In addition to terms defined elsewhere in this Agreement, the following definitions applythroughout this Agreement, unless the contrary intention appears:
"clickaclass.com Platform" means the website(s), apps, tools, platforms or other devices ofclickaclass.com on which the Service is made available.
"Customer Service" means the customer services of clickaclass.com which can be reached email@example.com or such other address as set out in this Agreement.
"Data Controller" means a natural or legal person which alone or jointly with others determinesthe purposes and means of the processing of Personal Data
"Partner Centre" means the online platform of clickaclass.com which can be accessed by theGym (after identification of the username and the password), for uploading, changes, verifying,updates and/or amendments of the Gym and classes Information (including rates, availability,spaces) and bookings.
"Force Majeure Event" means any of the following events affecting multiple customers andmultiple gyms: act-of- God, volcanic eruptions, (natural) disaster, fire, (acts of) war, hostilities orany local or national emergency, invasion, compliance with any order or request of any national,provincial, port or other public authority, government regulation or intervention, military action,civil war or terrorism, (biological, chemical or nuclear) explosion, rebellion, riots, insurrectionstrikes, civil disorder (or the material or substantial threat or justified apprehension of any of theforegoing events), curtailment of gym facilities, close down of the Gym or any other exceptionaland catastrophic event, circumstance or emergency, making it impossible, illegal or preventscustomers from travelling to or attending the Gym for classes or any other reason.
"Customer" means a visitor of the Platforms or a customer of the Gym.
"Intellectual Property Right" means any patent, copyright, inventions, database rights, designright, registered design, trademark, trade name, brand, logos, service mark, know-how, utilitymodel, unregistered design or, where relevant, any application for any such right, know-how,trade or business name, domain name (under whatever extension, e.g. .com, .co.uk, .nl, .fr, .eu,etc.) or other similar right or obligation whether registered or unregistered or other industrial orintellectual property right subsisting in any territory or jurisdiction in the world.
"Marketed Online" means marketed to the general public online by any means, including onmobile applications. This definition excludes in particular email, SMS and instant messagingcommunications that are not aimed at the general public
"Offline Channel" means a channel that does not involve the use of the internet, such asbookings made in person at a Gyms reception or by telephoning a Gym.
"Personal Data" means any information relating to an identified or identifiable natural person(including Customer Data and credit card data).
"Platforms" means the website(s), apps, tools, platforms and/or other devices of clickaclass.comand its affiliated companies and business partners on or through which the Service is (made)available
“Published Online" means made available to the general public online by any means, includingon mobile applications. In the case of rates, publication includes the display of the actual rates orsufficient detail for the consumer to calculate rates (e.g. xx% off, $yy discount).
"Service" means the online class booking system of clickaclass.com through which Gyms canmake their classes available for booking, and through which Customers can make bookings atsuch Gyms, the Facilitated Payment, customer service and the Communication Service.
"System" means the Partner Centre system that Gyms can access to use and utilise theservices, functionalities and administration of the Gym on the Platform (including rates, bookingpolicies, etc.).
"Unpublished" means not Published Online.
2. GYM OBLIGATIONS
2.1 Gym Information
2.1.1 Information provided by the Gym for inclusion on the Platforms shall include informationrelating to the Gym (including pictures, photos and descriptions), its facilities and services andthe classes available for booking, details of the rates and availability, cancellation and otherpolicies and restrictions (the "Gym Information") and shall comply with formats and standardsprovided by clickaclass.com. The Gym Information shall not contain any telephone or faxnumbers or email (including skype) address or social media website/app/platform (includingtwitter and facebook), with direct references to the Gym or its websites, apps, platform, tools orother devices, or to websites, apps, platform, tools or other devices of third parties.Clickaclass.com reserves the right to edit or exclude any information on becoming aware that it isincorrect or incomplete or in violation of the terms and conditions of this Agreement.
2.1.2 The Gym represents and covenants that the Gym Information shall at all times be true,accurate and not misleading. The Gym is at all times responsible for a correct and up-to-datestatement of the Gym Information, including additional availability of classes for certain periods orany extraordinary (material adverse) events or situations (e.g. renovation or construction at ornear the facility). The Gym shall update the Gym Information on a regular basis (or such morefrequent basis as may be required) and may –at any time– change via the Partner Centre (i) therate of its available classes bookable, and (ii) the number or type of available classes.
2.1.3 The information provided by the Gym for the Platforms shall remain the exclusive propertyof the Gym. Information provided by the Gym may be edited or modified by clickaclass.com andsubsequently be translated into other languages, whereas the translations remain the exclusiveproperty of clickaclass.com. The edited and translated content shall be for the exclusive use byclickaclass.com on the Platforms and shall not be used (in any way or form) by the Gym for anyother distribution or sales channel or purposes. Changes to or updates of the descriptiveinformation of the Gym are not allowed unless prior written approval has been obtained fromclickaclass.com.
2.1.4 Unless clickaclass.com agrees otherwise, all changes, updates and/or amendments of theGym Information (including rates, availability, classes) shall be made by the Gym directly andon-line through the Partner centre or such other ways as clickaclass.com may reasonablyindicate. Updates and changes in respect of pictures, photos and descriptions will be as soon asreasonably possible processed by clickaclass.com. If the Partner Centre is unavailable,clickaclass.com will use its best endeavours to update the Gym information promptly.
