THIS AGREEMENT is dated 04 May 2017
BETWEEN:-
1.) SD17 LIMITED incorporated and registered in England and Wales with company number 10617889 whose registered office is at 311/312 MALING EXCHANGE, HOULTS YARD, WALKER ROAD, NEWCASTLE UPON TYNE, NE6 1AB (“Supplier”)
2.) YOU, being the organisation identified as the “Customer” during the sign-up procedure for the Services (the “Customer”)
BACKGROUND
A.) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of the provision of the Services.
B.) The Customer wishes to use the Services in its business operations.
C.) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Services subject to the terms and conditions of this agreement.
Agreed terms
1 INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Administrator Account means the sole means by which the Customer may access the Software as set out at clause 2.3.
Annual Initial Period means a period of 12 months commencing at the Effective Date or (where the parties have agreed that there is a Trial Period) at the expiry of the Trial Period.
Annual Renewal Period means a period of 12 months, commencing at each anniversary of the start of the Annual Initial Period.
Business Day means any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5.
Customer Data means the data inputted by the Customer, Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation means the document which may be made available to the Customer by the Supplier from time to time which sets out a description of the Services and the user instructions for the Services. For the avoidance of doubt, this includes any “Know-how” or FAQ responses made available at www.GymSync.com.
Effective Date means the date of this agreement.
Information means information owned by the Supplier and obtained by the Customer relating to the Software and/or Services.
Initial Subscription Term means the Trial Period (if applicable) and Paid Initial Subscription Term.
Licence has the meaning as set out in clause 2.
Monthly Initial Period means a period of one month commencing at the Effective Date or (where the parties have agreed that there is a Trial Period) at the expiry of the Trial Period.
Monthly Renewal Period means each successive one-monthly period following expiry of the Monthly Initial Period.
Normal Business Hours means 8.00 am to 6.00 pm local UK time, each Business Day.
Objective means the receipt of the Services pursuant to the terms of this agreement.
Paid Initial Subscription Term means either an Annual Initial Period or a Monthly Initial Period as identified during the sign-up procedure for the Services or as otherwise agreed between the parties.
Renewal Period means a Monthly Renewal Period or an Annual Renewal Period, as the context dictates.
Services means the subscription services provided by the Supplier to the Customer under this agreement via www.GymSync.com and/or other web pages designated by the Supplier including associated offline components by way of the Software which enables the Customer to publish booking information and receive booking requests from members of the public via associated software owned by the Supplier.
Software means the online software applications provided by the Supplier as part of the Services including any plug-ins, administrative code or other software made available to the Customer by the Supplier whether downloaded by the Customer, end user or otherwise.
Subscriptions means the subscription purchased by the Customer pursuant to clause 8.1which entitle Users to access the Documentation and use the Services by way of the Software via the Administrator Account in accordance with this agreement.
Subscription Fees means the subscription fees payable by the Customer to the Supplier for the Subscriptions, as set out in of Schedule 1.
Subscription Term has the meaning given in clause 13.1(being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Policy means the Supplier's policy for providing technical support in relation to the Services as may be notified to the Customer from time to time.
Third Party Software means any software, for which the Customer may need to obtain a licence from a third party in order to access and use the Software, or any software for which the Customer has a licence or consent to use, which either forms part of, or is used in conjunction with, the Software;
Trial Period has the meaning as set out in Schedule 2.
Users means the Customer’s employees using the Software via the Administrator Account pursuant to clause 2.3.
Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 A reference to writing or written includes faxes but not e-mail.
1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2 SERVICES AND SOFTWARE LICENCE
2.1 In consideration of the payment by the Customer of the Subscription Fees, the Supplier hereby grants to the Customer a personal, non-transferable, non-exclusive licence to use the Software and to access the Services on the Customer’s computer system and use the Documents during the Subscription Term solely for the purposes of the Objective (the “Licence”), subject to the following terms in this clause 2.
2.2 The Users will only have access to and use of the Services via the internet as software-as-a-service.
2.3 The Customer undertakes that the maximum number of Users accessing the Software at any time shall be one such User and that such access must be via the Administrator Account. Access to the Administrator Account may be reassigned to a different User replacing the former User previously authorised to access the Administrator Account.
