Privacy Policy

This Privacy Policy is effective as of January 27, 2020.

PLEASE READ THIS PRIVACY NOTICE CAREFULLY.

If you live in certain countries or states, additional terms may apply to you and can be found at the end of this Privacy Policy (the “Additional Terms”). These Additional Terms override the other terms of this Privacy Policy to the extent of any inconsistency.

Whitney Simmons App, LLC and its affiliates (referred to as “Simmons,” “we,” “us,” or “our”) respect your privacy as a user (referred to as “User,” “you,” or “your”) and are committed to protecting it through our compliance with this policy. We will be clear and transparent about the Personal Data we are collecting and what we will do with that Personal Data.

This privacy notice (the “Privacy Policy”) describes:

1. the types of Personal Data we collect on the Alive By Whitney Simmons mobile application, (“Alive App”) and how we collect it;
2. how we hold and use the information, including to provide promotional materials and advertisements that have been tailored to you based on the Personal Data that you have provided;
3. with whom we may share it;
4. the choices available to you regarding our use of your information;
5. the measures we take to protect the security of the information; and
6. how you can contact us about our privacy practices.

1. Who is responsible for processing your Personal Data?

We are the “data controller” (i.e. the organization responsible for all Personal Data that is collected and used related to our customers) for the purposes of data privacy laws, principles, and regulations which may apply to you, including the European General Data Protection Regulation (“GDPR”) or the California Consumer Privacy Act (“CCPA”) (collectively, “Data Privacy Law”).

2. What Personal Data do we collect and how do we collect it (including by automated means)?

We may ask for and collect your Personal Data (either directly through your use of the Alive App or when you communicate with us in any other way) in a number of ways to provide you with the products or services that you request – please refer to Section 3 below for more information on how we use your Personal Data.

2.1 Personal Data.

“Personal Data” has the meaning given in the Data Privacy Law applicable to you, and includes any information or opinion relating to you which allows us to identify you, such as your name, phone number, email address, details of products or services you have purchased, and payment details.

2.2 Information you provide to us.

When you download, register with, or use the Alive App, we may ask you provide information including:

1. first and last name, email address and/or mobile telephone number, and date of birth (these are mandatory information which we require when opening a user account on the Alive App (“User Account”));
2. other information such as telephone numbers;
3. data on your physical characteristics (e.g. weight to the extent you choose to enter it on the Alive App);
4. fitness activity data provided by you or generated through use of the Alive App (e.g. time, duration, location);
5. information you provide about yourself and any preferences in your User Account;
6. information about your use of the Alive App;
7. communications with us or directed to us via letters, emails, chat services, calls, and social media;
8. where you have selected particular services or features on the Alive App (e.g. taking a picture), the Alive App may ask to access your device’s features (e.g. your device’s camera); and
9. information about your purchases of products and services from us.

2.3 Automatic Information Collection and Technologies.

When you download, access, and use the Alive App, it may use technology to automatically collect:

1. usage details including communication data and the resources that you access and use on or though the Alive App;
2. device information including the device’s unique device identifier, operating system, browser type, mobile network information, and the device’s telephone number;
3. stored information including meta data and other information associated with other files stored on your device, such as photographs, audio, and address book information location information; and
4. location information, including real time information about the location of your device.

2.5 Sensitive Personal Data

Personal details including about your nationality or physical or mental health may be considered “sensitive” personal data under applicable Data Privacy Law. We will not process any such data unless you have given your explicit consent, or it is necessary (for instance if you request special assistance), or otherwise in compliance with applicable Data Privacy Law.

2.6 Children.

Users must be of legal age in their respective countries and not under 16 years old, or you must have consent from your parent or guardian. If you are a parent or legal guardian of a child who is under 16 years old who you believe has provided Personal Data to the Alive App, please contact us at the details in Section 9 if you want to exercise any of the rights available under applicable Data Privacy Law as set out in Section 6 below.

3. Why and how do we use your Personal Data?

Your Personal Data may be used for the following purposes:

3.1 Provide features of the Alive App and the products and services you request:

We may use the Personal Data you give us to provide the Alive App and the products and services you request, including:

1. to create and set up your User Account;
2. to assist any orders for services that you place on the Alive App, including to communicate with you about the orders and to process information for our internal accounting, billing, and audit purposes; and
3. if you use the Alive App to track your fitness activity (including photos), we will collect and store this information so that you can review it on the Alive App and track your progress.