2.1.5 The restrictions and conditions (including the class price) for classes made available forbooking on the clickaclass.com Platform shall at all times be at arm's length and make sense forall parties involved (including consumers) (i.e. the Gym shall not misuse the service and systemof clickaclass.com by uploading or using excessive or extortionate rates or conditions).
2.2.1 The Gym shall give clickaclass.com Rate and Conditions Parity. "Rate and ConditionsParity" means the same or better rates for the same class, same class type, same dates, sametimes, same service type, same number of customers, same or better facilities and/or add-ons(e.g. free wifi, cafe, free parking etc.), same or better restrictions and policies such as bookingchanges and cancellation policy as made available by the Gym.
Rate and Conditions Parity does not apply in respect of rates and conditions:
- offered on Offline Channels, provided that these class rates are not Published Online orMarketed Online; and /or
- that are Unpublished, provided that these class rates are not Marketed Online.
2.2.2 The restrictions and conditions (including the class price) for classes made available forbooking on the clickaclass.com Platform shall at all times be in accordance with Clause 2.2.1, atarm's length and make sense for all parties involved (including consumers) (i.e. the Gym shallnot misuse the service and system of clickaclass.com by uploading or using excessive orextortionate rates or conditions)
2.2.3 Clickaclass.com shall be entitled to give a credit on the class price at its own costs. In suchcase clickaclass.com pays part of the class price on behalf of the customer.
2.2.4 Within the spirit of this Agreement and subject at all times to Clause 2.2.1, the Gym agreesto give, for each calendar date, (subject to availability) some availability for all classes and classtypes and is encouraged to provide clickaclass.com with fair access to all classes and classtypes (including various applicable policies and restrictions) and rates available during the termof the Agreement (during periods of low and high demand (including during fairs, congresses andspecial events)).
2.3.1 For each booking made on the Platforms by a Customer for a Class, the Gym shall payclickaclass.com a commission (the "Commission") calculated in accordance with Clause 2.3.2.Payment shall be made in accordance with Clause 2.4
2.3.2 The aggregate Commission per booking is equal to the multiple of (i) the number of bookedclass spaces by the Customer, and (ii) the relevant Commission percentage set out in theAgreement (plus VAT/taxes (if applicable))
In all other events Commission will be charged in the event of:
(a) overbooking: at all times, irrespective of ((un)successful/waiver of) charged class price,and/o
(b) a charged cancellation and/or charged no-show: clickaclass.com charges commission when apartner charges Customer class price and/or no show/cancellation fee for (chargeable)cancellations and/or no-shows.
The commission shall at all times be calculated in accordance with the confirmed booking asprovided to Gym and confirmed by clickaclass.com to Customer.
2.3.3 The Gym is responsible for informing clickaclass.com about applicable taxes, fees, chargesand levies (and any changes thereof) which will be charged to the Customer upon booking aclass on the Platform. Unless agreed otherwise by clickaclass.com or permitted otherwise byapplicable law, the rate shown to Customers on the Platforms shall be inclusive of sales tax,charges and all such other (national, governmental, provincial, state, municipal or local) taxes,fees, charges or levies.
2.3.4 In the event that pursuant to (amendment or entering into force of) the applicable law, rulesand legislation applicable to the Gym, the rates must be shown to Customers inclusive of VAT,sales tax and all such other (national, governmental, provincial, state, municipal or local) taxes,fees or levies, the Gym shall adjust the rates through the Partner Centre, or by contactingclickaclass.com in accordance with the terms of Clause 2.1.2 and 2.1.4 as soon as possible, butin any event within 5 business days after (i) amendment or entering into force of the relevant law,rules and legislation in this respect applicable to such Gym, or (ii) notification thereof byclickaclass.com.
2.3.5 The Partner Centre shows details of all reservations made at the Gym through thePlatforms and the corresponding Commission.
2.4 Payment Commission
2.4.1 Commission for bookings will be calculated and paid immediately after the Customer hasmade a booking and paid on the Platform.
(a) Payments from clickaclass.com to Gyms are processed on a twice monthly basis and shall besent by clickaclass.com via direct bank payment to the bank card details provided by the Gym.
(b) The Commission in respect of a booking shall be paid to clickaclass.com automaticallyimmediately after a Booking has been made.
2.4.2 The Gym is responsible for withholding and reporting relevant taxes (i.e. mentioned abovein 2.4.1 under d) applicable to the Commission due to clickaclass.com according to the relevanttax regulations and the practices and requests of the tax authorities. The Gym shall bear and beresponsible for the payment and remittance of the taxes applicable to the Commission(payments) and the associated late payment interests and penalties imposed by the tax authorityfor failing to withhold and report any taxes applicable to the Commission. If required, the Gymshall be solely responsible to negotiate and agree with the relevant tax authorities on the taxtreatments of the Commission (payments). The Gym shall upon first request of clickaclass.comprovide clickaclass.com with (photo/scanned-) copies of tax payment certificates/tax exemptioncertificates upon each remittance of the Commission. The Gym represents and covenants that it is duly registered with all relevant tax authorities (including applicable statutory (local) revenuecollection authorities) as a Gym or other gym class provider.
