1 Terms and Conditions of Website Use
1.1 This page (together with the documents referred to on it) provides the terms and conditions upon which you may make use of, and purchase personalised fitness programmes from, the website made available and operated at http://www.smexercise.co.uk (“our website”).
1.2 Please read these terms and conditions of website use carefully before you start to use our website. These terms and conditions of website use are a legally binding document and create binding obligations upon you.
1.3 By using our website, you accept these terms and conditions of website use and agree to abide by them. If you do not agree to these terms and conditions of website use, please do not use our website.
2 Information about us
2.1 Our website is made available and operated by SM Exercise Limited (“we”, “our”, “us”) and by other persons acting on our behalf.
2.2 We are a company incorporated and registered in Scotland with company number SC472979 whose registered office is at 60 Randolph Road, Broomhill, Glasgow G11 7LG.
3.1 Our website is a place for you to ascertain general information relating to us. Our website is also a place for you to complete questionnaires relating to your health and general fitness to enable us to develop a personalised fitness programme for you.
3.2 Our website is available for access by all.
3.3 Access to our website is permitted on a temporary basis, and we reserve the right to withdraw or amend the content made available upon or through it without notice. Unless explicitly stated to the contrary the making available of any content shall be subject to these terms and conditions of website use.
3.4 We reserve the right at our sole discretion to restrict access to some parts or all of our website by persons or organisations seeking to access our website.
3.5 You are responsible for making all arrangements necessary for you to have access to our website. You are responsible for ensuring that your computer system meets all relevant technical specifications necessary to use our website and is compatible with our website. You are also responsible for ensuring that all persons who access our website through any facilities provided by you or over which you have control are aware of these terms and conditions of website use and that they comply with them.
3.6 We have used reasonable endeavours to ensure that our website complies with Scottish laws. However, we make no representations that our website or the content are appropriate or available for viewing, access or use in locations outside Scotland. If you access our website from other locations you do so at your own initiative and are responsible for compliance with all laws applicable to such location. If viewing, accessing or using our website or the content is contrary to or infringes any applicable law in your place of access or place of residence, you are not authorised to view, access or use our website or the content and you must exit immediately. If making available the content in your place of access or place of residence or to you (by reason of nationality, residence or otherwise) is prohibited, the content is not made available to you.
3.7 We make no representations and give no guarantees, express or implied, that the making available of our website or content in any particular territory outside Scotland is permitted under non-Scottish laws. We exclude all liability for any damages or loss relating to or arising out of access or attempted access to our website or the content by persons located in territories other than Scotland.
4 Availability and operation
4.1 We shall use reasonable endeavours to ensure that our website and any content are available and that our website operates properly at all times.
4.2 We may suspend the availability or operation of our website or the availability of any content on a temporary or indefinite basis as we may in our sole discretion determine without notice to you.
4.3 We will not be liable to you if for any reason our website or the content are unavailable at any time or for any period.
5 Linking to our Website
5.1 You may link, or may procure that a third party acting on your behalf links, to our website from a website owned by you, provided that such link is provided in a way that is fair and legal and does not damage our reputation or take advantage of it. Please note that any such link by you or the third party is placed at your or that third party’s own risk.
5.2 You must not establish nor procure that any third party establishes a link to our website in such a way as to suggest any form of association, approval or endorsement of you or any entity which you represent by us without our explicit prior written consent.
5.3 You must not establish nor procure that any third party establishes a link from any website that is not owned by you.
5.4 You must not frame or create a border environment nor procure that any third party frames or creates a border environment on our website through any other website.
5.5 You must not establish nor procure that any third party establishes a link to our website from a website which contains content that is distasteful, offensive or controversial, infringes any intellectual property rights or other rights of any other person or otherwise does not comply with all applicable laws and regulations.
5.6 You must not stream or aggregate content from our website within another website nor procure that any third party undertakes such activities.
5.7 In the event that you are in breach of this section of these terms and conditions of website use, we will operate a two stage process to resolve the situation. In the first place we will contact you in writing to request removal of the offending page, link, image and/or text. Failure to comply within two weeks of service of our written request for removal will result in our contacting your website host or server and requesting that they remove the offending page, link, image and/or text from their systems. Your continued use of this website implies your agreement to this procedure. We do not accept any liability for any loss of earnings, other income, intangible harm or damage, including to reputation, or actual physical or mental loss, damage or harm caused as a result of the removal of any website page which breaches these terms and conditions of website use.
