Movement Performance Solutions Limited
Conditions of Sale (“Conditions”)
By signing the Order and using the Online Screening Tool you agree to be bound by these Conditions, which form part of the Contract as explained below.
1 Definitions, Contract formation and Duration
1.1 Capitalised terms used in these Conditions have the meanings given to them in clause 11 or where first defined.
1.2 These Conditions apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Company may amend the Conditions from time to time by notice in writing to you. If you access or use the Online Screening Tool after any amendments are notified to you, you will be deemed to have accepted the amended Conditions.
1.3 The Order constitutes an offer by you to purchase the Products in accordance with these Conditions. You are responsible for ensuring that the terms of the Order are complete and accurate.
1.4 The Order shall only be deemed to be accepted when the Company issues a written Order Confirmation, at which point the Contract shall come into existence.
1.5 Unless terminated earlier under the terms of the Contract, the Contract shall continue for the Initial Subscription Term. After expiry of the Initial Subscription Term, The Contract shall automatically renew for successive periods of 12 months (each a "Renewal Period") unless either party notifies the other party in writing of termination at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period.
2 Product and Delivery
2.1 The Product is as listed on the Order Confirmation.
2.2 Delivery of the Product shall be deemed to take place when the Customer first accesses the Product on the Website using the login details provided on the Order Confirmation.
3.1 The Subscription Fee for the Initial Subscription Term shall be as set out in the Order Confirmation for the Users stated in the Order. If you wish to add Users, an additional fee will be payable.
3.2 You must on the Effective Date provide us with valid, up-to-date and complete credit card details or approved purchase order information acceptable to us and any other relevant valid, up-to-date and complete contact and billing details and, if you provide:
3.2.1 credit card details to us, you authorise us to bill the credit card: (i) on the Effective Date for the Subscription Fees payable in respect of the Subscription Term; and (ii) on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
3.2.2 your approved purchase order information to us, we shall invoice you: (i) on the Effective Date for the Subscription Fee payable in respect of the Initial Subscription Term; and (ii) at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and you must pay each invoice within 30 days after the date of such invoice.
3.3 If we have not received payment within 30 days after the due date, and without prejudice to any other rights and remedies we may have:
3.3.1 we may, without liability to you, disable all password, account and access to all or part of the Online Screening Tool and we shall be under no obligation to provide any or all of the Online Screening Tool while the invoice(s) concerned remain unpaid; and
3.3.2 interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of HSBC bank in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
3.4 All amounts and fees stated or referred to in this agreement: (a) shall be payable in pounds sterling; (b) are non-cancellable and non-refundable; (c) are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
3.5 We may increase the Subscription Fee and the fees payable in respect of any additional User at the start of each Renewal Period upon 90 days' prior notice to you.
4 Intellectual Property Rights
4.1 All Intellectual Property Rights and all other rights in the Online Screening Tool and the Website are owned by us and title to such Intellectual Property Rights shall remain vested solely in the Company. Nothing contained in these Conditions shall be deemed to imply a transfer of ownership or grant of rights in respect of the Intellectual Property Rights broader or more extensive than the limited, non-exclusive, revocable, non-assignable, non-transferable licence which we grant to you strictly for the purposes of i) viewing the Website and/or ii) using the Online Screening Tool for the purposes of learning the Techniques and obtaining Results for your own clients. For the avoidance of doubt, whilst we acknowledge and accept that you may use the information gained from the Online Screening Tool and the Results for the purposes of evaluating and assessing your own clients, you are expressly prohibited from using the Techniques or Online Screening Tool for the purposes of "teaching" the Techniques to third parties for commercial gain.
4.2 The Techniques and the material contained in the Online Screening Tools may be proprietary in nature and have been created, developed and compiled by us. We have made considerable investment in our Intellectual Property Rights and consider them to be at the very core of our business. We therefore take a pro-active approach to management and enforcement of our Intellectual Property Rights.
