Terms and conditions

1 Interpretation

1.1 Definitions

1.1.1 In these Terms, the following definitions apply:

Account means an account created by a User on the App in order to use the Services;

App means the Fitain app, developed by L33 Solutions, mobile application software, the data supplied with the software, and any updates or supplements to it, as more particularly detailed at https://fitain.app;

Content has the meaning given to it in clause 9.6 below;

Data Protection Legislation means (i) the General Data Protection Regulation ((EU) 2016/679 (“GDPR”) unless and until the GDPR is no longer directly applicable in the UK, together with any national implementing laws, regulations and secondary legislation as amended or updated from time to time in the UK, including the Data Protection Act 2018 (“DPA”); (ii) any successor legislation to the GDPR and the DPA; and (iii) any other directly applicable EU regulation relating to data protection and privacy;

Documentations The related online or electronic documentation related to the App;

Fitness Professional means any fitness professional who has created an Account on the App including but not limited to personal trainers, physiotherapists and other fitness professionals;

Force Majeure Event has the meaning given in clause 15;

EEA means the European Economic Area;

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

L33 Solutions means L33 Solutions Limited (a company incorporated in England and Wales with company number 10875610 and having its registered office at 1 Victoria Court, Bank Square, Morley, Leeds, West Yorkshire, England, LS27 9SE);

Post has the meaning given to it in clause 9.6 below;

Services means the creation of an Account whether through a mobile device, mobile application or computer by a User in order to use the App and the content L33 Solutions provide to User through it;

Terms means the terms and conditions of use set out in this document;

Third Party Applications and Content has the meaning given to it in clause 10.1 below;

User means any user of the App and Service, (including a Fitness Professional.)

2 Introduction and Basis of Contract

2.1 The App is operated by L33 Solutions. Use of the App by a User is governed by these Terms.

2.2 User must be 18 or over the accept these Terms and buy the App.

2.3 By downloading the App User agrees to these Terms. If User does not agree to these Terms, User should not download the App.

2.4 L33 Solutions license User to use:

2.4.1 The App and any updates or supplements to it;

2.4.2 The Documentation and;

2.4.3 The Services

as permitted in these Terms.

2.5 These Terms refer to the following additional terms, which also apply to Users use of the App:

2.5.1 L33 Solutions’ cookie policy at https://fitain.app/en/cookie-policy/which sets out information about the cookies on our App.

2.6 L33 Solutions may revise these Terms at any time to reflect changes in law or best practice or to deal with additional features which L33 Solutions introduce. L33 Solutions will give User at least 30 days’ notice of any change by sending User an SMS with details of the change or notifying User of a change when User next starts using the App.

2.7 If User does not accept the notified changes User will not be permitted to continue to use the App and/or the Services.

2.8 By using the App and/or the Services, User agrees to L33 Solutions collecting and using technical information about the devices User uses the App on and related software, hardware and peripherals to improve L33 Solutions’ products and to provide any Services to User.

2.9 The ways in which User can use the App and Documentation may also be controlled by the Apple App Store and Google Play Store rules and policies https://www.apple.com/uk/legal/internet-services/itunes/uk/terms.html and https://play.google.com/intl/en ie/about/play-terms/ and Apple App Store’s and Google Play Store’s rules and policies will apply instead of these Terms where there are differences between the two.

2.10 These Terms constitute the entire agreement between the L33 Solutions and User. User acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of L33 Solutions which is not set out in the Terms.

3 Operational and Technical

3.1 The App requires a minimum of an Apple device running iOS 11.

3.2 Support if User wants to learn more about the App and/or Services or has problems using them please take a look at L33 Solutions’ support resources at [email protected].

3.3 Contacting L33 Solutions If User thinks that the App and/or Services are faulty or misdescribed or User wants to contact L33 Solutions for any other reason User should email L33 Solutions customer service team at [email protected].

3.4 L33 Solutions communication with User If L33 Solutions have to contact User L33 Solutions will do so by email, by SMS or by pre-paid post, using the contact details User has provided to L33 Solutions.

4 Update to the App and Changes to the Services

4.1 From time to time L33 Solutions may automatically update the App and change the Services to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, L33 Solutions may ask User to update the App for these reasons.

4.2 If User chooses not to install such updates or if User opts out of automatic updates User may not be able to continue using the App and the Services.

4.3 The App will always work with the current or previous version of the operating system (as it may be updated from time to time) and match the description of it provided to User when User bought it.

