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Terms and Conditions of Use
Terms & Conditions:
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE: This licence agreement (Licence) is a legal agreement between the company or individual whose name and address is set out in the Schedule (Licensee or you) and Positive Posture Ltd registered in England and Wales, company number 5252792 (Positive Posture or we) for this Positive Posture software product and website membership, the data supplied with it, the associated media, printed materials and electronic documentation.



NOTICE TO USER: THIS LICENCE RELATES TO ALL USERS WHETHER YOU ARE AN INDIVIDUAL CONSUMER OR A CORPORATE CUSTOMER. PLEASE READ THIS LICENCE CAREFULLY BEFORE USING THE SOFTWARE OR ACCESSING THE MEMBERS' WEBSITE. BY OPENING THE POSITIVE POSTURE PACKAGE OR INSTALLING OR USING THE SOFTWARE OR ACCESSING THE MEMBERS' WEBSITE YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS LICENCE WHICH WILL BIND YOU AND, IF APPLICABLE, YOUR SUB-LICENSEES AND/OR YOUR EMPLOYEES. 


YOU AGREE THAT THIS LICENCE IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS LICENCE IS ENFORCEABLE AGAINST YOU.

DISCLAIMER:
POSITIVE POSTURE is intended solely for the use as a tool to assist you learn better posture through appropriate exercises, avoid poor postures and create good working habits. 

Following the advice within POSITIVE POSTURE in no way guarantees you will not develop a health disorder in the future, or that you will recover from an existing health disorder. 


Your risk of injury may be affected by the design and state of repair of your chair, desk, workstation, keyboard, mouse or other pointing device, by your working environment and by your own posture working habits, time worked without rest breaks, type and intensity of work, activities outside the workplace and individual physiology.

POSITIVE POSTURE should in no way be considered a substitute for personal awareness of your posture, or for treatment by qualified physician or physiotherapist, or advice from a qualified occupational health adviser or ergonomist.

IF YOU HAVE A PRE-EXISTING MEDICAL CONDITION, PLEASE CONSULT YOUR PHYSICIAN OR A QUALIFIED PHYSIOTHERAPIST OR ERGONOMIST PRIOR TO USING THIS PRODUCT.

IF YOU DO NOT AGREE WITH THE TERMS OF THIS LICENCE OR YOU DO NOT ACCEPT THE TERMS OF THE ABOVE DISCLAIMER, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLING THE SOFTWARE 

1  Background

The Physiotherapist specialises in posture control resulting in the strengthening and mobilisation of the spine to prevent or reduce back, neck and other musculoskeletal pain when working at a computer by advising on a good posture environment and activities at work.

2 Definitions and interpretation

2.1  The following terms shall have the following meanings for the purposes of this agreement:

‘Hardware’ means the computers on which the Software is licensed to operate;

‘Intellectual Property’ means means any and all of the following items, whether or not registered, applications for the following items (where registrable) and the right to apply for the following items copyright, design right, registered designs, trade marks, rights in respect of confidential information, unfair competition rights, and similar rights in any country of the world;

‘the Know How’ means Positive Posture’s substantial knowledge of and expertise in the provision of advice and treatment of computer-use induced pain developed over a period of time;

‘the Mark’ means the trade mark and trade name ‘Positive Posture’;

‘Notice’ means notice complying with the terms of clause 13.10;

‘Services’ means the Positive Posture advice and information:

·         To supply a logo to access the Positive Posture Members' Site.

·         To provide the Positive Posture Pop-Up Reminder to appear for 3-4 seconds on each computer monitor, four times ever two hours. This is aimed at reminding users to adopt the recommended posture.

·         To give during the Term access to the secure Positive Posture Members' Site giving guidance on posture improvement, exercise prescription, and guidance on pain prevention whilst working at a computer.

‘Software’ means any computer programme being part of the Intellectual Property which may be embodied in or on various media such as tapes discs, cards or chips. This includes all content of the Positive Posture Members' Site;

'the Positive Posture Members' Site' means the secure private website available after payment, containing Positive Posture's advice, recommendations, information and exercises;

‘the System’ means the methods of providing the Services and operating the business developed by Positive Posture using the Know-how;

‘Term’ means the period between the Commencement Date and the Expiry Date.

