TrackActive

INTRODUCTION

1.1 Active Health Tech Ltd (the Company) provides the TrackActive Pro web & mobile system that allows:

(a) Medical, physiotherapy, personal training and other healthcare practitioners ( Practitioners ) to:

i. Access and search a database of instructional exercise videos, diagrams and images, descriptions and supporting evidence (where applicable)

( Exercises );

ii. Upload Exercises to the Database;

iii. Prescribe and deliver exercise programmes that may include such instructions and parameters as (but not limited to) repetitions, sets, resistance and rest time ( Exercise Programmes ) to patients;

iv. Send patient reported outcome measurement questionnaires and track the progress and symptoms (for example, pain levels) of patients throughout the Exercise Programme;

v. Communicate with Patients;

vi. Provide authorised colleagues access to TrackActive Pro; and

(b) Patients of Practitioners ( Patients ) to:

i. Receive Exercise Programmes from Practitioners;

ii. View Exercises;

iii. Log progress and symptoms (for example, pain levels) through Exercise Programmes;

iv. Edit information;

v. Communicate with Practitioners.

IMPORTANT TERMS

Key Definitions

A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):

Affiliate means, in relation to Active Health Tech Ltd, its holding company, and each subsidiary of such holding company. In this definition "subsidiary" and "holding company" shall have the meanings given to them in section 1159 of the Companies Act 2006 (and for the purposes of the membership requirement in section 1159(1)(b) and section 1159(1)(c) a company shall be treated as a member of another company even if its shares in that other company are registered (i) in the name of its nominee, or (ii) in the name of a person (or the nominee of that person) who is holding the shares as security).
Agreement means these Terms of Service consisting of the Introduction, the Important Terms and the General Conditions.
Company means Active Health Tech Ltd a company incorporated and registered in England & Wales with company number 10530672 and having its registered office at Ground Floor Interchange, 81-85 Station Road, Croydon, England, CR0 2RD.
Community Content means any content submitted by a User with the intention of that content being used by the TrackActive Pro user base.
Database means the database operated by the Company and accessed and edited using TrackActive Pro.
Data Protection Legislation means (i) all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the ICO or other relevant regulatory authority and which are applicable to a party; and (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the User is subject, which relates to the protection of Personal Data.
EHR ( Electronic Health Record) means the record of an Individual’s Health Data in TrackActive Pro.
Exercise means an instructional video, diagram or image, descriptions and supporting evidence (where applicable) of how to correctly perform an exercise.
Exercise Programme means an exercise or physical rehabilitation programme that may include such instructions and parameters as (but not limited to) repetitions, sets, resistance and rest time created and made available through TrackActive Pro.
Fee means any fee payable by a User for access to, or use of TrackActive Pro.
Health Data refers to ‘data concerning health’ as defined in Article 4(15) UK GDPR and means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status (but generally refers to information about the health, injury or a disability of an Individual at any time).
Individual means a Patient with an EHR about them in TrackActive Pro.
Initial Term means the first month of the Agreement in respect of Users on Monthly Plans or the first year of the Agreement in respect of Users on Annual Plans.
Organisation means a Practitioner that is (without limitation) a medical practice, physiotherapy practice, gymnasium, chiropractic practice, personal training organisation, occupational therapy practice, physical therapy practice, other allied health practice or other organised or incorporated body.
Patient means a patient or client of a Practitioner or Organisation.
Personal Data means any information relating to an identified or identifiable living individual that is processed by the Company through or in connection with TrackActive Pro; an identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
Practitioner means (without limitation) a medical practitioner, doctor, nurse, physiotherapist, chiropractor, occupational therapist, personal trainer, physical therapist or other healthcare practitioner who: (i) Are users of TrackActive Pro; and (ii) Are suitably qualified to prescribe Exercise Programmes; and (iii) Are authorised to access an Individual’s EHR.
Privacy Policy means TrackActive Pro’s privacy policy as updated from time-to-time, which can be found at https://www.trackactive.co/privacypolicy/.
Renewal Term means the second and subsequent months of the Agreement in respect of Users on Monthly Plans or the second and subsequent years of the Agreement in respect of Users on Annual Plans.
Special category data means the categories of Personal Data set out in Article 9(1) UK GDPR.
Staff Member means any employee or other personnel of an Organisation that may be authorised to access an Individual’s EHR but are not qualified to prescribe Exercise Programmes.
Term means the duration of the Agreement and licence to use TrackActive Pro as set out in J1 of the Important Terms below.
Third Party means any person that is not a User.
TrackActive Pro means the: (i) Web application accessible from https://www.trackactive.co; and/or (ii) The TrackActive Pro mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
UK GDPR has the meaning given in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
User means any Patient, Practitioner, Individual or Staff Member that uses TrackActive Pro.