2.4.3 In the event of a dispute between clickaclass.com and the Gym (e.g. on the amount of theCommission or other payment), any undisputed amount of the Commission or other payment willbe paid in accordance with the terms of this Agreement, notwithstanding the status or nature ofthe dispute.
2.4.4 In the case of late payment of any outstanding amount owed to clickaclass.com,clickaclass.com reserves the right to claim statutory interest, to suspend its service under theAgreement (e.g. by suspending the Gym from the Platforms), require Facilitated Payments orDirect Debit, and/or to ask for a deposit, bank guarantee or other form of financial security fromthe Gym.
2.5 Booking, Customer Bookings and Complaints
2.5.1 When a booking is made by a Customer on the Platform, the Gym shall receive a bookingconfirmation email for every reservation made via clickaclass.com. The confirmation shall includethe date of class, the number of spaces booked, the class type (including the class rate, theCustomer’s name, and booking details (collectively "Customer Data") and such other specificrequest(s) made by the Customer. Clickaclass.com is not responsible for the correctness andcompleteness of the information and information provided by Customers. For the avoidance ofdoubt, the Gym shall on a regular basis (but at least on a daily basis) check and verify on thePartner Centre to check the status of the bookings made. If the partner centre is unavailable forany reason, confirmation emails should be used to monitor bookngs. The Gym acknowledgesthat debit/credit card details are only kept by clickaclass.com for a limited period of time and areheld securely.
2.5.2 By making a booking through the Platforms a direct contract (and therefore legalrelationship) is created solely between the Gym and the Customer (the "Customer Booking").
2.5.3 The Gym is bound to accept a Customer as its contractual party, and to handle the onlinebooking in compliance with the Gym Information (including rate) contained on the Platforms atthe time the reservation was made and the reservation confirmation, including anysupplementary information and/or wishes made known by the Guest.
2.5.4 Other than the fees, extra's and (sur-)charges as set out in the confirmed booking sent byclickaclass.com to the Customer, the Gym shall not additionally charge the customer anytransaction/administration fee or charge for the use of any payment method online or in person.
2.5.5 Complaints or claims in respect of (the products or service offered, rendered or providedby) the Gym or specific requests made by Customers are to be dealt with by the Gym, withoutmediation by or interference of clickaclass.com. Clickaclass.com is not responsible for anddisclaims any liability in respect of such claims from the Customer. Clickaclass.com may at alltimes and at its sole discretion (a) offer customer (support) services to a Customer, (b) act as anintermediate between the Gym and a Customer, (c) provide -at the costs and expenses of theGym - alternative gym classes of an equal or better standard in the event of an overbooking orother material irregularities or complaints in respect of the Gym, or (d) otherwise assist aCustomer in its communication with or actions against the Gym.
2.6 Overbooking and cancellation
2.6.1 The Gym shall provide the classes that have been booked and in the event that the Gym isnot able to meet its obligations under this Agreement for any reason whatsoever, the Gym shallpromptly inform clickaclass.com via email or mail (in accordance with the overbooking procedureof clickaclass.com as from time to time made available by clickaclass.com in the Partner Center).Unless clickaclass.com has arranged for alternative classes (to be verified by the Gym withclickaclass.com), the Gym will use its best endeavours to procure alternative arrangements ofequal or superior quality at the expense of the Gym and in the event that no class is available theGym will:
(a) find suitable alternative Gym of an equal or better standard to the Gym holding the Customersguaranteed booking;
(b) reimburse and compensate clickaclass.com and/or the Customer for all reasonable costs andexpenses (e.g. costs alternative gym, transportation, telephone costs) made, suffered, paid orincurred by the Customer and/or clickaclass.com due to or caused by the overbooking. Anyamount charged by clickaclass.com in this respect shall be paid within 14 days after receipt ofthe invoice.
2.6.2 The Gym is not allowed to cancel any online booking. In the event of (alleged or suspected)fraudulent activities (e.g. in respect of bookings, credit card fraud, money laundering or paymentclass price), clickaclass.com reserves the right to cancel the relevant bookings(s) and (in theevent of any facilitated payment) withhold, suspend or cancel the transfer of any relevant fundsto the Gym, or charge back the relevant funds from the Gym and shall inform the Gymaccordingly.
2.6.3 Cancellations made by Customers before the time and date beyond which a cancellationfee applies will not attract commission. Cancellations made by Customers after the time and datebeyond which a cancellation fee applies will attract commission in accordance with the terms ofthis Agreement.
2.7 Data Privacy, Messaging and Usage
The Gym understands and agrees that the clickaclass.com Data Privacy and MessagingGuidelines apply and form an integral part of this Agreement. The clickaclass.com Data Privacyand Messaging Guidelines are available upon request.
2.8 Force Majeure Event
In the event of a Force Majeure Event, the Gym shall not charge (and shall repay (if applicable))the Customers affected by the Force Majeure Event any fee, costs, expenses or other amount(including the (non-refundable) rate or the no-show, (change of) booking or cancellation fee) for(i) any cancellation or change of the booking made by the Customers, or (ii) that part of thereservation that was not consumed, due to the Force Majeure Event. In the event of reasonableand justified doubt, the Gym may ask a Customer to provide reasonable evidence of thecausality between the Force Majeure Event and cancellation, no-show or change of booking (andprovide clickaclass.com upon request with a copy of such evidence). In order for clickaclass.comto register any cancellation, no-show or amendment of the reservation due to a Force MajeureEvent, the Gym shall inform clickaclass.com within 2 business days after (a) the scheduled checkout date of the no-show or cancellation, or (b) check out, the number of days actually stayed.clickaclass.com will not charge any commission in the event of a registered no-show or cancellation or over that part of the booking which is not consumed due to the Force MajeureEvent.