2.2 Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.

2.3 All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this agreement shall include all genders and the plural and the successor in title to the parties.

3 Appointment

You appoint Positive Posture to provide access to the Services for yourself, or, in the case of a company, for your employees, for the Term in return for the Payments.

4  Conditions

4.1 Except in the case of death or personal injury caused by Positive Posture’s negligence, the Positive Posture's liability under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the total value of the Payments set out.

4.2 Neither party shall be liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.

4.3 Each of the parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

4.4  Nothing in this agreement shall be deemed to constitute a partnership between the parties nor constitute any party the agent of the other party.

4.5 Each of the parties warrants that it has power to enter into this agreement and has obtained all necessary approvals to do so.

4.6 Positive Posture warrants and undertakes that it is not aware as at the date of this agreement of anything within its reasonable control which might or will adversely affect its ability to fulfil its obligations under this agreement.

4.7 Positive Posture warrants, represents and undertakes it is the absolute and unincumbered owner of the Intellectual Property

4.8 You agree with Positive Posture throughout the term

4.8.1  not to cause or permit any damage to the Mark, the Know-How, the System or the title of Positive Posture to any of them or assist others to do so;

4.8.2 not to challenge the validity of any of the intellectual property of Positive Posture;

4.8.3 to notify Positive Posture of any suspected infringement of the Intellectual Property and to take such reasonable action thereupon as Positive Posture directs at  Positive Posture’s expense;

4.8.4 not to use the Mark, the Know-How, or the System except directly in the delivery of the Services;

4.8.5 not to use the Mark, the Know-How, or the System in any manner after the Term or other sooner determination of this agreement and to compensate  Positive Posture fully for any unauthorised use of the same;

4.9 The parties to this agreement will at all times keep confidential information acquired in consequence of this agreement, except for information which they may be entitled or bound to disclose under compulsion of law or where requested by regulatory agencies or to their professional advisers where reasonably necessary for the performance of their professional services.

5 Grant of a Licence

In consideration of the Payments (plus VAT), Positive Posture hereby grants you subject to the provisions of this Agreement, and you hereby accept, a non-exclusive, non-transferable licence to use the Intellectual Property on your equipment for the Term.

6 Scope Of Licence

6.1 The Software accompanying this Licence, on whichever media, including the Positive Posture Members' Site, and related documentation, is licensed to you by Positive Posture. As long as you obtained the Product from Positive Posture or one of its authorised licensees and as long as you comply with the terms of this Licence, Positive Posture grants you a non-exclusive license to use the Software in the manner and for the purposes described in the Documentation, as further set forth below. You may not sub-license your rights without Positive Posture's prior written consent and, for the avoidance of doubt, any such consent shall be granted on the condition that your sub-licensees abide by the terms set out in this Licence.

6.2 You may install (and, where applicable, permit your sub-licensees to install) and use one copy of the Software, either (as agreed between the parties):

6.2.1 on up to the Permitted Number of compatible Computers; or

6.2.2 on the Permitted Number of Computer file server(s) within your Internal Network for the purpose of downloading and installing the Software on up to the Permitted Number of other Computers within the same Internal Network; or 

6.2.3 on the Permitted Number of Computer file server(s) within your Internal Network for the purpose of using the Software through commands, data or instructions (eg, scripts) from another Computer within the same Internal Network, provided that the total number of concurrent users that are permitted to use the Software on

such Computer file server(s) does not exceed the Permitted Number.

No other network use is permitted. More than one person may use the Software on a computer on which it is installed or accessible, but the software may not be installed, used or run on more than the Permitted Number of Computers at any time.

6.3 Use of Documentation. You may use any Documentation in support of the use permitted under clauses 6.1 and 6.2 and make such copies of the Documentation as are reasonably necessary for its lawful use.

6.5 Individual Licensee's Portable or Home Computer Use. Provided that the Licensee is an individual and is the primary user of the Software, the Licensee may install a second copy of the Software and have access to the Positive Posture Members' Site for their own exclusive use on either a portable Computer or a Computer located at their home, provided that the Software or access to the Positive Posture Members' Site on the portable or home Computer is not used at the same time as the Software on the primal Computer.

