1. INTRODUCTION
1.1 These terms (the Terms of Use) form a binding legal agreement between you and SUPPORT TO PERFORM LTD, a private limited company registered in Northern Ireland with registered number NI651972 and registered address at 44 Summerhill Park, Belfast, Northern Ireland, BT5 7HE (we, us, our) and relate to how you may use our online workforce health and wellbeing optimisation platform located at https://www.support2perform.com/ (the Platform).
1.2 You’ll be deemed to have accepted the Terms of Use whenever you use the Platform. That means that if you don’t want to accept the Terms of Use, you may not use the Platform.
1.3 We may change or add additional terms to these Terms of Use if we alter the existing services we provide, if we add new services to the Platform or if we need to for security, regulatory or legal reasons. Where the changes are significant we may also choose to email our registered users with the new details.
2. USE OF OUR SITE BY YOU
2.1 We’re always happy to have people use the Platform. However, we’d like to impose a few ground rules to protect our intellectual property, the operation of the Platform, our staff and other users of the Platform.
2.2 You must be 18 years old or older in order to use our Platform. You must not use the Platform if you are younger than this.
2.3 By using the Platform, you agree that you do so in the full knowledge that we are not, and we are not operating the Platform as, a medical advice service. If you use the Platform, no doctor-patient, therapist-patient or other healthcare professional relationship is created between you and us.
2.4 You agree to keep confidential any access details provided by us to you for setting up your account on the Platform.
2.5 You will not be charged for using the Platform (unless you’re acting as an employer or have signed up as an independent participant– in which case, please see the provisions of clause 7 below).
2.6 You agree that you won’t at any point:
2.6.1 access or copy (or attempt to access or copy) any part of the Platform by any means other than through the interface provided by us;
2.6.2 access (or attempt to access) any part of the Platform through any automated means, including without limitation use of scripts, robots, spiders, scrapers or web crawlers, for any purpose;
2.6.3 take any action that imposes, or may impose (in each case in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
2.6.4 copy, duplicate, reproduce, rent, lease, loan, sell, trade, resell, modify, create derivative works, distribute or publicly display any part or component of the Platform without prior written consent from us and any third party determined by us as appropriate;
2.6.5 interfere or attempt to interfere with the proper working of the Platform or any activities conducted via the Platform;
2.6.6 bypass any measures we may use to prevent or restrict access to the Platform;
2.6.7 attempt to reverse engineer, decompile or otherwise seek to obtain access to any source code, algorithm or other intellectual property right in the Platform; and/or
2.6.8 engage in any activity that interferes with or disrupts the Platform or the servers and networks which are connected to the Platform.
2.7 You agree not to use the Platform: (a) on behalf of anyone else; (b) in breach of any obligation of confidentiality to anyone else; (c) to facilitate, endorse, encourage or assist any individual to carry out illegal activities; (d) to cause damage or suffering; (e) to intimidate, threaten, humiliate, abuse, harass or defame any individual; and/or (g) to mislead us or anyone else.
2.8 By uploaded any information on to our Platform, you represent and warrant to us that: (a) you have the rights, power and authority necessary to upload, reproduce and/or distribute any such information; (b) you have obtained any consents and authorisations necessary for us to use such information in connection with the relevant workplace challenge (in accordance with these Terms of Use) which may include publishing the same on our publically available dashboard; (c) any such information is true, accurate and not misleading; (d) the information does not violate the rights of anyone else (including but not limited to trademarks, publicity rights, privacy rights, copyright or any other intellectual property rights); (e) the content does not contain any viruses, Trojans, worms, corrupted files or code, files and/or programs designed to impede or destroy the functionality of any software or hardware; spyware or malware.
2.9 You acknowledge and agree that we may monitor your use of the Platform. You may only use the Platform for lawful purposes as part of improving your or your employees’ health and wellbeing through physical activity (Permitted Purpose). Where, in our sole opinion, we suspect that you have used the Platform for any purpose other than the Permitted Purpose, we reserve all our rights to suspend the provision of the Platform to you. We’ll also reserve the right to take appropriate legal action for any such misuse.
