Welcome to Fit By The Figure!
MOBILE APP TERMS AND CONDITIONS OF USE – SERVICES
PLEASE READ THESE TERMS AND CONDITIONS (‘TERMS’) CAREFULLY BEFORE USING THE APPLICATION
- Who we are and how to contact us
- Fit by the Figure is a mobile application (‘Application’) operated by Number Fifty8 Pty Limited ABN 649 643 345 (‘NF8, we, us and our’).
- To contact us, please email firstname.lastname@example.org
- We nutrition, yoga, exercise, fitness, mind health and meditation information and services and any associated products via the Application from time to time (‘Services’). Reference to the Application, includes the Services.
- Where we deliver the services, in our sole discretion, through our Website, Facebook group, social media platforms or any other medium, such medium will also be referred to as the Application.
- By using our Application you accept these Terms
- You accept the Terms by using or browsing the Application. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by NF8 in the user interface.
- If you do not agree to these Terms, you must not use our Application. You agree you are at least 18 years old to make any purchases on our Application. Any user under the age of 18 years old must obtain parental consent before accessing or using our Application or Services. By using our Application or Services, you represent and warrant that you have obtained the necessary parental consent.”
- We are the owner or the licensee of all intellectual property rights in our Services, Application, and in the material published on it. Nothing in these Terms transfers any rights to you. All such rights are reserved.
- We may make changes to these Terms
- We may amend these Terms from time to time. Every time you wish to use our Application, please check these Terms to ensure you understand the Terms that apply at that time.
- These Terms were most recently updated on 26th October 2023.
- We may make changes to our Application
- We may update and change our Application from time to time to reflect changes to our Services, our users’ needs, changes in law and our business priorities.
- We may suspend or withdraw our Application
- We do not guarantee that the Services, the materials, our Application, or any content on it, will always be available, uninterrupted or be error-free. We may suspend or withdraw or restrict the availability of all or any part of our Application or products for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.
- This Application is provided on an “as is” and “as available” basis, and we make no representations or warranties, express or implied, regarding the operation or availability of the Application or Services.
- In order to access the Services, you must first download the Application and then register for an account through the Application before you can access the Services (‘Account’).
- As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including, email address, preferred username, address, telephone number, and password. We also collect information about your height, weight, activity level, injuries, illnesses, pregnancy, etc.
- You warrant that any information you give to NF8 in the course of completing the registration process will always be accurate, correct and up to date.
- Once you have completed the registration process, you will be a registered member of the Application (‘Member’) and agree to be bound by the Terms.
- 7-Day Trial Period
- Upon registering for an account through the Application, you will be granted a 7-day trial period (‘Trial Period’) to access and use the Services free of charge. During the Trial Period, you will have full access to all features and functions of the Application.
- At the end of the Trial Period, your access to the Services will automatically renew, unless you choose to cancel your Subscription as described in Section 8.
- Please note that NF8 reserves the right to modify or terminate the Trial Period at any time, in its sole discretion, without prior notice.
- Once you are a Member you may purchase a subscription through the Application (‘Subscription’) and pay the applicable fee for the selected Subscription (‘Subscription Fee’).
- Upon payment of the Subscription Fee, you will be granted immediate access to the Services until the subscription period expires or your Subscription is terminated (‘Subscription Period’).
- The Subscription Services may be provided by way of various subscription packages, which will vary from time to time (this includes, but is not limited to, costs, inclusions and frequency of services or content).
- In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.
- We reserve the right to change the Service delivery date or method if we deem it necessary to do so for any reason. We will endeavour to provide you reasonable notice, however we will not be held responsible for any changes to the Service delivery date or method, provided the Services have still been delivered.
- Your obligations as a Member
- As a Member, you agree to comply with the following:
- you will use the Services only for purposes that are permitted by:
- As a Member, you agree to comply with the following:
- the Terms; and
- any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
- you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services. You must immediately notify us of any breach of your details;
- any information and content within the Application is confidential and proprietary in nature and, to this end, must not, under any circumstances, be copied or disclosed to any person without our prior written consent or required by law;
- you will not use the Services or the Application in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of NF8;
- you will not use the Services or Application for any illegal and/or unauthorised use which includes collecting email addresses of Members data and sending unsolicited emails;
- you acknowledge and agree that any automated use of the Application or its Services is prohibited.
- Where the option is given to you, you may make payment of the Subscription Fee by way of Apple IAP, the Google Play Store, or credit card payment (‘Payment Method’).
- The Subscription Fees are payable in Australian Dollars (AUD).
- All payments made in the course of your use of the Services are made using the relevant App Store’s billing system. In using the Application, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the Apple IAP, Google Play Store or other Payment Method terms and conditions which are available on their websites.
