Membr Terms & Conditons
CONTENTS
1 INTERPRETATION
2 PROVISION OF SERVICES
3 SET-UP OF SERVICES
4 SERVICES
5 PAYMENT
6 CONFIDENTIALITY
7 INTELLECTUAL PROPERTY RIGHTS
8 SUSPENSION OF SERVICES
9 TERMINATION
10 FORCE MAJEURE
11 WARRANTIES AND LIABILITY
12 CUSTOMER DATA
13 WAIVER
14 ENTIRE AGREEMENT
15 VARIATION
16 SEVERANCE
17 COUNTERPARTS
18 THIRD PARTY RIGHTS
19 NO PARTNERSHIP OR AGENCY
20 NOTICES
21 ASSIGNMENT AND SUBCONTRACTING
22 GOVERNING LAW AND JURISDICTION
MPAY ANNEX
SYSTEM SCHEDULE
BACKGROUND
(1) Membr has developed certain software, applications and platforms which it makes available to gyms, personal trainers and Membr Users for the purpose of online gym management.
(2) The Customer wishes to use Membr’s service in its business operations.
(3) Membr has agreed to provide and the Customer has agreed to take and pay for Membr’s Services subject to the terms and conditions of this Agreement.
OPERATIVE PART
1 INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement
this Agreement between Membr and the Customer relating to the supply of Services as described in more detail in the System Schedule and, if applicable, MPay Annex;
Charges
the charges payable by the Customer for the provision of the Services, as applicable and as described in the System Schedule;
Commencement Date
The date the agreement is signed by both parties.
a gym site owned, operated or managed by the Customer;
an individual who is the subject of Personal Data;
the operating manuals, user instructions, and other related materials necessary for the proper use of the Membr Product(s);
the initial term as set out in the System Schedule;
all vested, contingent and future intellectual property rights, including, but not limited to, copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications for the protection and registration of these rights and all renewals and extensions thereof existing in any part of the world howsoever arising;
has the meaning set out in paragraph 3 of the MPay Annex;
the integration of part or all of the Membr Product(s) with the Payment Provider’s platform and services in order to facilitate the Payment Provider’s supply of the Payment Services to the Customer, as described in part 2 of the MPay Annex;
the software program Membr owns which it uses to provide the Services as set out in the System Schedule(s);
a person who makes use of the Membr Product(s) in receipt of services from the Customer;
Payment Provider
a payment provider selected by the Customer as its chosen payment provider for the Payment Services, as may be varied as agreed between the parties from time to time;
any credit card or debit card data collected by Customer and processed by the Payment Provider as part of the Payment Services or otherwise in connection with the MPay Service;
any payment services provided to Customer (including the processing of any Payment Data and any direct debits, refunds or charge-backs related to a Membr User);
has the meaning set out in section 1(1) of the Data Protection Act 1998 (Data Protection Act);
each have the meaning set out in section 1(1) of the Data Protection Act;
the services to be supplied to the Customer by Membr as described in the System Schedule, as Membr may vary from time to time;
the support to be supplied to the Customer by Membr as described in the System Schedule;
the System Schedule attached as Schedule 1 which describes the services which are provided by Membr to the Customer as may be amended or supplemented by Membr from time to time;
computer programs and associated materials which are provided by third parties.
any value added tax, goods and services tax or turnover, sales, use, distribution or equivalent tax in any part of the world.
1.2 Except where a contrary intention appears, a reference to a clause, schedule or annex is a reference to a clause of, or schedule or annex to, this Agreement.
1.3 Clause and schedule headings do not affect the interpretation of this Agreement.
1.4 Writing or written includes faxes but neither e-mail nor any other form of electronic communication, except where expressly provided to the contrary.
1.5 The schedules to this Agreement, together with any documents referred to in them, form an integral part of this Agreement and any reference to this Agreement means this Agreement together with the schedules and all documents referred to in them, and such amendments in writing as may subsequently be agreed between the parties.
1.6 If any conflict arises between the terms and conditions of this Agreement and any provision of any schedule, the terms and conditions of the schedule shall prevail.
1.7 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns.
1.8 Membr is not in a position to assess any consequential loss (as defined in clause 11.6) which the Customer may suffer as a result of any failure of the Services, or any other default on the part of Membr and it would be impractical and uneconomic for Membr to insure against such liability. Accordingly it is the responsibility of the Customer to properly assess any consequential loss that it may suffer and to obtain and maintain adequate insurance in relation to such losses.
