HITuni CUSTOMER AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING OUR SERVICES AND COURSE MATERIALS:
This Customer Agreement (“CA”) is an agreement between you and Hit Universal Limited of 5 Deansway, Worcester WR1 2JG (“HITuni”).
This Agreement is part of a package that includes personal training course materials and certain associated electronic and/or written materials including but not limited to tips, action items, learning content, benchmarking information, text, instruction, audio, video, images, photographs and graphics (“Course Materials”). This Agreement covers your permitted use of the Course Materials and the online software applications provided by HITuni as part of our services to you and in connection with our web sites (“Services”). Services includes any HITuni or our partners proprietary content, software and any patches, updates, enhancements, improvements, additions, derivative works, and other modifications and revised versions that may be provided by HITuni or its licensors from time to time to deliver the Course Materials to you via the internet, other electronic means or in paper format (and including any data and associated materials, documentation or media supplied to you).
Your use of the Services and/or Course Materials constitutes your acceptance to be bound by the terms and conditions of this Customer Agreement.
BY TICKING THE BOX TITLED “I have read and agree to the Terms and Conditions.” AND/OR CLICKING ON THE “Place order” BUTTON YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU.
You should print a copy of this Licence for future reference.
1.1 Subject to the payment of any Licence Fee as detailed in an Order Form or Invoice and your successful completion of registration for the Services, HITuni hereby grant you, a limited, non-transferable, non-exclusive, non-sub-licensable and revocable licence to access and use the Services on a single computer and to copy the Course Materials for personal purposes only strictly in accordance with the terms and restrictions applicable to the licence type you have paid for, or has otherwise been made available directly to you.
1.2 Unless otherwise stated, your licence is limited to (a) the use of Course Materials and Services during the Subscription Term (defined below), (b) accessing and downloading Course Materials during the Subscription Term, and (c) access to the Services and/or Course Materials learning content and other information during the Subscription Term. The “Subscription Term” means the term agreed in any Order Form.
1.3 You can only pay for HITuni Services and Products using a debit card or credit card, or as otherwise detailed in our payment pages. We use a third party payment provider to process payments on our web site and you should carefully read the terms and conditions you enter into with them before making any payment for Products or Services. Payment for the Services and Products and all applicable delivery charges is in advance unless we agree otherwise in writing. We will not charge your debit card or credit card until we dispatch your order or provide you with access to our Services.
1.4 Our payment pages will guide you through the steps you need to take to place an order with us. Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process. After you place an order, you will receive an e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. We will confirm our acceptance to you by sending you an e-mail that contains the information you need in order to access the Services and/or Course Materials (Access Confirmation) or by sending you an e-mail to confirm that physical products have been dispatched (Dispatch Confirmation). The Contract between us will only be formed when we send you Access or Dispatch Confirmation. If we are unable to supply you with a Product from our website, for example because that Product is not in stock or no longer available or because we cannot meet your requested delivery date or because of an error in the price on our site, we will inform you of this by e-mail and we will not process your order. If you have already paid for the Products, we will refund you the full amount including any delivery costs charged as soon as possible.
1.5 The prices of the Services and Products on our web sites will be as quoted on our web sites at the time you submit your order. We take all reasonable care to ensure that the prices of Services and/or Products are correct at the time when the relevant information was entered onto the system. Prices for our Services/Products may change from time to time, but changes will not affect any order you have already placed. The price of Services/Products includes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Services/Products in full before the change in VAT takes effect. The price of a Product does not include delivery charges. Our delivery charges are as advised to you during the check-out process, before you confirm your order.
1.6 Our site contains a large number of Products/Services. It is always possible that, despite our best efforts, some of the Services/Products on our websites may be incorrectly priced. If we discover an error in the price of the Services/Products you have ordered we will contact you to inform you of this error and we will give you the option of continuing to purchase the Services/Products at the correct price or cancelling your order. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. Please note that if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the Services/Products to you at the incorrect (lower) price.
1.7 If you are a consumer, you have the right to cancel this CA within 14 days without giving any reason. However, due to the way in which our Services are provided, some of your cancellation rights under the under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 will not apply. If you cancel this CA, we will reimburse to you all payments received from you. However, if you have requested that we start providing services to you during the 14 day cancellation period, on cancellation, you will pay us an amount which is in proportion to the cost of services which have been provided to you to that point, in comparison with the full coverage of the contract. Normal cancellation rights apply in relation to the Products you purchase from us.