Agreement

B.1 This Agreement governs the use of TrackActive Pro by any User and limits the liability of the Company to any User. This Agreement has specific terms of use (in addition to the General Conditions set out below) that apply to:

Patients and Individuals ( Section C )
Practitioners and Organisations ( Section D )
Staff Members ( Section E )

B.2 In addition to any other express or implied consents, by using TrackActive Pro the User accepts and agrees to the terms of:

This Agreement; and
The Privacy Policy.

. Patients & Individuals terms of use

C.1 TrackActive Pro may enable Patients and Individuals to:

Receive Exercise Programmes from Practitioners via email or notification to their mobile device;
Print Programmes,
View Exercises;
Record outcomes related to their condition (Patient Reported Outcome Measures
Log progress and symptoms through Exercise Programmes including: (i) Program Completion; (ii) Symptom levels; and (iii) Difficulty.
Edit the Patient’s EHR; and
Communicate with a Practitioner and its Staff Members.

C.2 The Patient agrees and accepts that:

The Patient uses TrackActive Pro at its own risk. It is the Patient’s responsibility to follow the Exercise Programme prescribed by their Practitioner and correctly perform an Exercise. Subject to any Applicable Consumer Law Rights, any claim based on injury, illness, death or damage to property that results from a Patient or Individual’s use of TrackActive Pro must be directed solely to the relevant Practitioner as the Company has no input or oversight over the Practitioner or the Exercise Programme;
The Patient agrees to compensate the Company in respect of all costs, claims, damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Patient’s inappropriate or unlawful use of TrackActive Pro or any breach of this Agreement;
The Company may share the EHR and other Personal Data or other information of the Individual with any Practitioner authorised by the Patient and/or Individual and otherwise process and retain such personal subject to the terms of the TrackActive Pro Privacy Policy;
The Company may communicate with the Patient and/or Individual by way of emails, text messages, push notifications and other alerts on behalf of Practitioners and their Staff Members subject to the terms of the TrackActive Pro Privacy Policy;
All personal data or other information input to TrackActive Pro about an Individual is provided with that Individual’s consent. Any consent made by a Patient and/or Individual through TrackActive Pro is valid and binding unless and until revoked by the Patient and/or Individual (subject to the terms of the TrackActive Pro Privacy Policy in respect of the consent to process personal data and special category data), and a Practitioner may rely on a consent made through TrackActive Pro without any need to further verify the veracity of that consent;
The Company is a data controller in respect of the Personal Data of an Individual to the extent necessary to provide TrackActive Pro, comply with its obligations in this Agreement and otherwise subject to the terms of the TrackActive Pro Privacy Policy. The Practitioner authorised by the Patient and/or Individual to receive the EHR and other Personal Data and information will be a separate data controller of such personal data in its own right and will have its own privacy policy governing the use of and access to this personal data information and the use of TrackActive Pro by its Staff Members;
TrackActive Pro is hosted using Amazon Web Services operated by Amazon Web Services Inc. on servers located in Australia and the United Kingdom.

Practitioner & Organisation terms of use

D.1 The Practitioner agrees and accepts that:

TrackActive Pro may be hosted in Australia on services such as Amazon Web Services operated by Amazon Web Services Inc.;
It is solely responsible for ensuring that its use of TrackActive Pro and storage of EHRs in TrackActive Pro is compliant with the local laws of the Practitioner and/or the Practitioner’s Patients; and
The Practitioner must ensure that is own privacy policy and other statements about how it handles Patient information are accurate and have been notified to the Patient in respect of the Practitioner’s use of TrackActive Pro.