1.9 Membr shall be entitled at any time to make any changes to the Services which are necessary to comply with any applicable safety, security or other statutory requirements, which do not materially affect the nature or quality of the Services or the Charges. Membr shall inform the Customer in writing as soon as reasonably practicable of any such changes.
1. 10 References to the Customer expressly include any group companies or affiliates of the Customer which may own, manage or operate the Customer Site(s) and the Customer remains responsible and liable for the acts and omissions of such group companies or affiliates in relation to the applicable Customer Site(s).
1.11 References to any act or legislation in this Agreement shall be interpreted as references to such act or legislation as amended, updated or replaced from time to time.
1.12 Any phrase in this Agreement introduced by the term include, including, in particular or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding that term.
2 PROVISION of services
2.1 In consideration of the payment by the Customer to Membr of the Charges and compliance by the Customer with clause 2.2 and its other obligations under this Agreement, Membr shall from the Commencement Date do the following (as applicable), using reasonable skill and care and in accordance with the provisions detailed in this Agreement, including the System Schedule:
2.1.1 provide the Services;
2.1.2 provide the Support; and
2.1.3 grant to the Customer the rights set out under clause 2.5 below.
2.2 The Customer will supply promptly on Membr’s reasonable request information or materials relevant to Membr’s provision of the Services and will provide such assistance and co-operation as Membr may reasonably request in connection with the set-up and provision of the Services.
2.3 Membr undertakes and warrants that it will supply the Services and Support in accordance with all applicable laws and that it has and will maintain all necessary licences, consents and permissions necessary for the performance of its obligations under this Agreement. Membr additionally undertakes and warrants that it shall undertake virus checks in respect of the Membr Product(s) in accordance with industry practice.
2.4 If the Customer requests Membr to supply Services in addition to those described in this Agreement these will be subject to additional charges by separate formal agreement.
2.5 Subject to the provisions of clause 2.8 Membr grants to the Customer a worldwide, non-exclusive rights to access and use the Service for the Initial Term or until this Agreement is terminated in accordance with clause 9.
2.6 The Membr Product(s) licensed under this Agreement is for use by the parties (and at the Customer Sites, if applicable, as set out in the System Schedule(s)) only and the Customer shall not allow the use of the Membr Product(s) by any other party and shall not process the data of any other organisation without the written permission of Membr, not to be unreasonably withheld or delayed, and provided that permission may not be withheld in respect of any request by the Customer for use by any entity or business unit acquired or divested by the Customer, or providing transitional services to the Customer, and provided that such use by a divested entity or business unit or for the provision of transitional services shall not exceed 12 months in duration from the commencement of such use (as will be notified to Membr).
2.7 If, pursuant to clause 2.6, Membr grants the Customer permission to allow other parties or organisations whether part of the same group, affiliated, third party or otherwise (Sub-Customer) to use the Membr Product(s) (only as set out in the System Schedule(s)), the Customer will be responsible for the acts and omissions of such Sub-Customer.
2.8 The Membr Product(s) may only be used in accordance with the Documentation and this Agreement. Access to the Services is only permissible via the specified URL in conjunction with Customer usernames and passwords. Any attempt to access the system or data by any other means is strictly prohibited.
2.9 The Customer may not copy, use, modify or transfer the Membr Product(s) or the Documentation, or any copy, in whole or in part, except as expressly provided for in this Agreement. The Customer may make such number of copies of the Documentation as reasonably necessary for its use of the Membr Product(s) and the Services. If the Customer transfers possession of any copy of the Membr Product(s) to another party except as permitted in this Agreement, the licence set out in clause 2.5 shall automatically terminate. The Customer may not translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Membr Product(s) except as expressly permitted by law.
2.10 The Customer shall reproduce and include all copyright and other proprietary notices on any copies of the Membr Product(s) and/or Documentation.
2.11 The Customer shall allow Membr access to the Customer’s normal place of business within normal working hours and subject to giving seven days’ written notice to verify that the Membr Product(s) is being used only in accordance with this Agreement, provided that such rights shall be exercised reasonably and in a manner that does not adversely affect or impact upon the Customer’s normal business operations.
2.12 The Customer shall use Third Party Software in accordance with the licence terms and conditions defined by the licensor of that Third Party Software.