5 Ownership of Phone or Device

5.1 If User downloads or streams the App onto any phone or other device not owned by User, User must have the owner’s permission to do so. User will be responsible for complying with these Terms, whether or not User owns the phone or other device.

6 User Access to the App and Services

6.1 The App is made available to User to be downloaded free of charge for User’s personal use, for the purpose of interacting and engaging with Fitness Professionals.

6.2 User may use any Documentation to support User’s permitted use of the App and/or Services.

6.3 User may, provided User has complied with the license restrictions, make copies of the App and the Documentation for back-up purposes and receive and use any free supplementary software code or update of the App incorporating “patches” and corrections of errors as L33 Solutions may provide to User.

6.4 L33 Solutions do not guarantee that the App and/or Services, or any content on it, will always be available or be uninterrupted. L33 Solutions may suspend or withdraw or restrict the availability of all or any part of the App and/or Services for business and operational reasons. L33 Solutions will try to give User reasonable notice of any suspension or withdrawal.

6.5 L33 Solutions shall not be liable if the App and/or Services are unavailable at any time or for any period. Access to the App and/or Services may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for any reasons beyond L33 Solutions’ control.

6.6 User is also responsible for ensuring that all persons who access the App and/or Services through User’s internet connection or mobile device are aware of these Terms and other applicable terms and conditions, and that they comply with them.

6.7 L33 Solutions have the right to disable any user identification code or password on the App and/or Services, whether chosen by you or allocated by us, at any time, if in our reasonable opinion User has failed to comply with any of the provisions of these Terms.

6.8 If User is aware or suspects that anyone other than User knows user identification code or password, User must promptly notify L33 Solutions at [email protected].

7 Visitor Material and Conduct

7.1 Other than personally identifiable information, which is covered under clause 14 of these Terms, any material User transmits, posts or uploads to the App will be considered non-confidential and non-proprietary and L33 Solutions have no obligations in respect of it. User is solely responsible for securing and backing up User content.

7.2 User must not use the App and/or the Services or any content displayed in it for any commercial purposes without L33 Solution’s written consent (except in the case of a Fitness Professional using the App to connect with a User)

7.3 L33 Solutions have the right to remove any posting User makes on the App if, in L33 Solution’s reasonable opinion, User has failed to comply with any of the provisions of these Terms.

7.4 User is prohibited from posting or transmitting material to or using the App and/or Services in any manner:

7.4.1 that is threatening, defamatory, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience or otherwise objectionable in relation to your use of the App or the Services;

7.4.2 for which User has not obtained all necessary licenses and/or approvals;

7.4.3 which infringes or violates any Intellectual property Rights or those of any third party in relation to your use of the App or Services;

7.4.4 which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party in any country; and/or

7.4.5 which is technically harmful (including without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software, malicious code or harmful data, or otherwise compromise the security of the App and/or Services, and/or use the Service in any way that could interfere with, disrupt or negatively affect the App and/or Services or the servers or networks connected to the App and/or Services.)

7.5 User must not use any robot, crawler, scraper, site search retrieval application, proxy or other manual or automatic device, method or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the App and/or Services or its contents.

7.6 User must not use the App and/or Services in a way that could damage, disable, overburden, impair or compromise L33 Solutions systems or security or interfere with other Users.

7.7 User must not collect or harvest any information or data from any Service or L33 Solutions’ systems or attempt to decipher any transmissions to or from the servers running the App and/or Services.

7.8 User may link to the App and/or Services, provided User does so in a way that is fair and legal and does not damage L33 Solution’s reputation or take advantage of it.

7.9 User must not establish a link on the App and/or Services in such a way to suggest any form of association, approval or endorsement on L33 Solution’s part where none exists. User must not establish a link to L33 Solution’s App in any website or third party app that is not owned by User without L33 Solutions written consent. L33 Solutions reserve the right to withdraw linking permission without notice if, in L33 Solution’s reasonable opinion this does not comply with these Terms.

7.10 User must not use, access, or publish the App application programming interact without L33 Solutions written consent, probe scan or test the vulnerability of the App and/or Services or any system or network or encourage or promote any activity that violates this Agreement.

8 License Restrictions

8.1 User agrees that User will:

8.1.1 except in the course of permitted sharing not rent, lease, sub-license, loan, provide, or otherwise make available, the App and/or the Services in any form, in whole or in part to any person without prior written consent from L33 Solutions;

8.1.2 not copy the App, Documentation or Services, except as part of the normal use of the App and/or Services or where it is necessary for the purpose of back-up or operational security;

8.1.3 not translate, merge, adapt, vary, alter or modify, the whole or any part of the App, Documentation or Services nor permit the App and/or the Services or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the App and the Services on devices as permitted in these Terms;

8.1.4 not dissemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the App or the Services nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are necessary to decompile the App to obtain the information necessary to create an independent program that can be operated with the App or with another program (“Permitted Objective”), and provided that the information obtained by User during such activities: is not disclosed or communicated without the Licensor’s prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and is not used to create any software that is substantially similar in its expression to the App; is kept secure; and is used only for the Permitted Objective

to comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the App and/or the Services.