D.2 TrackActive Pro may enable a Practitioner to:

Access and search a database of Exercises;
Upload Exercises to the database;
Restrict and grant access to the Exercises the Practitioner uploads;
Upload logos and information on their business into TrackActive Pro for use in communications with Patients;
Print information stored in TrackActive Pro;
Send information stored in TrackActive Pro via email or push notification to a Patient’s mobile device using TrackActive Pro;
Prescribe and deliver Exercise Programmes to Patients;
Receive notifications and monitor the progress of Patients throughout the Exercise Programme;
Authorise Staff Members to access and use TrackActive Pro;
Communicate with Patients;
Request Patients to complete outcome measurement surveys.

D.3 The Practitioner agrees and warrants that:

If the Practitioner is an Organisation, it must pay the applicable Fee for all Practitioners in that Organisation that use TrackActive Pro;
It shall not store or record any Health Data that it can access through TrackActive Pro unless it is fully compliant with Data Protection Legislation;
It shall not disclose any information, other than to its authorised Staff Members, about an Individual to any other person or party other than as authorised by the Individual or the Patient;
It shall ensure all personal data or other information it has access to through its use of TrackActive Pro is kept and used in accordance with applicable data and privacy laws in its jurisdiction;
It shall only use TrackActive Pro for its intended purpose as set out in this Agreement;
It shall comply with all anti-SPAM legislation in its jurisdiction;
It grants the Company a royalty free licence to use any logos provided by the Practitioner in any form, media or technology for the purpose of promoting or marketing TrackActive Pro; and
Its licence to use TrackActive Pro, as provided for in the General Conditions, is subject to and conditional upon the payment of all necessary Fees.

D.4 Any person who registers an Organisation in TrackActive Pro warrants he or she is an authorised representative of that Organisation, with the requisite authority to bind the Organisation to this Agreement.

D.5 To the extent permitted by law the Practitioner indemnifies and will hold the Company harmless against all losses, damages, claims, costs and expenses for any:

Penalty or fine imposed upon or action taken against the Practitioner or the Company by any regulatory or governmental authority;
Injury, illness or death caused to a Patient, Individual or Third Party;
Damage to the property of any Patient, Individual or Third Party;
Claim of infringement of intellectual property rights made by a Third Party;
Claim of breach of confidentiality by any Third Party;

as a result of the Practitioner’s use of TrackActive Pro.

Staff member terms of use

E.1 Staff Members agree to use TrackActive Pro in accordance with the rights and obligations of the Organisation that authorises their access with the following exclusions:

(a) A Staff Member may not use TrackActive Pro to:

i Upload Exercises; or

ii. Prescribe Exercise Programmes.

Individual Terms Of Use

F.1 TrackActive Pro can enable an Individual to access information:

Uploaded by the Individual’s Practitioner; or
Uploaded by the Individual.

F.2 If an Individual is a under the age of 18 he or she must obtain consent from their parent or guardian before using TrackActive Pro.

Fees

G.1 The Fees payable for the use of TrackActive Pro are set out on the Pricing page on the Company’s website (trackactive.co) and shall apply at the time of subscribing for the service subject to the terms of payment in relation to those Fees set out in the General Conditions. For those Users on an Annual Plan, the Fees shall be confirmed by email from the Company to the User before invoicing. For those Users on a Monthly Plan, the Fees shall be confirmed on the subscription page of the User’s account.
G.2 Where a Fee is paid for a particular period of access to TrackActive Pro, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using TrackActive Pro within that period.

Electronic transactions

H.1 The User agrees that when it provides any consent, authority or agreement through TrackActive Pro, it warrants that such consent, authority or agreement transaction shall be valid and binding.
H.2 The User agrees that any request for a consent, authority or agreement it sends to other Users through TrackActive Pro shall be sent directly from its email address.

Verification

I.1 The User is solely responsible for verifying the identity of a signatory to any consent, authority or agreement sent or concluded through TrackActive Pro to which it is a party.
I.2 The Company does not guarantee the validity or authenticity of any consent, authority or agreement sent or concluded through TrackActive Pro by any person other than the Company.

J. Term & limitations

J.1 Term.

The duration of this Agreement and the User’s license to access TrackActive Pro shall be on a monthly basis (in respect of Users on monthly payment terms or if the User is a non-paying Patient) (“ Monthly Plan ”) or on an annual basis (if the User is on annual payment terms) (“ Annual Plan ”) subject to termination by the Company or the User in accordance with this Agreement. For Users on a Monthly Plan, the Agreement and licence shall remain in force for at least the first month (“ Initial Term ”) and then automatically renew each month thereafter (“ Renewal Term ”) unless the User fails to pay any Fees and subject to earlier termination in accordance with this Agreement. For Users on an Annual Plan, the Agreement and licence shall remain in force for at least 1 year (“ Initial Term ”) and then renew for each year thereafter (“ Renewal Term ”) if the User actively confirms that it wishes to continue with the Agreement and licence having received a notice of renewal from the Company, subject at all times to earlier termination in accordance with this Agreement.