3.1 The Gym hereby grants clickaclass.com a non-exclusive, royalty free and worldwide right andlicense (or sublicense as applicable):
(a) to use, reproduce, have reproduced, distribute, sublicense, communicate and make availablein any method and display those agreed upon elements of the Intellectual Property Rights of theGym as provided to clickaclass.com by the Gym pursuant to this Agreement and which arenecessary for clickaclass.com to exercise its rights and perform its obligations under thisAgreement;
(b) to use, reproduce, have reproduced, process, distribute, sublicense, display and utilise(including without limitation to publicly perform, modify, adapt, communicate, reproduce, copyand make available to the public in any manner whatsoever) the Gym Information
3.2 Clickaclass.com may sublicense, make available, disclose and offer the Gym Information(including the relevant Intellectual Property Rights) of the Gym and special offers made availableby the Gym on the Platforms and all such further rights and licenses set out in this Agreement viaor in collaboration with (the websites, apps, platform, tools or other devices of) affiliatedcompanies and/or third parties (the "Third Party Platforms").
3.3 In no event shall clickaclass.com be liable to the Gym for any acts or omissions on the part ofany Third Party Platforms. The sole remedy for the Gym in respect of such Third Party Platformsis (i) to request clickaclass.com (which has the right and not the obligation) to disable anddisconnect with such Third Party Platform, or (ii) termination of this Agreement, all in accordancewith the terms of this Agreement.
4. RANKING, CUSTOMER REVIEWS, MARKETING AND FACILITATED PAYMENT
4.1.1 The order in which the Gym is listed on the Platforms (the "Ranking"), is determinedautomatically and unilaterally by clickaclass.com. Ranking is based on and influenced by variousfactors, including but not limited to the commission percentage, the minimum availability statedby the Gym, the number of bookings related to the number of visits to the relevant gym page onthe Platform (the "Conversion"), the volume realised by the Gym, the ratio of cancellations, thecustomer review scores, the customer service history, the number and type of complaints fromCustomers and, where relevant, the on-time payment record of the Gym
4.1.2 The Gym has the possibility to influence its own ranking by changing the price per classand therefore influencing the commission percentage, the class availability for certain periods,and continuously improving the other factors. The Gym shall not make any claim againstclickaclass.com regarding the Ranking of Classes; the Ranking system is automated. Theautomated Ranking (as defined hereafter) shall never be influenced by personal or professionalopinion.
4.2 Customer reviews
4.2.1 Customers which have attended gym classes at the Gym may be asked by clickaclass.comto comment on their experience at the Gym and to provide a score for certain aspects of theirexperience.
4.2.2 Clickaclass.com reserves the right to post these comments and scores on the Platforms.The Gym acknowledges that clickaclass.com is a distributor (without any obligation to verify) andnot a publisher of these comments
4.2.3 Clickaclass.com undertakes to use its best efforts to monitor and review Customer reviewsin respect of obscenities or the mention of an individual’s name. Clickaclass.com reserves theright to refuse, edit or remove unfavourable reviews in the event that such reviews includeobscenities or mention an individual’s name.
4.2.4 Clickaclass.com will not enter into any discussion, negotiation or correspondence with theGym in respect of (the content of, or consequences of the publication or distribution of) theCustomer reviews.
4.2.5 Clickaclass.com shall not have and disclaims any liability and responsibility for the contentand consequences of (the publication or distribution of) any comments or reviews howsoever orwhatsoever.
4.2.6 The customer reviews are for exclusive use by clickaclass.com and can be made availableon such Platforms as from time to time made available to by clickaclass.com. Clickaclass.comexclusively retains ownership of all rights, title and interest in and to (all intellectual propertyrights of) the guest reviews and the Gym is not entitled to (directly or indirectly) publish, market,promote, copy, scrape, (hyper-/deep) link to, integrate, obtain, utilize, combine, share orotherwise use the customer reviews without prior written approval of clickaclass.com
4.3 (Online) marketing and PPC advertising
4.3.1 Clickaclass.com is entitled to promote the Gym using the Gym’s name(s) in onlinemarketing, including email marketing and/or pay-per-click (PPC) advertising. Clickaclass.comruns online marketing campaigns at its own costs and discretion.
4.3.2 The Gym is aware of the working methods of search engines, such as spidering of contentand ranking of URLs. Clickaclass.com agrees that if the Gym becomes aware of behaviour byThird Party Platforms that breaches the Gym’s Intellectual Property Rights, then the Gym willnotify clickaclass.com in writing with details of the conduct and clickaclass.com will use itscommercially reasonable endeavours to ensure that the relevant third party takes steps toremedy the breach.
