EFFECTIVE FROM SEPTEMBER 2018
BY CLICKING/TAPPING ON THE “I ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THESE CUSTOMER TERMS (THESE “CUSTOMER TERMS”).
THESE CUSTOMER TERMS APPLY TO YOUR ACCESS TO AND USE OF THE PROATAR APPLICATION (THE “APPLICATION”) AND THE SERVICES MADE AVAILABLE THROUGH THE APPLICATION (THE “SERVICES”), REGARDLESS OF THE DEVICE YOU USE OR WHETHER YOUR USAGE IS IN OFFLINE OR ONLINE MODE.
IF YOU DO NOT AGREE WITH ANY OF THESE CUSTOMER TERMS, YOU MUST IMMEDIATELY CEASE USING THE APPLICATION AND THE SERVICES. YOUR ACCEPTANCE OF THESE CUSTOMER TERMS WILL OPERATE AS A BINDING AGREEMENT BETWEEN YOU AND PROATAR VENTURES LIMITED IN RESPECT OF YOUR USE OF THE APPLICATION AND THE SERVICES.
PARTIES AND SCOPE
These Customer Terms are between Proatar Ventures Limited (registration number 10650992) of 12 Sheep Walk, Emmer Green, Reading, RG4 8NE, UK (“Proatar”, “us”, “our”, “we”) and the user of the Application and the Services (“You”, “Your”) (each a “Party” and collectively the “Parties”).
You acknowledge and agree that certain elements of the Application (including payment processing) may be provided by affiliates of Proatar. Proatar shall remain liable to You (subject to clause 10 below) for any act or omission of its affiliates that would cause Proatar to breach its obligations under these Customer Terms and You may only enforce these Customer Terms against Proatar.
Proatar will be Your first point of contact in respect of dispute management, refunds, cancellations and customer support as they relate to your use of the Application or the Services. You should always contact Proatar to mediate or resolve any dispute or disagreement between You and any Elite (as defined below) in the first instance.
The Application is an online mentoring platform through which elite sportspeople (“Elites”) are able to providing mentoring services via video consultations to individuals.
THE PARTIES AGREE AS FOLLOWS
1. REGISTRATION AND USAGE:
a. In order to use the Services and the Application, You must:
i. be at least eighteen (18) years of age, be competent to enter into a contract under applicable laws, and provide to Proatar accurate, complete, current, valid and true data on registering with the Application (“Registration Data”);
ii. only use your Proatar account to order Services for another person (a “Featured Person”) if the Featured Person has agreed to:-
1. Your submitting their data, information and audio-visual content (“their Content”) to Proatar for the purposes of the Services; and
iii. provide Your own electronic device, which must have a functioning mobile number, the ability to record and play high quality video and audio, have adequate memory and storage, read text messages (SMS) and push notifications from the Application, and meet the minimum device requirements that Proatar may specify from time to time. It is Your responsibility to check to ensure that You download the correct version of the Application for Your device;
iv. only use the Application and Services solely in accordance with these Customer Terms and all applicable laws, and not use the Application or Services for any illegal or unlawful purposes;
v. only use the Application and Services for Your sole, personal, non-commercial use, and not transfer, sell, sub-license or assign it or them to a third party;
vi. not do or try to do anything to interfere with or harm the Application, the Services or the network of Proatar or any member of the Proatar group in any way whatsoever; and
vii. provide such information and documents which Proatar may reasonably request from time to time, and promptly notify Proatar of any change to any of Your Registration Data or other information provided to Proatar.
b. You acknowledge that when using the Application and Services, standard messaging charges, data charges and/or voice charges (as applicable) may be imposed by Your device or network service provider and the same shall be Your responsibility.
c. You are solely responsible for maintaining the confidentiality of Your Registration Data and Application login credentials, and will be liable for all activities and transactions, and any other misuse of the Application, that occurs through Your account (whether initiated by You or any third party), except to the extent caused or contributed by Proatar.
d. You must notify Proatar immediately if You cannot access Your account or know or suspect that there has been any unauthorised access or use of Your Registration Data, login details or account, or the security of Your Account has been compromised in any way.
e. Proatar may immediately suspend the Services and/or Your use of the Application (including Your account) if it has a reason to believe that:
i. the Registration Data or any other information provided by You is false, or You cease to satisfy the other eligibility requirements referred to in clause 1(a)(i) above;
ii. the security of Your account has been compromised in any way; or
iii. You have not complied with any of the requirements of this clause 1.
f. Proatar may block, suspend, alter or update the Application or the Services at any time (including without notice):
i. to make improvements to the Application and/or the Services (including the security of the Application and/or the Services);
ii. as required by applicable law; or
iii. to protect a legitimate business interest.