J.2 Limitations on Use.

The Company may limit or restrict access to TrackActive Pro from time-to time as it sees fit, including (but not limited to):

Entities. The Company may restrict access only to reputable and/or registered Organisations; and
Location. The Company may restrict access to TrackActive Pro to certain jurisdictions where it is able to offer TrackActive Pro.

Registration

K.1 Registration.

The User must register an account in TrackActive Pro to use TrackActive Pro.
The Company may set any registration requirements in its absolute discretion.

Confidential information

L.1 The Company will keep confidential all information that it becomes aware of regarding the User’s:

(a) Health Data;

Personal data and other information;
Business, employees and contractors;

Termination

M.1 This Agreement may be terminated at any time without cause by:

Written notice of one party to the other. Termination shall take effect on the expiry of the Initial Term or, if already expired, any then current Renewal Term, subject to earlier termination in accordance with clause 18 of the General Conditions; or
By cancelling or otherwise terminating the User’s account through TrackActive Pro.

M.2 Deleting TrackActive Pro does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that TrackActive Pro has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
M.3 The User agrees and accepts that deletion of TrackActive Pro may result in loss of data for which the Company is in no way liable.

Disclaimer – third party information & services

N.1 The User acknowledges and agrees that TrackActive Pro:

(a) Is dependent on third-party services, including but not limited to: i. Banks and credit card providers; ii. Telecommunications services; iii. Hosting services; Email services; and Analytics services.

(b) Provides links to third party websites containing (without limitation) Health Data.

N.2 The User agrees that the Company shall not be responsible or liable in any way for:

Interruptions to the availability of TrackActive Pro due to third-party services; or
Information contained on any linked third party website.

General

Governing Law. The laws of England shall apply to this Agreement wherever the User is based (subject to clauses 10 and 11 of the General Conditions in respect of GST, if applicable).
Applicable Courts. The courts of England shall have exclusive jurisdiction in respect of any dispute concerning this Agreement subject to section O3 below.
In respect of Patients only, if the Patient lives in Wales, Scotland or Northern Ireland, the terms of this Agreement can be enforced by the Patient or the Company through the courts in the part of the UK where the Patient lives.

GENERAL CONDITIONS

BACKGROUND

The User wishes to access TrackActive Pro provided by the Company.
The Company licenses use of TrackActive Pro to you on the basis of this Agreement. The Company does not sell TrackActive Pro or its software to you. The Company remains the owner of TrackActive Pro and its software at all times.
The terms and conditions in this Agreement govern the provision of TrackActive Pro to the User by the Company and constitutes a legal agreement between the User and the Company.

INTERPRETATION

The following definitions apply in this document:

(a) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the City of London.
(b) Confidential Information means all information of a confidential nature (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:

All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
The party’s policies and procedures; and
All information contained in this Agreement,

But excludes information that the other party can establish:

Is known by or is in the other party’s possession or control other than through a breach of this Agreement and is not subject to any obligation of confidence; or
Is in the public domain other than by a breach of this Agreement or any obligations of confidence.

(c) Fees mean the fees and charges as set out in the Important Terms.
(d) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

(e) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(f) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) under Australian law.
(g) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(h) Intellectual Property Rights means, for the duration of the rights in any part of the world, any moral rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(i) Health Data has the meaning given to it in the Important Terms.

(j) Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
(k) Invoice means a VAT Invoice, Tax Invoice or automated payment receipt.
(l) Pricing means the pricing as set out on the Pricing page on the Company’s website (trackactive.co) from time to time or as otherwise notified to the User in writing by the Company from time-to-time.
(m) Data Protection Legislation means as defined in the Important Terms.
(n) Solution means the solution described in the Important Terms.
(o) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(p) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) under Australian law.
(q) User Content means data that is uploaded or input into TrackActive Pro by the User or that forms part of the User’s Intellectual Property, but excludes Community Content.
(r) VAT means value added tax or such other replacement or applicable sales tax.
(s) VAT Invoice means an invoice issued for VAT purposes.