3 SET-UP OF SERVICES
3.1 The Customer shall sign up Membr Users to its specific sub-domain on the applicable platform for the Membr Product(s). For the registration to be deemed completed, the Customer is required to provide the following to Membr:
3.1.1 terms and conditions governing the Customer’s relationship with the Membr User. To the extent that there is any inconsistency between such terms and conditions and this Agreement, the terms of this Agreement shall prevail;
3.1.2 the Customer’s additional processes and procedures for e-marketing of Membr Users, if applicable; and
3.1.3 any additional information reasonably requested by Membr in order to finalise the set-up of the Services.
3.2 If the Customer wishes to receive Services at additional Customer Site(s) during the term of the Agreement, and Membr agrees to provide such Services, additional System Schedule(s) shall be entered into between the parties setting out the details of the Services, the Product(s), and the Charges.
4 SERVICES
4.1 Membr agrees to provide the Customer with the Membr Product(s) and the Support in consideration of payment by the Customer to Membr of the applicable Charges as described in the System Schedule.
4.2 The Customer shall at its own expense provide such facilities as are reasonably required by Membr and notified to the Customer to allow remote telecommunication access to computer systems running the Membr Product(s) to provide the Support, without prejudice to Membr’s obligations to provide on-site support where appropriate.
4.3 Membr shall actively promote online gym management services via the Membr Product(s).
4.4 Both parties agree to provide the other and at their own expense with information and staff co-operation reasonably required for Membr to provide the Support in accordance with the System Schedule.
4.5 Payment of the Charges applicable for the Support entitles the Customer to new releases and updates of the Membr Product(s) as described in the System Schedule. The Customer shall not be entitled to access or use such new releases or updates unless or until Membr has received payment in full of the applicable Support Charges payable up to the date such releases and updates are generally made available.
4.6 Except as expressly specified Membr will not provide direct support or maintenance or upgrades or any warranty for Third Party products.
4.7 Membr shall have no obligation to provide Support in respect of a fault arising from:
4.7.1 the improper use by the Customer of the Membr Product(s);
4.7.2 the use of the Membr Product(s) on equipment other than as previously approved in writing by Membr or that meets any criteria published by Membr;
4.7.3 repair, adjustment, alteration or modification of the Membr Product(s) or its merger with other software by a third party resulting in a departure from the Documentation save with the prior written authority of Membr or in circumstances where Membr is in breach of this Agreement; or
4.7.4 the use of the Membr Product(s) for a purpose for which it was not designed.
4.8 Membr reserves the right to charge a reasonable fee (in line with those quoted within the System Schedule) for services requested by the Customer but which Membr is not required to provide by virtue of any of the exclusions referred to in clause 4.7.
4.9 Membr reserves the right to charge a reasonable fee and the pre-approved costs of travel and accommodation and subsistence expenses where the Customer requires Membr to attend at the Customer’s premises to implement and configure new features available within future releases of the Membr Product(s).
5 PAYMENTS
5.1 In consideration of the provisions of the Support and/or Services under this Agreement by Membr, the Customer shall pay the Charges to Membr.
5.2 The Customer will pay Membr via Direct Debit payment using a payment processor designated by Membr or, where applicable, by your franchisor. If the Customer elects to use the MPay Service, then the MPay terms and conditions set out in the MPay Annex to this Agreement shall apply and the Customer shall be subject to those terms.
5.3 The Charges payable to Membr by the Customer under this Agreement are exclusive of Value Added Tax and any other applicable tax or duty which shall be paid in addition to and at the same time as the payment to which such Value Added Tax (or other applicable tax or duty) relates by the Customer at the rate and in the manner for the time being prescribed by law.
5.4 Membr shall be entitled by not less than 30 days’ notice in writing to the Customer during the term of this Agreement to increase the monthly Charges provided that Membr will not increase the Charges more than once per annum. Membr will not increase the fees by more than local CPI.
5.5 If any sum payable to Membr by the Customer under this Agreement that is not the subject of a bona fide dispute is not paid within 30 days after the due date (without prejudice to the other rights and remedies of Membr) Membr reserves the right to charge interest to the Customer at the same rate as local bank rates.
5.6 In addition, if any sum payable that is not the subject of a bona fide dispute is not paid within 90 days of the due date, Membr reserves the right by giving no less than 15 days’ notice in writing to the Customer to withhold the supply of all or part of the Support and Services until such time as payment is made to Membr or to indicate its intention to terminate this Agreement by notice in writing if payment is not received within such 15 day period.
5.7 Any disputed invoices shall have interest abated until the dispute is resolved. If the invoice is subsequently accepted (or reduced to an acceptable level), then interest calculated in accordance with clause 5.5 above shall apply on the whole amount not paid calculated from the original due date to the actual payment date. If the invoice is cancelled then no interest will be due.