3.2 Communicate information about our products and services and for other promotional purposes:

With your consent, or as otherwise permitted by applicable Data Privacy Law, we will use your Personal Data to provide information that we believe is of interest to you, before, during, and after your interactions with us, including marketing communications and news concerning our products, services, events, and other promotions. You can opt-out at any time after you have given your consent to such communications by contacting us at the details in Section 9. In providing tailored promotional materials to you, we may use the personal information collected through your use of the Alive App, such as the user preferences you set and profile data you submit.

3.3 Customer service communications:

We use your data to manage our relationship with you as our customer and to improve our services and enhance your experience with us (e.g. to respond to your inquiries when you reach out to us). From time to time, we may also conduct customer surveys to gauge satisfaction with our Alive App and the services that we provide.

3.4 Administrative or legal purposes:

We use your Personal Data to operate our business, including for statistical and marketing analysis, systems testing and to diagnose technical and service problems, maintenance and development of our Alive App, or in order to deal with a dispute or claim. We may also perform data analysis based on the data we collect from you for statistical and marketing analysis purposes – for example, we may use information about how users of our Alive App search for and find specific workouts to better understand the best ways to organize and present the content that we offer.

3.5 Security, health, administrative, crime prevention/detection, and legal purposes:

We may use your Personal Data to verify your information and identity and to protect against, identify, and prevent fraud and other unlawful activities. We may also share your Personal Data with government authorities or enforcement bodies for compliance with legal requirements, or as otherwise required or permitted by applicable Data Privacy Law.

3.6 Other purposes:

We may also use your Personal Data in other ways, and where we do so, we will provide specific notice at the time of collection and obtain your consent unless otherwise permitted by applicable Data Privacy Law.

We will only process your personal data where we have a legal basis to do so, which will depend on the reasons for which we have collected and need to use your personal data. In most cases we will need to process your Personal Data so that we can enter into contracts with you under our terms of use (when orders for products are made), and to fulfil the provision or delivery of goods or services to you on the Alive App (including subscriptions to the Alive App). Our processing of your Personal Data for the above purposes is done pursuant to the following legal basis:

1. to comply with a legal obligation;
2. if it is in our legitimate interests to do so as a business (e.g. for administrative purposes) and to improve the functionality of our Alive App;
3. where you have consented to our using your personal data (e.g. for marketing related uses); and
4. to protect your vital interests or those of another person (e.g. in case of a medical emergency).

4. How do we protect and manage your Personal Data (including international transfers and retention periods)?

4.1 Encryption and security.

We follow strict security procedures in the storage and disclosure of your Personal Data, which are designed to protect it against misuse, unauthorized access, modification or disclosure and accidental loss, destruction or damage. The data you provide to us is protected using SSL (Secure Socket Layer) technology. SSL is the industry standard method of encrypting personal information and credit card details so that they can be securely transferred over the internet.

4.2 International transfers of your Personal Data.

We intend to operate businesses in multiple jurisdictions, some of which are not located in the United States. The Personal Data that we collect from you will be stored in the United States and might also be shared with third-party data recipients (e.g. e-commerce and logistics providers and customer support providers) that are not located in the United States of America. Therefore, the Personal Data that you provide to us may be transferred internationally to countries other than the country in which you initially provided your data.

While countries outside the United States do not always have strong data privacy laws, we take measures to protect your Personal Data as described in this Privacy Policy and in compliance with applicable Data Privacy Law. We also require all third-party data recipients (including our service providers) to process your information in a secure manner and in accordance with the applicable Data Privacy Law. If you have further questions about this or would like to request to view copies of the applicable safeguards (where required), please contact us at the details in Section 9.

4.3 Retention of your Personal Data.

We will not retain your data for longer than is necessary to fulfil the purposes for which it is being processed. To determine the appropriate retention period, we consider the amount, nature, and sensitivity of the personal data, the purposes for which we process it, and whether we can achieve those purposes through other means.

