FitKey

FITKEY TERMS OF USE

FitKey is a monthly subscription service ("Service") owned and operated by FitKey Proprietary Limited (Registration No. 2015/139680/07) ("we", "our" or "us") that enables subscribers to the Service access to attend a range of participating fitness centres – be they studios, clubs, gyms, boxes, or otherwise, but which we will collectively refer to as "Studios". The Service can be accessed online via https://www.fitkey.co.za or via our FitKey mobile applications (the website and the mobile applications collectively known as the "FitKey Platform" or "Platform"). The Service is currently only available in South Africa.

These terms of use set out the legally binding terms and conditions applicable to your use of the Service and/or the FitKey Platform. By subscribing to the Service, or by accessing, browsing or using the FitKey Platform, you accept and agree to be bound by these terms, as well as any guidelines, policies and notices on the FitKey Platform, as may be modified by us from time to time, without notice ("Terms"). Revised Terms will apply to the use of the FitKey Platform from the date of publication of the revised Terms on the FitKey Platform. It is your responsibility to check the Platform regularly to ensure that you are familiar with the current version of the Terms. Please read and familiarise yourself with these Terms carefully. If you do not accept or understand these Terms for any reason you should not use the Service or the FitKey Platform.

In subscribing to the Service you warrant that you are at least 18 (eighteen) years of age and you confirm that you have read and understand and agree to be bound by these Terms.

SUBSCRIPTION TERMS

Subscription

Against payment of a monthly subscription fee, which is set out on the FitKey Platform ("Subscription Fee"), you are able to book, and to attend, classes at any Studio of your choice during your subscription month, all via the FitKey Platform.

Your subscription to the Service will begin on the date that you register for the Service and successfully submit payment of the Subscription Fee via our online payment system ("Payment System"). Subscriptions are for 1 month and will automatically renew each month. For example, if your subscription commences on 5 January, it will automatically renew on 5 February, and so on. If your subscription begins on the 30th or the 31st day of the month, but a given month does not have 30, or 31 days, as the case may be, your subscription will automatically renew on the last day of that month. For example, if your subscription commences on 31 January, we will renew it on 28, or 29, February, and then again on 31 March, and again on 30 April, and so on.

You may attend an unlimited number of classes per month across all of our Studios, but the maximum number of classes you can take at any 1 Studio, via the FitKey Platform, in a subscription month, is 3. If a Studio has more than 1 location, you may only attend 3 classes across all of its locations in your subscription month, and not 3 classes per location. If you attend less than 3 classes at a particular Studio in a subscription month, your "unused" classes will not carry over to the next month.

The deadline for reservation of classes depends on the Studio concerned. We do not make any guarantees as to availability of a class. If a class is full, you will not be able to reserve a spot in that class. We recommend planning early and booking ahead of time. You can reserve classes beyond your current subscription month, in which case the classes will count towards the class allotment for the subscription month in which they fall.

Should you wish to cancel a reservation you have made for a class at a Studio, you must do so via the FitKey Platform prior to the relevant cancellation cut-off time. If you do not attend a class which you have made a reservation for, and you do not cancel your booking for such class via the FitKey Platform prior to the cancellation cut-off time, we are entitled, but not obliged, to charge you a cancellation fee ("class cancellation fee"), which class cancellation fee shall be set out on the FAQ section of the FitKey website: https://www.fitkey.co.za/faq. This class cancellation fee will be debited from you as a separate transaction from your subscription fee payment. If we do not elect to charge you a class cancellation fee for whatever reason, this will not prevent us from electing to charge you a class cancellation fee on any other occasion on which you do not cancel a reservation timeously and in accordance with these Terms.

If a Studio becomes no longer affiliated with FitKey and you have already booked a class at such Studio, we will inform you as soon as possible. You will not be required to pay any class cancellation fees in respect of such class.

Your subscription is personal to you. You cannot transfer your subscription or transfer any classes booked via the FitKey Platform to anyone else, including other subscribers to the Service. You must bring photo identification with you to a class, failing which the relevant Studio will be entitled to deny you admission to the class.

As a subscriber, when attending any Studio, you agree to be bound by, and observe, any codes of conduct, rules or regulations imposed by such Studio from time to time. Any breach of such codes of conduct, rules or regulations, will constitute a breach of these Terms.

Subscription Fee

By subscribing to the Service you agree to pay the then current Subscription Fee via the Payment System on a recurring basis every month, on the date upon which your subscription is renewed ("Billing Date") for an indefinite time until your subscription is cancelled by you or us. Payment shall be made via the Payment System, either by way of an automated credit card payment or direct debit from your account. If payment to us of your Subscription Fee (or class cancellation fee, if applicable) is unsuccessful, for any reason whatsoever, your subscription to the Service will not automatically terminate. You will remain responsible for payment of your Subscription Fees and class cancellation fees, if applicable, and you authorise us to continue billing you via the Payment System, even if uncollected, until your subscription is validly cancelled in accordance with our cancellation policy below.