4.3.3 The Gym agrees not to use, display, benefit from, include, utilize, refer to or specificallytarget the clickaclass.com brand/logo (including trade name, trademark, service mark or othersimilar indicia of identity or source) for price comparison purposes or any other purposes(whether on the Gym platform or any third party platform, system or engine or otherwise), unlessapproved in writing by clickaclass.com. The Gym shall not (directly or indirectly) use or createany (pay-per-click) advertisement on (meta)search sites which advertisement (re)directs andlinks to the relevant Gym landing page on the Platforms where the Gym is advertised, promotedand/or included (no double serving). The Gym shall be entitled to bid on or use theclickaclass.com brand for its own webmarketing (PPC) advertising.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Gym represents and warrants to clickaclass.com that for the term of this Agreement:
(i) the Gym has all necessary rights, power and authority to use, operate, own (as applicable),(sub)license and have clickaclass.com make available on the Platforms (a) the relevant classes,and (b) the Intellectual Property Rights in respect of, as set out or referred to in the GymInformation made available on the Platforms;
(ii) the Gym holds and complies with all permits, licenses and other governmental authorisations,registrations and requirements necessary for conducting, carrying out and continuing itsoperations and business and making the Gym’s classes available on the Platforms for booking;
(iii) the price for the classes advertised on the Platforms correspond to, or are better than, thebest available price for an equivalent class as Marketed Online, Published Online or otherwisemade available online by the Gym on its own website and a better price cannot be obtained by aCustomer making a booking with the Gym directly on its website/app, and
(iv) the Gym (which includes for the purpose of this warranty both the operator as well as theowner of the gym) and its (their) directors and (direct, indirect and ultimate (beneficial)) owners(and their directors) are not in any way connected to, part of, involved in or related to or underthe control, management or ownership of:
(a) terrorists or terrorist organizations;
(b) parties / persons (i) listed as (special) designated nationals/entities or blocked person/entities,or (ii) otherwise subject to any applicable trade embargo, or financial, economic and tradesanctions, and
(c) parties/persons guilty of money laundering, tax evasion, bribery, financial crime, fraud orcorruption.
The Gym shall immediately notify clickaclass.com in the event of a breach of this Clause 5.1paragraph (iv).
5.2 Each Party represents and warrants to the other Party that for the term of this Agreement:
(i) it has the full corporate power and authority to enter into and perform its obligations under thisAgreement;
(ii) it has taken all corporate action required by it to authorise the execution and performance ofthis Agreement;
(iii) this Agreement constitutes legal valid and binding obligations of that Party in accordance withits terms, and
(iv) each Party shall comply with all applicable governmental laws, codes, regulations,ordinances and rules of the country, state or municipal under which law the relevant Party isincorporated with respect to the products (to be) offered and/or services (to be) rendered by suchParty.
5.3 Except as otherwise expressly provided in this Agreement, neither Party makes anyrepresentations or warranties, express or implied, in connection with the subject matter of this Agreement and hereby disclaims any and all implied warranties, including all implied warrantiesof merchantability or fitness for a particular purpose regarding such subject matter.
5.4 Clickaclass.com disclaims and excludes any and all liability in respect of the Gym which isrelated to any (temporary and/or partial) breakdown, outages, downtime, interruption orunavailability of the Platforms, the Service and/or the Partner Centre. Clickaclass.com provides(and the Gym accepts) the Service, the Platform and the Parner Centre on an "as is" and "asavailable" basis.
6. INDEMNIFICATION AND LIABILITY
6.1 Each Party (the "Indemnifying Party") shall be liable towards, and compensate, indemnifyand hold the other Party (or its directors, officers, employees, agents, affiliated companies andsubcontractors) (the "Indemnified Party") harmless for and against any direct damages, losses(excluding any loss of production, loss of profit, loss of revenue, loss of contract, loss of ordamage to goodwill or reputation, loss of claim or any special, indirect or consequential lossesand/or damages), liabilities, obligations, costs, claims, claims of any kind, interest, penalties,legal proceedings and expenses (including, without limitation, reasonable attorneys’ fees andexpenses) actually paid, suffered or incurred by the Indemnified Party pursuant to:
(i) a breach of this Agreement by the Indemnifying Party, or
(ii) any claim from any third party based on any (alleged) infringement of the third party'sIntellectual Property Right by the Indemnifying Party.
6.2 The Gym shall fully indemnify, compensate and hold clickaclass.com (or its directors,officers, employees, agents, affiliated companies and subcontractors) harmless for and againstany liabilities, costs, expenses (including, without limitation, reasonable lawyer fees andexpenses), damages, losses, obligations, claims of any kind, interest, penalties and legalproceedings paid, suffered or incurred by clickaclass.com (or its directors, officers, agents,affiliated companies and subcontractors).
6.3 In the event of a third party claim, Parties shall act in good faith and use their commerciallyreasonable efforts to consult, cooperate and assist each other in the defense and/or settlementof such claim, whereas the indemnifying Party shall be entitled to take over a claim and assumethe defence (in consultation and agreement with the indemnified Party and with due observanceof both Parties' interests), and neither Party shall make any admission, file any papers, consentto the entry of any judgment or enter into any compromise or settlement without the prior writtenconsent of the other Party (which shall not unreasonably be withheld, delayed or conditioned).
