1. Who we are and what this agreement does
1.1 We are Game Changer Performance Centre Limited (company number: 09709225) t/a P3RFORM, incorporated in England with its registered office address at 12 Mallard Way, Pride Park, Derby, Derbyshire, England, DE24 8GX (we, us or our).
1.2 These terms govern subscriptions to, and the use of, our app P3RFORM and the 1-1 coaching service and content that we provide through it (Service) (Terms).
1.3 The App and the Service can be used by you if you sign up and pay for a subscription with us directly (Direct Member) or where a subscription is paid for you through another party (e.g., an employer or professional body (Corporate Subscriber)) (Paid for Member). Some of the sections in these Terms are expressly stated to not apply to certain members.
1.4 We make the App and the Service available to those of all ages. If you wish to use the App and the Service and you are under the age of 16, we provide the App and the Service to you at our sole discretion based on your specific circumstances. If you are under the age of 16 and we agree that you can use the App and the Service, our relationship and any contract is between us and your parent or legal guardian; your parent or legal guardian holds an account with us (rather than you) and when we communicate with you through the App to provide the Service, we communicate with both you and your parent or legal guardian at the same time.
2. App store terms also apply
Please note that some of the ways in which the App may be used will also be governed by Apple’s App Store terms and conditions (https://www.apple.com/uk/legal/internet-services/itunes/uk/terms.html) or Google’s Play Store terms and conditions (https://play.google.com/about/play-terms/) (depending on the relevant app store from which the App is downloaded). Where there is conflict between these Terms and the terms of the app store provider, the provisions in these Terms shall prevail.
3. Subscribing to the App and the Service
3.1 In order to use the App and the Service, you must pay the monthly subscription fee (Fee).
Paid for Members
3.2 If you are a Paid for Member, your subscription to the App and the Service, and the payment of the Fee, is managed by your Corporate Subscriber. Once your Corporate Subscriber has paid the Fee for you to access the App and the Service, you will receive a registration link to the App either (a) from us directly where your Corporate Subscriber has provided us with your email address or (b) from your Corporate Subscriber directly where we haven’t been provided with your email address by your Corporate Subscriber. Sections 3.4 to 3.7 (inclusive) below do not apply to Paid for Members.
3.3 If you are a Paid for Member, your Corporate Subscriber may opt to provide content directly to you via the App. It will be made clear to you within the App where content is provided by your Corporate Subscriber rather than us.
Direct Members
3.4 Direct Members will need to pay the Fee in accordance with the provisions of section 3.5 to 3.7 (inclusive) below.
3.5 The Fee applicable to Direct Members is available on our website on our App information page. Each payment of the Fee allows access to the Service in the App for the upcoming month.
3.6 If you wish to use the App and the Service, we will send you by email a link for you to sign up to an account on the App. Following creation of your account details, you will be provided with a link to download the App. Once the App is downloaded to your device and you enter your account details to log in to the App, you will be directed to make payment of the Fee through our third-party payment partner, Stripe. The Fee will be taken immediately once you have entered your bank account details and submitted these to Stripe and on the same day each month thereafter by direct debit.
3.7 Payment of the Fee in line with section 3.6 above provides you with a licence to use the App (and any updates and supplements to it) and the Service as permitted in accordance with these Terms. You will only be able to access the Service within the App following payment of the Fee.
3.8 You have a legal right to change your mind by way of a 14-day cooling off period, beginning from the date on which you make payment of the first Fee. If you change your mind, please contact us by email: support@p3rform.co.uk. We will refund you the Fee as soon as possible and within 14 days of you telling us you have changed your mind by the method you used for the original payment. You acknowledge that you lose your right to change your mind as soon as you use the Service following payment of the Fee.
Section 3.9 below applies to both Direct Members and Paid for Members.
3.9 If our supply of the App and the Service is delayed, for example:
· you are a Direct Member and we delay in sending you a link to create an account on the App, a link for you to download the App and/or to provide you with the Service following payment of the Fee; or
· you are a Paid for Member and we are responsible for and delay in sending you the link to the App directly, we are not responsible for the delay where it is caused by an event outside our control. If we are delayed by an event outside our control, we will contact you as soon as possible to let you know and do what we can to reduce the delay. As long as we do this, we will not compensate you for the delay but if the delay is likely to be substantial then, if you are a Direct Member, you can contact us at support@p3rform.co.uk to receive a refund of the Fee if it has been paid but access to the App and the Service has not been received. Please note that if you are a Paid for Member and your Corporate Subscriber is responsible for sending you the link to the App, this section does not apply to you and you should liaise with your Corporate Subscriber regarding any delay.
4. Further information regarding the Fee
This section does not apply to Paid for Members.
4.1 The Fee is inclusive of VAT. If the rate of VAT changes between payment dates for the Fee, we can adjust the rate of VAT you pay for the upcoming Fee. Where this is the case, we will let you know in advance that the Fee is changing with sufficient time for you to end your subscription before payment of the upcoming increased Fee if you do not wish to pay the increased amount.
