Terms of Use

Last updated June 14, 2024

This website ("Website") and its associated services are provided to you ("You") by ELB Software LTD. ("MetricUX"), conditional upon your acceptance of the terms and conditions set forth below.

ACCEPTANCE

PLEASE CAREFULLY REVIEW THESE TERMS OF USE. BY USING THIS SYSTEM, YOU ARE AGREEING TO THESE TERMS AND CONDITIONS, INCLUDING ANY CHANGES MADE IN THE FUTURE. IF YOU DO NOT ACCEPT ANY OF THE TERMS AND CONDITIONS, YOU SHOULD STOP USING THIS WEBSITE IMMEDIATELY.

DEFINITIONS

“Aggregated Data” has the meaning ascribed to it in Section 3(b).

"Authentication ID" refers to a security method by which you verify your identity to the MetricUX Platform and thereby obtain access to it. This method may encompass usernames, passwords, digital certificates, or any other comparable procedure for authentication and identification as periodically specified by MetricUX.

"MetricUX Coaches" denotes the persons who occasionally design training programs for the MetricUX Platform.

"MetricUX Platform" refers to the assessment methodology utilised by MetricUX:

(i) to aid fitness and strength athletes in creating workouts, planning training sessions, and evaluating performance;

(ii) to compute essential metrics for tracking progression and performance across various categories;

(iii) to examine critical metrics that contribute to enhanced overall performance and to draw conclusions about training variables that lead to positive results; and

(iv) to analyse any additional metrics as decided solely by MetricUX.

"MetricUX Server" refers to the computer server situated at MetricUX’s location or at a third-party provider of hosting and/or network services, which hosts the Software.

“Personal Information” means any information relating to an identified or identifiable individual that is protected under the Data Protection Act 2018 of the United Kingdom, including any amendments thereto, or any further privacy and health information protection legislation. This encompasses any data where the identity of an individual can be directly or indirectly determined from that data alone or in conjunction with any other information likely to come into the possession of MetricUX.

"Proprietary Material" refers to the System encompassing, but not limited to, the Software, the training programs developed by the MetricUX Coaches, the content, metadata, design, organisation, compilation, appearance, the fitness plans, programs, and all other protectable intellectual property accessible via the System.

"Software" refers to the application computer software in object code format, employed by MetricUX to automate the MetricUX Platform and deliver the services contained within.

"System" collectively describes this Website, the MetricUX Platform, the Software, the MetricUX Server, and the devices and peripherals physically present within the MetricUX Server, encompassing all computer hardware, software, network elements, and electrical and telecommunications infrastructure.

“Your Data” refers to any and all data, including photographs, videos, comments, graphics, text, files, documentation or other information that You may upload, either directly or indirectly, to the System.

DATA AND PRIVACY

(a) Your Data and Privacy Policy: You acknowledge and agree that during your use of the System, MetricUX will gather, process, accumulate and store information about you and your use of the System. This information consists of your Data and may include personal information. MetricUX will keep such information strictly confidential and will only use it in accordance with MetricUX’s Privacy Policy, which is incorporated herein by reference.

(b) Aggregated Data: You acknowledge and agree that MetricUX is authorised to:

(i) use Your Data, only anonymously and without any identifying information (such anonymous data referred to as the “Aggregated Data“), for compiling and analysing trends, statistics, metrics and other information without any link or identifiable reference to you or your data; and

(ii) share its analyses with scientific journals, consultants, representatives, third-party advertisers, MetricUX Coaches, other users, conference attendees, workshop or seminar participants, and any other individuals, organisations, or associations, at MetricUX’s sole discretion.

(c) Promotional Consent: In addition to the uses of your Data authorised under these Terms of Use, if you consent to distribute Your Data by selecting any “Share” feature, you hereby agree to any modifications or adjustments required to render Your Data shareable (in the form of a link) to third parties, including social media platforms and websites. You acknowledge that MetricUX is not liable for the management or security of such links once shared.