5.8 We reserve the right to withdraw our permission to link to our website without notice and for whatever reason as we may in our sole discretion determine.
5.9 If you wish to make use of content on our website other than that set out above, please contact firstname.lastname@example.org.
6 Links from our Website
6.1 Where our website contains a link to a website or resource provided by a third party (a “Third Party Site”), such a link is provided for the purposes of information and convenience only.
6.2 The provision by us of a link to a Third Party Site does not represent any endorsement or recommendation by us in respect of that Third Party Site and does not mean that we have any association with that Third Party Site. We have no control over the contents of Third Party Sites and assume no responsibility for the content of Third Party Sites. We will not be liable to you for any loss or damage that may arise from your use of Third Party Sites.
7 Viruses, hacking and other offences
7.1 You must not:
7.1.1 misuse our website by knowingly introducing viruses, trojans, worms, logic bombs or other content which is malicious or technologically harmful, including that which may damage, detrimentally interfere with, surreptitiously intercept or expropriate our systems, data or information;
7.1.2 attempt to gain unauthorised access to our website, the servers on which our website is stored or any server, computer or database connected to our website;
7.1.3 use any robot, spider, other automatic device, or manual process to monitor or copy our website, or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our website;
7.1.4 use an anonymising proxy to access our website;
7.1.5 attack our website via a denial-of-service attack or a distributed denial-of service attack;
7.1.6 take any action that imposes an unreasonable or disproportionately large load on our infrastructure, or that may cause us to lose any of the services from our service providers, including our internet or payment service providers; or
7.1.7 do, or omit to do, or attempt to do or omit to do, any other act or thing which may interfere with the proper operation of our website.
7.2 If you breach this clause, you would commit an offence under the Computer Misuse Act 1990 and we have the right to report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our website will cease immediately.
7.3 We will not be liable to you for any loss or damage caused by a virus, distributed denial-of-service attack or other technologically harmful content that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our website or to your downloading of any content on it or on any website linked to it. You are responsible for implementing sufficient procedures and virus checks to satisfy your particular requirements in this respect.
8 Accuracy, errors and reliance
8.1 Please note that our website may contain inaccuracies or errors. You acknowledge that our website may not be free of errors and you agree that the existence of any errors shall not constitute a breach of these terms and conditions of website use. Except as expressly stated, we make no guarantees or warranties in respect of the accuracy or completeness of any content contained on our website. This does not affect your rights under law. For further information upon these rights, please obtain legal advice or contact your local citizen’s advice bureau.
8.2 Except where expressly stated otherwise, the content is general in nature and is not intended to amount to advice on which reliance should be placed. You agree not to rely upon the content. You agree not to provide any content to any third party with a view to that third party relying upon that content. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of our website.
8.3 The recommendations and advice contained within any personalised fitness programme which you may purchase from our website is intended to be general in nature and is not intended to be advice on which you should rely. Any such recommendations and advice are based on your responses to the health and fitness questionnaires and are not based on a personal assessment of your health or physical fitness. In providing you with a personalised fitness programme, we assume that you maintain a reasonably balanced diet. We would recommend that you obtain prior medical advice and approval before following the personalised fitness programme.
8.4 To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to our website, any content on it or any reliance which you may place on the content, whether express or implied. We will not be liable to you for any loss or damage, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
8.4.1 use of, or inability to use, our website; or
8.4.2 use of or reliance on any content displayed on our website.
9 Our intellectual property rights
9.1 Our website and the content are protected by international copyright laws and other intellectual property rights. You acknowledge that we are the owner or the licensee of intellectual property rights in or relating to our website and the content. You acknowledge that any intellectual property rights in our website and the content are licensed, but not transferred, to you, for the purposes expressly stated in these terms and conditions of website use and for no other purposes whatsoever, and always in accordance with these terms and conditions of website use. We reserve all such rights.