4.2 We may increase the Fee from time to time for a number of reasons, including where we need to increase the Fee to reflect the increased cost in providing the Service. Where we intend to increase the Fee that you pay, we will give you at least 30 days’ notice of the upcoming increase that will apply to you. If you wish to cancel your subscription as a result of the increase that will apply to you, please see section 5 below regarding the way in which you can end your subscription with us.
5. Ending your subscription to the App and the Service
Your rights to end your subscription.
5.1 If you are a Direct Member and you wish to end your subscription to the App and the Service, please liaise with your coach in the App, who will be able to arrange this for you. If you are unable to contact your coach in the App or you are not happy with the service provided by the coach, you can contact us at support@p3rform.co.uk. We will cancel your direct debit and no further payment of the Fee will be payable. You will still have access to the App and the Service for any period of time for which you have already paid and your access to the App and the Service will be withdrawn after that date.
5.2 If you are a Paid for Member your subscription will be managed by your Corporate Subscriber. Please liaise with your Corporate Subscriber for any queries in this regard.
Our rights to end your subscription.
5.3 We can cancel subscriptions to the App and the Service:
· if you are a Direct Member, if you do not make payment of the Fee to us when it is due and you still do not make payment within seven days of us reminding you that payment is due following a reminder, or reminders, provided to you within the App. In this case, your subscription will end once any period for which you have already paid has ended; or
· if you are a Paid for Member, if your Corporate Subscriber does not make payment of a Fee to us when it is due and still does not make payment within the remedial period we agree with them (if any). Where this happens your access will end once any period that has already been paid for has ended.
5.4 We can also end your right to use the App and the Service at any time if, as a Direct Member or Paid for Member, you have broken these Terms in a serious way. If what you have done can be put right, we will give you a reasonable opportunity to do so. If we need to end your right to use the App and Service in this way, your access to the App and the Service will be immediately withdrawn and no refund will be provided (to you directly as a Direct Member or to your Corporate Subscriber as a Paid for Member) for any period which has been paid for in advance.
5.5 We can stop providing the App and the Service at any time. We may need to stop providing the Service for legal or financial reasons, because our business focus is moving away from providing the Service or we are replacing the Service with a substantially different service in line with our business needs. We will let you know at least 30 days in advance if this is the case, including the date on which we will stop providing the App and the Service (End Date). If you are a Direct Member and have paid any Fees in advance for a period on or after the End Date, we will refund any such sums paid.
6. Rules on how Direct Members and Paid for Members must use the App and the Service
6.1 The App requires Apple device with iOS 15.1 upwards or Android devices with a minimum of 7.0 (Nougat)
6.2 You cannot transfer your right to use the App and the Service to someone else, whether for money, for anything else or for free. If you sell any device on which the App is installed, you must remove the App from it.
6.3 You must not:
· use the App or the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the App, the Service or any operating system;
· infringe our intellectual property rights or those of any third party in relation to your use of the App or the Service (to the extent that such use is not licensed by these Terms);
· transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or the Service;
· use the App or the Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
· collect or harvest any information or data from the Service or our systems or attempt to decipher any transmissions to or from the servers running the Service.
6.4 When liaising with coaches through the App, we ensure that our coaches treat you with respect and we ask that you do the same. We do not tolerate any bullying, insulting or similar behaviour towards our coaches and any photos, videos, documents or sound recordings sent to our coaches through the messaging function on the App must relate to the Service being provided to you only and must not:
· include any content that infringes any copyright, database right or trade mark of any other person;
· contain any illegal content, content that includes anything threatening, abusive or invades another’s privacy, content that is likely to harass, upset, embarrass, alarm or annoy another person, pornographic content, content that depicts violence against a person or injury to a person in graphic detail or contain any other content which we reasonably deem inappropriate for upload; and/or
· impersonate any other person or misrepresent your identity.
6.5 We recommend that you back up any content or data provided to you by your coach in connection with the Services (i.e. any specific content made available to you for download), to protect yourself in case of problems with the App.
7. Licence restrictions on Direct Members and Paid for Members
You agree that you will not:
· rent, lease, sub-license, loan, provide, or otherwise make available, the App or the Service in any form, in whole or in part to any person without prior written consent from us;
· copy the App or Service, except as part of the normal use of the App or where it is necessary for the purpose of back-up or operational security;
· translate, merge, adapt, vary, alter or modify, the whole or any part of the App or Service nor permit the App or the Service or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the App and the Service on devices as permitted in these Terms; or
· disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the App or the Service nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are necessary to decompile the App to obtain the information necessary to create an independent program that can be operated with the App or with another program (Permitted Objective) and provided that the information obtained by you during such activities: (a) is not disclosed or communicated without our prior written consent to any third party to whom it is not necessary to disclose or communicate in order to achieve the Permitted Objective, (b) is not used to create any software that is substantially similar in its expression to the App, (c) is kept secure and (d) is only used for the Permitted Objective.
8. Updates to the App and changes to the Service
8.1 From time to time, we may automatically update the App and change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, we may ask you to update the App for these reasons. If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App and the Service.