2.4 The Customer acknowledges that, in order to access and use the Software, the Customer may need to independently obtain licences for the Third Party Software.
2.5 The Customer may not make any copies of the Software.
2.6 The Customer may not (save as permitted by law) modify, create derivative works or, reverse engineer, disassemble, de-compile, or in any manner attempt to derive source code from the Software.
2.7 The Customer agrees not to publish any tests run on the Software (or results in relation thereto).
2.8 The Customer shall not:
2.8.1 sub-license, assign or novate the benefit or burden of this Licence in whole or in part;
2.8.2 allow the Licence to become the subject of any charge, lien or encumbrance.
2.9 Access to the Software via the Administrator Account shall be controlled by a username and password. The Customer will ensure that Users’ passwords are kept safe, secure and confidential and are not disclosed to unauthorised persons.
2.10 The Customer will not permit or provide access to the Services, Software or Documentation to an unauthorised third party or someone who is not an employee of the Customer. The Customer shall notify the Supplier immediately of any breaches of this Agreement by any Users, non-employees of the Customer or unauthorised third parties.
2.11 The Customer will keep full, proper and up to date records of the Users and all such uses of the Software, Services and Documentation as the Supplier may reasonably require.
2.12 The Customer will allow the Supplier to inspect or have access to any premises (and to the computer equipment located there) at or on which the Software is being used, and have access to any records, and take such copies, that are kept in connection with the Licence, for the purposes of ensuring that the Customer is complying with the term of the Licence. The Supplier will provide reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
2.13 The Customer will not, and will not permit its employees, to make hard copies of the Information save with the express written permission of the Supplier.
2.14 The Customer shall not, and shall procure that Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.14.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.14.2 facilitates illegal activity;
2.14.3 depicts sexually explicit images;
2.14.4 promotes violence;
2.14.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.14.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.15 The Customer shall not:
2.15.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.15.2 access all or any part of the Services, Software and/or Documentation in order to build a product or service which competes with the Services, Software and/or the Documentation; or
2.15.3 use the Services, Software and/or Documentation to provide services to third parties; or
2.15.4 subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Software and/or Documentation available to any third party except to a User via the Administrator Account, or
2.15.5 attempt to obtain, or assist third parties in obtaining, access to the Services, Software and/or Documentation.
2.16 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.17 The rights provided under this clause 2are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3 SERVICES
3.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
3.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.2.1 planned maintenance for which the Supplier shall give at least 24 hours’ notice to the Customer by way of email of via the Services;
3.2.2 downtime caused by events as set out in clause 14and other unforeseen events; and
3.2.3 downtime necessitated for the Supplier to comply with applicable laws and regulations.
3.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
4 CUSTOMER DATA
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
4.3 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
4.3.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement;
4.3.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
4.3.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
4.3.4 the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
4.3.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5 THIRD PARTY PROVIDERS
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
6 SUPPLIER'S OBLIGATIONS
6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Supplier:
6.2.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
6.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6.5 The Supplier does not warrant that the Customer’s use of the Software or Services will be uninterrupted or error-free. In particular, the Customer acknowledges that the Software and Services are reliant on the availability of the internet, in respect of which the Supplier has no control.
7 CUSTOMER'S OBLIGATIONS
7.1 The Customer shall:
7.1.1 provide the Supplier with:
(a) all necessary co-operation in relation to this agreement; and
(b) all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
7.1.2 comply with all applicable laws and regulations with respect to its activities under this agreement;
7.1.3 carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner;
7.1.4 ensure that the Users use the Services, Software and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any User’s breach of this agreement;
7.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
7.1.6 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
7.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8 CHARGES AND PAYMENT
8.1 The Customer shall pay the Subscription Fees to the Supplier for the Subscription in accordance with this clause 8and Schedule 1.
8.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card details to the Supplier hereby authorises the Supplier to bill such credit card monthly in advance for any monthly element of the Subscription Fees and annually in advance for any annual element of the Subscription Fees payable in respect of the Initial Subscription Term and subject to clause 13.1, for the Subscription Fees payable in respect of the next Renewal Period.