THE SYSTEM

(a) System Availability and Maintenance: MetricUX will manage and upkeep the System as per these Terms of Use.

(b) Security Requirements: MetricUX will establish and uphold the safeguards and controls it considers necessary and commercially reasonable to deter, detect, prevent, and correct any unauthorised intrusion, access, or use of the System and Your Data. You acknowledge and agree that despite MetricUX’s safeguards, these methods and procedures may not fully prevent unauthorised electronic intruders from accessing the System via the internet or other forms of electronic communication. If unauthorised electronic intruders manage to bypass MetricUX’s security protocols and safeguards, they may alter, delete, or otherwise corrupt the contents and data on the MetricUX Server, including Your Data. Aside from maintaining appropriate safeguards designed to prevent access by unauthorised electronic intruders, MetricUX shall not be liable to You and disclaims responsibility for any actions, destructive or otherwise, taken by such unauthorised electronic intruders.

(c) Maintenance: Occasionally, MetricUX will be required to perform maintenance on the System to ensure the proper operation of our services. This includes routine maintenance to ensure the continuous provision of services, as well as upgrading, updating, or enhancing the System. MetricUX will use its commercially reasonable efforts to conduct such maintenance at times that minimise any impact on System downtime for You.

(d) Changes: MetricUX reserves the right to, at any time and with or without prior notice to You:

(i) implement changes required to adhere to applicable safety, security, or other statutory regulations or governmental orders;

(ii) update or modify its user documentation, operational rules, access procedures, and security and privacy policies; and

(iii) alter the components, type, and location of the System.

(e) Authentication IDs: You are responsible for controlling and maintaining the security of Your Authentication ID. You are responsible for quickly reporting to MetricUX any errors or inconsistencies in the operation of the System or any unauthorised use of any part thereof and inform MetricUX immediately if Your Authentication ID becomes known to any third party who is not authorised to possess such information. You agree to indemnify and hold MetricUX harmless from any actions, claims, suits, proceedings, or damages brought against MetricUX by a third party due to the use of Your Authentication ID, regardless of whether such use is authorised by You.

(f) Your Data: You acknowledge and agree that MetricUX:

(i) is not responsible for the accuracy, completeness, or adequacy of any of Your Data or the results generated from any of Your Data uploaded to the System and processed by the Software;

(ii) has no control over any of Your Data or the results derived from it;

(iii) does not monitor Your Data;

(iv) is not responsible for backing up or maintaining any backup of Your Data or any portion thereof; and

(v) You are not entitled to any compensation or other payment in connection with Your Data.

USE OF SERVICES

(a) Under the terms and conditions of these Terms of Use, and for as long as you continue to use the System, but subject to MetricUX’s right to terminate, MetricUX grants you a non-exclusive, non-transferable, revocable right to access the System in accordance with the security protocols outlined herein. This access is for the purposes of: (i) using the Software; and (ii) uploading, processing, viewing, displaying, using, and downloading Your Data to and from the MetricUX Platform.

(b) Any rights not expressly granted herein are strictly reserved by MetricUX.

You shall not:

(i) permit any third party to use the System,

(ii) re-license or lease, sublicense, loan or otherwise distribute the System to any third party; and

(iii) process or allow the processing of data from any other party. You shall not, nor permit others to, reverse engineer, decompile, disassemble, or translate the Software or any other software used by MetricUX to provide the System. Furthermore, you must not attempt to view, display, or print such software, including its source code.

(c) MetricUX reserves the right to monitor and audit your usage of the System to ensure compliance with these Terms of Use. Any such audit may be conducted by MetricUX or a third party authorised by MetricUX, at MetricUX’s expense. In the event of unauthorised use of the System, whether by you or another person, MetricUX reserves the right to deny access to the MetricUX Platform and/or the Software. This may include blocking or suspending, without prior notification, the IP address(es) used to access the MetricUX Platform and/or Software by you or the other person.