2. BOOKING SERVICES FOR CONSULTATION
a. The Application allows You to make a booking request for a consultation with an Elite. You must follow the relevant booking instructions in the Application, including ensuring that any video You submit meets the specified quality standards.
b. Proatar will either accept or decline Your booking request, and inform You via an SMS, push notification or confirmation screen in the Application.
c. Once Your request for Services has been accepted by Proatar, Proatar will provide you with a booking confirmation setting out all relevant information in relation to your booking and will submit Your booking request to the relevant Elite for acceptance.
d. If there are any incorrect details on the booking confirmation, You must contact Proatar immediately by emailing email@example.com or contacting support through the Application.
e. You will have the right to cancel Your booking at any time prior to the relevant Elite accepting your booking request i.e. while the consultation is in the “Awaiting Acceptance” state. However, once the relevant Elite has accepted your booking request, You will not have a right to cancel the booking. Any cancellation of a booking after such acceptance by the Elite will incur the full fee as cancellation charges. Please email firstname.lastname@example.org or contact support through the Application in order to cancel any booking.
f. We ask Elites to provide their Services to You within 14 days after they have received Your video submission. However, there could be unavoidable or unforeseen circumstances where the Elite may need more time to turn around your consultation request. In this situation, Proatar will get in touch with you to agree how you would like to proceed, which may include extending the response time for your chosen Elite, sending your request to another Elite of your choice, or cancelling your booking.
a. To order Services via the Application, You will first need to purchase credits within the Application (“Credits”) which will be shown under the “Available Credits to Spend” heading in the Proatar wallet within the Application. Each Elite charges a different number of Credits for their Services, as shown in the Application.
b. Any purchased Credits will expire after one year. The Proatar Credits are not redeemable for cash nor are they refundable under any circumstances other than the conditions stipulated in Clause 12.
c. When You book a consultation then the applicable Credits will be moved from “Available Credits to Spend” to the “Credits Currently Reserved/In-Progress” section. If Your consultation is declined, then the Credits will be moved back to Your “Available Credits to Spend” section. The Credits will be debited from Your Proatar wallet when the Elite completes the consultation and replies to you with the feedback video. Your booking request and prior to (or at the same time as) the Services are initially provided to You by the Elite.
d. Your purchase of Credits will be facilitated by a payment gateway and/or payment processing services provider appointed by Proatar (the “Payment Processor”).
e. You will be required to provide relevant payment details including credit/debit card details (“Card Details”) with the Payment Processor in order for Your purchase of the Credits to be purchased, and You hereby authorise the Payment Processor to do so.
i. permits the Payment Processor to debit or credit the bank account or debit/credit card account associated with Your payment details;
ii. permits the Payment Processor to use Your Card Details for the processing of transactions initiated by You;
iii. will remain in effect as long as You maintain an account with the Application (and if You delete Your Card Details or account, Proatar and the Payment Processor will not be able to process any further transactions initiated by You); and
iv. is subject to any other terms and conditions of the Payment Processor from time to time.
f. Proatar shall be responsible for issuing invoices/receipts to You for the Services provided by the Elites and You shall not have any direct contractual or financial arrangements with any Elite in respect of the Application or the Services.
g. Any payment processing-related issue not caused by an error or fault with the Application must be resolved by You and the relevant Payment Processor.
h. The Application is provided to You free of charge, although we reserve the right to charge for the Application in the future (subject to obtaining Your prior agreement to any such charges).
Amounts stated in the Application do not include any taxes unless expressly stated. Unless the relevant charges are stated to include taxes in the relevant invoice, You may be charged an additional amount equal to the applicable taxes on the fees in relation to the Services.
5. FEEDBACK, ISSUES AND COMPLAINTS
a. All issues, complaints, opinions, suggestions, questions and feedback while accessing the Services should be notified or communicated to Proatar through the Application.
b. Proatar will endeavour to respond and / or resolve such issue as soon as reasonably possible.
