Fitbotic App - Terms and Conditions of Use

Pixtech Pty Limited

The Fitbotic App provides a subscription service that automatically renews. You should read these Terms carefully before commencing the Free Trial Period or purchasing a subscription to the Services provided by the Fitbotic App. You must actively cancel a subscription or a free trial in your App Store’s account settings before the end of the Free Trial Period or the Subscription Period to avoid being charged.

Terms and Conditions
1. These Terms apply during the Free Trial Period and the Subscription Period. By downloading, installing or using the Fitbotic App or accessing the Website, you agree to these Terms. If you do not agree with these Terms, do not download, install or use the Fitbotic App or access the Website.
2. If you agree with these Terms, you:
  1. represent and warrant to us that:
    1. you are capable of entering into binding contracts;
    2. you have attained the age of majority in Your Location;
    3. agree fully with these Terms; and
    4. if you agree to these Terms on behalf of any entity, then:
      1. you are authorised to act on behalf of that entity and have its authority to agree to these Terms on its behalf; and
      2. the entity will be the customer for the purposes of these Terms; and
  2. acknowledge that:
    1. after the Free Trial Period expires, these Terms will continue to apply to the Subscription Period; and
    2. it will not be necessary for you to agree to these Terms again at the end of the Free Trial Period.
3. These Terms do not alter in any way the terms or conditions of any other agreement or arrangement you may have with us in respect of any products, services or otherwise.
4. We may change or modify these Terms, or the content and layout of the Fitbotic App or Website, from time to time. Notice of any changes or modifications to these Terms may be made by notice via the Fitbotic App or Website, or by such other reasonable means we determine, however we do not undertake to do so. You confirm your acceptance of any changes or modifications to these Terms by downloading, installing or using the Fitbotic App, or accessing the Website, after the changes or modifications are made.
Definitions

In these Terms unless the contrary intention appears:
1. ‘App Store’ means the digital distribution platform through which you received the Fitbotic App (for example, ‘The App Store’, ‘Google Play’, or other mobile application store);
2. ‘Fitbotic App’ means the Fitbotic mobile application;
3. ‘Free Trial Period’ means the period, set by us from time to time, during which we initially provide you the Services for no fee;
4. ‘Pixtech’ means Pixtech Pty Limited ABN 41 633 502 511;
5. ‘Privacy Policy’ means Pixtech’s privacy policy referred to in clause 11 of these Terms;
6. ‘Rewards’ means the virtual credits that users of the Fitbotic App may generate through verified physical movement, in accordance with the Rewards Rules;
7. ‘Rewards Rules’ means the terms and conditions by which Rewards are generated through the Fitbotic App and include details of the criteria and rules regarding the:
  1. eligible forms of movement;
  2. movement verification algorithms; and
  3. amounts of verified movement that must be undertaken by users in order to generate Rewards using the Fitbotic App,
  that are published by Pixtech and made available on the Fitbotic App and Website, as determined by Pixtech from time to time;
8. ‘Services’ means the Fitbotic App together with the content available via the Fitbotic App and other services available by using the Fitbotic App;
9. ‘Subscription Period’ means the period where the Services are provided by us to you for a fee, set by us from time to time, and agreed to by you and any renewal of that period;
10. ‘Terms’ means these Fitbotic App Terms and Conditions of Use;
11. ‘Website’ means the websites and any other form of media of Pixtech that link to these Terms;
12. ‘Your Location’ means the country, state, territory, province, or county where you are located at the time of using the Fitbotic App.
Interpretation