6.4 In no event shall any Party be liable to any other Party for any indirect, special, punitive,incidental or consequential damages or losses, including loss of production, loss of profit, loss ofrevenue, loss of contract, loss of or damage to goodwill or reputation, loss of claim, whether suchdamages are (alleged as) a result of a breach of contract, tort or otherwise (even if advised of thepossibility of such damages or losses). All such damages and losses are hereby expresslywaived and disclaimed.
6.5 Each Party acknowledges that remedies at law may be inadequate to protect the other Partyagainst any breach of this Agreement and without prejudice to any other rights and remediesotherwise available to the other Party, each Party will be entitled to injunctive relief and specificperformance.
7. TERM, TERMINATION AND SUSPENSION
7.1 Unless agreed otherwise, this Agreement shall commence on the date hereof for indefiniteperiod of time. Each Party may terminate this Agreement at any time and for any reason, bywritten notice to the other Party with due observance of a notice period of 14 days.
7.2 Each Party may terminate this Agreement (and remove the Gym Classes on the Platforms)or suspend (all or part of its obligations, covenants and undertakings under) this Agreement inrespect of the other Party, with immediate effect and without a notice of default being required incase of:
(a) a material breach by the other Party of any term of this Agreement (e.g. delay of payment,insolvency, breach of Rates and Conditions Parity, the provision of wrong information or receiptof a significant number of Customer complaints); or
(b) (filing or submission of request for) bankruptcy, insolvency or suspension of payment (orsimilar action or event) in respect of the other Party.
7.3 Any notice or communication by clickaclass.com of "closure" ("close", "closed") of the Gymon the website (or similar wording) shall mean termination of the Agreement. After termination,suspension or closure, the Gym shall honour outstanding bookings for Customers and shall payall commissions (plus costs, expenses, interest if applicable) due on those bookings inaccordance with the terms of this Agreement. Upon termination or suspension of the Agreementand notwithstanding clickaclass.com’s right to (permanently) remove the Gym from thePlatform(s), clickaclass.com shall be entitled to keep and maintain the Gym’s classes availableon the Platform, but close availability (status: "closed operations") pending full and final paymentof any due and outstanding amounts (including (future) commission).
7.4 The following events shall in any event be regarded as a material breach and entitleclickaclass.com to immediately terminate (close) or suspend (all or part of its obligations,covenants and undertakings under) the Agreement (without a notice of default):
(i) the Gym fails to pay any outstanding payments on or before the due date;
(ii) the Gym posts incorrect or misleading Gym Information on the Partner Centre;
(iii) the Gym fails to maintain Information on the Partner Centre resulting in over-bookings at theGym; or the Gym fails to update clickaclass.com on changed to information if the Partner Centreis unavailable for any reason
(iv) the Gym fails to accept a booking at the price shown on a booking;
(v) the Gym overcharges one or more customer;
(vi) Clickaclass.com receives one or more legitimate and serious complaint(s) from one or morecustomer(s) who made booking(s) with the Gym;
(vii) misuse of the Customer’s review process by any behaviour that results in a review appearingon the Platforms that is not an honest expression of a real experience by a real customer at theGym;
(ix) inappropriate, unlawful or unprofessional behaviour towards guests or clickaclass.com staff;or
(x) any (alleged) safety, privacy or health issues or problems in respect of the Gym or its facilities(the Gym shall at its own costs and upon first request of clickaclass.com deliver the relevantpermits, licenses, certificates or such statements issued by an independent expert evidencingand supporting its compliance with applicable (privacy, safety and health) laws and legislation).
7.5 Upon termination and save as set out otherwise, this Agreement shall absolutely and entirelyterminate in respect of the terminating Party and cease to have effect without prejudice to otherParty's rights and remedies in respect of an indemnification or a breach by the other (terminating)Party of this Agreement. Clause 2.4, 6, 7.6, 8, 9 and 10 (and such other clauses that by naturesurvive termination) shall all survive termination.
7.6 In the event of a "change of ownership" in respect of the ownership or operation of theproperty (including any assignment, transfer, novation of this Agreement), the Gym agrees andacknowledges that the new owner/operator shall be entitled to use the Gym Information as madeavailable or used by the Gym prior to the change of ownership (including the guest reviews) andhave access to the relevant (financial and operational) performance, management and(customer) data and the Gym shall in any event be and remain responsible and liable for allobligations, claims and liabilities related to the period, or accrued prior to the change ofownership.
7.7 Clickaclass.com shall be entitled to terminate this Agreement with immediate effect in theevent of (termination due to) a breach of contract of (including act or event of default or failure toperform any obligation under) any other agreement between clickaclass.com on the one handand the Gym (or any party that (directly/indirectly) owns or controls, is controlled by or under thecommon control with the Gym) on the other hand.
8. BOOKS AND RECORDS
8.1 The systems, books and records of clickaclass.com (including Partner Centre, the Online,Financial Systems of Booking, letters or emails) shall be considered conclusive evidence of theexistence and receipt by the Gym of the reservations made by the Customer and the amount ofthe commission of the Gym or damages or costs due to clickaclass.com under this Agreement,unless the Gym can provide reasonable and credible counter-evidence.
8.2 The Gym shall upon first request of clickaclass.com fully cooperate and assistclickaclass.com with (and disclose all reasonably requested information in respect of) theidentification of the (ultimate) owner, manager and/or controller of the Gym.