2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

The singular includes the plural and the opposite also applies.
If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
A reference to a clause refers to clauses in this Agreement.
A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.
Mentioning anything after includes , including , or similar expressions, does not limit anything else that might be included.
A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted assigns (and, where applicable, the party’s legal personal representatives).
A reference to a person , corporation , trust , partnership , unincorporated body or other entity includes any of them.
A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, personal data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

APPLICATION OF THIS AGREEMENT

3.1 In consideration of the payment of Fees (or the receipt of the benefit of the service in respect of a Patient), the parties hereby agree that this Agreement applies to use of and access to TrackActive Pro.
3.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using TrackActive Pro.
3.3 This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of TrackActive Pro at the User’s next login after the User receives written notice of the update(s).

THE TRACKACTIVE PRODUCT

4.1 TrackActive Pro is the product described in the Introduction and those Important Terms which set out how TrackActive Pro enables and allows certain functionality (see sections C1, D1 and F1 of the Important Terms (the “ Specification ”). The Company warrants that TrackActive Pro will endeavour to make available TrackActive Pro in broad compliance and in all material respects with the Specification subject to the other relevant terms of this Agreement (“ Specification Warranty ”). In all other respects, TrackActive Pro is provided “as is” and without any warranty or other assurance, express or implied.
4.2 TrackActive Pro is only accessible to the User for the term set out in the Important Terms.
4.3 The User agrees and accepts that TrackActive Pro is:

Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to TrackActive Pro is available to the User unless expressly agreed in writing.

4.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter TrackActive Pro.
4.5 The Company shall not exercise its rights under clause 4.4 above in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of TrackActive Pro to the User, other than in accordance with the terms of this Agreement.

LICENSE

5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive, personal, non-transferable and revocable licence to access and use TrackActive Pro for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 The Company may issue the license to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.3 The Company may revoke or suspend the User’s license(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.

6.1 The User agrees that it shall only use TrackActive Pro for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
6.2 In particular, and without limiting the foregoing, the User shall not use TrackActive Pro to:

distribute or transmit to the Company any viruses or vulnerability and shall implement procedures in line with good industry practice to prevent such distribution or transmission;
store, access, publish, disseminate, distribute or transmit any material which is any of the following: unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or otherwise illegal or causes damage or injury to any person or property.

6.3 The Company only supplies TrackActive Pro for the internal use by Practitioners for their business or for the personal use of Patients, and all Users agree not to use TrackActive Pro for any resale purposes.

AUTHORISED USERS

7.1 The User shall authorise users to access TrackActive Pro in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
7.2 The User is solely responsible for the security of its username and password for access to TrackActive Pro.
7.3 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its TrackActive Pro account.

CUSTOMER DATA & COMMUNITY

8.1 Customer Data

The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
Despite clause 1 of the General Conditions, the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11 of the General Conditions.
The Company shall not access, use, modify or otherwise deal with User Content except where required by law or upon the User’s authority (such as to provide support for TrackActive Pro).

8.2 Community Content

(a) Where a User submits any Community Content, the User agrees to the following conditions:

The User has all necessary rights to upload the Community Content;
The User has all necessary consents, waivers and/or releases from any person featured in the Community Content; and
The Community Content does not infringe any third party Intellectual Property Rights.

Unless agreed otherwise in writing by the parties, the User grants the Company an irrevocable, perpetual, royalty-free, worldwide, assignable and sub-licensable license to use the Community Content within TrackActive Pro.
The User agrees:

To follow all reasonable guidelines set by the Company from time-to-time as to the format and inclusions of any Community Content;
The Company may approve, reject, edit, maintain, delete or otherwise deal with the Community Content as it sees fit, subject to the terms of this Agreement.

PRIVACY

The Company maintains the Privacy Policy in compliance with the provisions of the Data Protection Legislation for personal data that it collects about the User and other customers.
The Company’s Privacy Policy does not apply to how the Organisation handles personal data. It is the Organisation’s responsibility to meet the obligations of the Data Protection Legislation (or other applicable privacy laws) by implementing a privacy policy in accordance with law.
The Company makes no warranty or other assurance as to the suitability of TrackActive Pro in regards to the Organisation’s data protection or privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether TrackActive Pro is appropriate for the Organisation’s circumstances.