In these Terms unless the contrary intention appears:
1. the singular includes the plural and vice versa;
2. a gender includes all other genders;
3. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
4. a reference to a person includes any corporation, partnership, joint venture, trust, association, government, or public authority and vice versa;
5. a reference to a clause or annexure is to a clause of or annexure to these Terms;
6. a reference to a request or notice means a request or notice in writing;
7. a reference to any party to this or any other document includes the party’s successors and permitted assigns;
8. a reference to a document is to that document as amended, novated, supplemented, varied or replaced from time to time and includes any annexures, schedules and appendices to that document, except to the extent prohibited by that document;
9. a reference to any legislation or legislative provision includes any statutory modification, substitution or re-enactment and any subordinate legislation issued under that legislation or provision;
10. a reference to conduct includes any act, omission, representation, statement or undertaking whether or not in writing;
11. mentioning anything after include, includes or including does not limit what else might be included;
12. a reference to a person that comprises two or more persons means those persons jointly and severally;
13. the headings are for convenience only and do not affect the interpretation of these Terms;
14. a reference to a month means a calendar month; and
15. a reference to time means South Australian time.
Free Trial Period and Subscription Period
1. The Fitbotic App is free to download. However, the Rewards features of the Services are offered only during a Subscription Period for a fee. You will pay the App Store the applicable fees as they become due.
2. We may offer a Free Trial Period for the Services. The Free Trial Period will provide you with access to the Services for a period, with details specified when you sign up for the Free Trial Period. Unless you cancel 24 hours before the end of the Free Trial Period, or unless otherwise stated, your access to the Services will automatically continue and on the expiration of the Free Trial Period, the Subscription Period will commence. You will be billed the applicable fees for a monthly subscription during the Subscription Period. We may send you a reminder when the Free Trial Period is about to end, but we do not guarantee any such notifications. It is ultimately your responsibility to know when the Free Trial Period will end.
3. We reserve the right, in our absolute discretion, to modify or terminate any Free Trial Period offer, your access to the Services during the Free Trial Period, or any of these Terms without notice to you.
4. We reserve the right to take steps to limit your ability to take advantage of multiple Free Trial Periods, including deactivating any account(s) that we determine have been created or used fraudulently or for the purpose of taking advantage of multiple Free Trial Periods.
5. Your rights to use the Services expire at the end of the Subscription Period. If you do not pay the fees due, we may notify you to resolve the issue. However, if you do not pay the fees due, we reserve the right to disable or terminate your access to the Services, without notice to you.
6. We may change subscription fees at any time. We will give you at least one month’s notice of any such pricing changes by posting the new prices on or through the Fitbotic App or Website, and/or by sending you an email notification. If you do not wish to pay the new fees, you can cancel the applicable subscription prior to the change taking effect.
7. You authorise the App Store to charge the applicable fees to the payment method linked to your App Store account, or direct payment by credit card (if permitted).
8. You acknowledge that your subscription will be automatically renewed every month. Unless you cancel your subscription, you authorise the App Store to charge you for the renewal term. The renewal rate will be the rate for the immediately prior subscription period, unless we notify you of a rate change prior to your auto-renewal. If you wish to cancel your subscription, you must do so through the App Store. Your cancellation will take effect at the end of your then current subscription period. We will not refund fees that may have accrued to your account and will not prorate fees for a cancelled subscription.
9. Subscriptions purchased via an App Store are subject to such App Store's refund policies. This means we cannot grant refunds. You will have to contact an App Store support.
Rewards
1. Rewards are generated only by verified physical movement of users of the Fitbotic App, in accordance with the Rewards Rules. We reserve the right to remove, dishonour, reduce, eliminate, delete or destroy Rewards that we believe have been created by any other means and to suspend or disable Fitbotic Accounts used in contravention of these Terms. The Rewards Rules are accessible within the Fitbotic App and via the Website.
2. Rewards may come in the form of virtual credits, virtual badges, virtual milestones, virtual achievements, or other in-app benefits. These rewards are virtual rewards only, are not property and do not have any monetary or other value.
3. Rewards may come in the form of vouchers, promotional or discount codes. These Rewards are not able to be converted to money.
4. In certain circumstances, subject to the Rewards Rules, certain Rewards may be redeemed for, or converted to, money. However, if that is the case, the Reward Rules will set this out expressly.
5. We reserve the right and retain the absolute discretion to determine, and alter from time to time, the Rewards Rules (including, but not being limited to, the eligible forms of movement, the movement verification algorithms and amounts of verified movement that must be undertaken by users in order to generate Rewards using the Fitbotic App).
6. Movement verification conducted by our algorithms is considered final and cannot be revised or reversed.
7. We may choose to cap the maximum amount of Rewards that users of the Fitbotic App may generate each day, week, month, year or other period using the Fitbotic App. Any cap may vary depending upon criteria that we choose to apply, and we may alter such caps from time to time, in our absolute discretion.
Use of the Fitbotic App
1. In order to use the Fitbotic App, you must create a user account (‘Fitbotic Account’). You are responsible for all uses of your Fitbotic Account whether by you or a third party. To the maximum extent permitted by law, we are not liable to you for any unauthorised use of your Fitbotic Account resulting from your failure to maintain restricted access to your Fitbotic Account, the confidentiality or security of your user details or failure to use a strong password (with a strong password typically consisting of at least six characters that are a combination of random uppercase and lowercase letters, numbers and symbols).
2. Subject to these Terms, we grant you a non-transferable, non-exclusive, revocable licence to do the following (the ‘Licences’):
  1. download, install and use the Fitbotic App, and any updates to it provided by us from time to time, solely for your personal, non-commercial purposes, on a compatible mobile device owned or controlled by you; and
  2. access and browse the Website for your personal use only.
3. We may terminate the Licences granted under these Terms at any time in our absolute discretion with or without notice to you. If you breach any provision of these Terms, such Licences will automatically terminate. Where any of the Licences are terminated, you agree to immediately cease using the Fitbotic App and accessing Website and to delete any copies of the Fitbotic App you hold.
4. You must not:
  1. seek to generate Rewards by any means other than your genuine physical movement in accordance with the Rewards Rules;
  2. operate more than one Fitbotic Account without our written consent;
  3. use the Fitbotic App or Website for any activities that breach any laws, infringe our intellectual property rights, or infringe a third party’s rights or are contrary to any relevant standards or codes;
  4. collect or harvest any information or data from the Fitbotic App or Website for any commercial purpose, without our written consent;
  5. use the Fitbotic App or Website to post or transmit any material which is defamatory, obscene, indecent, inflammatory or pornographic or which prevents any other person from using or enjoying the Fitbotic App or Website;
  6. make fraudulent requests through the Fitbotic App or Website;
  7. tamper with or hinder the operation of the Fitbotic App or Website;
  8. transmit any viruses or defects or similar disabling or malicious code to the Fitbotic App or Website;
  9. reverse engineer, decompile, disassemble or work around technical limitations of the Fitbotic App or Website;
  10. use another person’s details on the Fitbotic App or Website;
  11. use the Fitbotic App or Website other than in accordance with these Terms; or
  12. attempt any of the above acts or engage or permit another person to do any of the above acts.
5. If you breach clause 6.4, we may immediately terminate your access to the Fitbotic App and delete any content from Fitbotic App or Website breaching clause 6.4.
Acknowledgements