YOUR OBLIGATIONS

(a) Grant by You: You hereby grant MetricUX a royalty-free, non-exclusive, fully paid, worldwide, transferable right and licence to use, copy, adapt, reproduce, modify, distribute, store, and display Your Data for the following purposes:

(i) To allow MetricUX to perform the services under these Terms of Use;

(ii) To allow MetricUX to create and prepare derivative works, or incorporate into other works such data and information; and

(iii) to anonymize Your Data for the purpose of generating Aggregated Data.

(b) Your Responsibilities: In addition to your other obligations outlined in these Terms of Use, you agree to:

(i) Ensure the procurement, installation, operation, support, and maintenance of your systems, including necessary computer hardware, software (including browsers), required to access the System;

(ii) Procure and maintain communication services, including high-speed internet connections, between your systems and the System;

(iii) Safeguard your Authentication ID;

(iv) Maintain the accuracy, completeness, and adequacy of all Your Data; manage, manipulate, and process Your Data; and ensure the backup and maintenance of Your Data;

(v) Use the System in accordance with the terms specified in these Terms of Use;

(vi) Always comply with applicable legal and regulatory requirements, as well as MetricUX’s conduct and security policies concerning the use of the System.

(i) using the MetricUX Platform for improper or unlawful purposes;

(ii) including, or knowingly allowing others to include, any objectionable content or introducing viruses to the System. You must implement necessary security procedures and safeguards to prevent the posting, uploading, or inclusion of objectionable content or viruses to the System. For the purposes of this Section, "objectionable content" refers to content that violates applicable laws, regulations, or third-party rights, as well as content that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, likely to incite racial hatred, menacing, blasphemous, misleading, deceptive, or in breach of any person’s intellectual property rights.

(iii) Intercept or attempt to intercept any messages or information transmitted to or from the System that are not specifically intended for you.

(iv) impersonate any person or entity, including another user, coach, employee, volunteer, or representative of MetricUX, or falsely state or misrepresent your affiliation with any person or entity.

(v) take any action that imposes an unreasonable or disproportionately large load on the System;

(vi) use the Software to develop any derivative works or any functionally compatible or competitive to the Software;

(vii) copy, reproduce, sell, publish, distribute, display, retransmit or otherwise provide access to the Proprietary Materials to a third party without authorization from MetricUX;

(viii) rearrange, modify or create derivative works using the Proprietary Materials;

(ix) copy or download the Software or any other software used by MetricUX to provide the services and which is contained within the System; or

(x) remove any copyright or other proprietary rights on the System or make or attempt to make copies of the System.

(d) Viruses: If MetricUX determines, at its sole discretion, that any of Your Data or other information or files uploaded by you contain or include a virus, MetricUX reserves the right to remove Your Data, information, or file from the System. MetricUX may also take additional actions deemed necessary to safeguard the integrity and operation of the services, MetricUX Platform, and Software. Any costs incurred for such removal may be charged to you by MetricUX. MetricUX will notify you promptly of any actions taken under this Section.

ACKNOWLEDGEMENTS

You hereby acknowledge that:

(a) You are in good physical and mental health;

(b) The information and content provided by the System are meant to support your fitness endeavours and performance, and are being provided solely for educational purposes.

(d) MetricUX is not a medical organisation, hospital, or staffed by medical professionals. The information provided on the System, including that attributed to MetricUX Coaches, is not a replacement for medical or professional advice.

(e) You will not begin or continue a programme or workout if a medical professional advises You against it;

(f) The MetricUX Coaches and MetricUX’s coaches, volunteers, employees, staff and representatives cannot be held liable for their statements, advice or opinions that are provided to You, even in the case of gross negligence;

(g) In no event will MetricUX be liable if You arrange to meet other MetricUX users in an offline environment; and

(h) STRENGTH SPORTS ARE dangerous and may lead to serious injury and death. By using the MetricUX Platform you are electing to do so at your own risk.