9 Intellectual Property

9.1 All Intellectual Property Rights in the App, Documentation and/or Services are owned by L33 Solutions (or L33 Solution’s relevant content supplier) and the rights in the App and the Services are licensed (not sold) to User. User has no Intellectual Property Rights in, or to, the App, the Documentation or the Services other than the right to use them in accordance with these Terms. Save as set out in these Terms, all such rights are reserved.

9.2 User must not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, images, trademarks, trade names, service marks, or other Intellectual Property Rights, content or proprietary information accessible through the App and/or Services without L33 Solutions’ prior written consent.

9.3 User must not use meta tags or code or other devices containing any reference to L33 Solutions or the Services (or any trademark, trade name, service mark, logo or slogan of L33 Solutions) to direct any person to any other website for any purpose. User must not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the App and/or Services, or cause others to do so.

9.4 L33 Solutions also have the right to disclose User identity to any third party who is claiming that any content posted or uploaded by User to L33 Solutions App constitutes a violation of their Intellectual Property Rights, or of their right to privacy.

9.5 If User prints off, copies or downloads any part of the App and/or Services in breach of these Terms, User’s right to use the App and/or Services will cease immediately and User must, at L33 Solutions’ option, return or destroy any copies of the materials User has made.

9.6 By creating an Account, User grants L33 Solutions a worldwide, transferable, sub-licensable, royalty-free right and license to host, store, use, copy, display, reproduce, adapt, edit, publish, modify and distribute information User authorizes L33 Solutions to access from any information User posts, upload or otherwise make available (“Post”) on the Service or transmit to other Users (“Content”).

9.7 L33 Solutions license to User Content shall be non-exclusive, except that L33 Solution’s license shall be exclusive with respect to derivative works created through use of the App and/or Services.

10 Third Party Content

10.1 The App and/or Services may contain links to other third party websites, apps and resources provided by third parties, advertisements, promotions offered by third parties and links to other resources (“Third Party Applications and Content”) via which User may be able to purchase products and services. These links are provided for User’s information only and L33 Solutions do not check, endorse, approve or agree with such Third Party Applications and Content nor the products and/or services of the linked websites. Such links should not be interpreted as approval by us of those Third Party Applications and Content, or information User may obtain from them, and L33 Solutions have no control over the contents of such Third Party Applications and Content.

10.2 The App may include information and materials uploaded by other users of the App. The information and these materials have not been verified or approved by L33 Solutions. Any views expressed by other users on our App do not represent L33 Solutions’ views and values.

10.3 Users’ should ensure that they review all terms and conditions of Third Party Applications use and relevant privacy policies of any such Third Party Applications before use and before User submits’ any personal data to such Third Party Applications.

10.4 L33 Solutions is not responsible or liable for such third parties’ terms or actions. User will need to make their own independent judgment about whether to use any such independent sites, including whether to buy any products or services offered by them.

10.5 Although L33 Solutions reserves the right to review and remove Third Party Applications that violates these Terms, such Third Party Applications and Content is the sole responsibility of the user who posts it, and L33 Solutions cannot guarantee that all Third Party Applications and Content will comply with these Terms. If you see Third Party Applications and Content that violate these Terms, please report it to L33 Solutions.

11 Interaction between User and Fitness Professionals

11.1 L33 Solutions strives to encourage a respectful User experience that only allows Users and Fitness Professionals to communicate through the App and/or Services if they have both indicated they would like to interact on the App and/or Services.

11.2 L33 Solutions is not responsible for the conduct of any User and/or Fitness Professional on or off the App and/or the Service.

11.3 User agrees to use caution in all interactions with other Users, including Fitness Professionals. User is solely responsible for Users interactions with others Users, including Fitness Professionals. L33 Solutions makes no representations or warranties as to the conduct of other Users.

12 Disclaimer and Limitation of Liability

12.1 The content on the App and/or Services is provided for general information only and is not intended to amount to advice on which User should rely. User must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on the App and/or Services.