7. INTELLECTUAL PROPERTY RIGHTS
a. As between You and Proatar, all right, title and interest in:
i. the Application and all content incorporated in the Application, including all videos provided to You by an Elite, but excluding Your Content (as defined below) (collectively, “Proatar IP”) are owned by Proatar; and
ii. all information and materials (including images, videos and other audio-visual material) transmitted through the Application by or on Your behalf, including any content relating to a Featured Person (collectively “Your Content”) are owned by You.
b. Except as expressly stated, nothing in these Customer Terms grants You any rights in or related to the Proatar IP, and all rights not expressly granted to You are reserved by Proatar.
c. You must not:
i. copy, reproduce, modify, create derivative works of, decompile, reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of, any Proatar IP;
ii. breach, disable, tamper with, or develop or use (or attempt) any workaround for any security measure provided in the Application;
iii. use any Proatar IP in a way that infringes or misappropriates a third party’s intellectual property rights or moral rights;
iv. distribute, disclose or allow use of any Proatar IP by any third party in any format, through any timesharing service, service bureau, network or by any other means;
v. merge or combine any Proatar IP with any other technology not provided by Proatar; or
vi. remove any proprietary notice language on any copies of any Proatar IP.
d. Subject to Your compliance with these Customer Terms and any instructions notified to you by Proatar from time to time, Proatar grants You a limited, non-exclusive, personal, revocable, non-transferable licence during the term of Your permitted use of the Application to use the Proatar IP for the sole purpose of accessing the Application and the Services for Your own personal, non-commercial use. For the purposes of this clause 7(d), “personal, non-commercial use” includes that You shall be entitled to distribute each video consultation provided to You by an Elite (or clips from each such video consultation) on Your personal social media channels/pages, provided that You may not: (i) licence, sell or otherwise commercially exploit
(including pursuant to any joint promotion with a third party) any such video consultation (or part thereof) without obtaining the prior written consent of Proatar; or (ii) remove Proatar’s proprietary watermark from any such video consultation or other content incorporated on the Application.
e. You grant to Proatar and each member of the Proatar group an irrevocable, perpetual, non-exclusive, worldwide, transferable, sub-licensible, royalty-free licence to use, copy, reproduce, make derivative works of, process, publish, transmit, display and distribute Your Content in any and all media and by any and all distribution methods (now known or later developed) for the purposes of providing the Application and the Services to You and promoting the Services, the Application and Proatar and the Proatar group and their respective commercial partners. You are not entitled to any payment or other compensation for any use of Your Content by Proatar or the Proatar group or their respective commercial partners.
f. You represent and warrant that You have all necessary rights to Your Content and are permitted to provide Your Content to Proatar and the Proatar group for usage in accordance with the licence terms set out in clause 7(a) above. You must ensure that Your Content is not unlawful and does not infringe any third party’s rights (including intellectual property rights), and You must not:
i. publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, blasphemous, pornographic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, or otherwise unlawful material or information, or any material relating to or encouraging money laundering or gambling;
ii. upload files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless You own or control the rights thereto or have received all necessary consents;
iii. upload files that contain viruses, corrupt files, or any other similar software or programs that may damage the operation of another computer or electronic device;
iv. except as expressly permitted by Proatar, advertise or offer to sell or buy any goods or services for any business purpose;
v. conduct or forward surveys, contests, pyramid schemes or chain letters;
vi. download any file posted by another user that You know, or reasonably should know, cannot be legally distributed in such manner;
vii. falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;
viii. deceive or mislead the addressee about the origin of a message or communicate any information which is grossly offensive or menacing in nature;
ix. restrict or inhibit any other user from using and enjoying the Application; or
x. harvest or otherwise collect information (about others, including e-mail addresses, without their consent.
g. Proatar has no obligation to monitor Your access to or use of the Application, or Your Content, but You hereby provide Your consent for Proatar to do so, to the extent permitted by applicable law, for the purpose of providing and operating the Application and the Services, to ensure Your compliance with these Customer Terms, and to comply with applicable law or the order or requirement of a court, administrative agency or other government body. Proatar may at any time and without prior notice remove or disable access to any of Your Content which Proatar considers (acting reasonably) to be in violation of these Customer Terms.
h. Except for the Registration Data or any other data submitted by You during the use of
the Service, You should not, send any confidential or proprietary information to Proatar (whether on the Application or otherwise), unless required by applicable laws.