5.8 All amounts due under this Agreement from the Customer to Membr shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by law). If any deductions or withholdings are required by law to be made from any of the sums payable under this Agreement, the Customer shall pay to Membr any sum as will, after the deduction or withholding is made, leave Membr with the same amount as it would have been entitled to receive without that deduction or withholding.
6 CONFIDENTIALITY
6.1 Subject to Clause 6.6 below, each party shall treat as confidential and keep secret all information conveyed to them from the other party pursuant or in relation to this Agreement or otherwise designated as confidential by the other party or which is by its nature clearly confidential except that information which is already in the public domain or was available on a non-confidential basis prior to the Commencement Date.
6.2 Neither party shall without the prior written consent of the other divulge any part of the information referred to in clause 6.1 above (hereinafter collectively referred to as “Information”) to any person except:
6.2.1 its own employees and then only to those employees who need to know the same, and in the case of Membr to its sub-contractors to the extent they need to know the same for the purposes of this Agreement and provided in each case that such persons are made aware prior to the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the other party;
6.2.2 its auditors, tax authorities and any other person or bodies having a right, duty or obligation to know of their business and then only in pursuance of such right, duty or obligation;
6.2.3 where that part of the Information is at the Commencement Date in the public domain or subsequently enters the public domain otherwise than as a result of a breach of this clause 6;
6.2.4 to the extent such Information is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body, or the rules of any securities exchange on which a party’s shares may be listed.
6.3 Each party shall use the other party’s Information only for the purposes for which it is disclosed to it.
6.4 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement.
6.5 The payment terms as set out in the System Schedule shall be kept confidential by both parties and will not be discussed with any third party.
6.6 Notwithstanding anything to the contrary in this Agreement, but at all times excluding any Payment Data, Membr will be entitled to capture and use information provided by the Customer through the Membr Product(s) or as part of the Services for its own internal and other commercial purposes provided such use does not identify in anyway the Customer specifically in relation to such information. By entering into and accepting the terms and conditions of this Agreement the Customer acknowledges that Membr may compile and exploit reports which include information provided by the Customer although such information will be in generic form and must contain information relating to at least 5 other companies receiving services from Membr. The Customer will be entitled to a copy of such reports on request by the Customer provided such report is used for the Customer’s internal purposes only and not otherwise exploited or resold. Where the capture and use of such information involves Personal Data, the information will be used by Membr in compliance with Data Protection Law.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in the Membr Product(s) and Documentation shall vest and remain vested in Membr and the Customer shall have no rights in respect of the Membr Product(s) or the Documentation save as expressly granted in this Agreement.
7.2 Membr confirms that it has all the rights in relation to the Membr Product(s) 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.
7.3 The Customer acknowledges that Membr does not own any content posted on the Membr Product(s) or any applications managed or hosted by Membr. Membr reserves the right to remove any content which it may in its sole discretion deem harmful, inaccurate, or deceptive. All Membr Users must comply with the terms of any Acceptable Use Policy which Membr provides from time to time.
7.4 Membr shall defend any action brought against or claim made against the Customer by reason of an infringement of an Intellectual Property Right of a third party in relation to the Customer’s use or possession of the Membr Product(s) and Documentation and shall pay the reasonable costs (including without limitation legal fees (and VAT thereon) incurred by the Customer) and damages awarded against the Customer in such action or claim and losses sustained by the Customer as a result of or in connection with such action or claim provided that:
7.4.1 the Customer shall promptly notify Membr in writing of such action or claim; and
7.4.2 Membr shall have the exclusive conduct of the defence of such action or claim and all negotiations for its settlement or compromise; and
7.4.3 the Customer shall give Membr all necessary assistance requested by Membr in the defence of such action or claim.
7.5 Membr shall not be liable to the Customer for an infringement (or alleged infringement) of an Intellectual Property Right of a third party to the extent that the claim of such infringement is based on:
7.5.1 use of the Membr Product(s) in combination with hardware or software not supported, provided or approved by Membr;
7.5.2 information, data or programs furnished by the Customer in the course of the Services;
7.5.3 actions taken by Membr at the request of the Customer;
7.5.4 alteration of the Membr Product(s) other than by Membr or as authorised by Membr;
7.5.5 failure of the Customer to use replaced or modified parts of the Membr Product(s) provided by Membr in order to avoid such infringement, save where such replacements or modifications do not provide the same functionality or their use would expose the Customer to additional Charges; or
7.5.6 use of the Membr Product(s) in a manner for which it was not designed.