9.1 Parties understand and agree that in the performance of this Agreement, each Party mayhave access to or may be exposed to, directly or indirectly, confidential information of the otherparty (the "Confidential Information"). Confidential Information includes Customer Data,transaction volume, marketing and business plans, business, financial, technical, operational andsuch other non-public information that either a disclosing party designates as being private orconfidential or of which a receiving party should reasonably know that it should be treated asprivate and confidential.
9.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property ofthe disclosing party and receiving party shall not use any Confidential Information for anypurpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudentmethods to cause its employees, officers, representatives, contracting parties and agents (the"Permitted Persons") to maintain, the confidentiality and secrecy of the Confidential Information;(c) it shall disclose Confidential Information only to those Permitted Persons who need to knowsuch information in furtherance of this Agreement; (d) it shall not, and shall use prudent methodsto ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other thanpursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all((hard and soft) copies of) Confidential Information upon written request of the other Party.
9.3 Notwithstanding the foregoing, (a) Confidential Information shall not include any informationto the extent it (i) is or becomes part of the public domain through no act or omission on the partof the receiving party, (ii) was possessed by the receiving party prior to the date of thisAgreement, (iii) is disclosed to the receiving party by a third party having no obligation ofconfidentiality with respect thereto, or (iv) is required to be disclosed pursuant to law, court order,subpoena or governmental authority, and (b) nothing in this Agreement shall prevent, limit orrestrict a Party from disclosing this Agreement (including any technical, operational, performanceand financial data) in confidence to an affiliated (group) company.
10.1 Neither party shall be entitled to assign, transfer, encumber any of its rights and/or theobligations under this Agreement without the prior written consent of the other party, providedthat clickaclass.com may assign, transfer, encumber any of its rights and/or the obligations underthis Agreement (in whole or in part or from time to time) to an affiliated company without the priorwritten consent of the Gym. Notwithstanding anything to the contrary, any assignment, novationor transfer by the Gym shall not relieve the assignor/transferor of its obligations under theAgreement.
10.2 All notices and communications must be in English, in writing or online, and sent by email firstname.lastname@example.org
10.3 This Agreement (including the schedules, annexes and appendixes, which form an integralpart of this Agreement) constitutes the entire agreement and understanding of the Parties withrespect to its subject matter and replaces and supersedes all prior agreements, arrangements,((non) binding) offers, undertakings or statements regarding such subject matter (includingvis-à-vis the Gym).
10.4 In case of conflict between these Terms and the applicable Annex, the applicable Annexshall prevail. If any provision of this Agreement is or becomes invalid or non-binding, the Partiesshall remain bound by all other provisions hereof. In that event, the Parties shall replace theinvalid or non-binding provision by provisions that are valid and binding and that have, to thegreatest extent possible, a similar effect as the invalid or non-binding provision, given thecontents and purpose of this Agreement.
10.5 Save as set out otherwise in this Agreement, this Agreement shall be exclusively governedby and construed in accordance with the laws of England. Save as set out otherwise in thisAgreement, any disputes arising out or in connection with this Agreement shall exclusively besubmitted to and dealt with by the competent court in England, United Kingdom.
10.6 Parties agree and acknowledge that notwithstanding this Clause 10.6, nothing in thisAgreement shall prevent or limit clickaclass.com in its right to bring or initiate any action orproceeding or seek interim injunctive relief or (specific) performance before or in any competentcourts where the Gym is established or registered under the laws of the relevant jurisdiction where the Gym is established or registered and for this purpose, the Gym waives its right toclaim any other jurisdiction or applicable law to which it might have a right.
10.7 The original English version of these Terms may have been translated into other languages.The translated version of the English Terms is a courtesy and office translation only and the Gymcannot derive any rights from the translated version. In the event of a dispute about the contentsor interpretation of these terms and conditions of this Agreement or in the event of a conflict,ambiguity, inconsistency or discrepancy between the English version and any other languageversion of these Terms, the English language version shall prevail, apply and be binding andconclusive. The English version shall be used in legal proceedings. The English version can besent to you upon written request.
10.8 In respect of (or as an award for) the execution, delivery, sealing, registration, filing of,and/or the execution, performance or delivery under or pursuant to, these Terms and/or theAgreement, either Party (including its employees, directors, officers, agents or otherrepresentatives) shall:
i. not directly or indirectly
1. offer, promise or give to any third party (including any governmental official or political party'sofficial, representative or candidate), or
2. seek, accept or get promised for itself or for another party, any gift, payment, reward,consideration or benefit of any kind which would or could be construed as bribery or an illegal orcorrupt practice,
ii. comply with the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and the CriminalFinances Act 2017 and such other applicable laws, statutes, regulations relating to anti-bribery,anti-tax evasion/ facilitation of tax evasion, anti-corruption and anti-financial crimes applying inthe countries in which it has a place of business (“anti-bribery/ anti-tax evasion/ facilitation of taxevasion/ anti-financial crimes requirements”), and
iii. put in place and maintain its own policies and procedures to ensure compliance with therelevant anti-bribery and anti-tax evasion/ facilitation of tax evasion/ anti-financial crimesrequirements and will enforce them where appropriate.