We also consider the periods for which we might need to retain personal data in order to meet our legal obligations, or to deal with complaints and queries, and to protect our legal rights in the event of a claim being made.

In general, this means that we will likely keep your Personal Data for as long as your User Account is open. Following closure of your User Account, however, we may still retain your Personal Data so that we can maintain a continuous relationship with you if and when we are in contact with you again, and to comply with our internal processes and any legal obligations.

When we no longer need your personal data, we will securely delete or destroy it. We will also consider if and how we can minimize over time the personal data that we use, and if we can anonymize your personal data so that it can no longer be associated with you or identify you, in which case we may use that information without further notice to you.

5. Who do we share your Personal Data with?

We may share your Personal Data with the following people for the purposes described in this Privacy Policy:

1. other companies and members within the Simmons’ group, including affiliates of Simmons;
2. other companies, contractors, or agents that assist us in providing services to you, including our online e-commerce platform that allows us to sell and deliver our products and services to you
3. if you have provided consent, other companies, contractors or agents in connection with our marketing efforts, or marketing platform providers;
4. credit and debit card companies which facilitate your payments to us, and for anti-fraud screening, which may need information about your method of payment to process payment or ensure the security of your payment transaction.
5. government authorities, law enforcement bodies and regulators for compliance with legal requirements, or where otherwise required by applicable Data Privacy Law; and
6. our legal and other professional advisers in order to enforce our legal rights in relation to our contract with you.

We may also transfer your Personal Data to potential buyers in the event that we sell or transfer all of a part of our business or assets (including in the event of a reorganization or dissolution/liquidation), under strict non-disclosure restrictions, and solely in order to allow a buyer to determine whether to proceed with the transaction, or where such a determination is made, to complete it.

6.Your Rights and Choices

6.1 Your Rights.

Under certain circumstances, by applicable Data Privacy Law you may have the right to:

1. Request information about whether we hold personal information about you, and, if so, what that information is and why we are holding/using it;
2. Request access to your personal information (commonly known as a “data subject access request”). This enables you to receive a copy of the personal information we hold about you and to check that we are lawfully processing it;
3. Request correction of the personal information that we hold about you. This enables you to have any incomplete or inaccurate information we hold about you corrected;
4. Request erasure of your personal information. This enables you to ask us to delete or remove personal information where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal information where you have exercised your right to object to processing (see (e) below);
5. Object to processing of your personal information where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground. You also have the right to object where we are processing your personal information for direct marketing purposes;
6. Object to automated decision-making including profiling, that is, not to be the subject of any automated decision-making by us using your personal information or profiling of you;
7. Request the restriction of processing of your personal information. This enables you to ask us to suspend the processing of personal information about you, for example if you want us to establish its accuracy or the reason for processing it;
8. Request transfer of your personal information in an electronic and structured form to you or to another party (commonly known as a right to “data portability”). This enables you to take your data from us in an electronically useable format and to be able to transfer your data to another party in an electronically useable format; and
9. Withdraw consent. In the limited circumstances where you may have provided your consent to the collection, processing, and transfer of your personal information for a specific purpose, you have the right to withdraw your consent for that specific processing at any time. Once we have received notification that you have withdrawn your consent, we will no longer process your information for the purpose or purposes to which you originally agreed, unless we have another proper and legitimate basis for doing so.

6.2 Exercising your rights.

If you wish to exercise your rights related to your Personal Data (including the rights set out above), please contact the Simmons team using the details in Section 9.

6.3 Fees.

While you will generally not be required to pay a fee to access your Personal Data or to exercise any of your other statutory rights, we may charge a reasonable fee if your request for access is clearly unfounded or excessive or we may decline to comply with such requests where permitted by applicable Data Privacy Law.

6.4 Requesting information.

We may need to request specific information from you to help us confirm your identity and ensure your right to access the information (or to exercise any of your other rights). This is a security measure to ensure that Personal Data is not disclosed to any person who has no right to receive it and to prevent unauthorized modification of your personal information.

6.5 Lodging a complaint.

You may also have the right to lodge a complaint about our processing of your Personal Data with the body regulating data protection in the country or state/province in which you live.