7 Intellectual Property Ownership

7.1 You acknowledge that all intellectual property rights in the Software, on the Positive Posture Members' Website and the Documentation throughout the world belong to Positive Posture, that rights in the Software are licensed (not sold) to you, and that you have no

rights in, or to, the Software, or the contents of the Positive Posture Members' Website or the Documentation other than the right to use them in accordance with the terms

of this Licence.

7.2 You acknowledge that you have no right to have access to the Software or the contents of the Positive Posture Members' Website in source code form or in unlocked coding or with comments.

7.3 The Software and any authorised copies that you make are the intellectual property of and are owned by Positive Posture. The structure, organisation and code of the Software and the Positive Posture Members' Website are the valuable trade secrets and confidential information of Positive Posture. You may not under any circumstances attempt to decompile or reverse

engineer the Software or the Positive Posture Members' Website. The Software and the Positive Posture Members' Website are protected by law, including but not limited to the copyright laws of the United Klngdom and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and the Positive Posture Members' Website, and all rights not expressly granted are reserved by Positive Posture. 

8   Positive Posture’s obligations

8.1 To deliver the Services to you, and in the case of a company, to your employees, during the Term.

8.2 Not at any time during or after the Term to divulge or allow to be divulged to any person or make use of any confidential information relating to your business or affairs other than to persons who have signed a secrecy undertaking in a form approved by you.

8.3 To maintain at its own cost a comprenhensive policy of insurance to cover the liability of Positive Posture in respect of any act or default for which it may become liable to indemnify you under the terms of this agreement.

9  Your obligations

In consideration of the services to be rendered by Positive Posture under this agreement you agree:

9.1 to make the Payments promptly without demand deduction or set-off; and

9.2 Except as expressly set out n this License or as permitted by any local law, you undertake:

9.2.1

not to cause or permit anything which may damage or endanger the Intellectual Property of Positive Posture or Positive Posture’s title to it or assist or allow others to do so; and

9.2.2

 not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it Is necessary for the purpose of back-up or operational security; and

9.2.3

not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation otherwise than as expressly permit-th by this Licence; and

9.2.4

not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs and in particular you may not modify the Software by adding any code to collect, store or transmit any images, work-rate, work activity or break information about any user of the Software; and

9.2.5

not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of melon 296A of the Copyright, Designs and Patents Ad 1988) such actions cannot  prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such abilities:

a)  is used only for the purpose of achieving inter-operability of the Software with another software program;

b)  is not disclosed or communicated without Positive Posture's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
c)  is not used to create any software which is substantially similar to the Software;  

9.2.6

to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

9.2.7

to control use of the Software and, where applicable, supervise and ensure that your sub-licensees, employees and representatives use the Software in accordance with the terms of this Licence;

9.2.8

to include the copyright notice of Positive Posture on all entire and partial copies of the Software in any form; and

9.2.9

not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person (other than, where applicable, your authorised sub-licensees and your employees) without prior written consent from Positive Posture.

9.3 In the case of a company, you agree to allow employees to fullfil training during usual working hours.

9.4 You must admit Positive Posture and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.

9.5 No Unbundling. The Software may Include various applications, utilities and components, may support multiple platforms and languages and may be provided to you on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to you as a single product to be used as a single product on Computers as permitted by clause 6. You are not required to use all component parts of the Software, but you may not unbundle

the component parts of the Software for use on different Computers. You may not unbundle or repackage the Software for distribution, transfer or resale.

10 Payments

10.1 All payments are made via Paypal at the price advertised at the point of purchase. 

10.2 All sums payable under this agreement unless otherwise stated are exclusive of VAT and other duties or taxes.

10.3 Any VAT or other duties or taxes payable in respect of such sums shall be payable in addition to such sums.

11 No liability on part of Positive Posture unless Positive Posture in default

Positive Posture shall not be liable to you for loss or damage to your property unless due to the negligence or other failure of Positive Posture to perform its obligations under this agreement or under the general law.