9.2 You must not:
9.2.1 use, copy or download;
9.2.2 disassemble, decompile, reverse engineer, create derivative works based upon, extract elements from or reorganise (in a database or otherwise);
9.2.3 translate, merge, adapt, vary, modify or make alterations to;
9.2.4 distribute or licence rights in,
our website or any content or any copies thereof other than as expressly stated hereunder.
9.3 Our status or that of any identified contributors as the authors of the content must always be acknowledged. Such acknowledgement must include the address of our website.
9.4 Other than as explicitly specified hereunder nothing contained in these terms and conditions of website use should be construed as granting by implication, estoppel, personal bar or otherwise any licence or right to use our website or the content without our express written permission.
9.5 You must not attempt in any way to remove or circumvent any technical protection measures applied to our website to prevent unauthorised use, copying or misappropriation thereof or of the intellectual property rights relating thereto, or apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such technical protection measures.
10 Your rights of use
10.1 You may print off one copy of any content for your personal study, research or internal business purposes.
10.2 You may copy and distribute to third parties in an electronic or paper format extracts of content generally and publicly made available upon our website without a requirement to register with our website but only in so far as may be necessary to draw the attention of such third parties to the availability of the content upon our website. Our status or that of any identified contributors as the authors of such extracts must always be acknowledged. Such acknowledgement must include the address of our website.
11 Complaints regarding content
If you wish to complain about any content, please contact us at email@example.com. We will then review the content. We shall in our sole discretion determine whether to remove the content from our website. If we decide to remove the content, our removal shall not be an admission as to any fact or circumstance, or be deemed to be an acceptance of your complaint. We may or may not respond to your complaint.
12 Obtaining a Personalised Fitness Programme
12.1 This clause sets out the procedure which must be completed by you in order for you to obtain a personalised fitness programme through our website.
12.2 You may download a health questionnaire and a fitness questionnaire from our website.
12.3 Once you have completed the questionnaires, please submit them by e-mail to us to firstname.lastname@example.org. Completion and submission of your questionnaires to us constitutes an offer by you to obtain a personalised fitness programme in accordance with these terms and conditions of website use.
12.4 Once we have received your completed questionnaires, we may reject your completed questionnaires for whatever reason we may in our sole discretion determine and will inform you that we have done so.
12.5 If your responses to the questionnaires are acceptable to us, we shall confirm by e-mail that we are happy to provide you with a personalised fitness programme (the “Confirmation”).
12.6 The provision of a personalised fitness programme to you is conditional upon payment to us of the price (the “Price”).
12.7 The Price is liable to change at any time, but changes will not apply where we have already sent you a Confirmation. It is always possible that, despite our best efforts, the Price of providing you with a personalised fitness programme listed on our website may be incorrect. Where the correct Price is less than our stated Price, we will charge the lower amount and inform you of this. If the correct Price is higher than the Price stated on our website, we will contact you for instructions before proceeding. You may choose to cancel your order for a personalised fitness programme at that time.
12.8 Upon clicking the link contained within the Confirmation, you will be forwarded to the website of our chosen payment services provider (the “Payment Website”) in order to remit to us the Price. You must remit the Price using the payment methods provided upon the Payment Website. You may not remit the Price to us using any other method.
12.9 Please note that your order for a personalised fitness programme is bespoke to your requirements, lifestyle and fitness level and you may not therefore cancel your order once you have remitted the Price to us using the payment methods provided upon the Payment Website. You should only proceed to remit the Price to us in this manner if you are certain that you wish to proceed with your order for a personalised fitness programme.
12.10 We will send you an e-mail to confirm that your payment has been successful and that we have received the Price from you via the Payment Website. A contract will come into existence between you and us at the point at which we provide you with this e-mail confirmation. We will also inform you within that e-mail of the timescales within which we will provide you with your personalised fitness programme. We will usually be able to send you a personalised fitness programme within 3 working days of providing you with this e-mail confirmation.
12.11 You acknowledge that the Payment Website is a website made available by a third party and, as such, we do not have control over its operation. We exclude all liability for any damages or loss relating to, or arising out of, your use or interaction with the Payment Website.