8. YOUR ACKNOWLEDGEMENTS AND OBLIGATIONS
a. You acknowledge and agree that the Elites do not have any employment relationship with us.
b. You will not, in Your use of the Application or the Services or interaction with any Elite, cause nuisance, annoyance, inconvenience, harm or damage to that Elite.
c. You agree that: (i) You shall not make any adverse or derogatory comments about us, the Application, the Services or the Elites and You shall not do anything which shall, or may, bring us, the Application, the Services or the Elites into disrepute or harm their or our reputation in any way; and (ii) You shall not use any part of the Proatar IP for commercial purposes without our express prior written consent.
d. If we make available functionality which allows You to provide a review for use on the Application, You agree that: (i) the review represents Your honestly-held belief; (ii) we have the right to use that review on the Application or other media platforms, and modify its content, at our discretion; (iii) we have the right to attribute that review to Your username; and (iv) we may remove the review from the Application at any time and in our sole discretion. We disclaim any and all liability, to the extent permitted by applicable law, in relation to any reviews on the Application.
9. EXCLUSION OF IMPLIED TERMS
a. All express or implied guarantees, warranties, representations, or other terms and conditions relating to these Customer Terms or their subject matter, not contained in these Customer Terms, are excluded from these Customer Terms to the maximum extent permitted by law.
b. Without limiting clause 9(a), to the maximum extent permitted by applicable law:
i. the Application and Services are provided on an “as is” and “as available” basis and Proatar makes no representation, warranty, or guarantee regarding (a) the condition, performance, accuracy, completeness, merchantability, reliability, timeliness, quality, suitability, availability or fitness for a particular purpose of the Services or the Application; (b) that the Services or the Application will be uninterrupted, error-free or free from bugs, viruses, or other material which is malicious or technologically harmful; (c) the compatibility of the Application with any other technology; or (d) the quality, suitability or ability of the Elites;
ii. the information, recommendations, assertions and Services Proatar provides to You (whether on or through the Application or via any other medium) are for general information purposes only based on the experience of the Elites and views and opinions expressed by the Elites are their own and Proatar and the Elite are not responsible for any decisions that you may make or not make based on their experience or advice; and
iii. Proatar does not specifically endorse, advise or recommend any of the Elites, nor does Proatar provide any guarantee or provide any assurance in respect of the behaviour or actions of, or information relating to, the Elites (or other users) posted on the Application.
c. Nothing in these Customer Terms excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any applicable laws which cannot lawfully be excluded or limited.
a. Nothing in these Customer Terms shall limit or exclude Proatar’s liability to You:
i. for personal injury caused by its negligence;
ii. for fraudulent misrepresentation; or
iii. for any other liability that, by law, may not be limited or excluded.
b. Subject to clause 10(a), Proatar shall not be liable for:
i. Your reliance upon the Application or Services or any information provided by Proatar or any Elite through the Application or the Services;
ii. any loss that You may incur as a result of someone else using Your account, either with or without Your knowledge, except to the extent caused or contributed by Proatar;
iii. any loss or damage that You may incur arising out of or in connection with the conduct of the Elite or any accidents, incidents or issues occurring in the course of You recording any video;
iv. any booking that has not been accepted;
v. any loss, damage, costs, expenses or liability suffered by anyone other than you in connection with your use of the Application;
vi. any losses that could not reasonably be expected to result from our negligence or breach of these Customer Terms;
vii. any loss of profits, loss of revenue, loss of opportunity, loss of business or employment (whether or not such loss could be reasonably expected to flow from our negligence or breach of these Customer Terms); or
viii. any other loss, damage, costs, expenses or liability that you suffer in connection with the Application or the Services, save to the extent that Proatar fails to perform its obligations to you to the standard of a diligent and professional technology platform provider.
c. Subject to clause 10(a), Proatar’s maximum aggregate liability to You under these Customer Terms and in respect of the Application and the Services (whether in contract, tort, negligence, misrepresentation or under any other legal head of liability) shall be limited to the total amounts paid by You through the Application in the 12 month period prior to the date that the relevant liability first arose.
d. The limitations and exclusions of liability in this clause 10 apply regardless of the basis on which such liability arises, whether in contract, breach of warranty, tort (including negligence), in equity, under statute, or on any other basis.