- You expressly authorise us to automatically charge your Payment Method for each Subscription Fee, without further authorisation from you.
- You agree and acknowledge that NF8 can vary the Subscription Fee at any time and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period.
- If your initial payment authorisation is revoked, your Subscription will be suspended or terminated.
- Refund Policy
- NF8 will only provide you with a refund of the Subscription Fee in the event they are unable to continue to provide the Services or if the manager of NF8 makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Member.
- No change of mind refunds will be given.
- Copyright and Intellectual Property
- The Application, the Services and all of the related products of NF8 are subject to copyright.
- We own the intellectual property rights in the Application, Services and any materials, and you will have a non-exclusive, non-transferable licence to use the Application and any materials we provide to you for your own personal purposes.
- You may not, without the prior written permission of NF8 and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms.
- By uploading any photos or images to the Application, you hereby grant NF8 a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to use, reproduce, distribute, display, and modify the photos or images for the purposes of providing and promoting the Services. You represent and warrant that you have all necessary rights and permissions to grant this license and that the photos or images do not violate any third-party rights, including intellectual property rights or privacy rights.
- User Content
- You may be permitted to post, upload, publish, submit or transmit relevant information and content (User Content) on our Application. By making available any User Content on or through our Application, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through or by means of our Application.
- You agree that you are solely responsible for all User Content that you make available on or through our Application. You represent and warrant that:
- you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content (as contemplated by these Terms); and
- neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Application will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- We do not endorse or approve, and are not responsible for, any User Content. We may, at any time (at our sole discretion), remove any User Content.
- Content standards
- In particular, you warrant that your User Content will not:
- Contain any material which is defamatory, obscene, abhorrent, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;
- Contain or promote sexual or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- Be likely to deceive any person;
- Promote any illegal activity, or advocate, promote or assist any unlawful act;
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;
- Impersonate any person, or misrepresent your identity or affiliation with any person or organisation, including with us;
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; and
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
- Whenever you make use of a feature that allows you to upload User Content, or to make contact with other users of our Application, you must comply with the content standards in this clause.
- You warrant that any such contribution complies with these standards, and you will be liable to us for any breach of that warranty. In the event of such a breach, your right to use our Application will cease immediately.
- In particular, you warrant that your User Content will not:
- General Disclaimer
- Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
- Subject to clause 13.1, and to the extent permitted by law all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded.
- You acknowledge and agree that any results or outcomes achieved through the use of our Services, Application, or any guidance provided by NF8 are dependent upon your own efforts, dedication, and individual circumstances. NF8 does not guarantee any specific results or outcomes from using our Services.
- Before engaging in any exercise program during pregnancy, it is important to consult with a qualified healthcare provider. The information provided in our Application and Services regarding pregnancy exercises is for informational purposes only and is not intended to substitute professional medical advice, diagnosis, or treatment.
- You understand that individual results may vary and are influenced by various factors, including but not limited to your level of commitment, adherence to our guidance, and your unique physical and mental abilities. Therefore, NF8 cannot be held responsible or liable for any actual or perceived results or lack thereof.
- By using our Services, you acknowledge and agree that any actions, choices, or decisions you make based on the information provided in the Application and Services regarding pregnancy exercises are done at your own risk. NF8, its affiliates, employees, agents, contributors, third party content providers, and licensors shall not be held liable for any direct or indirect consequences, including any loss or costs incurred, arising from your reliance on the information provided in the Application and Services regarding pregnancy exercises.
- It is essential to consult with your healthcare provider or a qualified medical professional before starting any fitness, exercise, or wellness program, particularly if you are pregnant. Each pregnancy is unique, and individual circumstances may affect the suitability of certain exercises. Your healthcare provider can provide personalized guidance and recommendations based on your specific needs and medical condition.
- By using our Services, you agree to release NF8 from any liability or responsibility for any outcomes, results, or consequences that may arise from your use of our Services, Application, or any guidance provided regarding pregnancy exercises. NF8, its affiliates, employees, agents, contributors, third party content providers, and licensors do not provide medical advice or practice medicine. The use of the Application and Services does not constitute the provision of medical services.
- If you have any concerns or questions about exercising during pregnancy, we strongly advise consulting with your healthcare provider before proceeding.
- NF8, its affiliates, employees, agents, contributors, third party content providers, and licensors do not provide medical advice or practice medicine. The Application and Services are not intended to create a doctor-patient relationship. The use of the Application and Services does not constitute the provision of medical services.
- If you have a medical emergency, call your doctor or emergency services immediately. Do not disregard professional medical advice or delay seeking medical treatment based on the information provided in the Application and Services.
- Limitation of liability
- NF8’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you, or the 3 x Subscription Fees you have paid in the preceding 12 months.
