BackPain.online – Subscription Agreement

 

Last updated: 29 September  2021

 

Welcome to BackPain.online (the "Service"). The Service includes access to the www.backpain.online website (the "Website") and the www.backpain.online video content available through the Website and on the www.backpain.online app ("www.backpain.online"), including all features and functionalities, recommendations, reviews and user interfaces.  The Service is operated and provided to you by BeatMyPain.online Limited, registered in England with company number 11595004, whose registered office is at Unit E3, Ascot Business Park, Lyndhurst Road, Ascot, SL5 9ED, United Kingdom (“BeatMyPain”, "we", "us", "our"), and is designed and delivered by professionals who are registered with the General Osteopathic Council.

This Subscription Agreement governs the Customer’s (defined below) access to and use of the Service (the “Agreement”). Capitalised Terms shall have the definitions set forth herein.

If Customer registers for a free trial of the Service or for any other free service, including Promotional Offers, as may be offered from time to time at the sole discretion of BeatMyPain, the applicable provisions of this Agreement will also govern such free trial or such free Service.

Acceptance of this Agreement shall be made by either: 1) clicking a box indicating acceptance; 2) executing an Order that references this Agreement; or 3) accessing a free trial or Promotional Offer of the Service.   If an individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such company or other legal entity to the terms of this Agreement.  If the individual accepting this Agreement does not have such authority or does not agree with these terms and conditions, then such individual must not accept this Agreement and may not access or use any of the part of the Service.

This Agreement is deemed effective between Customer and BeatMyPain as of the date of Customer’s acceptance of this Agreement (the “Effective Date”)

 

Definitions

“BackPain Online Content” means the pain management information and content which may include but not be limited to, videos, music, graphics, text, images and photographs.

“Customer” means either: (i) an individual accepting this Agreement on his or her own behalf; or ii) in the case of an individual accepting the terms of this Agreement on behalf of a company, or any other legal entity.  Customer also includes reference to “you” and “your” in this Agreement.

“Customer Content” means the information (including personal data) submitted by a User detailing the musculoskeletal pain and User is experiencing via a set of questions set out as part of the Service.  For the avoidance of doubt, the Service excludes Customer Content.

“Order” means a BeatMyPain order or other ordering document agreed to in writing between the parties under this Agreement, and as a result of such acceptance is governed by the terms of this Agreement.

“Service” means the service(s) ordered by Customer under an Order, or online purchasing portal pursuant to the terms of this Agreement, including any BackPain Online Content.  “Service” excludes Customer Content.

“Users”  means in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting these terms on behalf of a company or other legal entity, an entity who is authorised by Customer to use the Service for whom Customer has purchased a subscription (or in the case of any Service provided by BeatMyPain without charge, for whom a Service has been provisioned).  Users may include, for example, employees, consultants, contractors and agents of Customer.

1. Use of the Service and BackPain Online Content

1.1 Subscriptions.  Unless otherwise specified in an Order: (a) the Service and access to the BackPain Online Content are purchased as subscriptions for the term stated in the Order or in the applicable online purchasing portal (the “Service Subscription”).  Customer agrees that its purchase of a Service Subscription is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by BeatMyPain regarding future functionality or features.  A fully paid Service Subscription will allow Customer and/or its Users to access and view BackPain Online Content, on the terms and conditions set out in this Agreement. As part of the Service Subscription, Customer will be asked to submit Customer Content.

1.2 Customer Responsibilities.  Customer will: (a) be responsible for User’s compliance with the terms of this Agreement (including any Order(s)) and all applicable laws and regulations; (b) be responsible for the nature, accuracy, quality and legality of Customer Content, and the interoperation of any third-party applications with which Customer uses the Service; (c) use commercially reasonable efforts to prevent unauthorised access to or use of the Service and BackPain Online Content, and notify BeatMyPain promptly of any unauthorised access or use; (d) use the Service and BackPain Online Content only in accordance with the terms of this Agreement; (e) comply with the terms of any third-party applications with which You use the Service.  Any use of the Service in breach of the terms of this Agreement or that in BeatMyPain’s reasonable judgement threatens the security, integrity or availability of any of the Services, may result in Users and/or Customer’s immediate suspension of the Service, however, BeatMyPain agrees, where possible,  to use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension. 