11. FORCE MAJEURE
Any delay in or failure to perform any obligations by a Party under these Customer Terms will not constitute a breach of these Customer Terms to the extent caused by non-availability of the Elites, acts of any government authorities, acts of God, fire, flood, explosion, riots, war, rebellion, insurrection or any other event beyond the reasonable control of that Party.
a. These Customer Terms continue until such time as they are terminated in accordance with this clause 12.
b. You may terminate these Customer Terms at any time by closing Your account. You can close Your account at any time by sending an email to email@example.com or contact support through the Application.
c. Proatar may terminate these Customer Terms and Your use of the Application and the Services at any time upon written notice to You.
d. Proatar may terminate these Customer Terms and Your use of the Application and the Services with immediate effect upon notice to You if:
i. You cease to satisfy the eligibility requirements in clause 1(a)(i) above; or
ii. You commit a breach (other than a trivial or inconsequential breach) of these Customer Terms that is not capable of remedy or (if capable of remedy) is not remedied within five (5) days after Proatar notifies You of the breach.
e. Upon termination of these Customer Terms:
i. for any reason, Your rights to use the Application will cease immediately, Your registration and Your Account will cease to apply, and Proatar may block Your access to the Application and/or the Services;
ii. pursuant to clause 12(c), We will pay You the monetary equivalent of any Credits remaining Your account in the Application within 30 days after the effective date of termination (less any amounts due and owing by You);
iii. pursuant to clauses 12(b) or 12(d), You shall not be entitled to any refund of Your Credits and such termination shall be without prejudice to our other rights and remedies; and
iv. for any reason, the Parties must cease acting in a manner that would imply a continuing relationship between the Parties.
f. Clauses 6 (Privacy), 7 (Intellectual Property Rights), 10 (Liability), 12 (Termination), and 16 (Governing Law and Dispute Resolution) will survive termination of these Customer Terms together with any other terms which by their nature do so.
g. Termination of these Customer Terms will not prejudice any rights of the Parties that may have accrued prior to such termination.
a. Any notices, requests and other communications required or permitted under these Customer Terms must be in writing and sent to the recipient Party as follows (as amended to time by the recipient Party by notice to the other Party):
i. to Proatar by email to: firstname.lastname@example.org
ii. to You by email or text message (SMS) to the email address or mobile number (as applicable) specified in Your account.
14. ENTIRE AGREEMENT
a. These Customer Terms constitute the entire agreement between the Parties in connection with, and will supersede all previous communications (either oral or written) between the Parties with respect to the subject matter of these Customer Terms, and no agreement or understanding varying or extending the same will be binding on either Party unless arising out of the specific provisions of these Customer Terms.
b. No party has entered into these Customer Terms in reliance on any term or statement other than the terms expressly set out herein, provided that this clause 14(b) shall not apply to any fraudulent misrepresentation.
15. RELATIONSHIP OF THE PARTIES
Nothing in these Customer Terms is intended to constitute a fiduciary relationship or an agency, partnership or trust, and You have no authority to bind Proatar, nor does Proatar have any authority to bind You.
16. GOVERNING LAW AND DISPUTE RESOLUTION
These Customer Terms shall be governed by English law. You agree that, subject to applicable laws, any dispute between you and us regarding these Customer Terms will be subject to the non-exclusive jurisdiction of the English courts.
17. AMENDMENTS TO THESE CUSTOMER TERMS
We may revise these Customer Terms at any time by posting the updated Customer Terms on the Proatar website and/or in the Application. It is Your responsibility to check the Proatar website and/or the Application regularly for any changes and Your continued use of the Application after these Customer Terms are amended shall constitute Your consent to be bound by these amended Customer Terms.
a. Assignment: You may not assign or transfer any of Your rights, interests or obligations under these Customer Terms to any third party without the prior written consent of Proatar. Proatar may freely assign or transfer its rights, interests and/or obligations under these Customer Terms to any person or entity.
b. Waiver: Either Party may exercise a right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. No failure or delay on the part of either Party exercising any right, power or privilege under these Customer Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege under these Customer Terms preclude any other or further exercise thereof or the exercise of any other rights, powers or privileges by such Party.
c. Severability: Any provision that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions or affecting the validity or enforceability of such provision in any other jurisdiction.
d. Third party terms: Where the Application is made available to download on a thirdparty platform (for example via the App Store or Google Play), Your downloading, installation and use of the Application is bound by the terms and conditions of the operator of the relevant platform, as well as by these Customer Terms. In the event of any conflict or inconsistency between the terms and conditions of the operator of the relevant platform and these Customer Terms, the terms and conditions of the operator of the relevant platform shall prevail.
e. Third party websites: We may from time to time provide links to third party websites through the Application. We have no control over the third-party websites and accept no liability for any statements, information, content, products or services that are published on or may be accessible from those third-party websites. It is of utmost importance that You thoroughly check all information provided on the third-party websites before You commit to procuring any goods or services.