2.10 You agree that we may collect and use for our own business purposes aggregate usage data relating to how users access and use the Platform, provided that any such data does not include personal data.
2.11 You acknowledge that we shall be entitled to modify the features and functionality of the Platform at any time and in any way, provided that we use reasonable endeavours to ensure that any such modification does not materially adversely affect the use of the Platform by our customers generally.
2.12 Where the Platform contains links to other sites and resources which are provided by third parties, these links and resources are provided for your information only and you access them at your own risk. We are not liable or responsible for the content of third party sites or resources.
3. YOUR INFORMATION, AND HOW WE USE IT: DATA PROTECTION
IT IS INCREDIBLY IMPORTANT THAT YOU UNDERSTAND HOW WE GATHER AND USE YOUR INFORMATION. IN ORDER TO HELP YOU, WE’VE CAREFULLY PREPARED OUR PRIVACY NOTICE WHICH YOU CAN ACCESS [here], AND YOU MUST READ THIS. BY ACCEPTING THESE TERMS OF USE YOU ARE CONFIRMING TO US THAT YOU HAVE DONE SO.
3.1 In these Terms of Use the following phrases have the following meanings: Data Protection Legislation means the General Data Protection Regulation (EU) 2016/679 (GDPR) and any national implementing laws, regulations and secondary legislation relating to data protection and privacy, as amended or updated from time to time as well as any successor legislation to the GDPR and Data Protection Act 2018; personal data, controller and processor have the meaning given those terms in the GDPR.
3.2 For the purposes of the Data Protection Legislation we will be generally acting as a controller in relation to personal data which you submit to the Platform (Your Personal Data). Both you and we agree to comply with your and our respective obligations under the Data Protection Legislation in respect of Your Personal Data.
3.3 When you register on our Platform as a participant, you can choose do so in ‘stealth’ mode. You acknowledge and understand that unless you opt for stealth mode: your name, the organisation you are representing (if applicable), your location of work and details about the activities you have undertaken as part of the relevant workplace challenge may be published on the Platform’s dashboard. This dashboard may be publically available to other participants (who may be inside or outside any organisation you are representing) as well as any other organisations who are taking part in the same workplace challenge. If you choose to submit your details other than in stealth mode, you do so at your sole risk. We cannot and do not accept any liability for any use or misuse, by a third party, of any data published on the Platform’s dashboard.
3.4 In certain circumstances we may also be acting as a processor to you in relation to Your Personal Data. In such situations we shall:
3.4.1 process Your Personal Data only in accordance with your written instructions unless we are prevented by the Data Protection Legislation, in which case we shall promptly notify you of this unless the Data Protection Legislation prohibit us from so notifying you;
3.4.2 ensure that all personnel who have access to and/or process Your Personal Data are obliged to keep the Your Personal Data confidential;
3.4.3 ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Your Personal Data and against accidental loss or destruction of, or damage to, Your Personal Data. These measures will be appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Typical measures may include, where appropriate, pseudonymising and encrypting Your Personal Data, ensuring the confidentiality, integrity, availability and resilience of our systems and services, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
3.4.4 where we use any sub-processor, as that term is defined in the GDPR we shall:
3.4.4.1 enter into a legally binding written agreement that places the equivalent data protection obligations as those set out in this clause 3 to the extent applicable to the nature of the services provided by such sub-processor, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR;
3.4.4.2 remain liable for the performance of the sub-processor; and
3.4.4.3 procure that any transfers by us to a sub-processor outside the EEA shall be carried out in accordance with Chapter 5 of the GDPR
and you consent to our appointing sub-processors subject to the provisions of this clause 3.4.4;
3.4.5 delete Your Personal Data on the earlier of (a) 30 days after the completion of the relevant Support To Perform challenge, or (b) termination of this Agreement. The exception to this is if we are required by the Data Protection Legislation to store Your Personal Data;
3.4.6 maintain complete and accurate records and information to demonstrate our compliance with these Terms of Use;
3.4.7 save as otherwise permitted by this clause 3, not transfer any of Your Personal Data outside of the European Economic Area or the United Kingdom without obtaining your prior written consent; and
3.4.8 notify you without undue delay on becoming aware of a breach of Your Personal Data.