12.12 In respect of the Payment Website you agree:
12.12.1 to abide by any terms and conditions relating to use of, or interaction with, the Payment Website;
12.12.2 that any information submitted by you to the Payment Website will not be false, inaccurate or misleading; and
12.12.3 not to engage or attempt to engage in any potentially fraudulent or unauthorised activity or any activity that does or may present a credit or fraud risk to us, the provider of the Payment Website or any third party.
12.13 The Price is inclusive of all applicable taxes and duties due and payable in the United Kingdom. If the purchase of a personalised fitness programme in the territory from which you access our website gives rise to an obligation to remit any tax, duty or similar payment to any authority other than those authorities resident in the United Kingdom, you shall be responsible for satisfying such liability.
12.14 We reserve the right to request additional information from you in relation to your payment of the Price for any reasonable purpose, including to allow us to properly verify your identity, investigate alleged fraudulent activities and to allow us to comply with anti-money laundering obligations. You agree to comply with any request for further information as we reasonably require within such period as we may reasonably require. This may include, without limitation, requiring you to fax, e-mail or otherwise send certain identification documents to us.
12.15 You agree that your provision of information concerning the payment method chosen by you upon the Payment Website (your “Specified Payment Method”) through the Payment Website constitutes your authorisation to us and our service providers to collect (or procure the collectionof) the Price using the Specified Payment Method. You acknowledge that once you have provided such authorisation, you will not be able to cancel such authorisation.
12.16 You grant to us the right to resubmit (or procure the resubmission of) any payment made by you hereunder using your Specified Payment Method that is returned for insufficient or uncollected funds.
12.17 You confirm that you have the authority and permission to provide details of the Specified Payment Method and to authorise and permit us to collect (or procure the collection of) the Price using the Specified Payment Method.
12.18 Nothing in these terms and conditions of website use is intended to affect our legal right or that of our service providers in the United Kingdom to impose a surcharge for a debit or credit card transaction under the Credit Cards (Price Discrimination) Order 1990.
12.19 We only accept payment of the Price in pounds Sterling. If any payment made by you hereunder requires a currency conversion to be made, the amount of the exchange rate and any related fees will be determined by the provider of your Specified Payment Method. You shall be responsible for meeting any such fees.
12.20 Any payments made by you hereunder may appear on any statement provided to you by the provider of your Specified Payment Method under the name of our service providers or in combination with our name, reference or internet address.
12.21 We may, at our reasonable discretion (for example, without limitation, to limit fraud or credit risk), impose limits on the payments you can remit using the Payment Website.
12.22 We may review (or procure the review of) any information you submit through the Payment Website prior to collecting (or procuring the collection of) the Price using the Specified Payment Method. This review may be carried out for fraud prevention purposes. Following such review we may withhold or refrain from collecting (or procuring the collection of) the Price using the Specified Payment Method and cancel the provision of a personalised fitness programme, without liability to you. Any such review is not a representation by us as to your character or reputation.
12.23 In the event that the provider of your Specified Payment Method acting on your behalf seeks the return of any Price paid or disputes our authorisation to collect (or procure the collection of) the Price (a “Chargeback”) you agree on our request to subrogate or otherwise assign to us your rights against any third parties related to such Chargeback, and agree that we may pursue those rights directly or on your behalf as we may in our sole discretion determine. You agree at our request to support a Chargeback by filing and supplying to us a copy of a police report.
12.24 You agree not to use your Specified Payment Method:
12.24.1 in a manner that results in or may result in Chargebacks, or liability for us to pay any sums, including without limitation any fees or fines to any third party;
12.24.2 in a manner that we or any financial institution reasonably believe to be an abuse of the banking industry’s reversal process, credit card system or a violation of credit card association rules, or in a manner that results in or may result in any liability to, complaint by or dispute with any third party;
12.24.3 to test credit card behaviour; or
12.24.4 when you have a rating within any credit reporting agency indicating a high level of risk associated with your use of services the same or similar to the Specified Payment Method.
12.25 When you remit the Price to us, you are liable to us for the full amount of the Price plus any additional sums due to be paid by us to any third party if your payment of the Price is later invalidated for any reason other than in the event of a valid Chargeback (including without limitation any fees or fines due to be paid to third parties if we successfully dispute a Chargeback or if the collection of the Price is declined by the provider of your Specified Payment Method due to insufficient funds).