1.3 Usage Restrictions. Customer agrees not to make: (a) any element of the Service available to anyone other than Customer or its authorised Users, or use the Service for the benefit of anyone other than Customer; (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering; (c) use the Service to store or transmit infringing, libellous, or otherwise unlawful or tortous material, or to store or transmit material in violation of any third-party privacy rights; (d) use the Service to store or transmit malicious code (for example, viruses, worms, time bombs or Trojan horses); (e) interfere with or disrupt the integrity or performance of the Service; (f) attempt to gain unauthorised access to the Service or networks; (g) modify, copy or create derivative works based on the Service or any part, feature, function or user interface thereof; (h) copy any part of the Service, except as permitted by the terms of this Agreement.

1.4 Data Usage. You are responsible for all internet access, mobile data or other charges incurred when using the Service. Please remember that streaming and downloading audio-visual content such as videos and games can use up a lot of data.

1.5 Subscription.  Upon purchase of a Service Subscription, Customer will be required to register for a BackPain.online account (“BackPain.online Account”).  Upon registration, each User can log into their BackPain.online Account and view details about their Service Subscription in the "Settings" tab, including the end date of the Service Subscription period. If the Service Subscription auto-renews (see section 8.1 for more information), this information will include the recurring subscription fee, billing renewal date and how to cancel your Service Subscription. You may also consult BeatMyPain’s FAQ’s (as set forth at www.backpain.online/FAQ) for further information.

1.6 Age Limit. Each User must be aged 18 years or older to use and access the Service under this Agreement.

1.7 Security.  In addition to being solely responsible for the Customer Content, the Customer is solely responsible for the security of any and all BackPain.online Account usernames and passwords, for keeping them confidential, and for all activities that are carried out under such account. BeatMyPain recommends that Users do not reveal their payment details, username or password to any other person or entity. Customer agrees to notify BeatMyPain immediately if it becomes aware of or suspects any unauthorised use of passwords or usernames.  BeatMyPain shall have no liability to Customer or any third party for any reason as a result of: (a) any unauthorised disclosure or access to a BackPain.online Account as a result of a User’s misuse of the Service or loss or theft of your username, password or device, except to the extent resulting from BeatMyPain’s negligence or wilful misconduct.

1.8 Use of the Service.  Customer hereby acknowledges and accepts that the Service, including the BackPain Online Content is not intended to, and should not, be used for the purposes of (a) diagnosis, prevention, monitoring, treatment or alleviation of disease, or (b) diagnosis, monitoring, treatment, alleviation of or compensation for an injury or handicap, or (c) investigation, replacement or modification of the anatomy or of a physiological process. The Service should NOT be interpreted as a substitute for professional personal medical advice, diagnosis or treatment. BeatMyPain recommends that you consult a doctor in the event that you have any medical concerns.

1.9 Licence Grant.  The Service (including the BackPain Online Content) are licensed to you for your personal and non-commercial use only. While using the Service, BeatMyPain grants Customer a limited, non-exclusive, non-transferable, licence to access the Service and BackPain Online Content and download, temporarily store and view the BackPain Online Content. Except for the limited licence granted to Customer under this Agreement, no right, title or interest in the Service, or the BackPain Online Content shall be transferred to Customer. Customer shall not reproduce, perform, display or exhibit the Service, or the BackPain Online Content in any public place without the prior written consent of BeatMyPain (not to be unreasonably withheld).

1.10 Customer agrees not to register multiple times for a free trial or for the same type of Promotional Offer. Any such action shall be a breach of this Agreement and may result in the termination of your BackPain Online Service Subscription.

 

2. BeatMyPain Responsibilities

2.1 Purchased Service. BeatMyPain will: a) make the Services and the BackPain Online Content available to Customer pursuant to this Agreement, and any applicable ordering documentation; b) use commercially reasonable efforts to make the Purchased Services available 24 hrs a day, 7 days a week, except for: (i) planned downtime (of which we shall give you advanced electronic notice); and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest act of terror, pandemic, strike or other labour problem), internet service provider failure or delay, a third party application, or denial of service attack; and c) provide the Services in accordance with laws and regulations applicable to our provisions of the Services to our customers generally (i.e., without regard to Customer’s particular use of the Service), and subject to Customer’s use of the Service in accordance with this Agreement.