We reserve the right to increase the Subscription Fee from time to time. We will notify you of any such increase at least 60 (sixty) days in advance of such increase. Should you wish to cancel your subscription, you may do so in accordance with our cancellation policy below.

Payments of Subscription Fees and class cancellation fees are non-refundable. We will not offer you any refunds, discounts or credits for partially used or un-used periods, or for any other reason whatsoever, unless pursuant to any special offers or promotions we may run from time to time, which we may offer and/or provide in our sole discretion. If you benefit from any refund, discount or other credit offered by us from time to time, this should not create an expectation, or obligate us to provide you with, any other refund, discount, or credit in the future.

Your subscription only gives you the right to attend the classes booked by you via the FitKey Platform. A Studio may charge additional fees for the use of certain equipment or amenities or other classes or services offered by them. Such additional fees will be for your own account.

Referrals

Currently FitKey offeres a R100.00 discount to both you and your friend when you refer a friend who subscribes through our referral program referral program. The amount of the referral is subject to change at any time and is only valid at the time of your friends subscription.

Cancellation

You may cancel your subscription to the Service at any time, provided that you send us 3 business days' notice prior to your next Billing Date, by e-mailing info@fitkey.co.za (in these Terms, a business day being any day which is not a Saturday, Sunday or official public holiday in South Africa).

Following any cancellation by you, you will continue to be able to use the Service until the end of your current subscription month.

Despite the above, your first month cannot be cancelled and is non-refundable, unless you cancel your subscription within 7 days after your subscription commences, in which case you will be entitled to a full refund of the initial Subscription Fee minus any costs we may incur whatsoever as a result of your cancellation, including, without limitation, the cost levied by any Studio in connection with any classes booked, or cancellations made, by you, while you were a subscriber. Such refund will be payable within 30 days of the date of cancellation.

If you cancel your subscription, we are entitled, but not obliged, to charge you a re-activation fee, which fee shall be set out from time to time in the FAQ section of the FitKey website: https://www.fitkey.co.za/faq. This is in order for you to re-subscribe for the Service. If we do not elect to charge you a re-activation fee for whatever reason, this will not prevent us from electing to charge you a re-activation fee if you cancel and then re-subscribe for the Service again in the future.

We may, similarly, in our sole discretion and for any reason whatsoever, upon 3 business days' written notice prior to your next Billing Date, terminate your subscription to the Service, with effect from the end of your current subscription month. However, we reserve the right to terminate your subscription with immediate effect, with or without a formal warning, if you breach these Terms in any way, or if we reasonably suspect that you have breached these Terms, and your access to the FitKey Platform will be suspended – see our provisions relating to "Breach" below.

Indemnity and Limitation of Liability

Classes, activities or other services offered via the FitKey Platform are offered and provided by the Studios, not FitKey. You agree that attendance at, or use of any such classes, activities, or other services is solely at your own risk. In no event shall FitKey or the Studio be liable for any injury, loss, claim, damage or any special, punitive, incidental or consequential damages of any kind, whether based in contract, delict or otherwise, which arises out of or is any way connected with your attendance or participation in a class, service or appointment made via the FitKey Platform, or the performance or non-performance of any Studio in connection with the Service. Neither FitKey nor the studio make any warranties as to the suitability, quality, content or effectiveness of any class, activity or other service offered via the FitKey Platform nor do we warrant that any class, activity or other service is fit for any particular purpose. Neither FitKey nor any Studio warrants that any particular Studio has the necessary facilities, accreditations or permits, or that any of its instructors have the necessary skills, qualifications or experience, to instruct a particular fitness discipline.

You hereby indemnify both FitKey and the Studio against any losses, damages, costs, liabilities and expenses incurred or suffered by us or the Studio, as the case may be, arising out of your use or misuse of the Service or these Terms or which is in any way connected with your attendance or participation in a class, service or appointment made via the FitKey Platform.

The rights conferred upon a Studio in terms of this indemnity and limitation of libability clause shall be capable of acceptance by a Studio at any time.

GENERAL TERMS RELATING TO USER OF PLATFORM

General

We will make the Platform available to you in accordance with these Terms. Unless otherwise stated, we, or our licensors, own the intellectual property rights in the Platform and the material on the Platform. All these intellectual property rights are reserved.

You may view, download and print pages from the Platform for your own personal use, subject to the restrictions set out in these Terms.