12.26 We make no representation or warranty regarding the amount of time taken to complete transfer of the Price from the provider of your Specified Payment Method to us.
12.27 You agree that we may satisfy any liability of you to us in full through use of your Specified Payment Method.
12.28 You consent to the providers of the Payment Website and your Specified Payment Method disclosing to us information concerning any payments made by you hereunder and details of your Specified Payment Method and our subsequent disclosure of this information in so far as may be necessary to enable us to properly and fully exercise our rights under these terms and conditions of website use.
13.1 If we fail to comply with these terms and conditions of website use, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these terms and conditions of website use or our negligence. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we entered into this contract.
13.2 We only provide personalised fitness programmes for domestic and private use. You agree not to use the personalised fitness programme that we provide to you for any commercial, business or re-sale purpose. If you do, we have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
13.3 Nothing in these terms and conditions of website use excludes or limits our liability for death or personal injury arising from our negligence, or fraud and fraudulent misrepresentation, or any other liability that cannot be excluded or limited by the law of Scotland. For further information upon liability that cannot be excluded or limited under applicable law, please contact your local citizen’s advice bureau or a solicitor experienced in such matters.
13.4 We are not liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these terms and conditions of website use that is caused by an event outside our control. An event outside our control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks. If an event outside our control takes place that affects the performance of our obligations under these terms and conditions of website use:
13.4.1 we will contact you as soon as reasonably possible to notify you; and
13.4.2 our obligations under these terms and conditions of website use will be suspended and the time for performance of our obligations will be extended for the duration of the event.
13.5 You may cancel an order for a personalised fitness programme if an event outside our control takes place.
13.6 If we cancel your order for a personalised fitness programme due to an event outside our control taking place, we will refund the Price to you via the Payment Website.
14 Other important terms
14.1 Any personalised fitness programme that we provide to you is bespoke to your requirements, lifestyle and fitness level and you may not therefore transfer or otherwise dispose of any of your rights or obligations arising under these terms and conditions of website use to another individual
14.2 We may transfer our rights and obligations under these terms and conditions of website use to another organisation and will always notify you in writing if this happens but this will not affect your rights and obligations under these terms and conditions of website use.
14.3 These terms and conditions of website use are between you and us and no other person will have any rights to enforce any of these terms.
15.1 If you breach any of these terms and conditions of website use, all of your rights under these terms and conditions of website use, including your right to use our website and any intellectual property rights in the content, will cease immediately.
15.2 If we have reason to believe that you have breached these terms and conditions of website use, or are likely to breach these terms and conditions of website use, we may take action to protect ourselves, our service providers and third parties from liability, including but not limited to contacting relevant third parties and disclosing information collected from you.
16.1 We may change the content contained on our website at any time.
16.2 Any content may be out of date at any given time, and we are under no obligation to update any content.
16.3 We reserve the right to change these terms and conditions of website use at any time by amending this page at any time. Any such change in these terms and conditions of website use will be effective once reflected in the text of these terms and conditions of website use as published on our website. Please check this page from time to time to take notice of any changes we made, as they are binding on you.
16.4 Some of the provisions contained in these terms and conditions of website use may also be superseded by provisions or notices published elsewhere on our website.
If we fail at any time to insist upon strict performance of any of your obligations under these terms and conditions of website use, or if we fail to exercise, or delay in exercising, any of the rights or remedies to which we are entitled under these terms and conditions of website use, this does not mean that you do not have to comply with your obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we automatically waive any other default by you.
18 Severability and entire agreement
18.1 Each of the paragraphs of these terms and conditions of website use operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
19.1 We will communicate with you in English only. You agree that we may provide a notice to you by posting it on our website or e-mailing it to the e-mail address provided by you to us.
19.2 You may only notify us in connection with any matter arising under these terms and conditions of website use, except where specified otherwise under these terms and conditions of website use, by e-mailing us at email@example.com.
20 Applicable law
The interpretation, construction, effect and enforceability of these terms and conditions of website use are governed by the law of Scotland, and you agree to submit to the non-exclusive jurisdiction of the Scottish courts for the determination of disputes related thereto.