2.2 Security and Data Privacy.  BeatMyPain shall maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Content against accidental or unlawful loss, access or disclosure. The Customer Content is stored in the US.  BeatMyPain reserve the right to store Customer Content outside of the US.   BeatMyPain will use commercially reasonable efforts to provide Customer with at least 30 days’ notice of any such changes in the Customer Content storage location.  BeatMyPain’s Privacy Policy identifies how we collect, store and processes your personal data.

 

3. Third-party Products

BeatMyPain may make available to Customer certain third-party applications, services or products, which are licensed by their provider to Customer, for use in connection with the Service (“Third- party Products”).  BeatMyPain make no warranties of any kind and assume no liability whatsoever for Customer’s use of such Third-party Products.

 

4. Free trial

4.1 If Customer registers via the Website for a free trial, BeatMyPain may make available to you, the applicable Service on a trial basis free of charge until the earlier of: (a) the end of the free trial period; or (b) the start of any purchased Service subscriptions ordered by Customer for such Service; or (c) termination by BeatMyPain at our sole discretion.  Additional terms and conditions may appear on the trial registration webpage and Customer acknowledges that any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

4.2 Customer will be charged at the end of its free trial period, unless Customer cancels its subscription before the free trial period expires. Please note that Customer may not be notified that its free trial is ending or has ended and that its paid subscription has started.

4.3 Any data Customer enters into the Service, during the free trial period will be permanently lost unless you purchase a subscription to the same Service as those covered by the trial.

4.4 During a trial period, the Service is provided “as-is” without any warranty and BeatMyPain shall have no indemnity, liability obligations, of any type, with respect to the Service for the free trial period.    

 

5. Promotional Offers

5.1 BeatMyPain, and/or our third-party partners, may make available codes or other promotional offers which: (a) grant access to the Service including the BackPain Online Content normally only available via a Service Subscription without requiring Customer to pay for such access; or (b) give a discount on such Service Subscription (“Promotional Offers”).

5.2 Promotional Offers may take a variety of forms and may be made available on a standalone basis or provided as part of a bundle with other products or services sold by us or with the products or services of one of BeatMyPain partners. Customer may only use and redeem Promotional Offers in accordance with the specific terms and conditions which apply to them.

5.3 Please check the relevant terms and conditions of the Promotional Offer for full details. Unless stated otherwise, Promotional Offers are only available to new subscribers (one per subscriber) and are subject to availability. Where a Promotional Offer is combined with a free trial, restrictions may apply. Where a Promotional Offer is provided by a third-party partner, that other party may also have additional terms and conditions which apply.

5.4 BeatMyPain will determine eligibility for Promotional Offers at its sole discretion and BeatMyPain reserve the right to limit availability of and/or revoke any Promotional Offer and put a Promotional Offer on hold in the event that BeatMyPain determines that Customer is not eligible.

5.5 During the period of a Promotional Offer, the Service is provided “as-is” without any warranty and BeatMyPain shall have no indemnity, liability obligations, of any type, with respect to the Service for the period of the Promotional Offer.   

 

6. Invoicing and Payment

6.1 Customer will pay all fees as specified in the Order or specified in the online purchasing portal.  Customer acknowledges and accepts that fees are based on Service subscriptions purchased and not actual usage.  Payment obligations are non-cancellable, and fees paid are non-refundable, and quantities purchased cannot be decreased during the relevant subscription period.

6.2 Customer will provide BeatMyPain with valid and updated payment information or alternative documentation reasonably acceptable to BeatMyPain.  If Customer provides BeatMyPain with credit card information, Customer authorises BeatMyPain to charge such credit card for the subscribed Service as listed in the Order for the initial subscription period and any renewal subscription term as set forth in Section 7.1 of this Agreement.  Such charges shall be automatically taken on the first day of each new Service Subscription period unless otherwise agreed in the Order. If the Order specifies that payment will be made by a method other than a credit card, BeatMyPain will invoice Customer in advance and unless otherwise stated in the Order, invoices are due for payment 30 days from the date of invoice.  Customer is responsible for providing complete and accurate billing and contact information to BeatMyPain and notifying us of any changes to such information.

6.3 If you are eligible for a Promotional Offer involving a discount, your bill and payments will be amended accordingly for the promotion period.

6.4 To view your billing information or to change your payment method, go to the "Settings" tab in your BackPain.online Account.