You may not, without our prior written consent:

  • re-publish, post or otherwise transmit material from the Platform (including re-publication on another website or application);
  • sell, rent or sub-license material from the Platform;
  • show any material from the Platform in public;
  • edit or otherwise modify any material on the Platform, other than editing your own submissions to the Platform;
  • reproduce, duplicate or otherwise exploit material on the Platform for a commercial purpose; or
  • redistribute material from this Platform, except for content specifically and expressly made available for redistribution,

provided that none of the above applies to material information and/or content submitted by you to the Platform by way of submission of your personal information as defined in the Protection of Personal Information Act 4 of 2013 ("Personal Information") or enquiries.

We reserve the right to restrict access to areas of the Platform, or indeed the whole Platform, at our discretion.

Although the Platform is usually available, there will be times when the availability of the Platform will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond our reasonable control, and you agree that we will not be liable for any inconvenience, loss or damage suffered as a result of such interruptions.

We do not warrant or make any representations that the Platform and any downloadable software, content, services, or applications made available in conjunction with or through the Platform will be uninterrupted or error-free, that defects will be corrected, or that the Platform and any downloadable software, content, services, or applications made available in conjunction with or through the Platform or the server that makes them available are free of viruses or other harmful components.

You may not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

You may not use our Platform to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious or destructive computer software or code.

You may not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Platform without our express written consent.

You may not use our Platform or any information appearing thereon in connection with any surveys, contests, competitions and/or pyramid schemes, nor to transmit or send chain letters, junk e-mail, spam, or any other unsolicited commercial communications.

You may not use any data collected from our Platform for any direct marketing activity (including without limitation email marketing, SMS marketing, telemarketing and direct marketing).

You may not remove, obscure or alter any legal notices displayed on our Platform.

You may not impersonate another person or access another user's account without that person's permission.

You may not share passwords issued for use on the Platform with any third party or encourage any other user to do so. You are solely responsible for maintaining the confidentiality of your FitKey account and password and restricting access to your computer or mobile device or tablet and accept responsibility for all activities that occur under your account on the FitKey Platform.

You may not misrepresent the source, identity, or content of information transmitted via the Platform, including deleting copyright or other intellectual property rights.

You may not upload copyrighted material that is not your own or that you do not have the legal right to distribute, display and otherwise make available to others.

You may not upload or send to other users of the Platform pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, defamatory or otherwise inappropriate content.

We will not be liable to you in respect of any loss or corruption of data, database or software, nor for the deletion, corruption or failure to store any messages or other content maintained on or transmitted by way of the FitKey Platform.

You hereby indemnify us and undertake to keep us indemnified against any losses, damages, costs, liabilities and expenses incurred or suffered by us arising out of your use or misuse of the FitKey Platform, including, without limitation:

  • a breach of these Terms by you or anyone using your account or computer or other device; and
  • claims brought by any third party relating to defamation, negligent misstatement, injurious falsehood, rights of publicity and/or privacy, copyright infringement, trade mark infringement, other intellectual property infringement, passing off, or misleading or deceptive conduct; and
  • violation of these Terms or violation of the rights of any other person.

Mailing List

By furnishing us with your e-mail address, when accessing or using the Platform, you will automatically be placed on our mailing list, and you consent to us e-mailing you at this address from time to time. If you wish to stop receiving such e-mails, you may "unsubscribe" by clicking on the relevant link in the e-mail sent to you.

Third Party Websites or Applications

The Platform includes or may include hyperlinks to other websites or applications owned and operated by third parties. These links are not recommendations or endorsements. We have no control over the contents of third party websites or applications, and we accept no responsibility for them or for any loss or damage that may arise from your use of them.

BREACH OF THESE TERMS

If you breach, or are suspected of breaching, these Terms we may:

  • temporarily or permanently suspend your access to the FitKey Platform;
  • block computers or other devices using your IP address from accessing the FitKey Platform;
  • contact your internet services provider and request that they block your access to the FitKey Platform;
  • bring court proceedings against you or breach of contract or otherwise, which may include a claim for damages and/or
  • delete and/or edit any or all of your Submissions.

If you do not comply with these Terms, and we do not take immediate action, this does not mean that we waive our rights under the Terms, and we will remain entitled to take action against you in the future.

Where we suspend or prohibit or block your access to the FitKey Platform or a part of the FitKey Platform, you must not take any action to circumvent such suspension or prohibition or blocking (including without limitation creating and/or using a different account).

ASSIGNMENT

We may transfer, sub-contract or otherwise deal with our rights and/or obligations under these Terms without notifying you or obtaining your consent.

SEVERABILITY

If a provision of these Terms is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

ENTIRE AGREEMENT

These Terms, as updated from time to time, constitute the entire agreement between you and us in relation to your subscription to the Service and your use of the FitKey Platform, and supersede all other agreements made in respect of your subscription to the Service or use of the FitKey Platform, unless such agreement is reduced to writing and signed by us and you.

LAW AND JURISDICTION

These Terms will be governed and construed in accordance with the laws of the Republic of South Africa, and any disputes between you and us relating to these Terms will be subject to the jurisdiction of the High Court of South Africa (Western Cape High Court).