FEES

The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
The Company shall maintain all Fees for the Initial Term or any Renewal Term of the licence.
The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the Initial Term or any Renewal Term of the User’s licence.
The Company may revoke or suspend the User’s license to access TrackActive Pro for unpaid Fees without liability.
Where the Company:

Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
Is subject to delays caused by changes or complexities outside of its control including force majeure (and not caused by its breach of this Agreement); then

The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.

All transactions are processed in either UK pounds sterling or Australian dollars, depending on the Fee terms agreed in writing, and conversion rates may apply for foreign currencies.
VAT is applicable to any Fees charged by the Company to Users within the UK. Unless expressed otherwise, all Fees shall be deemed exclusive of VAT. The Company will provide the User with a VAT Invoice for its payment if the User is paying by annual subscription while Users paying by monthly subscription will receive an automated payment receipt.
GST is applicable to any Fees charged by the Company to Users within Australia depending on the GST rules from time to time. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment if the User is paying by annual subscription while Users paying by monthly subscription will receive an automated payment receipt.
For Users not in the UK or Australia, VAT is applicable to any Fees charged by the Company to such Users depending on the VAT rules from time to time. Unless expressed otherwise, all Fees shall be deemed exclusive of VAT. The Company will provide the User with a VAT Invoice for its payment if the User is paying by annual subscription while Users paying by monthly subscription will receive an automated payment receipt.
No refunds of Fees are offered other than as specified in this Agreement or as required by law.

INVOICING & PAYMENTS

The Company shall issue the User with:

a VAT Invoice (or automated payment receipt) for all Fees for which VAT applies; or
a Tax Invoice (or automated payment receipt) for all Fees for which GST applies.

The terms of payment set out in the Fees shall apply.
Should the User dispute an Invoice, the User must notify the Company of the disputed item within 5 Business Days of the date of the Invoice. The User must pay the amount of the Invoice not in dispute within the prescribed payment period.
Overdue Invoices shall accrue interest each day at the rate of 1.5% per month (compounded monthly) on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
The User authorises the Company to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.

DATA

Security. The Company takes the security of TrackActive Pro and of its users very seriously. The User agrees that the User shall not do anything to prejudice the security of the Company’s systems or the information on them.
Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
Storage. The Company may limit the amount of data that the User stores in TrackActive Pro, and shall advise the User of such. Data that is stored with TrackActive Pro shall be stored according to accepted industry standards.
Backup. The Company shall perform backups of TrackActive Pro in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant or give any other assurance that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.

ACCESS

By accepting the terms of this Agreement the User agrees that the

Company shall provide access to TrackActive Pro according to good industry practice, however:

Access to TrackActive Pro may be prevented or delayed in performing its obligations in this Agreement by issues outside of its control including force majeure; and
It accepts no responsibility for ongoing access to TrackActive Pro.

13.2 Users should prepare for unscheduled unavailability of TrackActive Pro by:

Keeping their TrackActive Pro mobile app up to date, which will store local copies of the data; and
Printing hard copies of reports.

INTELLECTUAL PROPERTY

14.1 Trademarks. The Company has moral, unregistered & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
14.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such software and other proprietary systems is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe any third-party rights through the use of TrackActive Pro.
14.3 The TrackActive Pro Application. The User agrees and accepts that TrackActive Pro is the exclusive property and Intellectual Property of the Company and the User further warrants and undertakes that by using TrackActive Pro the User will:

Not copy TrackActive Pro or the services that it provides for the User’s own or any third party’s commercial purposes;
Not directly or indirectly copy, recreate, decompile, reverse engineer, create derivative works or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in TrackActive Pro or any documentation associated with it;
Not rent, lease, sub-license, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of TrackActive Pro or any documentation associated with it nor permit the software or any part of it to be combined with, or become incorporated in, any other programs;
Not provide, or otherwise make available, TrackActive Pro 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 without prior written consent from the Company;
Comply with all applicable technology control or export laws and regulations.

14.4 Content. All content (with the exception of User Content) remains the exclusive Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to TrackActive Pro.
14.5 The User acknowledges and agrees that:

it has no right to have access to the TrackActice Pro software in source code form other than as expressly provided in this Agreement;
TrackActive Pro has not been developed to meet the User’s individual requirements, and that it is therefore the User’s responsibility to ensure that the facilities and functions of the software meets the User’s requirements.