2. Restrictions on Use
2.1 These licensed rights are limited to your personal use in accordance with the terms and restrictions applicable to the licence type you have paid for. You may not: (i) use, copy, modify, transmit, adapt, merge, frame, mirror, translate, republish, download, display, transmit, exploit, distribute, vary or create derivative works based on the Services or Course Materials in whole or part in any form or media or by any means; (ii) rent, lease, sub-license, loan, sell, host or otherwise transfer the Services or Course Materials to any third party or allow them to be accessed by or copied onto another computer or otherwise; (iii) unless permitted by law, translate, reverse engineer, decompile, or disassemble all or any part of the Services and/or Course Materials; or otherwise derive the source code, or use, reproduce or deal in the Services and/or Course Materials or any part, nor permit any third party to; (iv) access the Services and/or Course Materials; (v) unless otherwise permitted, use or permit access to the Services and/or Course Materials via any computer network (or otherwise) or allow unauthorised concurrent use by more than one individual; (vi) not to provide, or otherwise make available the Services and/or Course Materials in any form, in whole or part to any person, without prior written consent from HITuni.
3. Our use of your Data
3.2 By inputting User Content you grant to HITuni and our agents, employees, service providers a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to (i) use, exploit, copy, summarise, analyse, reformat, adapt, create derivative works based upon, and distribute, display, or post internally and on the Services, the User Content, for HITuni’s business purposes; (ii) display, publish, or post the User Content on the HiITuni web sites to facilitate the services made available by HITuni, or otherwise; (iii) combine and commingle the User Content with other User Content (“Aggregated User Content”); and (iv) use, exploit, copy, summarise, analyse, reformat, adapt, creative derivative works based upon, and publicly publish, post, distribute, and display the Aggregated User Content, provided that the Aggregated User Content does not and cannot be used to identify any individual user.
4. Intellectual Property Rights
4.1 The Services and/or Course Materials are protected by copyright, database and other intellectual property laws, and all intellectual property rights (IPR) in it (including all copies, modifications and merged portions to the Services and/or Course Materials) belong to HITuni, or are licensed to it. Rights in the Services and/or Course Materials are licensed (not sold) to you and other than as permitted in this CA you have no rights in, or to, the Services and/or Course Materials or arising out of or in relation to this CA, its subject matter or any related agreement whatsoever. All rights not expressly granted to you under this CA are reserved by HITuni.
4.2 You agree to maintain adequate security measures and take all reasonable steps to safeguard the Services and/or Course Materials from theft, access, unauthorised copying or use by any person other than those permitted in this CA and ensure that all persons allowed access to the Services and/or Course Materials comply with the terms and conditions of this CA. The Services source code represents and embodies the trade secrets of HITuni and its licensors which are not licensed to you and you acknowledge that the Services and/or Course Materials are to be treated as confidential.
4.3 HITuni owns, or uses with permission, any web site on which the Services and/or Course Materials are made available or which otherwise relate to HITuni (Site) and the Site Content (as hereinafter defined). The Site Content includes, without limitation, User Content, software used in connection with the Site, all registered and unregistered trademarks, service marks, logos, icons, characters, artwork, images, audio clips, graphics, music, sound, user information, visitor profiles, e-mail addresses, names, addresses, anonymous and/or aggregate visitor data, and any other information generated by visits to our web sites as may be compiled by HITuni, information, text, data, analyses, reports, comments, postings, submissions, pictures, videos, and other material and content on or generated from our websites, including any enhancements or modifications thereto, and the selection, layout, and format of the web site itself (“Content”).
4.4 Any statements and opinions appearing on the Site are those of its authors, and HITuni assumes no responsibility for such statements and opinions. Neither HITuni nor its affiliates shall have any liability arising from your reliance upon the information provided on the Site. While HITuni makes reasonable efforts to present accurate and reliable information on the Site, HITuni does not endorse, approve, or certify such information, nor does it guarantee the accuracy, completeness, efficacy, timelines, or correct sequencing of such information. Any reliance upon any advice, opinion, statement or other information displayed or distributed through the Site is at your sole risk. Please consult a physician or health care professional before using any of the general information that you find on the Site. Reference herein to any specific commercial product, process, or service by trade name, trademark, service mark, manufacturer, or otherwise does not constitute or imply endorsement, recommendation, or favoring by HITuni. Please use caution and common sense in making use of any information on the Site or any other resources on the Internet.