7. Third-Party websites

The Alive App may provide links to other websites for your convenience and information. These websites may operate independently from us. If you visit any website linked to the Alive App, you are subject to that website’s or application’s own privacy policies. Linked websites may have their own privacy notices or policies, which we strongly suggest you review. To the extent any linked websites are not owned or controlled by us, we are not responsible for their content, any use of the websites, or the privacy practices of the websites.

8. Updates to this Privacy Policy

We reserve the right to change this Privacy Policy at any time. If we decide to change this Privacy Policy, we will post those changes on this page so that our users and customers are always aware of what information we collect, use, and disclose. If at any time we decide to disclose or use your Personal Data in a method different from that specified at the time it was collected, we will provide advance notice by the contact information in your account). Otherwise, we will use and disclose our users’ and customer’s Personal Data in agreement with the Privacy Policy that was in effect when the information was collected. In all cases, your continued use of the Alive App after any change to this Privacy Policy will constitute your acceptance of such change.

9. How to contact us?

We welcome questions and comments about this Privacy Policy and our privacy practices. If we receive a complaint from you about how we have handled your Personal Data, we will investigate and determine what action we should take to resolve the complaint. We will contact you within a reasonable time and may request more information to assist us with our investigation. We aim to resolve all complaints in a timely manner.

If you wish to provide feedback or if you have questions or concerns or wish to exercise your rights related to your Personal Data, please contact the Simmons team at the following email address: AliveByWhitneyApp@gmail.com

ADDITIONAL TERMS

If you live in one of the following countries or states, these Additional Terms apply and override any inconsistent terms in the Privacy Policy:

1. CANADA

1.1 Section 3.6 (Other purposes) is replaced with the following:

“We may also collect, use and disclose your Personal Data in other ways, and where we do so, we will obtain your further consent.

We will only process your personal data where required to generally operate the Alive App, provide you with products and services, and to operate our business, including for the purposes outlined in this Privacy Policy. In most cases we will need to process your personal data so that we can enter into contracts under our terms of use (when orders for products are made), and to fulfil the provision or delivery of goods or services to you on the Alive App (including subscriptions to the Alive App).

In addition to the purposes set out elsewhere in the policy, we may collect, use, and disclose your personal information for marketing and analytics purposes.

By using the Alive App or otherwise providing us with your Personal Data, you agree to the collection, use, and disclosure of your Personal Data as set out in this Privacy Policy.

We may also collect, use, and disclose your personal information without your consent, as required or permitted by applicable Data Privacy Law, such as to use or disclose your Personal Data in the case of an emergency that threatens the life, health, or security of you or another individual.”

1.2 Section 4.2 (International transfers of your Personal Data) is replaced with the following:

“We operate businesses in multiple jurisdictions, some of which are not located in your country of residence. The Personal Data that we collect from users will be stored in the United States of America and might also be stored or processed through third-party service providers in other countries. Therefore, the Personal Data that you provide to us may be transferred internationally to countries other than the country in which you initially provided your data.

When transferring Personal Data to a third-party service provider, or outside of your home country, we take measures to protect your Personal Data as described in this Privacy Policy and in compliance with applicable Data Privacy Law. Using contractual and other means, we also require all third-party data recipients (including our service providers) to process your information in a secure manner and in accordance with the applicable Data Privacy Law in your country of residence. However, when stored or processed in another country, your Personal Data will be subject to the applicable Data Privacy Law of that country, which may not provide the same protections as the applicable Data Privacy Law in your country of residence. If you have further questions about this or would like to request to view copies of the applicable safeguards (where required), please contact us at the details in Section 9.”

1.3 Section 6.3 (Fees) is replaced with the following:

“While you will generally not be required to pay a fee to access your Personal Data or to exercise any of your other statutory rights, where permitted by applicable Data Privacy Law, we may charge a reasonable fee if your request for access would require an exceptional amount of effort, or may decline to comply with frivolous or vexatious requests.”

2. CALIFORNIA, UNITED STATES OF AMERICA

2.1 Date reviewed.

The Privacy Policy and this paragraph 2 of the Additional Terms were last reviewed on January 23, 2020.

2.2 The California Consumer Privacy Act.

The provisions in this paragraph 2 of the Additional Terms are intended to fulfil the requirements of the California Consumer Privacy Act (“CCPA”) and shall apply to Users who are resident in California.