6.5 If a payment is not successfully settled, because Customer’s payment method has expired, it has insufficient funds, or otherwise, and Customer does not change its payment method or cancel its Service Subscription, BeatMyPain may suspend access to the Service until it has obtained a valid payment method and those charges may incur a late payment fee at the rate of 1.5% of the outstanding amount or the maximum rate permitted by law, whichever is lower. When you log into your BackPain.online Account to update your payment method in "Settings", you authorise us to charge the updated payment method for your Service Subscription and you will remain responsible for any uncollected amounts. This may result in a change to your payment dates or subscription period.

6.6 We reserve the right to change the date we charge you if your payment method has not been successfully authorised or if your subscription renewal date does not occur in a given month, for example, if you are usually charged on the 30th of a month, if the subscription renewal date falls in February you will be charged on the 28th.

6.7 Customer is responsible for all taxes (such as VAT) associated with the Service hereunder.

6.8 If you have a Service Subscription which starts with a free trial, or if you use a Promotional Offer which requires you to provide your payment details, a payment may be authorised by your bank when your free trial or Promotional Offer begins but no payment will be taken by us for this free trial period or for this Promotional Offer period. You should be aware however that this may affect your available balance or credit limit.

 

7. Price changes

7.1 Upon expiration of a Service Subscription, BeatMyPain may increase the fees it charges for the Service. Any increases will take effect at the beginning of the Customer’s next Service Subscription Period, or such later date as may be specified in the applicable Order.  

7.2 If BeatMyPain notify you of a price change and you do not want to continue your Service subscription at the new subscription price, you may cancel your Service subscription either: (i) before the start of the next subscription period by following the steps in section 8.2 below.

Without affecting your statutory rights, unless the terms of this Agreement or the Order states otherwise, payments are non-refundable and there are no refunds or credits for partially used billing periods.  

 

8. Term and Termination

8.1 Customer’s Service Subscription will automatically renew for a further period equal to the expiring subscription term unless Customer gives written notice (email acceptable) at least 14 days in advance of the Service subscription ending before the next renewal date and Customer will be charged the total subscription fee due for the next Service subscription period. 

8.2 Customer may cancel its Service Subscription before the end of the current subscription period (or free trial period) provided you give us 14 days written notice (email acceptable), and the cancellation will be effective at the end of the current subscription period (or free trial period). This means that if you are part of the way through a Service Subscription period (or free trial period), you will be able to continue to use your Service Subscription until the end of the current subscription period (or free trial period).

8.3 To manage or cancel your Service Subscription, log into your BackPain.online Account and choose the "Settings" tab.

8.4 BeatMyPain may end your right to use all or any part of the Service or your Service Subscription immediately if it has a reasonable belief that Customer has breached the terms of this Agreement or if you are using the Service, including the BackPain Online Content in a manner other than for its intended purpose or illegally. If what you have done can be put right, at our sole discretion, BeatMyPain may give you a reasonable opportunity to do so.

8.5 If BeatMyPain decide to discontinue any part of the Service, we will give you at least 30 days’ prior notice (unless we need to discontinue the Service (or any part of it) immediately for legal reasons, including in order to comply with a court order). In no event will we be liable in any way for the discontinuation of the Service, the removal of or disabling of access to the Service or for the withdrawal of the service or any BackPain Online Content.

8.6 If we end your rights to use the Service or your Service Subscription you shall stop all activities authorised by this Agreement immediately. 

 

9. Service Updates and Devices

9.1 Availability of the Service depends on the quality of your internet connection and device capabilities for which you are solely responsible for obtaining and maintaining.

9.2 To get the best experience, BeatMyPain recommend that you accept any updates to the Service as and when they become available. This may also require you to update your device operating system.

9.3 Your use of any updates, modifications to, or replacement versions of the Service will be governed by the terms of this Agreement and any additional terms you agree to when you install such update, modification, or replacement version.

 

10. Confidentiality and Intellectual Property Rights

10.1 Confidentiality.  “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information of BeatMyPain includes the BeatMyPain Service and BackPain Online Content, and the terms and conditions of this Agreement including all Orders (including pricing).  Confidential Information of the Customer includes non-public data, including but not limited to, Customer Content, provided by the Customer to BeatMyPain to enable the provision of the Service. The Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs and business processes disclosed by such party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party, without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; (d) was independently developed by the Receiving Party; or (e) is required to be disclosed by law provided that to the extent legally and reasonably permissible the Receiving Party gives the Disclosing Party prior notice of such disclosure and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party seeks to contest such disclosure.  