FEES AND PAYMENT

(a) General: Users of the System could include unregistered visitors, trial users, or paying subscribers. Additional terms and conditions specific to each type of user may be periodically published on the Website and are hereby included by reference.

(b) Paid Subscriptions: You may choose to access the MetricUX Platform by registering for a coach subscription (a “Paid Subscription”). Additional terms and conditions relating to each Paid Subscription, including periodic fees and payment options, are more particularly described on the Website.

By registering for and maintaining a Paid Subscription, you agree to the following terms:

(i) You agree to provide MetricUX with your chosen payment method ("Payment Method").

(ii) You confirm that the information regarding your Payment Method is accurate and current at all times.

(iii) You authorise MetricUX to charge the applicable fees for your Paid Subscription to your Payment Method on each billing date.

(iv) You authorise MetricUX to charge any additional purchases made on the platform to your Payment Method.

(v) You agree that all fees for a Paid Subscription are due in advance and will be automatically billed to your Payment Method at the start of each Auto-Renew Date as defined below.

(vi) You acknowledge that all payments to MetricUX are final and non-refundable.

(vii) You acknowledge that you may cancel your Paid Subscription at any time, but MetricUX will not refund any fees already paid under this agreement.

(viii) You acknowledge that the terms and conditions of your Paid Subscription are subject to change without prior notice.

(c) Free Trial: You can opt to use the MetricUX Platform for a limited period by signing up for a free trial ("Free Trial"). By registering for a Free Trial, you agree to settle any applicable fees or charges associated with the Free Trial. The duration of the Free Trial varies based on specific factors outlined on the Website.

TERMINATION

(a) MetricUX's Right to Terminate for Cause: Subject to Subsections 10(d) and 10(e), MetricUX reserves the right to terminate these Terms of Use, your access to the System, and the rights granted hereunder, without prejudice to the enforcement of any other legal rights or remedies, upon providing written notice of termination if you:

(i) fail to pay any amount owed to MetricUX in full by the due date, and this failure persists for seven (7) calendar days after MetricUX delivers a written notice requesting correction of the failure.

(ii) infringe the intellectual property rights associated with the Proprietary Material asserted by MetricUX or any of its licensors; or

(iii) violate any other significant provision of these Terms of Use, and this violation persists for a period of ten (7) calendar days after MetricUX delivers a written notice requiring you to remedy the breach.

(b) Right to Terminate at Will: Subject to Sections 10(d) and 10(e), MetricUX reserves the right to terminate these Terms of Use at any time and for any reason by giving you at least fifteen (15) calendar days' notice. Such notice may be provided through notification on the System.

(c) Waiver: MetricUX's waiver of a breach or default of any provision of these Terms of Use by you shall not be effective unless in writing and shall not be interpreted as a waiver of any subsequent breach of the same provision or any other provision.

(d) Effect of Termination: Upon the termination of these Terms of Use for any reason:

(i) MetricUX will terminate and invalidate any Authentication IDs associated with you.

(ii) You must pay MetricUX the full amount of all fees owed under this agreement as of the termination date, if applicable, and any other amounts owed to MetricUX under this agreement.

(iii) Upon termination, you acknowledge and agree that you may lose access to your data, and MetricUX may continue to use such information in accordance with the terms of these Terms of Use.

(e) Survival of Agreements: Despite the termination or expiration of these Terms of Use for any reason, your representations and commitments to MetricUX outlined in these Terms of Use will remain in effect for a period of five (5) years.

OWNERSHIP

(a) MetricUX’s Ownership: You acknowledge and agree that, between you and MetricUX, MetricUX (or its licensors, where applicable) owns all global rights, title, and interest, including all intellectual property rights, in and to:

(i) the MetricUX Platform;

(ii) the Software;

(iii) this Website;

(iv) the Aggregated Data;

(v) the Proprietary Material; and

(vi) any modifications, enhancements, upgrades, updates, or customizations to any of the above. You do not acquire any rights, title, or ownership interests of any kind whatsoever, whether expressed or implied, in any of the foregoing except for the licences granted herein.