5.1 You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or Course Materials and, in the event of any such unauthorised access or use, promptly notify us. Your access rights to the Services and/or Course Materials will be limited to your user status and you will not allow your username and password to be used by any other person.
5.2 You are responsible for maintaining the confidentiality of the password you provided during the registration process, and you are fully responsible for all activities that occur under your password or account. YOU AGREE NOT TO SHARE YOUR PASSWORD WITH ANY OTHER PERSON or to allow any other person to access the Services and/or Course Materials using your password.
6. Third Party Software
You represent, warrant and covenant that you are solely responsible for the proper configuration and management of your systems in order to access and use the Services and/or Course Materials. You further understand and acknowledge that any failure to properly configure and manage systems and comply with our recommended minimum technical requirements for hardware and software may adversely affect the performance of the Course Materials and the Services. Where licences for third party products are required for your use of the Services and/or Course Materials you will be responsible for entering into and complying with the terms of those licences. HITuni will have no responsibility in relation to your use of any third party products, or in any way for their performance, features or failures.
7. Limited Warranty
7.1 HITuni does not warrant that the Services will operate error-free or that the Services will operate without interruption, software and certain elements of the Services and/or Course Materials in general are not error free and that the existence of any errors shall not by themselves constitute a breach of this CA by HITuni. You acknowledge that the Services and/or Course Materials have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure the facilities and functions of the Services and/or Course Materials as described meet your requirements. You assume sole responsibility for results obtained from the use of the Services and/or Course Materials, and for conclusions drawn from such use. HITuni shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to HITuni by you in connection with the Services and/or Course Materials, or any actions taken by HITuni at your direction.
7.2 HITuni is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and/or Course Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities. HITuni do not warrant that the Services and/or Course Materials made available through the Site will be accurate, complete, reliable, error-free, or that the Site or the servers, hardware or software used in connection with our web site and the Services are free of viruses, malware or other harmful components. It is your responsibility to maintain appropriate back-ups of your data and to use up to date virus checking software to protect your own systems and data.
8. Limitation of Liability
You assume sole responsibility for results obtained from the use of the Services and/or Course Materials and for conclusions drawn from such use.
8.1 You acknowledge that the Services and/or Course Materials have not been developed to meet your individual requirements.
8.2 If you are a business customer, we only supply the Services and/or Course Materials for internal use by your business use in accordance with the terms and restrictions applicable to the licence type you have paid for. If you are a consumer, we only supply the Services and/or Course Materials for domestic and private use.
8.3 We shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the CA for: (a) loss of profits, sales, business, or revenue; (b) business interruption; (c) loss of anticipated savings; (d) loss or corruption of data or information; (e) loss of business opportunity, goodwill or reputation; or (f) any indirect or consequential loss or damage.
8.4 Where a subscription fee is paid, our maximum aggregate liability under or in connection with this CA whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the amount paid by you for the Services and/or Course Materials.
8.5 Nothing in this CA shall limit or exclude our liability for: (a) death or personal injury resulting from our negligence; (b) fraud or fraudulent misrepresentation; (c) any other liability that cannot be excluded or limited by English law.
8.6 This CA sets out the full extent of our obligations and liabilities in respect of the Services and/or Course Materials. Except as expressly stated in this CA, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Services and/or Course Materials which might otherwise be implied into, or incorporated in, this CA whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law. Due to the nature of the Services and Course Materials you assume full responsibility for death or personal injury or any other harm caused arising as a result of or by your use of the Services or Course Materials.
9.1 Subject to the limitations and exclusions of liability above, HITuni warrants that the Services will, when properly used on the recommended hardware configuration, perform substantially in accordance with the functions described in the documentation provided on our website. If the Services do not perform according to the above warranty, your sole exclusive remedy will be for HITuni to either, at its sole option, remedy the Services or refund any licence fee paid. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN RELATION TO THE SERVICES AND/OR COURSE MATERIALS HITuni DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS OR GUARANTEES EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF QUALITY, CONDITION, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE OR ABILITY TO ACHIEVE A PARTICULAR RESULT.
10.1 You agree to indemnify and keep indemnified HITuni from and against all liabilities, costs, claims, damages actions or demands alleging, suffered or incurred by HITuni directly or indirectly as a result of your use or misuse of the Services and/or Course Materials or your breach of any provision of this CA by you. In the event that you are providing personal training services we recommend that you hold and maintain adequate public and professional indemnity insurance to an appropriate level for the services you are providing.