12 Termination for breach

The following obligations are conditions of this agreement and any breach of them shall be deemed a fundamental breach which shall determine this agreement immediately and the rights and liabilities of the parties shall then be determined in accordance with clause 13:

12.1 Failure on your part to make punctual payment of all sums due to Positive Posture under the terms of this agreement;

12.2 Failure on the part of Positive Posture to observe any obligation under this agreement not requiring Notice to be served and in the case of obligations requiring Notice to be served failure to comply with the terms of any Notice;

12.3 The levying of any distress or execution against you or the making by you of any composition or arrangement with creditors or being a company your liquidation (other than a members’ voluntary liquidation with your written consent);

12.4 The doing or permitting of any act by which Positive Posture's rights in the Intellectual Property may be prejudiced or put in jeopardy.

13 Termination consequences

 

Upon termination for any reason:

13.1 you shall immediately pay to Positive Posture any Payments due to Positive Posture under the terms of this agreement;

13.2 all rights granted to you under this agreement shall cease;

13.3 you must cease all activities authorised by this agreement;

13.4 you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to Positive Posture (at Positive Posture's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to Positive Posture that you have done so.

13.5 Either party shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of this agreement and the determination of this agreement shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under this agreement notwithstanding that the other may have exercised one or more of the rights and remedies against it; and

13.6 Any right or remedy to which either party is or may become entitled under this agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.

14     Warranty

14.1  Each of the parties warrants its power to enter into this agreement and has obtained all necessary approvals to do so.

14.2  Positive Posture has made every reasonable effort to ensure that the data contained in the Software are accurately represented, that the documentation is complete, and the media is free from defects in materials and workmanship. 

The Software is provided 'as is', without any warranty of any kind, either express or implied, including warranties of merchantability, fitness for any purpose, that the function contained in the Software will meet your requirements, that operatio will be uninterrupted or error-free, that defects will be corrected, or of non-infringement of intellectual property. As a result, you

and performance of using the Software.

14.3 If you are an individual consumer, nothing in this Licence, restricts or modifies any condition, warranty, right or liability arising under the appropriate consumers' legislation in your country of residence and as otherwise permitted by law where to do so is illegal or would render any provision of this agreement void, otherwise all other warranties, conditions and liability of any kind imposed by statute or by rule of law with regard to the Software are

hereby excluded.

14.4 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

14.5 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence,

15    Limitation of Liability

15.1 Nothing in this Licence shall exclude or in any way limit Positive Posture's liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.

15.2 In no event will Positive Posture be liable to you for any loss of profits, lost savings or other incidental special, indirect or consequential loss or damages arising out of the use of or inability to use the Software, even if Positive Posture has been advised in advance of the possibility of such damages, or for any claim by any other party. In no event will Positive Posture be liable, whether in contract or tort (including negligence) or otherwise, for

any loss of profit, health, or any commercial damage, including, but not limited to, special, incidental, consequential or other damages resulting from the use or inability to use this software.

15.3 If for any reason Positive Posture is liable in contract, tort (including negligence) or otherwise, that liability shall be limited, at Positive Posture's election, to: (i) the replacement or the supply of equivalent goods or payment of the cost of replacing the Product; or (ii) the repair of the Product or payment for having the Product repaired; or iii) a refund of moneys paid by you to Positive Posture.

15.4 You acknowledge and agree that the limitation of liability stated above represents a deliberate allocation of risk. Without this exculpation of liability, the price charged for the Product would necessarily be much higher.

16   Transfer of Rights and Obligations 

16.1 This Licence is binding on you and us and on our respective successors and assigns.

16.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.

16.3 Positive Posture may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of its rights or obligations arising under it, at any time during the term of the Licence.

17    Waiver

17.1 If Positive Posture fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if Positive Posture fails to exercise any of the rights or remedies to which it is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

17.2 A waiver by Positive Posture of any default shall not constitute a waiver of any subsequent default.

17.3 No waiver by Positive Posture of any of these terms and conditions shall be effective unless It is expressly stated to be a waiver and is communicated to you in writing.

