App Terms & Conditions

Welcome

Welcome to CloudFit! We are proud to offer you a platform to create workout programs and run these via our display system. We’re excited to help you grow your fitness business! But first, there are just a few terms and conditions that we need to cover to make sure we’re all on the same page.

Terms & Conditions

This online platform (Platform) is operated by CloudFit Pty Ltd ACN 634 660 530 trading as CloudFit (we, our or us). It is available as a mobile application, and may also be available through other addresses or channels, including our Website: https://cloudfit.tv/.

Acceptance

You accept these terms and conditions, including any policies, codes of conduct or other terms set out on the Platform (Terms), by clicking an 'I accept' button (or similar) to indicate your acceptance. You must be over 16 years of age to use our Platform.

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.

Signing up to our Platform

You can download and view some of our content on our mobile application without an account, however, you are required to create an account to access certain features (Account). You can create an account for free via the Platform and you may be offered the option to create an Account using an existing third party account, such as a Facebook or Google account. You must provide basic information when registering for an Account including your name and you must choose a password (unless using an existing third party account, in which case your password will be that of your third party account). You must provide accurate, current and complete information during the registration process and you must update such information to keep it accurate, current and complete.

You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms.

Subject to the available functionality of the Platform and to your Account entitlements, you may be provided the option to invite staff to use your Account as an authorised user.

You are responsible for keeping your Account details and your password confidential and you will be liable for all activity on your Account, including the activity of any authorised users, and purchases made using your Account details, whether or not you authorised such activities or actions.

You will immediately notify us of any unauthorised use of your Account.

At our sole discretion, we may refuse to allow any person to register or create an Account or be an authorised user.

Your Subscription

To access certain features of the Platform you will require a paid subscription (Subscription). Your Subscription will entitle you to use the Platform, including displaying Workout Content, at one physical location at a time (Location). We set out on our Website the details of our Platform and the various services we offer to you (our Services), including the packages for each Subscription that we offer. All the details of what we include in our Subscriptions are set out on our Website.

We may make available on the Website (1) Subscriptions that renew on an annual basis, with annual payments (Annual Subscriptions); and (2) Subscriptions that renew on a monthly basis, with monthly payments (Monthly Subscriptions). You can use your Account to sign-up for a Subscription on our Website.

You may use our Content to create workouts on our Platform (Workout Content). You may also be able to use your User Content (defined below) to create workouts. Any workout videos created using the Platform must maintain the CloudFit branding regardless of where the videos are posted. Anyone who views or is involved in any fitness or exercise related activity in connection with Workout Content is a Participant. Workout Content may be displayed to Participants via our display system application (Display System). To use our Display System you must download our display application and pair it to your Account using the instructions provided to you. You may only display the Workout Content on a Display System, at one Location, at a time. If you wish to display Workout Content at more than one Location at a time, you will need to purchase additional Subscriptions or Add-ons via the Platform.

Support: If your Subscription entitles you to technical support, we will provide that technical support to you, provided that where required, you assist us in investigating and ascertaining the cause of the fault and provide us with access to all necessary information relevant to the fault (including what you have done in relation to the fault).

Subscription Fees

You must pay us the fees set out on the Website in relation to your chosen Subscription (Subscription Fee) in order to receive the Services outlined in your Subscription.

Where you have selected an Annual Subscription, you must pay the Subscription Fee in advance of the next year via direct debit from a credit card or bank account (Annual Payment Date).

Where you have selected a Monthly Subscription, you must pay the Subscription Fee in advance of the next month via direct debit from a credit card or bank account (Monthly Payment Date).

The direct debit arrangement is subject to additional terms and conditions from our third-party payment provider, currently Stripe, as set out on the Platform.

There may also be add-ons offered, as described on the Website or Platform (Add-on), which you can purchase by paying the fee for the Add-On as set out on the Website or Platform (Add-On Fee). You will not be entitled to receive the benefit of any Add-On until you pay the applicable Add-On Fee in full via credit card, or any other method specified by us.

To the maximum extent permitted by law and other than as expressly set out in these Terms, the Subscription Fee and Add-On Fee are non-refundable.

The Subscription Fee and Add-On Fee include GST as applicable in your country. You are responsible for all taxes, levies or duties imposed by taxing authorities in your own country, and you shall be responsible for payment of them. We have no responsibility to them on your behalf.

We may modify the Subscription Fees from time to time upon 7 days' written notice to you by email. The updated Subscription Fees will apply to your next Annual Payment Date or Monthly Payment Date (as applicable).

Upgrades and Downgrades

You may upgrade or downgrade your Subscription by using the Platform functionality or by emailing us at the address at the end of these Terms. If you upgrade, you will be able to access the functionality of your new Subscription immediately. If you downgrade, you will be able to continue accessing your current Subscription functionality until the end of the current month. The upgrade or downgrade will come into effect on your next Annual Payment Date or Monthly Payment Date (as applicable) which falls after the conclusion of the 7 days’ written notice. You must pay to us the new Subscription Fees on the Annual Payment Date or Monthly Payment Date (as applicable) which the upgrade or downgrade takes effect.