10.2 Consult with your medical doctor before commencing exercise or making nutritional changes. If you have any condition, disease, injury or any other concern about starting exercise or altering your diet, you must consult with you health care provider first. If you experience any pain or other issue with any exercise, stop straight away. Before commencing any exercise program or making any nutritional changes, consult with your medical doctor or other qualified and licensed health care provider to formulate an approach to exercise and nutrition that is appropriate for you as an individual and takes into full consideration any physical and/or psychological issues you may have.
10.3 This is Not Medical Advice. The Website and the Services (including without limitation the text, images, animations, audio, video, and descriptions contained therein) are provided for educational and informational purposes only, and should not be used in place of or without consultation, evaluation, and treatment by a qualified and licensed medical doctor, physician or other qualified and licensed health care professional. Neither HITuni, this Website, nor the Services direct that you undertake any specific exercise, activity, technique, physical training, or fitness regimen. Nothing on the Website or the Services should be considered medical advice or a medical diagnosis, and nothing on the Website or the Services or in any HITuni materials is intended or should be used or relied upon to heal, cure or relieve those suffering from any injury, deformity or disease.
10.4 There is always a Risk of Injury. You Must Consult with Licensed Health Care and/or Medical Professionals. The risk of injury from participation in a fitness regimen and/or from the performance of any exercise is significant and includes the potential for catastrophic injury or death. The risk of causing or aggravating a disease state by following a nutritional approach is also significant. Before engaging in any of the activities or approaches described on the Website, the Services, including without limitation any exercise, activity, technique, physical training, fitness regimen, nutritional approach, diet or dietary change. You should and must consult with a qualified and licensed physician or other qualified and licensed health care professional.
10.5 All Users are specifically warned to seek medical advice from a qualified and licensed health care professional before initiating any form of exercise, activity, technique, physical training, fitness regimen, diet or nutritional approach. Such advance consultation with your doctor is particularly important if you are under eighteen (18) years old, pregnant, breastfeeding, or have health problems or conditions. You agree not to disregard professional medical advice or delay in seeking it because of something you have read on this Website.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.3 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. This clause 11 shall survive termination of this agreement, however arising.
12. Term and Termination
This CA is effective on your payment of the appropriate licence fee for the Subscription Term and will remain in force until terminated. HITuni may terminate this licence in the event of your breach of this CA or any other agreement with HITuni, immediately on written notice to you. On termination for any reason all rights granted to you under this CA shall cease and you must immediately cease all activities authorise by this CA. You may terminate this CA at any time provided that you have paid all outstanding fees owing to HITuni up to the end of the Subscription Term in full.
13. Entire Agreement
This CA is the complete agreement between you and Hit Uni concerning the Services and/or Course Materials and related documentation and supersedes all proposals, oral or written, all negotiations, conversations or discussions between or among the parties relating to the subject matter of this CA, and all past dealing or industry custom. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Services and/or Course Materials licensed shall be of no effect unless accepted by HITuni in writing.
14. Modification and Waiver
This CA may be amended or modified by HITuni at any time on notice to you. The failure or delay of either party to exercise any of its rights under this CA or upon any breach of this CA shall not be deemed a waiver. No waiver of any right under this CA shall be effective unless in writing, signed by a duly authorised representative of the relevant party. No vendor, distributor, dealer, retailer, sales person or other person is authorised to modify this CA or to make any warranty, representation or promise which is different than, or in addition to, this CA.
15. Third-Party Rights
The parties to this CA do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
16. General Terms
(a) You may not assign, transfer, sub-contract or otherwise part with this CA or any right or obligation under it in whole or part without the express written consent of HITuni (a merger or other acquisition of you by or with a third party will be treated as an assignment). HITuni and HITuni sub-contractors and agents engaged under this CA may at any time, freely assign, transfer, sub-contract or otherwise part with this CA or any right or obligation under it in whole or part; (b) If any provision of this CA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this agreement, which shall remain in full force and effect; (c) neither party will be liable for any delay in performing its obligations under this CA if that delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by an act or omission of the other party) and the party affected will be entitled to a reasonable extension of time for the performance of its obligations; (d) The construction, validity and performance of this CA shall be governed in all respects by English law, and you agree to submit to the exclusive jurisdiction of the English courts.