(b) Your Ownership: MetricUX acknowledges and agrees that all global rights, title, and interest, including all intellectual property rights, in and to Your Data shall be exclusively owned by you. MetricUX does not acquire any rights, title, or ownership interest of any kind whatsoever, whether expressed or implied, in any of Your Data, except for the licence granted herein.

CONFIDENTIALITY

(a) Definition: “Confidential Information” refers to the Software, Your Data, the MetricUX Platform, the Proprietary Material, and any other information shared between the parties that the receiving party recognizes, or should reasonably recognize, as confidential in nature, regardless of whether it is explicitly labelled as such by the disclosing party. However, Confidential Information does not include any data or information that:

(i) is publicly available at the time of disclosure or becomes publicly available after disclosure through no fault of the receiving party;

(ii) was already in the receiving party's possession before disclosure, as shown by written records kept in the ordinary course of business or proven by prior actual use;

(iii) is independently developed by the receiving party without any direct or indirect access to the disclosing party’s Confidential Information, provided that the receiving party can demonstrate such independent development with clear and convincing evidence;

(iv) is received from a third party who:

(A) lawfully possesses such information;

(B) is not violating any contractual, legal, or fiduciary obligations to either party concerning such information; and

(v) is further disclosed with the prior written consent of the disclosing party, but only to the extent permitted by such consent.

(b) Obligation: Each Party recognizes that all Confidential Information is confidential and proprietary to the disclosing Party. Each Party must, and must ensure that its employees, agents, and contractors, keep the other Party’s Confidential Information confidential. This should be done with at least the same level of care that the receiving Party uses to protect its own Confidential Information, but with no less than a reasonable degree of care appropriate to the nature and importance of the Confidential Information. Each Party agrees to use Confidential Information solely for exercising rights or fulfilling obligations under this Agreement and not to release, disclose, communicate, or make it available to any third party, except for employees, agents, and contractors who reasonably need to know it for the same purposes.

If any Party is required to disclose any or all parts of the Confidential Information due to a valid and effective order from a court of competent jurisdiction or a governmental authority, that Party agrees to:

(i) immediately notify the other Party about the request, including its existence, terms, and the circumstances surrounding it;

(ii) consult with the other Party on whether it is advisable to take legally available steps to resist or narrow the request; and

(iii) if disclosure of such Confidential Information is necessary, make commercially reasonable efforts to obtain an order or other reliable assurance that the disclosed Confidential Information will receive confidential treatment as designated by the other Party.

(d) Injunctive Relief: Each Party acknowledges and agrees that any unauthorised use or disclosure of the other Party’s Confidential Information will cause irreparable harm to the disclosing Party, for which monetary damages would be an inadequate remedy and difficult to quantify. Therefore, the receiving Party agrees that the disclosing Party shall be entitled to seek temporary and permanent injunctive relief to prevent any unauthorised disclosure or use of its Confidential Information.

DISCLAIMER, INDEMNITY AND LIABILITY

There are no express or implied warranties or conditions regarding the System, including but not limited to implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement. There is no guarantee that the System will meet Your needs, be available at any specific time, or be error-free. MetricUX will not be liable for any outcomes resulting from Your use or misuse of the System, including the MetricUX Platform. The System is provided by MetricUX on an "AS IS" basis, without any warranty of any kind. MetricUX does not guarantee that using the MetricUX Platform will improve performance or fitness. Your use of the System, including the MetricUX Platform, is entirely at Your own risk.

(b) Indemnity

You agree to defend, at Your own expense, any third-party claim brought against MetricUX, the MetricUX Coaches, their affiliates, directors, officers, employees, and agents, to the extent that such a claim:

(i) alleges, directly or indirectly, that any of Your Data infringes any copyright, patent, or registered trademark of a third party;

(ii) alleges, directly or indirectly, that Your Data contains any Objectionable Content; or

(iii) relates to Your use of the MetricUX Platform.