We do not allow for a Subscription to be put on hold or “frozen”.

Collection Notice

We collect personal information about you in order to enable you to access and use the Platform, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.

We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by law. If you do not provide this information we may not be able to provide you with access to our Platform. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.

Our Privacy Policy contains further information about (1) how we store and use your personal information; (2) how you can access and seek correction of your personal information; (3) how you can make a privacy-related complaint; and (4) our complaint handling process.

By providing personal information to us, you understand we will collect, hold, use and disclose your personal information in accordance with our Privacy Policy.

Prohibited conduct

You must not do, or attempt to do, anything that is unlawful; anything prohibited by any laws which apply to our Platform or which apply to you or your use of our Platform; anything which we would consider inappropriate; or anything which might bring us or our Platform into disrepute, including (1) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights; (2) using our Platform to defame, discriminate against, harass, abuse, threaten, menace or offend any person; (3) interfering with any user using our Platform; (4) tampering with or modifying our Platform; (5) knowingly transmitting viruses or other disabling features, or damaging or interfering with our Platform, including using trojan horses, viruses or piracy or programming routines that may damage or interfere with our Platform; (6) anything that might violate any local, state, national or other law or regulation or any order of a court, including privacy regulations; (7) offering any goods or services that you do not intend to honour or cannot provide; (8) using our Platform to send spam; or (9) facilitating or assisting a third party to do any of the above acts.

Intellectual Property rights

We grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.

Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) in our Platform and all of the information and materials available on it or in connection with it, including any exercise instructions and any Workout Content (Content). We grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Content to create and display Workout Content solely via our Platform.

Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.

Other than as expressly permitted by these Terms, you must not, without the prior written consent of ourselves or the owner of the Content (as applicable) (1) copy or use, in whole or in part, any Content; (2) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or (3) breach any intellectual property rights connected with our Platform or any Content, including by (a) altering or modifying any of the Content; (b) causing any of the Content to be framed or embedded in another website; or (c) creating derivative works from the Content.

Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of linked Third Party Inputs (as defined below), the Platform and Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it does not contain identifying information. We, and our licensors own all rights, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all intellectual property rights in the foregoing.

User Content

You may also be permitted to post, upload, publish, submit or transmit relevant information and content, including your own exercise instructions (User Content) on our Platform. User Content expressly excludes Workout Content.

By creating or making available any User Content on or through our Platform, 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, and modify such User Content on, through, or by means of our Platform. If you upload any photographs, branding, logos or similar content to the Website (including any of our social media channels) you agree that we may publicise and advertise these photographs.

You agree that you are solely responsible for all User Content that you make available on or through our Platform. You represent and warrant that (1) 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 (2) 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 Platform 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.

Consumer Guarantees

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 excludes your Statutory Rights as a consumer under the ACL.

Notice regarding Apple

To the extent that you are using or accessing our 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 our 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.

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.

Liability

In these Terms and Conditions, Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with (1) your acts or omissions, or those of your authorised users or Participants; (2) any use or application of the Platform by a person other than you, or other than as reasonably contemplated by these Terms; (3) any works, services, goods, materials or items which do not form part of the Platform; (4) any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Platform; (5) the Platform being unavailable, or any delay in us providing our services to you, for whatever reason; and/or (6) any event outside of our reasonable control (whether known or unknown at the time if entering into these Terms).

This clause will survive the termination or expiry of these Terms.

Limitations on Liability

Despite anything to the contrary, to the maximum extent permitted by law and whether under statute, contract, equity, tort (including negligence), indemnity or otherwise, (1) our maximum aggregate Liability arising from or in connection with these Terms will be limited to us resupplying our Services to you or, in our sole discretion, to us repaying you the amount of the Subscription Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates, or if no Subscription Fees have been paid by you to $100; and (2) we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), 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.

This clause will survive the termination or expiry of these Terms.

Warranties, disclaimers and Indemnities

Your representations and warranties: You represent, warrant and agree that (1) you have full legal capacity, right, authority and power to enter into these Terms and to perform your obligations under these Terms; (2) these Terms constitute a legal, valid and binding agreement, enforceable in accordance with its terms; (3) you will provide all assistance, information and documentation necessary to enable us to provide the Services and that all information you provide to us in connection with the Platform willbe true, accurate and complete;(4) you are solely responsible for any User Content, for any Workout Content you create or display and for all Participants; (5) it is your responsibility to ensure when using our Content, that (i) any Workout Content you create is safe; (ii) your Participants are supervised by a suitably qualified fitness instructor at all times; (iii) your Participants do not exceed their limits while participating in any Workout Content; and (iv) you select the appropriate level for the skills and abilities, as well as any mental or physical conditions and/or limitations of your Participants.