4. INTELLECTUAL PROPERTY
4.1 This is where we tell you that we, or our licensors, own all of the intellectual property on the Platform, and that while you can look at it, you can’t copy it (unless the law allows). Accordingly:
4.1.1 in consideration of the fulfilment by you of the obligations imposed on you by these Terms of Use we grant you a non-exclusive, non-assignable, non-transferable non-sub licensable licence for the duration of the agreement created by these Terms of Use to use the Platform solely and strictly for your own use. This licence is granted subject to these Terms of Use, and any rights granted by the Terms of Use to allow us to terminate and/or suspend access to the Platform;
4.1.2 all intellectual property rights subsisting in or used in connection with the Platform are and shall remain the sole property of us and our licensors. All present and future rights in and title to the Platform, including without limitation the right to grant access to it over any present or future technology, are solely and exclusively reserved to us;
4.1.3 Support To Perform is our unregistered trademark, and in time we may have it registered as a trademark. Unless you have agreed otherwise in writing with us, nothing in the Terms of Use gives you a right to use any of our or our licensors’ trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including without limitation copyright and trade mark notices) which may be affixed to or contained within the Platform;
4.1.4 the Platform may include components which are licensed to us by third parties. To the extent that the terms of any such license impose any obligation on you which is in addition to any obligation imposed on you by these Terms of Use (Third Party Licensor Obligation) you undertake fully to comply with and fulfil all requirements of any such Third Party Licensor Obligation.
5. TERMINATION
5.1 Quite simply, we can close down the Platform at any time, and without notice to you.
5.2 We reserve the right to retain, maintain, archive, protect, use, or store limited data derived from your use of the Platform. This will be aggregated data and will not contain personal data relating to or identifying you. We will use the limited data we retain for our own purposes.
6. EXCLUSIONS AND LIMITATIONS
6.1 This section is also important – it explains how and why we exclude liability for your use of the Platform. We think that this is reasonable because (unless you’re using the Platform as an employer) we’re not asking you to pay anything – access to the Platform is free. So it’s extremely important that you understand before you commence use of the Platform that, since we’re giving you free access to the Platform, we’re excluding our liability to you as far as the law allows.
6.2 The first thing to say is that nothing in these Terms of Use (including any other provision in this clause 6) shall exclude or limit any warranty or liability which applicable law says may not be excluded or limited, including without limitation liability for fraud, or for death or personal injury caused by our negligence. Everything stated below is in all cases subject to this clause 6.2.
6.3 Next, there are no conditions, warranties, representations or other terms, express, statutory or implied, (including without limitation statutory warranties and conditions of user enjoyment, merchantability, fitness for a particular purpose and non-infringement)that are binding on us except any which we’ve specifically stated in these Terms of Use. Any condition, warranty, representation or other term concerning the supply of the Platform which might otherwise be implied into or incorporated in these Terms of Use, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
6.4 You acknowledge that you understand that use of the Platform will involve your use of the internet, and also your use of independent third party activity measurement application providers. Whilst we try to ensure that the standard of the Platform remains high and to maintain the continuity of it, the internet is not an inherently stable medium, and errors, omissions, interruptions of service and delays may occur at any time. Similarly, your use of third party software will be subject to the terms of use of all such software. This means that the relevant third party will be responsible for the performance of all such software, not us. We do not accept any liability arising from any third party errors, omissions, interruptions or delays or any ongoing obligation or responsibility to operate the Platform (or any particular part of it) or to provide the service offered on the Platform.
6.5 You expressly understand and so agree that your use of the Platform is at your sole risk and that the Platform is provided on an “as is” basis.