5.1 In consideration of the payment of the Subscription Fees, we grant you a non-exclusive, revocable, non-assignable, non-transferable licence for the User(s) to use the Online Screening Tool during the Initial Subscription Term and any Renewal Term strictly for your internal business operations and for the purposes set out in the Order Confirmation and these Conditions. You are expressly prohibited from using the Online Screening Tool for any other purposes without an appropriate licence upgrade.
5.2 In relation to the Users, you undertake that: (a) the maximum number of Users that you allow to access and use the Online Screening Tool shall not exceed the number of Users authorised by us to use the Online Screening Tool; (b) if you have purchased a Clinic/Club Licence your use will be limited to the named Users set out on the Order Confirmation and you will not allow or suffer any login details to be used by anyone other than the User to whom they were granted, and such Clinic/Club Licence may not be re-assigned to another individual. If you have purchased an Organisation Licence, your licence covers a limited number of individual Users within your Company as detailed on the Order Confirmation. Under an Organisation Licence, the user logins are transferable to any employee of the Company named on the Order Confirmation, but may not be used by more than one individual at any one time; (c) each User shall keep a secure password for his use of the Online Screening Tool and that each User shall keep his password confidential; (d) you shall maintain a written, up to date list of current Users and promptly provide such list to us if we request it and (e) you shall permit us to audit your use of the Online Screening Tool in order to establish your compliance with the Contract.
5.3 You shall not:
5.3.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Online Screening Tool in any form or media or by any means except: (i) as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; and (ii) to the extent expressly permitted under the Contract;
5.3.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Online Screening Tool; or
5.3.3 access all or any part of the Online Screening Tool in order to build a product or service which competes with the Online Screening Tool;
5.3.4 use the Online Screening Tool to provide services to third parties;
5.3.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Online Screening Tool available to any third party except the Authorised Users; or
5.3.6 attempt to obtain, or assist third parties in obtaining, access to the Online Screening Tool, other than as provided under this clause.
5.3.7 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Online Screening Tool and, in the event of any such unauthorised access or use, promptly notify us.
6 Customer Obligations
6.1 You shall ensure that you have appropriate insurance cover in respect of any liability you may incur as a result of carrying out the Techniques and using the Online Screening Tool.
6.2 In consideration of us agreeing to your use of the Website, you acknowledge that the ownership in any Intellectual Property Rights in the Website belongs to us. Accordingly, no part of the Website (or its source code) may be used, transferred, copied or reproduced in whole or in part in any manner other than for the purposes of using the Website meaning that you may only display it on your computer screen and print it out for the sole purpose of viewing its content.
6.3 You may only use the trademarks featured in the Website for the purpose of displaying the Website on your computer screen or printing out the Website on your printer.
6.4 We are not responsible for the accuracy, completeness or reliability of any information published on the Website or for any information published by any other company or organisation.
6.5 You are expressly prohibited from linking the Website to any other website without the prior written approval of the Company. We give no warranties, representations or undertakings about the content of any other website which may be referred to or accessed by hypertext link with the Website, and we do not endorse or approve the content of such third party websites.
6.6 You are strictly prohibited from sub-licensing or assigning the benefit of the Online Screening Tool (including but not limited to the benefit of your online account) and/or sub-licensing or assigning the Contract.
7 Warranties and Liability
7.1 We shall provide the Online Screening Tool using reasonable skill and care. However, we are not responsible for the accuracy, completeness or reliability of any information provided in or via the Online Screening Tool.
7.2 We make no warranty as to the suitability of the Online Screening Tool for your purposes. We expressly disclaim all warranties of any kind, whether express or implied, including but not limited to implied warranties as to fitness for purpose.
7.3 We shall not be liable for any delay or failure in making the Website and/or Online Screening Tool available which results directly or indirectly from planned maintenance or acts of a third party including but not limited to our internet service provider, online application provider or website host.