7.6 This clause 7 states Membr’s entire liability to the Customer arising from an infringement (or alleged infringement) of an Intellectual Property Right of a third party.
8 SUSPENSION OF SERVICES
If the Customer fails to make full payment of the Charges in accordance with this Agreement, if the Customer commits any other breach of this Agreement or if the operation or integrity of the Service is threatened, Membr reserves the right to suspend the Services to any or all of the Customer Site(s) under the agreement pending adequate remedy by the Customer and subject to the terms of Clause 9.
9 TERMINATION
9.1 This Agreement may be terminated by either party giving to the other not less than three months’ written notice to expire at the end of the Initial Term or at any time thereafter. The Charges will remain payable in full during the notice period. Where Membr lawfully terminates this Agreement under clause 9.2 before the end of the Initial Period or any agreed fixed period extension or renewal thereof the Customer must pay forthwith to Membr all Charges that would have been (but for such termination) payable during the Initial Period or agreed fixed period extension or renewal
9.2 Either party may terminate this Agreement immediately on giving notice in writing to the other party if:
9.2.1 the other party commits any material breach of any term of this Agreement and such breach is incapable of remedy, or where capable of being remedied the other party fails, within 28 days after the receipt of notice in writing from the party specifying the breach and requiring it to be remedied, to remedy the breach; or
9.2.2 the other party becomes insolvent, bankrupt or makes an arrangement with its creditors or has any distraint, execution or other process levied or enforced on any of its property, ceases to trade or is threatening to cease to trade or has an order made for its winding up.
9.3 If the Customer is an individual, Membr may terminate the Agreement if the Customer is subject to a bankruptcy petition or order made against him or enters into any composition or arrangement with or for the benefit of his creditors or if a receiver (including fixed charge or court appointed), manager, insolvency practitioner or similar officer shall be appointed over the whole or a substantial part of the undertaking, property or assets of the Customer.
9.4 Under Clause 9.2, Membr in its sole discretion may terminate this Agreement or the Services to a particular Customer Site(s) if the events set out in Clauses 9.2.1 or 9.2.2 apply to such Customer Site(s).
9.5 Upon termination of this Agreement (howsoever occasioned):
9.5.1 Membr will provide such termination assistance services as the Customer may reasonably require to effect the handover of services equivalent to the Services to an in-house function or to a third party supplier. Such termination assistance shall be provided at Membr’s standard rates for such services and the Customer will reimburse Membr in respect of any reasonable expenses or disbursements (agreed in advance with the Customer where these exceed £250 for any individual item) which it incurs in providing such services;
9.5.2 the Customer shall promptly pay any sums outstanding to Membr and return promptly to Membr any Documentation and Membr Product(s) in its possession, and any other information or data in its possession that has been provided to it by Membr (other than Customer Data), or, if requested by Membr, destroy the same and certify in writing to Membr that they have been destroyed; and
9.5.3 the Customer acknowledges and agrees that the Membr User may continue to make use of Membr’s applications and services.
9.6 Notwithstanding any sums that may be outstanding to Membr under this Agreement, Membr shall not seek to claim any lien or other possessory right to any Customer Data (or the media on which it is stored, other than Membr’s computer systems).
9.7 Any termination of this Agreement (howsoever occasioned) is without prejudice to and shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
10 FORCE MAJEURE
10.1 Except in respect of the obligation of the Customer to pay the Charges as described in the System Schedule, neither party will be liable for any delay in performing any of its obligations under this Agreement or for failure to perform any such obligations if the delay or failure results from circumstances beyond the control of that party including, without limitation, acts of God, war, riot, civil commotion, malicious damage, accident, breakdown of plant or machinery, fire, flood, storm, explosion, or compliance with any law or government order, rule, regulation or direction.
10.2 The party seeking to rely on the provisions of clause 10.1 shall notify the other of the fact and the circumstances and shall use its reasonable endeavours to minimise the impact of such circumstances and to perform its affected obligations as soon as possible. If a party is prevented from performing its obligations for a continuous period of 21 days by an event referenced in clause 10.1, the non-affected party shall be entitled to terminate this Agreement immediately by notice in writing and the provisions of clause 9.6 shall apply.