Your acknowledgements: You acknowledge and understand (1) that using any Content for any fitness or exercise related activities may involve a risk of serious injury or even death from various causes including: overexertion, dehydration, equipment failure and accidents with equipment and surroundings; (2) that from time to time, the exercise instructions in the Content may suggest physical adjustments or the use of equipment; (3) that it is your sole responsibility to determine if any suggested adjustment or equipment is appropriate for your Workout Content and for your Participants; (4) that in the event that you become aware of any medical conditions, injuries or impairments that may be detrimental to a Participant's health, you must immediately stop the Participant from using our Content; and (5) the difficulties associated with following the exercise instructions in our Content and attest that you have ensured each of your Participants is physically fit to participate safely in the Workout Content you create and that a qualified medical practitioner has not advised otherwise.

Third Party Inputs: You acknowledge and agree that (1) you use the Platform at your own risk; and (2) the provision of the Platform may be contingent on, or impacted by, third parties, suppliers or other subcontractors (Third Party Inputs), and despite anything to the contrary, the maximum extent permitted by law, we will not be responsible and will have no Liability for any default or breach of these Terms or any law if such default or breach was caused or contributed to by any Third Party Inputs.

Exclusion: You agree that, to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.

Indemnity: To the maximum extent permitted by law, you must indemnify us, and hold us harmless, against any Liability suffered by us arising from or in connection with (1) your User Content; (2) your Participant/s; (3) any breach of these Terms by you; (4) any breach of any third party rights by you; or (5) any applicable laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end. It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.

This clause will survive the termination or expiry of these Terms.

Termination

You may terminate your Account and terminate these Terms at any time via the "Cancel Account" feature (or similar) on our Platform or by sending us an email to the address at the end of these Terms and these Terms will terminate on the date that we receive your termination notice. We will provide you a pro-rata refund of any Subscription Fees paid in advance by you in connection with the unused portion of an Annual Subscription. If you have a Monthly Subscription, you will not be charged the Subscription Fee from the next month. You can continue using your Account until the end of the current month (if you have an Annual Subscription) or until the end of the then current billing period (if you have a Monthly Subscription).

We may suspend your Account or terminate your Account and these Terms immediately if you are in breach of these Terms (including for non-payment of our Subscription Fees, or for displaying Workout Content from a single Display System at more than one Location at a time), any applicable laws, regulations or third-party rights. To the maximum extent permitted by law, no refunds will be made upon termination by us in accordance with this clause.

We may also terminate your Account and these Terms without cause by giving you 7 days' notice. If we do so, we will provide you a pro-rata refund of any Subscription Fees paid in advance by you in connection with the unused portion of the Subscription.

You may terminate your Account and these Terms immediately if we are in material breach of these Terms and you provide notice to us of this material breach and within 14 days of receiving such notice from you, we have not remedied the material breach. Where you terminate in accordance with this clause, we will provide you a pro-rata refund of any Subscription Fees paid in advance by you in connection with the unused portion of the Subscription.

On expiry or termination of these Terms and your Account (1) we will stop providing the Platform and any Services to you and you must immediately cease using the Platform and any Services; (2) you will not be entitled to continue using or receive a copy of any Content; and (iii) for the avoidance of doubt, you will not be entitled to continue using or receive a copy of any Workout Content.

General

Third party sites : Our Platform may contain links to websites operated by third parties. Unless expressly stated otherwise, we do not control, endorse or approve and are not responsible for the content on those websites. You should make your own investigations with respect to the suitability of those websites.

Discontinuance : We may, at any time and without notice to you, discontinue our Platform, in whole or in part. We may also exclude any person from using our Platform, at any time at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion.

Competitors: You are prohibited from using our Platform, including our Content, in any way that competes with our business. If you breach this term, we will hold you responsible for Liability we suffer, and hold you accountable for any profits that you may make from non-permitted use.

Information: The Content is not comprehensive and is for general information purposes only. It does not consider your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, we make no representation or warranty regarding it, to the extent permitted by law. The Content is subject to change without notice. However, we do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.

Variation: We may modify these Terms from time to time by notifying you by email. By continuing to use the Platform after such modification, you agree to the amended terms. If you do not agree to the modifications, you must terminate your Account and stop using the Platform. In the event that we modify these Terms and you believe the modification causes you material detriment, you may terminate your Account and we will refund to you Subscription Fees paid in advance by you in connection with the unused portion of the Services.

Assignment: You may not assign, transfer or delegate your rights and obligations under the Terms without our prior written consent. We may without restriction assign, transfer or delegate our rights and obligations under these Terms with 30 days' prior notice.

Severance: The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Disputes : In the event of any dispute arising from, or in connection with, these Terms (Dispute), the party claiming there is a Dispute must give written notice to the other party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet at least once to attempt to resolve the Dispute or agree on the method of resolving the Dispute by other means, in good faith. All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute or (if the Dispute is not resolved) agree on an alternate method to resolve the Dispute, within 21 days after receipt of the notice, the Dispute may be referred by either party (by notice in writing to the other party) to litigation.

Jurisdiction: Your use of our Platform and these Terms are governed by the laws of Victoria, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

For any questions and notices, please contact us at:

CloudFit Pty Ltd ACN 634 660 530 trading as CloudFit

Email: support@cloudfit.tv

Last update: 19 July 2020