8.2 The App will always work with the current or previous version of the operating system (as may be updated from time to time) and match the description of it provided when you first used it.
9. Changes to these Terms
9.1 We may need to make changes to these Terms to reflect changes in law, best practice or to deal with any additional features that we introduce to the App or the Service.
9.2 If we need to make changes to these Terms, we will notify you with at least 30 days’ prior notice. The notification will be sent to you within the App.
9.3 If you do not accept the notified changes, you must let us know by informing your coach within the App, as you will not be permitted to continue to use the App and the Service and must therefore cancel your subscription (which your coach can arrange for you). If you are unable to contact your coach in the App or you are not happy with the Service provided by the coach, you can contact us at support@p3rform.co.uk. If you cancel, you can continue to use the App and the Service for any period for which you have already paid Fees and your access will be withdrawn after this. If you paid Fees in advance and you wish to receive a refund for the period for which you have already paid instead, we will provide you with a refund for any such amount and your access to the App and the Service will be immediately withdrawn from the day on which you cancel.
10. Intellectual property rights
All intellectual property rights in the App and the Service throughout the world belongs to us (or our licensors) and the intellectual property rights in the App and the Service are only licenced (and not sold) to you. You have no intellectual property rights in or to the App or the Service, other than the right to use them in accordance with these Terms.
11. Our liability to you
11.1 Limitations of the App and the Service. Whilst the Service contains guidance and personalised coaching from our conditioning coaches and physiotherapists, we do not provide medical advice. When using the Service, you do so at your own risk and you are responsible for the effects on your body. Our guidance and coaching is not intended to be a substitute for professional medical advice and you should seek such advice (e.g. from a doctor) if you are in doubt.
11.2 Check that the App and the Service is suitable for you. The App has not been developed to meet your individual requirements. Please check that the facilities and functions of the App and the Service meets your requirements.
11.3 We are not responsible for other websites linked to. The App or the Service may contain links to other independent websites which are not provided by us. Such independent sites are not under our control and we are not responsible for and have not checked and approved their content or their privacy policies (if any). You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.
11.4 We are not responsible for third party connectivity issues. We will not be liable if you are unable to access the App and/or the Service due to any network connectivity problem or issue downloading the App from an app store. We recommend that you contact your network provider or the relevant app store (as applicable) to resolve such issues.
11.5 We are not responsible for content delivered by your Corporate Subscriber. If you are a Paid for Member and content is delivered to you in the App by your Corporate Subscriber directly, this content is outside of our control and we are therefore not responsible for such content. This means you must liaise with your Corporate Subscriber if you have any concerns or issues relating to such content.
11.6 We do not exclude or limit our liability to you where it would be unlawful for us to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or sub-contractors or for fraud or fraudulent misrepresentation.
11.7 We are not responsible for events outside our control. In addition to section 3.9, if our provision of the Service or support for the App or the Service is delayed by an event outside of our control then we will contact you as soon as possible to let you know and the steps we will take to minimise the effect of the delay. Provided that we do this, we will not be liable for delays caused by the event. If there is a risk of substantial delay, and you are a Direct Member, you may contact us at support@p3rform.co.uk to cancel your subscription to the App and the Service and you will be entitled to a refund for any Service for which you have paid but have not received.
11.8 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these Terms or failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen, or, if at the time a contract was made between us, both we and you knew it might happen.
11.9 We are not liable for business losses. The App and the Service is for domestic and private use. If you use the App and/or the Service for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
11.10 Where we are liable for damage to your property. If defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
12. Personal data
Under data protection legislation, we are required to provide you with certain information about how we process your personal data and for what purposes and your rights in relation to your personal data. Please refer to our Privacy Policy for the relevant information in this regard.
13. Resolving disputes
13.1 Complaints. We will do our best to resolve any problems you have with us, the App and the Service. You can contact us at support@p3rform.co.uk.
13.2 Going to court. These Terms are governed by the law of England and Wales and you can bring legal proceedings against us in the English courts. If you live in Wales, you can bring legal proceedings in either the Welsh or the English courts. If you live in Scotland, you can bring legal proceedings in either the Scottish or the English courts. If you live in Northern Ireland, you can bring legal proceedings in either the Northern Irish or the English courts.
14. Other terms that apply
14.1 Transfer of rights and obligations. We may transfer our rights and obligations under these Terms to another organisation. We will tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms. You may only transfer your rights or obligations under these Terms to another person if we agree in writing.
14.2 Nobody else has any rights under these Terms. These Terms are between you and us. Nobody else can enforce it and neither of us will need to ask anybody else to sign-off on ending or changing it.
14.3 If a court invalidates some of these Terms, the rest of it will still apply. If a court or other authority decides that some of these Terms are unlawful, the rest will continue to apply.
Even if we delay in enforcing these Terms, we can still enforce them later. We might not immediately chase you for not doing something (like paying) or for doing something you are not allowed to, but that does not mean we cannot do it later.