(c) Consequential and Other Damages: Subject to Section 13(e), neither Party shall be liable to the other for any consequential, incidental, exemplary, or punitive damages, even if advised in advance of the possibility of such damages (in any event). Additionally, MetricUX and the MetricUX Coaches shall not be liable to You for any lost revenue, lost profit, lost savings, or any failure to achieve improvements in the management of Your building, including economic or environmental sustainability objectives.

Subject to Section 13(e), for any claim, demand, or action by You against MetricUX, the MetricUX Coaches, or any of their affiliates, directors, officers, employees, or agents—whether based on contract, tort (including negligence), or otherwise, including a breach by MetricUX of any of its obligations under these Terms of Use (whether or not a fundamental breach)—Your sole and exclusive remedy shall be to receive payment from MetricUX for actual and direct damages, with a maximum aggregate amount equal to the lesser of:

(i) the amount paid by You to MetricUX in the twelve (12) months preceding the event; or

(ii) two thousand five hundred pounds (£2,000).

(e) Exceptions to Limitations

Without being opposed or prevented by Sections 13(c) and 13(d), neither Party excludes or limits any liability for:

(i) fraud, fraudulent misrepresentation, or fraudulent concealment;

(ii) Your obligations set out in Section 12; or

(iii) Your payment obligations contained in this circumstance.

FORCE MAJEURE

Except for any obligation to make payments, any postponement or failure of either Party to perform its obligations under these Terms of Use shall be pardoned if, and to the extent, that the delay or failure is caused by an event or occurrence beyond the reasonable control of the Party and without its fault or neglect. Examples include, but are not limited to, acts of God, governmental actions (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, terrorist acts, sabotage, labour problems (including lock-outs, strikes, and slowdowns, except for any labour problems of the Party claiming a force majeure event), or court orders or injunctions. The affected Party must provide written notice of the delay, including its anticipated duration, to the other Party within ten (10) calendar days of first becoming aware of the event. If requested by the unaffected Party, the affected Party shall, within five (5) calendar days of the request, provide adequate assurances that the delay will not exceed fifteen (15) calendar days. If the force majeure event lasts for thirty (30) calendar days or longer, either Party may terminate this Agreement upon written notice to the other Party without liability.

THIRD PARTY WEBSITES

The System may link to or promote websites or services from other companies or offer You the ability to download software from third parties. You agree that MetricUX is not responsible for and does not control these external websites. MetricUX encourages You to be mindful of this when You leave the System and to read the legal notices and privacy policies of every website You visit. Your use of any third-party website will be governed by that third party's terms of use and privacy policy.

GOVERNING LAW

These Terms of Use constitute the complete and final agreement between MetricUX and You regarding Your use of the System, superseding all prior and contemporaneous oral or written agreements on this subject. We reserve the right to discontinue or modify the System, or its availability to You, at any time. These Terms of Use are personal to You, meaning You may not assign Your rights or obligations under this Agreement to anyone else. You agree that these Terms of Use, as well as any claims arising from them, will be governed by the laws of the United Kingdom, where applicable, without regard to any conflict of law principles.

MISCELLANEOUS

(a) Notice: Every notice or other communication subsequent to this shall be deemed to have been fittingly given and made if in writing and delivered to the Party for whom it is intended, according to the following:

To: MetricUX, support@elbsoftware.co.uk

To You: the email address that You provided in the System.

Any such notification shall be considered delivered on the next calendar day.

(b) Relationship

The Parties are independent contractors, and no other relationship is intended. Nothing in this Agreement shall be construed to establish either Party as an agent, representative, or employee of the other Party, or as joint venturers or partners for any purpose. Neither Party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each Party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other Party.

(d) No Assignment

Neither this Agreement nor any rights or obligations subsequent to this shall be assignable by either Party without the preceding of written consent of the other Party.

(e) Language

The Parties desire and agree that this Agreement and all Schedules and associated documentation be drafted in English.