10.2 Proprietary Rights. As between the parties, each party retains all ownership rights in and to its Confidential Information.  The Receiving Party agrees to take precautions to protect such Confidential Information in a manner no less stringent than it would protect its own Confidential Information to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the disclosing party to those of its Affiliates, employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party, containing protections not materially less protective of the Confidential Information than those herein.  Neither party will disclose the terms of this Agreement or any Order to any third party other than its legal counsel and accountants without the other party’s prior written consent provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsels or accountant’s compliance with this confidentiality section.  The Service including all BackPain Online Content is protected by copyright, trademark, and/or other proprietary intellectual property rights owned by or licensed to BeatMyPain. 

10.3 Ownership. The Customer shall own all right, title and interest in and to the Customer Content. BeatMyPain shall own and retain all right, title and interest in and to (a) the Service (including the BackPain Online Content) and BeatMyPain software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the BeatMyPain services, and (c) all intellectual property rights related to any of the foregoing.  No title to or ownership of any intellectual property rights related to the Service is transferred to Customer pursuant to this Agreement. BeatMyPain reserves all rights other than the right of use granted to Customer.   

10.4 Proprietary Markings.  Customer may not remove, alter or in any way tamper with any copyright notices or other proprietary markings included in the Service or any BackPain Online Content. Any copying, access, transfer, public performance or communication to the public or other use of the Service, the BackPain Online Content other than as expressly authorised by applicable law or this Agreement shall constitute an infringement of applicable intellectual property rights and a breach of this Agreement. In the event of such infringement, BeatMyPain may, without notice or prior intervention of a court or arbitral body, block your access to the Service and terminate any BackPain.online Account you may have and pursue any rights or remedies available to us.

10.5  Use of Feedback. Customer grants BeatMyPain a worldwide, perpetual, irrevocable royalty-free license to use and incorporate into its services any suggestions, enhancement request, recommendation, correction or other feedback provided by Customer or Users that BeatMyPain may adopt for any of its services.

 

11. Privacy & Data Protection

Any personal information you supply to BeatMyPain or that BeatMyPain collect from Customer when using the Service will be used by BeatMyPain in the ways set out in our Privacy Policy. BeatMyPain agrees to implement and maintain appropriate administrative, physical and technical safeguards designed to secure the Service and Customer Content against accidental or unlawful loss, access or disclosure while in the possession or under the control of BeatMyPain. The terms of the data processing addendum (the “DPA”) are hereby incorporated by reference and shall apply to the extent Customer Content includes Personal Data, as defined in the DPA under which both parties agree to comply with the terms of the DPA.  Where the Customer specifically directs BeatMyPain to act as a Processor (as defined in the DPA) for the benefit of Customer, BeatMyPain warrants that it shall comply at all times with the provisions of the DPA applicable to BeatMyPain’s obligations as a Processor of Personal Data and shall further process all Personal Data (as defined in the DPA) on behalf of the Customer in accordance with the DPA.  To the extent Personal Data from the EU, EEA, the UK, Switzerland are processed by BeatMyPain, the Standard Contractual Clauses shall apply, as set forth in the DPA.

(DPA available at bottom of this page)

 

12. Warranty

12.1 Each party represents that it has validly entered into this Agreement and has legal power to do so.

12.2 BeatMyPain warrants that while the corresponding paid-for Service subscription is in effect, the Service will perform substantially in accordance with the functions when under use by Customer, in a manner that conforms to the terms of this Agreement.  Customer’s sole and exclusive remedy and BeatMyPain’s entire liability for a breach of this warranty shall be for BeatMyPain to use commercially reasonable efforts to modify the Service to substantially achieve in all respects the functionality of the Service and if BeatMyPain are unable to restore such functionality, Customer shall be entitled to terminate its Service subscription and receive a pro-rated refund of the fees pre-paid to BeatMyPain for the corresponding unused portion of the Service. 

12.3  Disclaimer of Warranties.  Except as provided in this section 12, to the maximum extent permitted by applicable law, neither party makes any representations or warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation, any warranty that the Service will be uninterrupted, error free or free of harmful components, that any content will be secure or not otherwise lost or damaged, or any implied warranty of satisfactory quality, fitness for a particular purpose, or non-infringement, and any warranty arising out of the course of performance. 