8.3 If the Supplier has not received payment on the due date, and without prejudice to any other rights and remedies of the Supplier the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Software and the Supplier shall be under no obligation to provide any or all of the Services and Software while the payments concerned remain unpaid.
8.4 All amounts and fees stated or referred to in this agreement:
8.4.1 shall be payable in pounds sterling;
8.4.2 are, subject to clause 12.4.2, non-cancellable and non-refundable;
8.4.3 are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
8.5 The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days' prior notice to the Customer and Schedule 1shall be deemed to have been amended accordingly.
9 PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, Software and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
9.2 The Supplier confirms that it has all the rights in relation to the Services, Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10 CONFIDENTIALITY
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 was in the other party's lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
10.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 This clause 10shall survive termination of this agreement, however arising.
11 INDEMNITY
11.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, Software and/or Documentation, provided that:
11.1.1 the Customer is given reasonable notice of any such claim;
11.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
11.1.3 the Customer is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
11.3.1 a modification of the Services, Software or Documentation by anyone other than the Supplier; or
11.3.2 the Customer's use of the Services, Software or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
11.3.3 the Customer's use of the Services, Software or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12 LIMITATION OF LIABILITY
12.1 This clause 12sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
12.1.1 arising under or in connection with this agreement;
12.1.2 in respect of any use made by the Customer of the Services, Software and Documentation or any part of them; and
12.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement:
12.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services, Software and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, Software and Documentation, or any actions taken by the Supplier at the Customer's direction;
12.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
12.2.3 the Services, Software and the Documentation are provided to the Customer on an "as is" basis.
12.3 Nothing in this agreement excludes the liability of the Supplier:
12.3.1 for death or personal injury caused by the Supplier's negligence; or
12.3.2 for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2and clause 12.3:
12.4.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
12.4.2 the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount paid by the Customer in the previous 12 months in respect of Customers on an Annual Initial Period or Annual Renewal Period, or the amount paid by the Customer in the previous 1 month in respect of Customers on a Monthly Initial Period or Monthly Renewal Period.
13 TERM AND TERMINATION
13.1 This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive Renewal Periods, unless:
13.1.1 either party notifies the other party of termination at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
13.1.2 otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
13.2.1 the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
13.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
13.2.4 a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
13.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
13.2.6 the other party ceases, or threatens to cease, to trade; or
13.2.7 there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
13.2.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.3 On termination of this agreement for any reason:
13.3.1 all licences granted under this agreement shall immediately terminate;
13.3.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
13.3.3 the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
13.3.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13.4 The Customer my register for a free trial of the Services for the Trial Period. Any Customer Data provided during the Trial Period by the Customer will be erased by the Supplier if the Customer does not proceed to a Paid Initial Period. Either Party may terminate this agreement immediately on written notice during the Trial Period.
14 FORCE MAJEURE
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or electronic or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
15 WAIVER
15.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16 SEVERANCE
16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17 ENTIRE AGREEMENT
17.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
18 ASSIGNMENT
18.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
19 NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20 THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21 NOTICES
21.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
21.3 A notice given under this agreement is valid if sent by email.
22 GOVERNING LAW AND JURISDICTION
22.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
22.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
THIS AGREEMENT has been entered into on the date stated at the beginning of it.
Schedule 1
Subscription Fees
1 The Subscription Fees are:
1.1 £30 per month excluding VAT for a Monthly Initial Period and each Monthly Renewal Period; or
1.2 £360 per annum excluding VAT for an Annual Initial Period and each Annual Renewal Period.
2 No fee shall be payable for the Trial Period.
Schedule 2
Trial Period
1. Trial Period: 30 days from the Effective Date.
Schedule 3
Booking Payment Fees
1. Payment processing services for the The Cusomter on GymSync are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms & conditions or continuing to operate as a Customer on GymSync, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of GymSync enabling payment processing services through Stripe, you agree to provide GymSync accurate and complete information about you and your business, and you authorize GymSync to share it and transaction information related to your use of the payment processing services provided by Stripe.
1.1 For each booking payment made via the app the following charges based on the origin of the debit/credit card used:
European Cards: 1.9% + 20p
Non European Cards: 3.4% + 20p