CONFIDENTIALITY

15.1 The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
15.2 Each party acknowledges and agrees that:

The Confidential Information is secret, confidential and valuable to the disclosing party ( Discloser );
It owes an obligation of confidence to the Discloser concerning the Confidential Information;
It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

15.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

Any actual, suspected, likely or threatened breach by it of clause 15.2 above;
Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

15.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

Any actual, suspected, likely or threatened breach of a term of this Agreement; or
Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

LIABILITY & INDEMNITY

The User agrees that it uses TrackActive Pro at its own risk.
The User acknowledges that neither the Company nor TrackActive Pro provides medical advice, nor does the Company hold itself out to provide medical advice through TrackActive Pro or otherwise.
The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
Subject to any Applicable Consumer Law Rights, the User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.
The Practitioner accepts responsibility for the selection of TrackActive Pro to achieve its intended results and acknowledges that TrackActive Pro has not been developed or designed to meet or support any individual requirements of the Practitioner, including any particular cybersecurity requirements the Practitioner might be subject to, or any regulated activity that the Practitioner may be engaged in, including the provision of an online intermediation service, an online search engine or service that facilitates online interaction between Users (such as, but not limited to, a social media platform) (each a Regulated Activity). If the Practitioner uses TrackActive Pro for any Regulated Activity the Practitioner agrees to comply with any requirements that apply to such Regulated Activity from time to time (including in any jurisdiction in which the Practitioner operates or where the Regulated Activity is undertaken). The Practitioner agrees to indemnify the Company for any loss, damage, cost or expense (including regulatory fines or penalties and legal fees) that the Company may suffer or incur as a result of or in connection with the Practitioner’s breach of this clause or any other terms of this Agreement or other use of or conduct in connection with TrackActive Pro.
Subject to any Applicable Consumer Law Rights, a Patient agrees to compensate the Company in respect of all loss, damage, cost or expense that the Company may suffer or incur as a result or in connection with the Patient’s misuse or misconduct in connection with TrackActive Pro, including any breach by the Patient of this Agreement.
Nothing in these terms shall limit or exclude the Company’s liability for:

death or personal injury caused by the Company’s negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
any matter in respect of which it would be unlawful for the Company to exclude or restrict liability, including any Applicable Consumer Law Rights.

In no circumstances will the Company be liable for any incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use TrackActive Pro or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal basis, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
Subject to clauses 16.7 and 16.8 of these General Conditions, the Company’s total liability for any loss or damage to a Practitioner arising under or in connection with this Agreement, or any contract between the parties, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to a sum equivalent to the Fees paid by the Practitioner to the Company during the 12 month period prior to the event giving rise to the claim (the “ primary cap ”) which in any event shall be no higher than the “ overall cap ” (defined below). In the event of a claim within the first 12 months of this Agreement, the Fees paid by the Practitioner to the Company under any previous agreement or agreements between the parties in respect of the provision of TrackActive Pro shall be taken into account for the purposes of determining the primary cap (subject also to the overall cap), and if no such agreement or agreements exist which cumulatively cover the relevant 12 month period (or if no fees have been paid by the Practitioner to the Company during the relevant 12 month period), the primary cap shall be fixed at the level of the overall cap. The overall cap on liability for the purposes of this clause 16 shall be two thousand five hundred pounds (£2,500).
Subject to clauses 16.7 and 16.8 of these General Conditions, the Company’s liability for any loss or damage caused to a Patient arising under or in connection with this Agreement, or any contract between the parties, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited as follows: the Company is not liable unless Applicable Consumer Law Rights arise and the Company is demonstrably responsible for losses the Patient suffers caused by the Company breaching this Agreement. In particular, and without limiting the foregoing, the Company is not liable to a Patient in any of the following circumstances:

The loss or damage was unexpected, unforeseeable or was not obvious;
The loss or damage was caused by an event outside the Company’s control;
The loss or damage was avoidable and could have been avoided by the Patient taking reasonable action;
The loss or damage was a business loss that the Patient suffered in connection with its trade, business, craft or profession;
If, and to the extent that, the loss or damage exceeds the sum of one thousand pounds (£1,000), subject to any Applicable Consumer Law Rights.