- You agree that we will not be liable for (i) loss or corruption of data, (ii) loss of profit, goodwill, business opportunity, anticipated savings or benefits or (iii) indirect or consequential loss.
- Nothing in the Agreement will limit a person’s liability for anything else that cannot be limited by law.
- If you are in the business of providing similar Services for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of NF8. Competitors are not permitted to use or access any information or content on our Application. If you breach this provision, NF8 will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
- Termination of Contract
- The Terms will continue to apply until terminated by either you or by NF8 as set out below.
- You may cancel your Subscription by:
- providing written notice to the Company by email to: email@example.com at least 3 business days before payment is due to cancel your Subscriptions through the Website; or
- selecting the ‘unsubscribe’ option through Account Settings on the Website or Application. A confirmation email will be sent to you to confirm your membership cancellation.
- Any cancellation of the Subscription by you will take effect at the end of the period to which the Subscription Fee relates.
- NF8 has the right to suspend, and/or terminate your access to any part of the Application or Services, for any reason (including a breach of these Terms) or may prevent your use of the Application or Services with or without notice to you. You agree that you do not have any rights in the Application or Services and that NF8 has no liability to you if the Services are discontinued or your ability to access them is terminated.
- You agree to indemnify and hold harmless us from and against any and all actions, suits, claims, demands, liabilities, costs, expenses, loss, damage (including legal fees on a full indemnity basis), and any direct or indirect consequences incurred, suffered, or arising out of or in connection with your content, any misuse or breach of our Intellectual Property.
- We are not responsible for viruses
- We do not guarantee that our Application will be secure or free from bugs or viruses or any other type of malicious code or software.
- You are responsible for configuring your technology to access our Application. You should use your own antivirus software.
- We are not responsible for websites we link to
- Where our Application contains links to other Applications (including banner advertisements and sponsored links) and resources provided by third parties, these links are provided for your information only and you access third party websites subject to the terms and conditions for those website.
- You agree to read and be bound by the terms and conditions of the relevant App Store in which you downloaded this Application.
- App Store Terms
- If you access or download our Application from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement and any Usage Rules set out in the App Store Terms of Service.
- Otherwise if you access or download our Application from the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the License Agreement and Terms of Application.
- Dispute Resolution
- If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless both parties have attempted to resolve the dispute through mediation.
- Governing Law and Jurisdiction
- The Services offered by NF8 is intended to be viewed by residents of Australia. The Terms are governed by the laws of Victoria, Australia. In the event of any dispute arising out of or in relation to the Application or Services, you agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia.
Fit by the Figure (www.fitbythefigure.com) is a website and mobile application operated by Number Fifty8 Pty Limited ABN 649 643 345 (‘NF8, we, us and our’).
You consent to us collecting, holding, using and disclosing your personal information in accordance with this policy.
What is personal information?
The collection, use and disclosure of personal information is governed by the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles (APPs).
Personal information is any information or an opinion about an identified individual or an individual who can be reasonably identified from the information or opinion. Information or an opinion may be personal information regardless of whether it is true.
What personal information do we collect and hold?
We may collect information about how you access, use and interact with the website We do this by using a range of tools such as Google Analytics, Meta Pixel, Stripe, PayPal, Apple Inc and the Google Play Store. This information may include:
- the location from which you have come to the site and the pages you have visited; and
- technical data, which may include IP address, the types of devices you are using to access the website, device attributes, browser type, language and operating system.
Why do we collect, hold and use your personal information?
We collect, hold and use your personal information so that we can:
- provide you with products and services, and manage our relationship with you;
- suggest the best possible option for you based on the information and details you provide, including your goals and preferences, and offer tailored workouts and meals accordingly.
- contact you, for example, to respond to your queries or complaints, or if we need to tell you something important;
- developing and growing our business and services (such as identifying client needs and improvements in service delivery);
- maintaining, administering and managing our website and systems and applications;
- comply with our legal obligations and assist government and law enforcement agencies or regulators; or
- identify and tell you about other products or services that we think may be of interest to you.
If you do not provide us with your personal information, we may not be able to provide you with our products or services, communicate with you or respond to your enquiries.
How do we collect your personal information?
We will collect your personal information directly from you whenever you interact with us.
We may collect information from third parties such as:
- Apple Inc;
- Alphabet Inc.
How do we store and hold personal information?
The security of your personal information is extremely important to us. To prevent any unauthorised access or disclosure, we have implemented appropriate physical, electronic, and managerial security measures. These procedures aim to safeguard and secure personal information, protecting it from misuse, interference, loss, unauthorised access, modification, and disclosure.