12.4 Please note that BeatMyPain are not responsible for any lack of functionality or failure to provide any part of the Service or the BackPain Online Content, or any loss of content or data that is due to: customer’s equipment, devices, operating system or internet connection, Customer’s failure to download the most recent published version of the Service or meet the compatibility requirements or the consequences of Customer changing its equipment, device, operating system or internet connection.

 

13. Indemnity

13.1 BeatMyPain Indemnity. BeatMyPain will defend Customer against any claim that the Service infringes such third party’s intellectual property rights and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement.  To the extent permitted by law, BeatMyPain will have no liability to Customer under this section 13.1 for any claim against Customer that arises out of: (a) any unauthorised use, reproductions, or distribution of the Service by Customer; or (b) any modification or alteration of the Service by anyone other than BeatMyPain.  In the event of a claim against Customer pursuant to this section 13.1, BeatMyPain may (at our option and expense): (i) obtain for Customer the right to continue using the Service; (ii) modify the Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by BeatMyPain at our sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any pre-paid fees for the corresponding unused period of the applicable Service subscription.

13.2 Customer Indemnity.  Customer agrees to defend BeatMyPain against any claim that any Customer Content, or Customer’s use of the Service is in breach of the terms of this Agreement, infringes a third party’s intellectual property rights (to the extent that such infringement is not as a result of BeatMyPain’s actions).  Customer will, with respect to any claim against BeatMyPain that is subject to this section 13.2 , indemnify BeatMyPain for the resulting costs and damages finally awarded against BeatMyPain to such third party by a court of competent jurisdiction or agreed to in settlement.

13.3  As a condition of receiving an indemnification under this Agreement, the party seeking indemnification hereunder (the “Indemnified Party”) will provide the other party  (the “Indemnifying Party”) with: (a) prompt written notice of the claim; (b) complete control over the defence and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission if the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim, such permission not to be unreasonably withheld, delayed or conditioned); and (c) such assistance in connection with the defence and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.

13.4  This section 13 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the other party for any type of claim under this section 13. 

 

14. Liability

14.1 Nothing in these Terms of Use is intended to limit or exclude BeatMyPain’s liability for: (a) death or personal injury caused by our negligence; (b) fraud or fraudulent misrepresentation; (c) for any other liability which cannot be limited by applicable law.

14.2 Subject always to section 14.1 above, BeatMyPain shall not be liable, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:  (a) loss of profits or revenue; (b) loss or damage to business or reputation; (c) loss of anticipated savings; (d) loss or damage to goodwill; (e) loss of use or corruption of software, data or information; (e) any indirect, special or consequential loss or damage, and for the purposes of this section, the term “loss” includes partial loss or reduction in value as well as complete or total loss. 

14.3 To the maximum extent permitted by applicable law, BeatMyPain’s total liability arising in respect of the circumstances set out in this Agreement, shall be limited to the amount Customer has paid for the Service giving rise to the claim in the twelve (12) months preceding the event first giving rise to the claim under this Agreement.

 

15. Transfer of rights

This Agreement between BeatMyPain and Customer is personal to you and no third party is entitled to benefit under it. You may not transfer your rights or obligations under this Agreement to anyone else.  We may transfer our rights and obligations under this Agreement to any company, firm or person without obtaining your consent, provided that your Service subscription will not be adversely affected as a result of such transfer.

 

16. Severance

If any provision of this Agreement is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and the validity and enforceability of the remaining provisions of this Agreement shall not be affected.

 

17. Waiver

To the extent BeatMyPain fail to or decide not to exercise any right of claim against Customer to which it is entitled, this will not constitute a waiver of that right unless otherwise indicated to you in writing.

 

18. Governing law

This Agreement shall be governed by and construed in accordance with the laws of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction over any claims.

 

19. Notices

You can contact BeatMyPain by emailing [email protected].

 

20. Third-Party Rights

No term under this Agreement shall be enforceable by a third party under the Contracts (Rights of third parties) Act 1999.

 

21. Force Majeure

In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, pandemic, internet service provider failures or delays, denial of service attacks, or other similar causes), the affected party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected party: (a) provides the other party with prompt written notice of the nature and expected duration of the event; (b) uses commercially reasonable endeavours to address and mitigate the cause and effect of such event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such event. 

Download DPA