7.4 We accept no liability for your use of the Online Screening Tool and the Website. Certain exercises and manual techniques involve the possibility of injury in some circumstances. The provision of the Online Screening Tool and the Website is made available to you by us strictly on the basis that you must make your own assessment as to the suitability of the use of the Online Screening Tool having regard to your own circumstances and the circumstances of the third parties upon whom you intend to perform the Techniques. You acknowledge and accept that the content and Results provided by the Online Screening Tool are provided for information purposes only and should not be treated as professional medical advice or opinion and that we are not in a position to assess the individual needs of each Purchaser and the third parties upon whom you intend to perform the Techniques. We recommend that in each case you seek professional medical advice before carrying out the Techniques. We do not recommend performing the Techniques in any of the following circumstances: i) the individual is under 18 without parental or legal guardian consent; ii) the individual is pregnant (or suspects that she might be pregnant); iii) the individual has recently given birth, miscarried or terminated a pregnancy; iv) the individual is breast-feeding; v) the individual has a pre-existing injury or has recently had surgery and is still experiencing pain or disability following such injury and/or surgery; or vi) the individual has recently suffered health problems. Having regard to the above you acknowledge and accept that you are engaging in use of the Online Screening Tool voluntarily and entirely at your own risk. You assume all risk of injury to yourself and the third parties upon whom you are carrying out the Techniques. You agree to fully indemnify us and keep us fully indemnified against any claims or actions for any damage, loss, claims injury, costs or expenses (howsoever arising and whether direct or indirect) suffered by us as a result of you or any third party using the Online Screening Tool and/or carrying out (or attempting to carry out) the Techniques. Except as expressly and specifically provided in this agreement: (a) you assume sole responsibility for results obtained from the use of the Online Screening Tool, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by you in connection with the Online Screening Tool, or any actions taken by the Company at your direction; (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and (c) the Online Screening Tool is provided to you on an "as is" basis.
7.5 This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you in respect of: (a) any breach of this agreement; (b) any use made by the you of the Online Screening Tool or any part of it and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
7.6 Nothing in the Contract excludes the liability of the Company: (a) for death or personal injury caused by the Company's negligence; or (b) for fraud or fraudulent misrepresentation. Subject to the preceding sentence, (i) the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and (ii) the Company's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid during the 6 months immediately preceding the date on which the claim arose.
7.7 You shall, at all times, comply with these Conditions and will only use the Online Screening Tool and the Website as set out in these Conditions.
7.8 You hereby acknowledge and represent that prior to attempting any of the Techniques you shall be suitably qualified to participate in the Techniques (including but not limited to the performance of the Techniques on third parties).
7.9 You represent and warrant that you have secured all consents, permissions and licences legally required of you or recommended by competent authorities prior to carrying out the Techniques.
7.10 You shall ensure that all information and/or materials provided by you to us or posted by them (the "User Content") on the Website is true, accurate, complete, owned by you (or that you have permission to post such information and/or materials) in its entirety and that it is free from virus or other malicious computer codes. Furthermore, you warrant and represent that the User Content shall not infringe the intellectual property rights or other rights of any third party.
7.11 You will at all times and on demand fully indemnify us and keep us fully indemnified from and against any claims threatened or made against us arising as a result of your non-compliance with any of the representations, warranties or obligations set out in these Conditions and your use of the Online Screening Tool and the Techniques.
7.12 You will notify us immediately and in writing in the event that you are notified of any claims or causes of action arising from performance of the Techniques and/or use of the Online Screening Tool.
7.13 You shall: (a) ensure that the Users use the Online Screening Tool in accordance with the terms and conditions of this agreement and shall be responsible for any User’s breach of this agreement; (b) ensure that your network and systems comply with the relevant specifications provided by us from time to time; and (c) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to the Online Screening Tool, and resolving all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
8 Data and Privacy
8.1 Any data about individuals which you enter onto the Website directly or include in any message to us will be subject to the Data Protection Act 1998. You are responsible for its accuracy and relevancy and you must have the authority to disclose it and to allow us to use it for the purposes of any transaction concluded for or by you through the Website. Please direct any queries regarding data to us at firstname.lastname@example.org.
