| 1. |
Definitions
“Account” means the record maintained by Performance Predictor of valid Test Credits of any Test Taker or Testing Organisation from time to time;
[“Benchmarking Database” means the database maintained by Performance Predictor that is used by the Tool in producing the Reports;]
“Performance Predictor” means The Performance Predictor Limited whose registered office is at Beresford House, Plumpton Green, Lewes, East Sussex, BN6 4EN;
“Report” means a report generated by the Tool;
“Services” means the provision of access via the Website for Test Takers to take a Test and the provision of access via the Website to generate Reports using the Tool [and the Benchmarking Database];
“Test” means a psychometric test developed by Performance Predictor;
“Test Credits” means credits that when held in the appropriate number entitle a Test Taker to take a Test;
“Test Credits Guide” means the guide displayed on the Website from time to time setting out the number of Test Credits that are deducted from an Account for the different Tests offered by Performance Predictor;
“Testing Organisation” means an organisation purchasing Test Credits for the evaluation of its employees or prospective employees;
“Test Taker” means an individual who takes a Test;
“Tool” means the software tool owned by Performance Predictor that generates Reports;
“Use” means any use of the Website including but not limited to viewing information;
“User” means any person who Uses the Website. |
| 2. |
Performance Predictor |
| 2.1 |
The Website is owned and managed by Performance Predictor. All information supplied on the Website is managed by Performance Predictor. |
| 2.2 |
Performance Predictor can be contacted by writing to The Performance Predictor Limited at Beresford House, Plumpton Green, Lewes, East Sussex, BN6 4EN or by email on info@performance-predictor.com. |
| 3. |
Use of the Website |
| 3.1 |
By Using the Website you warrant that you have the right, authority and capacity to enter into and be bound by these Terms and that you agree to be bound by these Terms forthwith. |
| 3.2 |
In the event that Performance Predictor, in its sole discretion, considers that you are making any illegal and/or unauthorised Use of the Website, and/or your Use of the Website is in breach of these Terms, Performance Predictor reserves the right to take any action that it deems necessary, including terminating without notice your Use of the Website and, in the case of illegal Use, instigating legal proceedings. |
| 3.3 |
Performance Predictor may suspend the Website for any reason whatsoever, including but not limited to repairs, planned maintenance or upgrades, and shall not be liable to you for any such suspension. |
| 3.4 |
Performance Predictor reserves the right to make any changes to the Website or to discontinue any aspect or feature of the Website without notice. |
| 4. |
The Services |
| 4.1 |
Performance Predictor shall permit a prospective Test Taker to take a Test, subject to such Test Taker having purchased the appropriate number of Test Credits or being authorised to use the appropriate number of Test Credits purchased by a Testing Organisation and to compliance with these Terms. |
| 4.2 |
The right to use the Tool and to generate, view and print the Reports is limited to the purchaser of the relevant Test Credits save that the results of the Test may be distributed, at the sole discretion of the purchaser of the relevant Test Credits. [Any information included in the Reports that derives from the Benchmarking Database and does not form part of the Test shall be used within a Testing Organisation for its own internal organisation only or in the case of a private test taker for their own individual purposes only.] |
| 4.3 |
Except as expressly permitted in this Agreement, no Test Taker or Testing Organisation shall, or shall permit others to: (i) modify, translate, create or attempt to create derivative copies of or copy the Services, the Test, the Tool and/or the Benchmarking Database in whole or in part or merge or combine the Services, the Test, the Tool and/or the Benchmarking Database with any third party data; (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Services, the Test, the Tool and the Benchmarking Database to source code form; (iii) distribute, sublicence, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Services, the Test, the Tool and the Benchmarking Database or the Test Taker’s or Testing Organisation’s right to use the Services, the Test, the Tool and the Benchmarking Database. |
| 4.4 |
Performance Predictor shall use reasonable endeavours to ensure that access to the Services is available at all times, however the Website, Test, Tool and Reports may contain errors and, from time to time, may not be accessible to Users. |
| 5. |
Test Credits |
| 5.1 |