2.3 Personal Data.

To the extent that any terms used in this Privacy Policy and paragraph 2 of the Additional Terms are defined in the CCPA, such definitions shall apply. The term “Personal Data” as used in this Privacy Policy and paragraph 2 of the Additional Terms shall include “Personal Information” as such term is defined in the CCPA.

2.4 Categories of Personal Data.

The categories of Personal Data collected by us in the last 12 months are described in Section 2 of the Privacy Policy and, for the purposes of the CCPA, correspond to the following categories of Personal Information listed in the CCPA:

1. identifiers and personal information categories referenced in applicable California law (first and last names, email address, telephone number, where you have selected particular services or features on the Alive App);
2. protected classification characteristics under California or US federal law (age);
3. commercial information (information about your purchases of products and services from us or our third-party partners who may provide or promote their own products or services through the Alive App);
4. biometric information (physical characteristics such as weight to the extent you choose to enter these on the Alive App);
5. internet or other similar network activity (information about your use of the Alive App and your IP address, including information collected automatically through cookies);
6. geo-location data where the IP address of your computer or device is used to determine your geographic location so that we can customize your experience on the Alive App (e.g. language settings);
7. sensory data, including audio, electronic, visual, thermal, or olfactory information (e.g. your photos and audio where you have selected particular services or features on the Alive App); and
8. inferences drawn from other Personal Data (information you provide about yourself and any preferences in your User Account, communications with us or directed to us via emails, fitness activity data provided by you or generated by you on the Alive App, including activity data generated by the devices that you connect to the Alive App);

2.5 Processing Personal Data.

We will not process your Personal Data for purposes which are materially different, unrelated, or incompatible with the purposes set out in the Privacy Policy without providing you notice.

2.6 Disclosure of Personal Data to Third Parties.

In the last 12 months, to the extent that we have your Personal Data listed in paragraph 2.4 above, we have only disclosed this Personal Data to third parties for business purposes.

2.7 Sale of Personal Data to Third Parties.

In the last 12 months, we have not sold your Personal Data to third parties.

2.8 Additional rights under the CCPA.

1. Users who are resident in California may have the following rights under the CCPA in addition to the rights set out in Section 6 of the Privacy Policy:
   i. Access: Once we receive and confirm your verifiable consumer request, we will disclose the following to you:
   A. the categories of your Personal Data and the specific Personal Data that we have collected;
   B. the categories of sources from which your Personal Data was collected;
   C. our business or commercial purpose for collecting your Personal Data; and
   D. the categories of third parties with whom we share your Personal Data, and where such third parties received your Personal Data from us for a business purpose, the categories of your Personal Data that we disclosed to such third parties.
   Under the CCPA, you are only entitled to exercise the Personal Data access right set out in this paragraph 2.8(a)(i) twice a year.
   ii. Deletion: Once we receive and confirm your verifiable consumer request, we will (and will direct our service providers to whom we have disclosed your Personal Data to) delete your Personal Data unless an exception under the CCPA applies.
2. The rights set out in paragraph 2.8(a) do not apply to Personal Data collected from our employees as part of their employment with us or Personal Data collected as part of a business-to-business transaction.
3. To exercise any of the rights set out in paragraph 2.8(a), please contact our team using the contact details set in Section 9 of the Privacy Policy.
4. Only you, or someone legally authorized to act on your behalf, may make a verifiable consumer request related to your Personal Data. As set out in Section 6.5 of the Privacy Policy, we may need to request specific information from you to help us confirm that your request is a verifiable consumer request.

2.9 Non-Discrimination.

We will not discriminate against you for exercising any of your rights under the CCPA. Specifically, unless permitted by the CCPA, we will not:

1. deny you access to services provided by us on the Alive App;
2. charge you different prices or rates for the goods and/or services provided by us on the Alive App, or imposing penalties on you;
3. provide you with a different level or quality of goods and/or services than otherwise generally provided by us on the Alive App; or
4. suggest that you will receive a different price or rate for, or a different level or quality of, the goods and/or services generally provided by us on the Alive App.

2.10 Do Not Track.

To the extent it is applicable, we do not respond to “Do Not Track” requests or signals.