Applicable Consumer Law Rights : Certain duties of care falling on the Company (including under the Online Safety Act 2023) and other statutory and other legal rights and remedies may be available to Patients (including under the UK’s Consumer Rights Act 2015) and may not be permitted to be excluded, restricted or modified. Apart from those rights and remedies that cannot be excluded or limited by law, the Company excludes all conditions, warranties or other terms that may be implied by law.
Remedies for Company’s breach : To the extent permitted by law, the Company’s liability to (i) Practitioners for breach of the Specification Warranty (at clause 4.1 of the General Conditions) or (ii) to Patients for breach of any implied term that cannot be excluded by law is in both cases restricted, at the Company’s option, to the replacement or repair of those faulty elements of TrackActive Pro or payment of the cost of replacement or repair up the applicable financial limit of liability set out in clause 16.9 or 16.10 of these General Conditions.
To the extent permitted by law, the Company’s liability to Patients for breach of the Specification Warranty (at clause 4.1 of these General Conditions) is excluded, save that at the Company’s discretion the Company may (but is not obliged to) replace or repair of those faulty elements of TrackActive Pro or pay for the cost of replacement or repair up the applicable financial limit of liability set out in clause 16.9 or 16.10 of these General Conditions.
For the purposes of all of clause 16 (Liability & Indemnity), all references to “Practitioners” shall include “Organisations” and if applicable “Staff Members”; and all references to “Patients” shall include “Individuals”.

BREACH

17.1 Where a party is in breach of this Agreement, the other party may issue a written notice ( Breach Notice ) requiring the party in breach that must set out:

The nature of the breach;
The provisions of the Agreement that are alleged to have been breached;
A reasonable timeframe to remedy the breach in no less than 10 Business Days; and
The action required to remedy the breach.

17.2 Where a party issues a compliant Breach Notice in accordance with clause 17.1 above, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:

The steps taken to remedy the breach; or
Why the party believes it is not in breach as put forward in the Breach Notice,
Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.

17.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement ( Material Breach ).

TERMINATION

18.1 Breach. Where a party is in Material Breach of this Agreement which it not remedied (if remediable) within 10 Business Days of the service of written notice requiring such remediation, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
18.2 Insolvency. Either party may terminate this Agreement immediately by notice, if:

the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 OR (being an individual) is deemed either unable to pay their debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
the other party (being an individual) is the subject of a bankruptcy petition, application or order;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 18.2(a) to (i) above (inclusive);
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

18.3 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
18.4 The rights and obligations under the relevant provisions of clauses 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20 and 21 of these General Conditions survive termination of this Agreement.
18.5 Any revocation or suspension of the licence to use TrackActive Pro by the Company pursuant to the terms of this Agreement shall entitle the Company to terminate the licence and this Agreement with immediate effect by written notice to the User.

DISPUTES

19.1 All disputes shall be handled in accordance with the Company’s dispute resolution policy.
19.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:

Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1 above, the parties may agree in writing, but are not obliged to agree, to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (a) and if applicable clause (b) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

FORCE MAJEURE

20.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:

Specify the obligations and the extent to which it cannot perform those obligations;
Fully describe the event of Force Majeure;
Estimate the time during which the Force Majeure will continue; and
Specify the measures proposed to be adopted to remedy or abate the Force Majeure.

20.2 Following a notice of Force Majeure in accordance with clause 20.1 above and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
20.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
20.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
20.5 The term of this Agreement will not be extended by the period of Force Majeure.

ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT

21.1 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
21.2 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
21.3 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
21.4 Notices must be sent to the parties’ most recent known contact details.
21.5 The User may not assign or otherwise create an interest in this Agreement.
21.6 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.

22. GENERAL

22.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
22.2 Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
22.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
22.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
22.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
22.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
22.7 Governing Law. This Agreement is governed by the laws of the country set out in section O of the Important Terms. Each of the parties hereby submits to the jurisdiction of the courts set out in section O of the Important Terms.
22.8 Severability. If any clause, term or section or part-clause, part-term or part-section of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted to the extent of such invalidity, illegality or unenforceability without affecting the remaining clauses and sections of this Agreement which shall remain valid and enforceable.
22.9 Group. In the event of any breach of this Agreement by the User which results in any loss, damage, costs or expense (“Loss”) being suffered by an Affiliate, that Loss will be treated as if it had been suffered by the Company, and the Company will be able to recover any such Loss from the User, and/or the Company shall be permitted to assign its cause of action to the relevant Affiliate.

Active Health Tech Ltd

T&Cs version March 2025