In consideration for Performance Predictor granting access to the Test, the relevant number of Test Credits shall be deducted from the relevant Test Taker’s or Testing Organisation’s Account for each report that is downloaded in accordance with the Test Credits Guide displayed on the Website from time to time. |
| 5.2 |
Subject to clause 5.3 below, Performance Predictor shall not be obliged to give any refunds for Test Credits purchased. |
| 5.3 |
Test Takers who are contracting as consumers may cancel Test Credits that they have purchased within seven working days, beginning on the day that such Test Credits are entered onto a Test Taker’s Account, provided that they have not made any use of the Services. To do so a consumer must inform Performance Predictor in writing [at address]. Consumers complying with the provisions of this clause will receive a full refund of the price paid for the Test Credits. |
| 5.4 |
Test Credits shall remain valid for a period of three years commencing on the day that they are credited to the relevant Account. |
| 6. |
Performance Predictor Intellectual Property |
| 6.1 |
Performance Predictor owns or has a licence to use all right, title and interest in and to the Website, including without limitation all copyright and any other intellectual property rights therein. These Terms shall not be construed to convey title to or ownership of the Website or the data contained therein to the User. All rights in and to the Website not expressly granted to User are reserved by Performance Predictor. |
| 6.2 |
You are granted a non-transferable, non-exclusive, royalty-free, revocable licence to view the content of the Website. |
| 6.3 |
You are expressly prohibited from: |
| 6.3.1 |
reproducing, copying, editing, transmitting, uploading or incorporating into any other materials, any of the Website; and |
| 6.3.2 |
removing, modifying, altering or using any registered or unregistered marks/logos owned by Performance Predictor, and doing anything which may be seen to take unfair advantage of the reputation and goodwill of Performance Predictor or could be considered an infringement any of the intellectual property rights owned and/or licensed to Performance Predictor |
| 6.4 |
Performance Predictor has sole and exclusive ownership of all right, title, and interest in and to the Services, the Test, the Tool and the Benchmarking Database, including all copyright and any other intellectual property rights therein. These Terms conveys a limited right and licence to use the Services, the Test, the Tool and the Benchmarking Database and shall not be construed to convey title to or ownership of the Services, the Test, the Tool and the Benchmarking Database or the data contained therein to any Test Taker or Testing Organisation. All rights in and to the Services, the Test, the Tool and the Benchmarking Database not expressly granted to a Test Taker or Testing Organisation are reserved by Performance Predictor. |
| 7. |
Term and Termination |
| 7.1 |
These Terms will remain in full force and effect while you are a User of the Website or a Test Taker or Testing Organisation. |
| 7.2 |
Performance Predictor may, at any time and for any reason, terminate these Terms with you and deny you access to the Website. |
| 7.3 |
In the event of termination of these Terms or denial of access to the Website for any reason, you must not attempt to Use the Website. |
| 7.4 |
Clauses 6 to 11 inclusive shall survive termination of these Terms for any reason, and shall be valid and enforceable against you. |
| 8. |
Warranties and Liabilities in relation to Use of the Website |
| 8.1 |
To the maximum extent permitted by law, Performance Predictor shall not be liable for any loss, injury or damage caused in whole or in part by Use of the Website or the information provided therein, or by any failure, delay, interruption or otherwise of the provision of the Website or the information provided therein, or by Performance Predictor’s failure to perform any of its obligations under these Terms. |
| 8.2 |
In no event shall Performance Predictor be liable for any special, indirect, incidental or consequential damages, including loss of profits and goodwill, business or business benefit. |
| 8.3 |
The information provided on the Website by Performance Predictor is intended as information only and does not constitute advice. Therefore, it must not be relied on to assist in making or refraining from making a decision, or to assist in deciding on a course of action. |
| 8.4 |
Where the Website includes views, opinions, advice and recommendations, these views, opinions, advice and recommendations are not endorsed by Performance Predictor and, to the maximum extent permitted by law, Performance Predictor shall not be liable on account of the accuracy, defamatory nature, completeness, timeliness or otherwise of such views, opinions, advice and recommendations. |
| 8.5 |
To the maximum extent permitted by law, Performance Predictor expressly excludes all representations, warranties, obligations and liabilities in connection with the Website or other third party websites, and the information provided therein. |