How we treat personal information that is also sensitive information
Sensitive information is a subset of personal information that is given a higher level of protection under the APP. Sensitive information means information relating to your racial or ethnic origin, political opinions, religion, trade union or other professional associations or memberships, philosophical beliefs, sexual orientation or practices, criminal records, health information or biometric information.
We only collect, hold, use and disclose sensitive information for the following purposes:
- any purposes you consent to;
- the primary purpose for which it is collected;
- secondary purposes that are directly related to the primary purpose for which it was collected, including disclosure to the above listed third parties as reasonably necessary to provide our services to you;
- to contact emergency services, or to speak with your family, partner or support person where we reasonably believe there is a serious risk to the life, health or safety of you or another person and it is impracticable for us to obtain your consent; and
- if otherwise required or authorised by law.
Who do we disclose your personal information to, and why?
We will never sell, rent or disclose your personal information to third parties without your consent, unless required by law or permitted by the Privacy Act. We may share your personal information with:
- our employees or contractors;
- our business partners and affiliates; and
- our trusted third-party service providers who assist us in providing our goods or services to you, such as payment processors, shipping providers, debt collectors, marketing agencies or website hosting providers.
If the ownership or control of all or part of our business changes, we may transfer your personal information to the new owner.
We may also disclose your personal information to courts, tribunals and regulatory authorities, if:
- you fail to pay for goods or services we have provided to you;
- in connection with any actual or prospective legal proceedings;
- in order to establish, exercise or defend our legal rights; or
- as required by law.
Do we disclose personal information to overseas recipients?
Personal information may be stored in overseas. If we share your personal information with the third parties listed above, they may also store, transfer, or access personal information outside of Australia. We will only disclose your personal information to third parties in countries that have laws protecting personal information in a manner similar to the Australian Privacy Principles, unless we have obtained your consent for the overseas disclosure of your personal information. Alternatively, we will take reasonable steps, considering the circumstances, to ensure that overseas recipients protect your personal information in accordance with the Australian Privacy Principles.
Do we use your personal information for marketing?
We want to make sure that we provide you with products and services that you’ll love, so we may use your personal information to offer you products and services that we think might interest you. However, if you prefer not to receive these offers, just let us know and we won’t send them to you. These offers may come from us, our related companies, our business partners, or our service providers.
If you receive marketing emails from us, you can easily opt-out of receiving further emails by following the instructions provided in the email.
Access to and correction of your personal information
You have the right to access and correct any personal information we hold about you. If you want to do so, just contact us using the details provided below. However, there may be some situations where we’re not able to give you access to your information.
We won’t charge you for requesting access to your information, but if your request requires us to do a lot of work, such as photocopying or compiling a lot of material, we may need to pass on some reasonable costs to you.
We will endeavour to respond to your request to access or correct your personal information as quickly as we can. We will also do our best to make sure that the information we hold about you is accurate and up-to-date.
Your rights under the EU GDPR
Under the European Union (EU) General Data Protection Regulation (GDPR), as a data subject you have the right to:
- access your data;
- have your data deleted or corrected where it is inaccurate;
- object to your data being processed and to restrict processing;
- withdraw consent to having your data processed;
- have your data provided in a standard format so that it can be transferred elsewhere; and
- not be subject to a decision based solely on automated processing.
(Data Subject Rights)
We have processes in place to deal with Data Subject Rights requests. Our actions and responsibilities will depend on whether we are the controller or processer of the personal data at issue. Depending on our role as either a controller or processor, the process for enabling Data Subject Rights may differ, and are always subject to applicable law. We offer a self-service option in some situations that directly allows you to access, correct, or delete the personal data that you may have provided. Please refer to the Contact Details section of this policy if you would like to make a Data Subject Rights request or have a specific need for assistance with a Data Subject Rights request.
In the event of a change in our data retention practices that may affect your personal information, we will provide you with notice of such change in accordance with applicable laws and regulations.
We take your privacy seriously, and we want to make sure that we’re always doing the right thing by you. If you have a compliant about the way we’ve handled your personal information or you have any other privacy-related concerns, please get in touch with us using the contact details below.
We promise to listen to your complaint and investigate it thoroughly. We’ll keep you updated on the outcome of our investigation and any subsequent internal investigations.
If you’re still not satisfied with the way we’ve handled your privacy issue, you can reach out to an independent advisor for guidance. Alternatively, you can contact the Office of the Australian Information Commissioner (OAIC) for advice on other steps you can take. You can find their website at www.oaic.gov.au.
At the end of the day, we’re committed to resolving any privacy issues quickly and to your satisfaction. So please don’t hesitate to contact us if you need to.
If you have any questions, comments, requests or concerns, please contact us at:
Number Fifty8 Pty Limited ABN 649 643 345
Last updated: 2 November 2023
Changes to this policy