6.6 In particular, we, our subsidiaries and affiliates, and our licensors, do not represent or warrant to you that:
6.6.1 your use of the Platform (including without limitation its use in conjunction with any other software) will meet your requirements, that your use of the Platform will be uninterrupted, timely, secure or free from error or that defects in the operation or functionality of the Platform provided to you will be corrected; and
6.6.2 any information obtained by you as a result of your use of the Platform will be accurate or reliable; and
6.6.3 that the Platform will be accessible at any particular time; and
6.6.4 that defects in the operation or functionality of the Platform will be corrected, rectified, or remedied.
6.7 You expressly understand and agree that we and our licensors shall not be liable to you for:
6.7.1 any direct, indirect, special, incidental or consequential loss or damage which may arise in respect of the Platform and/or its use by you or non-availability;
6.7.2 any direct, indirect, special, incidental or consequential loss or damage which may arise as a result of our breach of these Terms of Use;
6.7.3 any act or omission of any third party, including without limitation our third party contractors and also including without limitation any act or omission of any employer using the Platform;
6.7.4 loss or corruption of data or information. The Platform is not a back-up service: you should always maintain a separate copy of key information you use or access on the Platform;
6.7.5 loss of opportunity or loss of contract or other losses which you may incur as a result of use of or reliance upon any content; and
6.7.6 any effect which use of the Platform may have on any software you use.
6.8 This next section 6.8 explains that, because we’re only providing general sports and wellbeing advice, we don’t assume any responsibility to you in relation to your particular health or sports needs. You agree and acknowledge that:
6.8.1 any and all content provided through the Platform is provided for general information: it isn’t intended to be, and it shouldn’t be, used in substitution for any advice to you from a doctor, any other health service provider and any sports professional advice provider. If you have any question about your health, or the suitability of a particular activity identified on the Platform, you must take appropriate medical or sports professional consultancy advice. You should never disregard medical advice or delay in seeking medical advice because of any content presented on the Platform, and you should not use the Platform or any content on the platform for diagnosing or treating a health or injury problem;
6.8.2 all athletic activities carry certain inherent and significant risks of property damage, bodily injury or death. By using the Platform, you voluntarily assume all known and unknown risks associated with these activities;
6.8.3 you expressly agree that we do not assume responsibility for the inspection, supervision, preparation, or conduct of any challenge event which you organise, or in which you participate; and
6.8.4 all of the provisions (including but not limited to the limitations of liability clauses) set out in the disclaimer (which is accessible at this link https://www.support2perform.com/challenge-disclaimer/) are hereby incorporated into these Terms of Use and that all declarations and confirmations set out therein are true and accurate
6.9 Finally, you agree and acknowledge that you are in a better position than us to foresee and evaluate any potential damage or loss which you may suffer in connection with the use of the Platform; that we cannot adequately insure our potential liability to you; and that accordingly the exclusions and limitations contained in this clause 6 are reasonable.
6.10 If any part or provision of this clause 6 is found to be unlawful or unenforceable, this shall not affect the validity of any other part or provision. You also undertake at all times to mitigate any such damage or loss.
7. EXTRA PROVISIONS WHICH APPLY IF YOU’RE AN EMPLOYER OR AN INDEPENDENT PARTICIPANT
7.1 This clause 7 contains extra provisions which apply to you if you’re using the Platform as an employer to set up a challenge or as an independent participant (not connected with an organisation).
PAYMENT
7.2 Irrespective of anything mentioned elsewhere in these Terms of Use, we will charge you for using the Platform in accordance with the following clauses 7.3 – 7.5 (inclusive)
7.3 Unless otherwise expressly agreed in writing between you and us, the costs for using the Platform will depend on the number of participants designated by you to take part in a single workplace challenge session (which takes place over 100 days).
(a) If you are an employer who or which has requested us to make our Platform available to your employees, the cost of such access will be calculated on the basis of the number of employees designated by you and agreed with us to participate in a workplace challenge.