12.2 Although L33 Solutions make reasonable efforts to update the information on the App and/or Services, L33 Solutions make no representations, warranties or guarantees, whether express or implied, that the content on the App and/or Services is accurate, complete or up to date.

12.3 L33 Solutions do not guarantee that the App and/or Services will be secure or free from bugs or viruses. User is responsible for configuring User’s information technology, computer programmes and platform to access the App and/or Services. User should use their own virus protection software.

12.4 L33 Solutions recommend that User back up any content and data used in connection with the App, to protect User in case of problems with the App or the Services.

12.5 The App and the Services have not been developed to meet a particular User’s requirements. User is responsible for checking that the facilities and functions of the App and the Services (as described on the Appstore site and in the Documentation) meet User’s requirements.

12.6 Nothing in these Terms excludes or limits L33 Solution’s liability for death or personal injury arising from L33 Solution’s negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English Law.

12.7 L33 Solutions provides the App and/or Services on an “as is” and “as available” basis and to the extent permitted by law, L33 Solution’s exclude all conditions, warranties, representations or other terms which may apply to our App and/or Services or any content on it, whether express or implied.

12.8 L33 Solutions will not be liable to any User for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:

12.8.1 use of, or inability to use, the App and/or Services; or

12.8.2 use of or reliance on any content displayed on the App and/or Services.

12.9 If User is a business user, L33 Solutions will not be liable for:

12.9.1 loss of profits, sales, business, or revenue;

12.9.2 business interruption;

12.9.3 loss of anticipated savings;

12.9.4 loss of business opportunity, goodwill or reputation; or

12.9.5 any indirect or consequential loss or damage.

12.10 If User is a consumer user, please note that L33 Solutions only provide the App and/or Services for domestic and private use. User agrees not to use the App and/or Services for any commercial or business purposes, and L33 Solutions have no liability to User for any loss of profit, loss of business, business interruption, or loss of business opportunity.

12.11 L33 Solutions takes no responsibility for any content that User or another user or third party posts, sends of receives through the App and/or Services. Any material downloaded or otherwise obtained through the use of the App and/or Services is accessed at the Users own discretion and risk.

13 Termination

13.1 L33 Solutions may end User’s rights to use the App and Services at any time by contacting User if User has broken these Terms in a serious manner. If what User has done can not be rectified L33 Solutions will give User a reasonable opportunity to do so.

13.2 If L33 Solutions end User rights to use the App and Services:

13.2.1 User must stop all activities authorised by these Terms, including User use of the App and any Services;

13.2.2 User must delete or remove the App from all devices in User’s possession and immediately destroy all copies of the App which User has and confirm to L33 Solutions that User has done this;

13.2.3 L33 Solutions may remotely access User devices and remove the App from User and cease providing User with access to the Services.

14 Data Protection and Privacy

14.1 L33 Solutions are committed to ensuring that User privacy is protected. L33 Solutions will continue to comply with all applicable requirements of the Data Protection Legislation.

14.2 Please be aware that internet transmissions are never completely private or secure and that any message or information you send using the App or any Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

14.3 This clause 14.3 together with L33 Solutions’ cookie policy and privacy policy sets out how L33 Solutions collect personal data from User in the use of the App and/or Services and how the personal information User provides will be processed by L33 Solutions. By using the App and/or Services User is accepting and consenting to the practices described in this clause 14. If User does not consent, User should not submit any personal data to L33 Solutions.

15 Force Majeure

15.1 Neither party shall be liable for any failure or delay in performing its obligations under these Terms to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by it’s nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, extremes of weather, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

16 Waiver

16.1 No failure to exercise or delay in exercising any right or remedy provided under these Terms or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.

16.2 No single or partial exercise of any right or remedy under these Terms shall prevent or restrict the further exercise of that or any other right or remedy.

17 Rights of Third Parties

17.1 No term of these Terms shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these Terms.

18 Jurisdiction and Governing Law

18.1 Unauthorised use of the App and/or Services may give rise to a claim for damages and/or be a criminal offence.

18.2 If User is a consumer, please note that these Terms, its subject matter and its formation, are governed by English law. User and L33 Solutions both agree that the courts of England and Wales will have exclusive jurisdiction.

18.3 If User is a business, these Terms, their subject matter and their formation (and any non-contractual disputes or claims) are governed by English law and User agree to the exclusive jurisdiction of the courts of England and Wales.

19 Assignment

19.1 L33 Solutions may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms.

19.2 User may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms without the prior written consent of L33 Solutions.

20 Severance

20.1 If any court or competent authority finds that any provision of these Terms (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Terms shall not be affected and the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.