18   Severability

If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

19    Miscellaneous

19.1   Interest

All sums due from either of the parties to the other which are not paid on the due date (without prejudice to the rights of Positive Posture under this agreement) shall bear interest from day to day at the annual rate of 5% over the daily base lending rate of National Westminster Bank plc with a minimum of 8% per year.

 

19.2   Receipt

The receipt of money by either of the parties shall not prevent either of them from questioning the correctness of any statement in respect of such money.

19.3   Force majeure

Both parties shall be released from their respective obligations in the event of national emergency war prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of this agreement impossible whereupon all money due under this agreement shall be paid immediately and in particular you shall immediately pay to Positive Posture all arrears of Payments.

19.4   Whole agreement

We each acknowledge that this agreement and the Conditions contains the whole agreement between us and that we have not relied upon any oral or written representation made to us by the other or employees or agents and has made our own independent investigations into all matters relevant to it.

19.5    Supersedes prior agreements

This agreement supersedes any prior agreement between us whether written or oral and any such prior agreements are cancelled as at the Commencement Date but without prejudice to any rights which have already accrued to either of us.

19.6    Discretion

Any decision exercise of discretion judgment or opinion or approval of any matter mentioned in this agreement or arising from it shall be binding on a party only if in writing and shall be at its sole discretion unless otherwise expressly provided in this agreement.

19.7   Change of address

Each of us shall give notice to the other of the change or acquisition of any address or telephone telex or similar number at the earliest possible opportunity but in any event within 48 hours of such change or acquisition.

19.8    Notices

All notices to be given under this agreement shall be in writing and shall either be delivered personally or sent by first class or airmail prepaid post or by telex, cable or facsimile transmission and shall be deemed duly served:

19.8.1  in the case of a notice delivered personally, at the time of delivery;

19.8.2 in the case of a notice sent inland by first class prepaid post, 2 clear business days after the date of dispatch;

19.8.3  in the case of a notice sent overseas by airmail, 7 business days (being business days in the place to which the notice is dispatched) after the date of dispatch; and

19.8.4 in the case of a telex, cable or facsimile transmission, if sent during normal business hours then at the time of transmission and if sent outside normal business hours then on the next following business day provided (in each case) that a confirmatory copy is sent by first class prepaid post or by hand by the end of the next business day.

Each notice shall be addressed to the address of the party concerned set out in this agreement or to such other address as that party shall have previously notified to the sender.

19.9     Your right to assign

This agreement and all rights under it may be assigned or transferred by the Client.

19.10    Proper law and jurisdiction

19.10.1   This agreement shall be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.

19.10.2   Any proceedings arising out of or in connection with this agreement may be brought in any court of competent jurisdiction in England and Wales.

19.10.3    The submission by the parties to such jurisdiction shall not limit the right of Positive Posture to commence any proceedings arising out of this agreement in any other jurisdiction it may consider appropriate.

19.10.4    Any notice of proceedings or other notices in connection with or which would give effect to any such proceedings may without prejudice to any other method of service be served on any party in accordance with clause 19.8.

19.10.5    In the event that you are resident outside England your address for service in England shall be the address for such service nominated at the head of this agreement and any time limits in any proceedings shall not be extended by virtue only of the foreign residence of the Client. 

19.11       Rights cumulative

All rights granted to either of us shall be cumulative and no exercise by either of us of any right under this agreement shall restrict or prejudice the exercise of any other right granted by this agreement or otherwise available to it.

19.12       Survival of terms

No term shall survive expiry or termination of this agreement unless expressly provided.

19.13       Status of Positive Posture

Positive Posture shall not be subject to directions from you as to the manner in which it performs its work.

 

19.14       No assignment or sub-contracting

Positive Posture shall not assign or sub-contract any of its rights or duties under this agreement without your consent in writing (such consent not to be unreasonably withheld).

19.15      Third party rights

A person who is not a party to this agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this agreement.

20              Arbitration

All disputes or differences which at any time arise between us whether during the Term or afterwards touching or concerning this agreement or its construction or effect or the rights duties or liabilities of either of us under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this agreement shall be referred to a single arbitrator to be agreed upon by both of us or in default of agreement to be nominated by the President for the time being of the Chartered Institution of Arbitrators in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force.
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