| 8.6 |
Links to third party websites, including websites of partners of Performance Predictor, may appear on the Website. Such third party websites are not the responsibility of Performance Predictor and Performance Predictor accepts no responsibility for the availability, suitability, reliability or content of such third party websites and does not necessarily endorse the views expressed within them. |
| 9. |
Additional terms regarding warranties and liabilities in relation to the Services |
| 9.1 |
Performance Predictor cannot guarantee and do not promise any specific results from the Services. To the maximum extent permitted by law, Performance Predictor expressly excludes all representations, warranties, obligations and liabilities in connection with the Services, including but not limited to the warranties of merchantability, non-infringement of intellectual property, accuracy, completeness, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed. |
| 9.2 |
To the maximum extent permitted by law, Performance Predictor shall not be liable for any loss, injury or damage caused in whole or part by, or resulting from: |
| 9.2.1 |
any failure, delay, interruption or otherwise of the provision of the Services; or |
| 9.2.2 |
any Testing Organisation’s implementation of recommendations made in the Reports or from any decision made by any Testing Organisation on the basis of information provided in the Reports. |
| 9.3 |
A Test Taker’s or Testing Organisation’s sole remedy with respect to any claims arising out of this Agreement shall be limited in the aggregate to the monies paid by that party to Performance Predictor under this Agreement during the twelve (12) month period preceding the event giving rise to such liability. |
| 9.4 |
In no event shall Performance Predictor be liable for any special, indirect, incidental or consequential damages, including loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products or services even if advised of the possibility of such damages. |
| 9.5 |
The information provided in any Reports by Performance Predictor is intended as information only and does not constitute advice. Therefore, it must not be relied on to assist in making or refraining from making a decision, or to assist in deciding on a course of action. |
| 10. |
Data Protection and Privacy Policy |
| 10.1 |
Plumbine reserves the right to gather information relating to Use of the Website. By Using the Website you consent to collection and use of this information by Performance Predictor. |
| 10.2 |
Your personal data that you submit shall be handled in accordance with Performance Predictor’s Data Protection and Privacy Policy. |
| 11. |
General |
| 11.1 |
You may print and keep a copy of these Terms, which form the entire agreement between you and Performance Predictor and supersede any other communications or advertising with respect to the Website or the Services (unless you are a Testing Organisation that has entered into a written agreement with Performance Predictor, in which case these Terms operate in addition to the terms of any such agreement). |
| 11.2 |
These Terms may only be modified with the prior written consent of Performance Predictor. Performance Predictor may alter or amend these Terms at any time, with immediate effect without notice. By continuing to Use the Website after such alteration, you will be deemed to have accepted any amendment to these Terms. |
| 11.3 |
These Terms and their performance shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England. |
| 11.4 |
You shall comply with all foreign and local laws and regulations which apply to your Use of the Website in whatever country you are physically located, including without limitation, consumer law, export control laws and regulations. |
| 11.5 |
You agree that because of the unique nature of the Website and the Services and Performance Predictor’s proprietary rights therein, a demonstrated breach of these Terms by you would irreparably harm Performance Predictor and monetary damages would be inadequate compensation. Therefore, you agree that Performance Predictor shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of these Terms. |
| 11.6 |
If any provision of these Terms is declared void, illegal, or unenforceable, the remainder of these Terms will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision. |
| 11.7 |
Any failure by any party to these Terms to enforce at any time any term or condition under these Terms will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of these Terms. |
| 11.8 |
Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable dispatch whenever such causes are removed. |
| 11.9 |
Nothing in these Terms shall give, directly or indirectly, any third party any enforceable benefit or any right of action against Performance Predictor and such third parties shall not be entitled to enforce any term of these Terms against Performance Predictor. |