11 WARRANTIES AND LIABILITY
11.1 The following provisions set out the entire financial liability of Membr, including any liability for the acts or omissions of its employees, agents and sub-contractors, to the Customer in respect of:
11.1.1 any breach of this Agreement;
11.1.2 any use made by the Customer of any of the Support or the Services; and
11.1.3 any representation, statement or tortuous act or omission including negligence arising under or in connection with this Agreement.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from this Agreement.
11.3 Nothing in this Agreement excludes or limits the liability of either party:
11.3.1 for death or personal injury caused by its negligence; or
11.3.2 for any matter which it would be illegal for a party to exclude or attempt to exclude its liability; or
11.3.3 for fraud or fraudulent misrepresentation.
11.4 Subject to clauses 11.2 and 11.3, and provided that this clause 11.4 does not apply to liability arising under clauses 7.4 or 12:
11.4.1 Membr’s total 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 monies paid by the Customer to Membr for the 12 month period ending on the date of commencement of such claims or if the duration of this Agreement has been less than 12 months on the date of commencement of such claims the sum of money payable under this Agreement in the first 12 months of this Agreement, as applicable; and
11.4.2 Membr shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever, howsoever caused, which arise out of or in connection with this Agreement, including, without limitation:
(a) Loss of custom from Membr Users;
(b) Loss of reputation to the Customer; or
(c) Loss of data and information.
11.5 Pursuant to Clause 18 (Third Party Rights), the Customer is the only member of the Customer group that can raise a claim made in connection with this Agreement. Membr and Customer acknowledge and agree that this Agreement is between Membr and Customer and that all matters relating to the Membr Products and this Agreement are between Membr and Customer.
11.6 Subject to clause 11.3 and provided that this clause 11.6 does not apply to liability arising under clause 12 or the Customer’s obligation to pay the Charges the Customer shall not be liable to Membr for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever, howsoever caused, which arise out of or in connection with this Agreement.
11.7 The Customer shall indemnify and keep indemnified Membr in full against any claim, loss or damage arising directly or indirectly from the death or personal injury caused whilst on the Customer’s premises and from any loss of or damage to the property of Membr while on the clients premises.
12 CUSTOMER DATA
12.1 With respect to any Personal Data shared between the parties pursuant to the Agreement, each party shall comply at all times with the Data Protection Law applicable to it and shall not perform its obligations under the Agreement in such a way as to cause the other to breach any of its applicable obligations under the Data Protection Law applicable to it.
12.2 The parties acknowledge and agree that for the purposes of Data Protection Law, the parties may share Customer Data between themselves during the term of the Agreement. Subject to clauses 12.3 and 12.4, the parties acknowledge and agree that with respect to any such Personal Data each party shall act as a data controller and they shall ensure that they have in a place a clear policy that determines their respective responsibilities for compliance with their obligations under Data Protection Law (including, but not limited to, ensuring a Data Subject can exercise their rights under Data Protection Law and that the Data Subject is provided with all relevant information required under Data Protection Law and gives any necessary approvals or consent to the use of Personal Data, including the transfer of Personal Data, to the extent any such approval or consent is necessary).
12.3 Save to the extent not permitted by Applicable Law, the Customer agrees that Membr shall have access to the Customer Data at all times (including in accordance with Clause 9.6.3) and may use the Customer Data in accordance with the Membr Cloud Privacy Policy.
12.4 The Customer shall ensure that adequate information is provided to, and consent is received from the relevant Membr Users or there are other lawful grounds in accordance with Data Protection Laws, in respect of the Personal Data contained within the Customer Data, for Membr to perform its obligations under this Agreement, including, without limitation:
12.4.1 in order for the Customer to transfer the Personal Data to Membr in accordance with Data Protection Laws (including where such transfers are international transfers); and
12.4.2 in relation to e-marketing or other direct marketing, as applicable.
12.5 The Customer shall:
12.5.1 Process the Personal Data in accordance with Data Protection Laws;
12.5.2 Process the Personal Data only in accordance with instructions from the Data Controller (Membr or any other joint Controller (as applicable) in relation to the Personal Data being processed);
12.5.3 implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected; and
12.5.4 take reasonable steps to ensure the reliability of any staff who have access to Personal Data.
12.6 In respect of Personal Data contained within the Customer Data, the parties shall notify each other within three working days if it receives a request from a Data Subject for access to that person’s Personal Data and shall provide the other party with full co-operation and assistance in relation to any request made by a Data Subject to have access to that person’s Personal Data.
12.7 The parties shall notify each other immediately if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of the Personal Data.