(b) If you are an independent participant (which means that you would like to take part in a workplace challenge but you have not been designated by an organisation in accordance with clause 7.3(a)), then the cost will be calculated on the basis that you are a sole participant
7.4 All costs are payable upfront and in advance and no refunds are available if you or any other participants (for reasons not related to the availability of the Platform) are unable to, or opt not to, take part in all or part of a workplace challenge.
7.5 Our invoices are payable within 30 days of receipt, and we reserve the right to charge interest at the statutory rate then in force for any late payments.
LIABILITY
7.6 If you pay for use of the Platform, we think that excluding all liability to you for your use of the Platform may not be reasonable. Accordingly, irrespective of the provisions of clause 6.7.2, we will be liable to you for any direct loss or damage which you incur or suffer if we breach these Terms of Use , provided that at all times our aggregate liability to you is strictly limited to a sum equal to the amount of charges you have paid us in the twelve months prior to the cause of your claim against us.
DESIGNATED PARTICIPANTS
7.7 By designated individuals to participate in a work place challenge you acknowledge and agree that:
7.7.1 those individuals will be given the opportunity to sign up to a work place challenge and provide details relating to their place of work and position in the business, which information may be published on our publically available dashboard. Accordingly, you hereby grant us a non-exclusive, non-sub-licenseable, royalty-free licence to use the name of your business in connection with the relevant workplace challenge (only) and represent and warrant to us that (a) you have the authority to do so; and (b) any such use by us of your business name, if used solely in connection with the relevant workplace challenge, will not be in breach of any third party rights;
7.7.2 we have no liability to you and (to the fullest extent permissible at law) exclude any such liability to you in respect of the acts and/or omissions of any such individuals in their use of the Platform (including any information which they may make publically available via our dashboard); and
7.7.3 subject to any breach of contract by us, you hereby indemnify us on demand against any and all claims, damages, expenses and reasonable legal fees incurred by us in connection with any third party claim from a designated participant related to or in connection with their use of our Platform and/or any associated workplace challenge.
TERMINATION
7.8 If you have paid for access to the Platform, we won’t close down the Platform without notice. Instead:
7.8.1 either you or we may terminate your access to the Platform if any of the grounds of termination in the remainder of this clause 7.5 apply, or at any point after 30 days of completion of the challenge organised by you;
7.8.2 either you or we may terminate your access to the Platform without liability to the other if: (a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; or (c) the other party ceases, or threatens to cease, to trade.
7.9 Without prejudice to any other rights or remedies to which we may be entitled, we may terminate your access to the Platform without liability to you if you fail to pay any sum due to us and such sum remains unpaid fourteen days after its due date.
8. GENERAL
8.1 You agree that:
8.1.1 unless expressly provided to the contrary, any references to clauses are references of the clauses in these Terms of Use; words in the singular include the plural and in the plural include the singular; a reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it; and references to including and include(s) shall be deemed to mean respectively, including without limitation and include(s) without limitation;
8.1.2 you shall not assign, transfer or sub-license any of your rights or obligations under these Terms of Use;
8.1.3 failure or neglect by us to enforce any of the provisions of these Terms of Use at any time shall not be construed or deemed to be a waiver of our rights – nor shall this in any way affect the validity of the whole or any part of these Terms of Use, nor prejudice our rights to take subsequent action;
8.1.4 if any part of any provision of these Terms of Use shall be or become invalid, unlawful or unenforceable to any extent, then the remainder of such provision and all other provisions of these Terms of Use shall continue to be valid and enforceable to the fullest extent permitted by law; and
8.1.5 these Terms of Use represent the entire agreement of you and us in relation to the subject matter of these Terms of Use and supersedes any previous agreement between you and us in relation to the Platform.
9. LAW AND JURISDICTION
9.1 These Terms of Use shall be construed in accordance with Northern Irish law and both you and we hereby submit to the exclusive jurisdiction of the Northern Irish courts.