OF SUBSCRIPTION FEES PAID, IF ANY, BY YOU TO FITAFY FOR USE OF THE SERVICES.
THIS LIMITATION OF LIABILITY DOES NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER LAW.
INDEMNITY.
YOU AGREE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TO INDEMNIFY, DEFEND AND HOLD FITAFY AND ITS AFFILIATES, AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, LICENSORS, AGENTS AND SERVICE PROVIDERS (“INDEMNIFIED PARTIES”) HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, LIABILITIES, AND EXPENSES OF ANY NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LEGAL FEES), SUFFERED OR INCURRED BY AN INDEMNIFIED PARTY ARISING OUT OF OR IN CONNECTION WITH: (I) YOUR USE OF THE SERVICES OR GOODS OBTAINED THROUGH YOUR USE OF THE SERVICES; (II) YOUR BREACH OF THESE TERMS; (III) FITAFY’S USE OF YOUR CONTENT; OR (IV) YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY.
Dispute Resolution: If a dispute arises out of these Terms or the use of the App or the Services (“Dispute”), you must promptly notify Fitafy in writing giving details of the Dispute.
The parties must use their respective reasonable endeavours to resolve the Dispute.
If the Dispute cannot be resolved within thirty days of notice of the Dispute, either party may refer the dispute to mediation.
Each party must bear its own costs in relation to compliance with these provisions, except for the cost of medication which will be borne equally.
A party may not commence any court proceedings in relation to the Dispute (except proceedings seeking interlocutory relief) unless it has first complied with these provisions.
Miscellaneous:
Governing law: These Terms are governed by and construed in accordance with the laws of Western Australia and the parties submit themselves to the non-exclusive jurisdiction of the Courts of that State.
Assignment: Fitafy may assign or transfer its rights and obligations under these Terms and the Services in whole or in part, to (i) an Affiliate, (ii) an acquirer of Fitafy’s equity, business or assets; or (iii) a successor by merger.
You must not assign or transfer your Account or rights or obligations under these Terms to any other person or entity without our prior written consent.
Notice: Fitafy may give you notice of a matter in connection with these Terms by text message, email or by other forms of communication to the addresses specified in your Account. You may give notice to us of a matter in connection with these Terms by email to support@fitafy.com
Waiver: No failure, delay or omission by Fitafy in exercising any of its rights, powers or remedies provided under these Terms or by law will operate as a waiver of that right, power or remedy, nor will it preclude or restrict any future exercise of that or any other right or remedy.
Severability: If any part of these Terms is or becomes illegal, void or unenforceable, this does not invalidate the rest of these Terms.
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