13 WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14 ENTIRE AGREEMENT
14.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15 VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16 SEVERANCE
16.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
16.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18 THIRD PARTY RIGHTS
Except as expressly provided in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 or under any comparable legislation in an applicable territory to enforce any term of this Agreement.
19 NO PARTNERSHIP OR AGENCY
19.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20 NOTICES
20.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
20.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
(c) if sent by fax, at 9.00 am on the next Business Day after transmission.
20.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21 ASSIGNMENT AND SUBCONTRACTING
21.1 Membr may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that it gives prior written notice of such dealing to the Customer.
21.2 Membr may sub-contract to any other person the performance of any of the obligations undertaken by it and exercise any of the rights granted to it under this Agreement.
22 GOVERNING LAW AND JURISDICTION
22.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales shall 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).
MPAY ANNEX
Part 1
TERMS AND CONDITIONS OF MPAY SERVICE
1 The parties agree that:
1.1.1 Membr does not perform any regulated payment services as part of the MPay Service and the Customer shall enter into a written agreement with the Payment Provider for the Payment Services (and the Payment Provider shall be solely responsible for the Payment Services);
1.1.2 subject to paragraph 1.1.4, the scope and specification of the Payment Services to be provided to the Customer shall be as agreed in writing between the Payment Provider and the Customer;
1.1.3 the Customer and Payment Provider shall be in control of and responsible for all Payment Data; and
1.1.4 Membr shall not be required to provide the MPay Service if it would cause Membr to breach any applicable law, this Agreement or have a materially adverse impact on Membr. The parties agree that MPay Service is an online gateway for the Customer to receive Payment Services from the Payment Provider only.
2 The parties acknowledge that the MPay Service is inclusive in the Charges but that Membr may, at its absolute discretion, increase the Charges or charge additional fees to the Customer for the MPay Service provided that Membr has provided the Customer with no less than 1 months’ prior written notice of any such increase or additional fees.
3 The MPay Service shall commence (i) when the Customer has entered into a written agreement governing the supply of the Payment Services with the Customer and (ii) Membr has successfully integrated the Membr Product(s) with the Payment Provider’s platform and services for the benefit of Customer in accordance with the terms of this Agreement (as reasonably determined by Membr) (the “MPay Commencement Date”). Unless agreed otherwise between the parties in writing, the MPay Service shall immediately cease on termination or expiry of this Agreement.
4 The parties agree that:
4.1.1 Membr shall have the right to terminate or suspend the MPay Service immediately on written notice to the Customer if:
(a) Membr’s agreement with the Payment Provider is terminated for any reason;
(b) the Customer’s agreement with the Payment Provider is terminated for any reason;
4.1.2 Membr may terminate or suspend the MPay Service and/or the provision of a specific service by a Payment Provider on written notice to the Customer and, to the extent applicable, shall use its reasonable endeavours to facilitate the migration of the Payment Services to an alternative payment provider;
4.1.3 either party may terminate the MPay Service if the other party is in material breach of any term of this MPay Annex and such breach is incapable of remedy, or where capable of being remedied the other party fails, within 28 days after the receipt of notice in writing from that party specifying the breach and requiring it to be remedied, to remedy the breach; and
4.1.4 the Customer may terminate the MPay Service if Membr approves the termination of the MPay Service in writing in advance.
Termination of the MPay Service shall have no impact on any of the other Services and this Agreement shall continue notwithstanding termination of the MPay Service.
5 The Customer shall comply with Membr and/or the Payment Provider’s reasonable instructions relating to the Payment Services from time to time and the Customer shall adhere to and comply with the Payment Provider’s terms and conditions governing the Payment Services (as notified to it by the Payment Provider and/or Membr from time to time). The Customer shall further ensure that the Payment Provider’s terms and conditions governing the use of its services are agreed by a Membr User prior to any use of the MPay Service and that it expressly notifies a Membr User that the Customer and/or the Payment Provider are responsible for all Payment Services. For the avoidance of doubt, Membr shall have no responsibility for any payment (including any refunds or charge-backs) to or from a Membr User. The Customer shall not disclose the Payment Data to any third parties other than the Payment Provider (save for where permitted by applicable law or the Payment Provider) and the Customer shall implement appropriate technical and organisational measures to ensure that the Payment Data is safe and secure.