LEGAL NOTICES

Legal notices will be served on you at the e-mail address you provide to us when you register on the FitKey Platform. Notices will be presumed to have been delivered to you on the date of despatch.

PRIVACY POLICY

General

We are committed to protecting your privacy. All information, including your Personal Information, gathered on the Fitkey Platform will not be used by us for anything other than that which is stated in these Terms.

You agree to give honest, accurate and up-to-date information about yourself to us and to maintain and update such information when necessary. You acknowledge that any Personal Information supplied to us by you during your use of the Fitkey Platform is provided voluntarily.

The information that we collect

The primary ways in which we collect Personal Information about you are as follows:

  • when information about you is submitted to us by way of one or more of the submission interfaces available on the FitKey Platform; and
  • when you use the FitKey Platform, our system automatically collects information relating to your use (see "Cookie Tracking" below).

We may collect and process the following kinds of Personal Information:

  • information about your computer and/or any other device on which you access the Fitkey Platform and information about your visits to and use of the Fitkey Platform (including, for example, your IP address, geographical location, browser type and version, operating system, referral source, length of visit, page views and website navigation);
  • information that you provide to us in making any Submission to the Fitkey Platform by way of one or more of the submission interfaces available on the Fitkey Platform (including without limitation your name, your telephone numbers, your physical and postal addresses, your company information and your email address); and
  • any other information that you choose to submit to us.

You warrant that you have the legal authority, permissions and/or consents to provide the information submitted to us by you. You warrant further that we shall be entitled to process any information that we obtain about you in terms of this policy without seeking any further permissions or consents from you and/or any third parties.

You undertake to notify us in writing of any information provided by you that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or obtained unlawfully and that needs to be corrected or deleted ("Defective information"). Upon receiving such written notification, we shall correct or delete the Defective Information. You accept that we cannot be held responsible for using Defective Information where we are not aware of the nature and extent of the defects in such information.

We may disclose information about you to the Studios or to any of our employees, consultants, officers, agents, suppliers, service providers or subcontractors insofar as this is reasonably necessary for the purposes set out in these Terms and/or on the FitKey Platform itself.

In addition, we may disclose and/or retain your Personal Information:

  • to the extent that we are required or permitted to do so by law. In this regard, please note that it is our policy to co-operate with relevant authorities in relation to law enforcement inquiries. We can (and you authorise us to) disclose any information about you to such authorities as we, in our sole discretion, believe necessary or appropriate, in connection with the investigation of any activity that is illegal or which may expose us or you to legal liability;
  • in connection with any legal proceedings or prospective legal proceedings;
  • in order to establish, exercise or defend our legal rights (including but not limited to providing information to others for the purposes of fraud prevention and reducing credit risk);
  • in the course of our business and commercial activities; and
  • to protect the rights, property or personal safety of another FitKey Platform user, any member of the public, the Studios and other attendees at the Studios, or any shareholder, director, employee, agent or representative of us.

You may not disclose personally identifiable information about another user to any third party without our consent and the consent of such other user, after adequate disclosure, except as expressly permitted in these Terms.

Cookie Tracking

The Platform may use cookie and tracking technology depending on the features offered. Cookie and tracking technology are useful for gathering information such as browser type and operating system, tracking the number of visitors to the Platform and understanding how visitors use the Platform. Cookies can also help customise the Platform for visitors. Personal Information cannot be collected using cookies and other tracking technology; however, if you previously provided personally identifiable information, cookies may be tied to such information.

Aggregate cookie and tracking information may be shared with third parties.

Security of your Personal Information

We will take reasonable technical and organisational precautions to prevent the loss, misuse or alteration of your Personal Information.

We will store all the Personal Information you provide on our secure (password- and firewall- protected) servers.

Despite what has been stated above, the internet is not a secure medium and privacy cannot be ensured. We will not be responsible for any damages you or any third party may suffer as a result of any unauthorised interception of the FitKey Platform.

Your rights

You may instruct us to provide you with a description and/or record of any Personal Information we hold about you upon receipt of a written request from you to this effect. Provision of such information will be subject to:

  • the payment of a reasonable administrative fee determined by us; and
  • the supply of appropriate evidence of your identity (for this purpose, we will usually accept a photocopy of your identity book or passport certified by an attorney/solicitor or a bank, plus an original copy of a utility bill showing your current physical address).

We may withhold such Personal Information to the extent permitted by law.

We reserve the right to retain on our records information you have requested be removed from our active databases for certain purposes, such as to resolve disputes and enforce our Terms. Please also note that information submitted to us by you may in some instances never be completely removed from our databases due to technical and legal constraints. You should therefore not expect that all of your Personal Information will be completely removed from our databases in response to any request you may submit.