8.2 We will collate the information which you give to us in the Order to enable us to provide the services under the Contract. This information may contain "sensitive personal data" (as defined in the Data Protection Act 1998). By giving us this information, you consent to our use of it in order to process your requests and provide the Online Screening Tool and/or the Website. It will be necessary to forward your data to certain third parties in order for us to provide the Online Screening Tool and/or the Website. By entering into the Contract you are giving us approval to forward that data to such third parties as we deem necessary in order for us to do so.
9 Cancellation and Termination
9.1 Providing you have not accessed the Online Screening Tool, you have the right to cancel the Contract without penalty and without the need to give any reason, at any time during a period of seven (7) working days (Monday to Friday inclusive) starting from the day after the Effective Date, by notifying us by email at email@example.com. If you validly cancel the contract, we will reimburse you any Subscription Fees which you paid within thirty (30) days of receipt of your cancellation request. If you have accessed the Online Screening Tool you will not be able to cancel the Contract without liability to us.
9.2 We shall be entitled to terminate the Contract immediately and close your Online Account upon providing you with written notice if you commit a material breach of the provisions of the Contract or a series of breaches which when viewed together are considered by us (in our sole discretion) to amount to a material breach of the Contract provided always that we may, in our sole discretion, elect to allow you to rectify the breach (if such breach is remediable) within 5 working days.
10.1 The Contract constitutes the entire agreement between us and supersedes all prior agreements, arrangements or understandings (both oral and written) between us relating to the subject matter of the Contract. If any provision of the Contract is held by any court or other competent authority to be void or unenforceable in whole or part, the other provisions and the remainder of the affected provision shall continue to be valid.
10.2 No delay by us in enforcing our rights against you shall prejudice or restrict our rights, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
10.3 Any notice required to be given under the Contract shall be in writing, which includes by email, and shall be sent to the other party at the address given in the Order. Notices may be sent by first-class mail or by email. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and by email at the time a read-receipt is received during the hours of 9am to 5pm Monday to Friday excluding bank holidays in England.
10.4 We shall not be liable for any delay or failure in providing the Online Screening Tool and/or the Website which results directly or indirectly from acts of nature, forces or causes beyond our reasonable control including but not limited to technology failure, power failures, strikes, labour disputes, riots, terrorism, insurrections, civil disturbances, vandalism, fires, floods, storms, adverse weather conditions, disease, pandemic, explosions, acts of God, war, governmental actions or orders of court.
10.5 A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.6 The Contract is governed by English Law. Both parties agree to submit to the exclusive jurisdiction of the English Courts.
11 Definitions and Interpretation
11.1 The headings in this Agreement are for convenience only and shall not affect its interpretation.
11.2 In these Conditions the following definitions apply:
Company: Movement Performance Solutions Limited, a company incorporated in England under company registration number 03854711, whose registered office is at The Quorum,
Bond Street South, Bristol, BS1 3AE, United Kingdom. "We", "us" or "our" refers to the Company.
Contract: the contract between the Company and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer: the purchaser of the Products as set out in the Order. “You” refers to the Customer.
Effective Date: the date of the Order Confirmation.
Initial Subscription Term: the period of 12 months from the date of the Order Confirmation.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software or online applications, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world INCLUDING translated or reformatted version/documents.
Online Screening Tool: the online application together with the related materials available via the Website, as amended from time to time (including but not limited to the PDF materials which support the Online Screening Tool).
Order: the order form for the purchase of the Products.
Order Confirmation: the order confirmation from the Company accepting the Order.
Product: the product specified in the Order.
Results: the final collection of data produced after the Customer has inputted all the information requested by the Online Screening Tool visual prompts.
Subscription Fee: means the fee payable for the Initial Subscription Term as set out in the Order and the fee for any Renewal Term.
Techniques: the movement evaluation methods and techniques demonstrated in the Online Screening Tool.
User: means an employee of the Customer who is named in the Order Confirmation as authorised to use the Online Screening Tool and for whom a User Subscription has been purchased.
Website: the website at www.theperformancematrix.com which is owned and operated by the Company, as amended or updated from time to time..