6 Subject to remainder of this paragraph 5, Member shall, from the MPay Commencement Date, use reasonable skill and care when providing the MPay Service and use its reasonable endeavours to meet any deadlines notified to it by the Customer. The Customer acknowledges that the reliability, suitability and security of the Payment Services is the responsibility of the Customer and/or the Payment Provider. Membr does not make any guarantees, conditions or warranties (express or implied) in relation to the accuracy, quality, completeness or timely performance of the Payment Services and the Customer acknowledges that Membr shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the supply (or lack of supply) of the Payment Services to Customer. To the maximum extent permitted by applicable law, in no event shall Membr incur any liability for the Customer’s use of the Payment Services and Membr shall not be liable for losses resulting from a breach of security relating to, or the unavailability of, the Payment Services or for any losses related to any bugs, worms, Trojan horses, backdoors, viruses or any other unauthorised access (including hacking) of the Payment Services.
7 If Membr’s performance of its obligations in relation to the MPay Service are prevented or delayed by any act or omission of the Customer and/or the Payment Provider, then, without prejudice to any other right or remedy it may have, Membr shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer and/or Payment Provider (and Membr shall not held liable for any failure to provide the MPay Service as a result of such acts or omissions of the Customer and/or Payment Provider).
8 If Membr processes Personal Data as part of the Payment Services then it shall act as a data processor and the Customer shall act as a data controller and, to the extent that Membr processes Personal Data in the Payment Data on the Customer’s behalf when providing the Payment Services, Membr shall, with respect to such processing:
a) process the Personal Data only in accordance with this Agreement and the Customer’s documented instructions;
b) ensure that it has appropriate technical and organisational security measures in place, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
c) only permit the Personal Data to be processed by persons who are bound by obligations of confidentiality;
d) be authorised to transfer Personal Data outside of the EEA provided that is does so in accordance with Data Protection Laws;
e) remain authorised by the Customer to appoint sub-processors and all sub-processors engaged by Membr as at the date of this Agreement shall be deemed authorized. Membr shall inform the Customer of any addition or replacement of such sub-processors, giving the Customer an opportunity to object to such changes;
f) where Membr appoints a sub-processor pursuant to paragraph 7e) it shall, with respect to any obligations pursuant to, or related to, Data Protection Laws : (i) ensure that the sub-processor is subject to, and contractually bound by, at least the same obligations as Membr under this paragraph 7; and (ii) remain fully liable to the Customer for all acts and omissions of the sub-processor;
g) at the Customer’s expense, assist the Customer in responding to data subjects exercising their rights or requesting information and provide reasonable assistance to the Customer to be compliant with the GDPR, including with respect to the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR;
h) notify the Customer if it becomes aware of or reasonably suspects a Personal Data breach;
i) at the Customer’s expense, permit the Customer on 30 days’ notice to audit its activities in relation to its processing of the Personal Data under this Agreement; and
j) where reasonably requested by the Customer in writing, delete or return all the Personal Data and copies of the Personal Data to the Customer, unless Membr is required by applicable law to keep a record of the Personal Data.
9 Membr may vary the terms and conditions set out in this MPay Annex at any time but shall, to the extent reasonably practical, provide the Customer with prior written notice of any variation that may have a material adverse impact on the Customer’s use of the MPay Service.
System Schedule
Schedule 2
Membr shall provide the following Membr Product(s) to the Customer at the Customer Sites set out in Part B of this Schedule, as amended or supplemented by further Schedules from time to time, in accordance with the Service Description set out in the applicable System Schedule.
[together] the “Membr Product(s)”.
Part A: Service Description
The Services provided by Membr are aimed at increasing membership length of stay and Personal Training staff retention while enabling an effective management operation for the Customer.
“Membr Product” means the Membr web-based software and mobile application generally marketed by Membr, as of the Effective Date, under the name “Membr”, which at such date provides the following functionality; online training plans, exercise plans, health statistics tracking, goal setting and tracking, booking, paying and wait-listing for classes and personal training, integration with 3rd party apps, direct communication with members, via e-mail, Google analytics, ability to determine and follow up with users that begin but do not finish the joining process, member analytics and dashboard, and additional functionality added by Membr from time to time.
Membr shall provide the Services for an Initial Term of 24 months from the Schedule Start Date. Where applicable, the Initial Term shall automatically extend beyond this date where the Governing Agreement is extended or renewed.
In addition, Membr shall:
- promote online gym management services via the Membr Product(s) and the applications used by Membr Users;
- provide reasonable training to the Customer (which will be online or “train the trainer” based unless otherwise agreed);
- replace the master copy of any corrupted or damaged Membr Product(s); and
- provide technical information and advice on the use of the Membr Product(s).