You acknowledge and agree that:
1. Pixtech cannot and does not warrant that the Fitbotic App or Website is free from any errors, viruses or defects;
2. Pixtech does not warrant the performance, accuracy, currency, reliability or completeness of the information and materials contained in the Fitbotic App or on the Website.
3. Pixtech will not be liable for any loss or damage suffered as a result of any errors, viruses or other defects in the Fitbotic App or on the Website;
4. Pixtech makes no representation or warranty that the Fitbotic App or the Website will be available at all times, that access will be uninterrupted, that there will be no delays, failures, errors or omissions or loss of transmitted information, that no viruses or other contaminating or destructive properties will be transmitted, or that no damage will occur your electronic device or computer system;
5. you must take your own precautions to ensure that the process which you employ for using the Fitbotic App or accessing the Website does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your electronic device or any computer system;
6. whilst Pixtech strives to protect all information and materials you may make available on the Fitbotic App or Website, Pixtech does not warrant, and cannot ensure, the security of any information and materials which you may transmit; and
7. any information and materials transmitted by you is transmitted at your own risk.
No Medical Advice

The Fitbotic App allows you to track and verify your physical movement and generate Rewards. You acknowledge and agree that:
1. Pixtech does not offer or provide any kind of health, wellbeing or medical advice or opinion and the Services should not be interpreted as any form of health, wellbeing or medical advice or opinion;
2. the Services may not be appropriate for all persons and are not a substitute for professional healthcare services;
3. Pixtech makes no representations or warranties about the fitness and health outcomes of using the Fitbotic App, Website or Services;
4. any content provided or accessed through the Services is for informational purposes only;
5. you should consult a qualified and licensed medical professional prior to beginning or modifying any diet or exercise program to determine whether those actions would be safe and effective for you;
6. we expressly prohibit you from accessing or using the Services against medical advice or if doing so might pose any health risk;
7. you take full responsibility for your health, life and well-being, as well as the health, lives and well-being of your family and children (born and unborn, as applicable), and all decisions now or in the future, and you agree that Pixtech has no responsibility for any personal injury resulting from or in connection with your use of, attempted use of, or inability to use the Fitbotic App, Website or the Services;
8. you must ensure that, on advice from, and in consultation with, your qualified and licensed medical professional, you:
  1. warm-up appropriately prior to using the Services;
  2. stay appropriately hydrated before, during and after using the Services;
  3. do not overexert yourself before, during or after using the Services; and
  4. follow and adhere to any in-app warnings, notices or restrictions regarding your use of the Fitbotic App or the Services; and
9. your use of the Fitbotic App, Website or Services does not constitute or create a doctor-patient, or other healthcare professional relationship between you and Pixtech.
Third Party Content
1. The Fitbotic App or Website may display hyperlinks to other websites or mobile applications, information, materials, content, advertisements and promotions that are owned or operated by third parties (collectively, ‘Third Party Content’).
2. Pixtech does not control, endorse or adopt any Third Party Content.
3. Pixtech makes no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy, quality suitability, or completeness.
4. You acknowledge and agree that:
  1. your interactions with third parties providing Third Party Content are solely between you and such third parties; and
  2. Pixtech is not responsible or liable in any manner for such interactions, or Third Party Content.
Intellectual Property
1. You acknowledge that all the text, images, marks, logos, compilations, data, other content, software and materials displayed on the Fitbotic App and the Website or used by us to operate the Fitbotic App or the Website or deliver the Services is proprietary to us or to third parties. We expressly reserve all rights, including all intellectual property rights, in all the foregoing, except only as expressly permitted by these Terms.
2. Nothing you do in relation to the Fitbotic App, Website or the Services will transfer any intellectual property rights to you, or license you any intellectual property rights, in and to the Fitbotic App, Website or the Services, unless expressly stated.
3. All rights (including copyright and moral rights) in the content, layout and compilation of the Fitbotic App and Website and online pages, images, text, graphics, logos, buttons, videos, audio and software (including all object source and machine readable code) are owned or controlled for these purposes, and are reserved, by Pixtech. You must not:
  1. copy, mirror, broadcast, reproduce, frame, republish, download, store (in any medium), upload, transmit, post, distribute, show or play in public, adapt or change in any way, the Fitbotic App or the Website or its contents except as expressly provided for; or
  2. reproduce, re-use, re-transmit, adapt, publish, broadcast or distribute the copyright material for any purposes whatsoever without our prior written consent.
Privacy Policy
1. By using the Services, you consent to us collecting, holding and using your personal information (including, when you allow us permission, geolocation information, activity and exercise information, and audio, images and video footage of you from the cameras and microphones or your electronic device) in accordance with, and for the purposes set out in our Privacy Policy. Our Privacy Policy can be accessed via the following link https://www.fitbotic.com/pages/fitbotic-app-privacy-policy.
2. You have the right to access and correct any personal information we hold. Please refer to our Privacy Policy for further information.
Limitation of Liability
1. Subject to clause 12.3, Pixtech does not accept responsibility for any loss or damage which you may directly or indirectly suffer in connection with your use of, attempted use of, or inability to use the Fitbotic App, Website or the Services.
2. Subject to clause 12.3, Pixtech does not accept any responsibility for any such loss arising out of your use of, or reliance on, information and materials contained on or accessed through the Fitbotic App, Website or the Services.
3. If any law implies any condition or warranty on Pixtech, and that legislation prohibits Pixtech from excluding or modifying the application of, or Pixtech’s liability under, any such condition or warranty, that condition or warranty will be deemed included but Pixtech’s liability will be limited for a breach of that condition or warranty, to the extent permitted by that law, and at Pixtech’s option, to a refund or the resupplying of information and materials on the Fitbotic App, Website or the Services.
4. To the maximum extent permitted by law, Pixtech is not liable to you (and any party claiming through you) for:
  1. any claim made under, or in connection with, a contract, in tort, under statute, in equity or otherwise in respect of:
    1. defects whatsoever in information and materials published on the Fitbotic App, Website or the Services; or
    2. viruses, malicious computer code or other forms of interference arising from or in connection with use of the Fitbotic App, Website or the Services; or
    3. the loss, damage or injury to person or property arising from or caused from such defects in information and materials, viruses, malicious computer code or other forms of interference;
  2. any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the information and materials published on the Fitbotic App, Website or the Services, or by viruses, malicious computer code or other forms of interference arising from or in connection with use of the Fitbotic App, Website or the Services where such loss or damage includes:
    1. any loss of income, profit or business; or
    2. any loss of goodwill or reputation.
Indemnity

You will indemnify and keep indemnified and hold Pixtech harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Pixtech, and from and against all actions, proceedings, claims or demands made against Pixtech, arising from one or more of the following:
1. your failure to comply with these Terms or any laws, rules, standards, regulations or instructions applicable in relation to the Fitbotic App, Website or the Services;
2. any negligence or breach of duty by you and your employees, agents or contractors in relation to any content on the Fitbotic App, Website or the Services;
3. your use or misuse of the Fitbotic App, Website or the Services; and
4. you, or any person to whom you provide any content you viewed on the Website, suffering loss as a result of viewing any content on the Fitbotic App, Website or the Services.
General
1. These Terms are governed by the laws of South Australia and the Commonwealth of Australia. The parties submit to the jurisdiction of the Courts of South Australia and the Commonwealth of Australia. Any proceeding brought in the Federal Court of Australia must be instituted in its South Australian District Registry.
2. All rights under these Terms are in addition to and do not abrogate, limit or reduce any other rights that Pixtech may have.
3. Any provision of these Terms that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from these Terms but only to the extent necessary to avoid that effect. All other provisions of the Terms continue to be valid and enforceable.
4. A right or obligation under these Terms cannot be waived except by written notice by the party waiving that right or obligation and specifying the waiver.
5. These Terms record the entire agreement between the parties as to its subject matter. Any prior negotiations, agreements, arrangements, representations and understandings related to the subject matter of these Terms are superseded by these Terms.