10.9 The Agreement may be entered into online or by way of executing a separate counterpart orby pdf or fax copy, each of which (copies) shall be deemed an original, valid and binding. TheAgreement only enters into force and effect upon written confirmation of acceptance andapproval of the Gym by clickaclass.com. By registering and signing up to the clickaclass.compartner programme as gym partner, the Gym agrees, acknowledges and accepts the terms andconditions of this Agreement. The Agreement does not need any chop or seal to make it valid,binding and enforceable.
(i) it holds and complies with all permits, licenses and other governmental licenses, permits andauthorizations necessary for conducting, carrying out and continuing its operations and business(including holding and using of the Bank Account);
(ii) it is the holder of the Bank Account;
(iii) the payment and transfer to/from the Bank Account is at arm's length and in accordance withall applicable laws, legislation, codes, regulations, ordinances and rules and not in violation ofany applicable anti-money laundering, anti- corruption, anti-terrorists financing, anti-tax evasion(tax) or any other ani-financial crime law, treaty, regulation, code or legislation, and
(iv) the Bank Account is not (directly or indirectly) used for money laundering, terrorists financing,tax evasion, tax avoidance, financial crime or other illegal activities.
The Gym hereby agrees to fully compensate and indemnify clickaclass.com for all damages,losses, claims, penalties, fines, costs and expenses suffered, paid or incurred by clickaclass.com(or any of its affiliated group companies (including any of its/their directors, officers, employees,agents or representatives)) for any (threatening or alleged) claim (including penalty) from anygovernment, authority, organization, company, party or person that the payment to, through orfrom the Bank Account is illegal or a violation of any applicable (anti-corruption/ anti-moneylaundering/anti-tax evasion/anti- terrorists financing) laws, regulations, codes or legislation.
10.11 Clickaclass.com may from time to time update and adjust the General Delivery Terms(including the Annexes), subject to prior communication (e.g. email or system notice) to the Gymwith due observance of a notice period of 15 days. Any updated or adjusted version shall replaceand supersede the existing (current) version with such effect as set out in the notice ofupdate/replacement.
DATA PRIVACY AND MESSAGING GUIDELINES
These Data Privacy and Messaging Guidelines (the "Guidelines") set forth the terms andconditions under which clickaclass.com provides its service to and for the benefit of Gym. Byusing the clickaclass.com services, the Gym agrees to and accepts the following Guidelines.
1. SCOPE, DEFINITIONS AND INTERPRETATION
1.1 These Guidelines form an integral part of the agreement between the Gym andclickaclass.com (including any applicable general delivery terms (the "GDTs") and collectivelywith the agreement, the "Agreement")) and must be read in conjunction therewith. Except asotherwise provided for herein, the terms and conditions of the Agreement remain unchanged andin full force and effect. If there is conflict between this Guideline and the Agreement, the terms ofthe Guidelines will prevail. The Gym is aware that the clickaclass.com online services areoperated by clickaclass.com located in England, United Kingdom.
1.2 Unless defined otherwise in these Guidelines, capitalised terms have the same meaning asset out in the Agreement.
2. DATA PRIVACY
2.1 Each Party shall take reasonable steps to protect personal data (i.e., information that relatesto an identified or identifiable natural person) processed in the context of the Agreement againstloss and unauthorized access, use, deletion and disclosure; and, as required by applicable laws,process personal data in a manner that ensures appropriate confidentiality and security of thepersonal data.
2.2 The Gym acknowledges that it is responsible for the handling and security of the personaldata it holds and processes within the context of the Agreement and clickaclass.comacknowledges that it is responsible for the handling and security of the personal data itprocesses within the context of the Agreement. The Gym shall provide personal data toclickaclass.com only if such disclosure is permitted under applicable laws. Clickaclass.com shallbe a data controller (i.e. determines the purposes and means of the data processing) for anypersonal data it processes. The Gym shall become data controller upon receipt of the personaldata either directly or indirectly through a connectivity partner. Unless agreed otherwise,connectivity partners handle personal data on behalf of a Gym. Each Party shall be solelyresponsible for the processing of personal data by itself or on its behalf in accordance withapplicable data protection laws. The Parties shall, if required by applicable laws, cooperate ingood faith and provide assistance in the event data subjects wish to exercise their rights ofaccess, correction, erasure or portability, or in case of requests from competent authorities todemonstrate compliance with obligations applicable to the Party.
2.3 To the extent clickaclass.com processes personal data that is not Customer data inassociation with the Agreement, such personal data shall be processed by clickaclass.com inaccordance with the clickaclass.com Privacy Statement applicable to Gyms, which can be foundon www.clickaclass.com. The Gym warrants that it has, as required by applicable laws, duly anddiligently informed (and as required by applicable laws, obtained consents from) its staffmembers, agents, representatives and other individuals about the processing of their personaldata by clickaclass.com and the cross-border transfer of their personal data to countries that donot provide for adequate protection of rights of personal data subjects.
2.4 Gyms shall process personal data that Gym received from clickaclass.com as part of theServices under the Agreement only so far as necessary to perform the requested reservationservices, or as otherwise agreed to between the Parties in writing, in accordance with applicablelaw, including (if applicable) the EU General Data Protection Regulation (EU) 2016/679 and/orDirective 2002/58/EC (each as amended or replaced by subsequent legal acts) or if The Gymhas obtained explicit consent from the Customer to any other use of Customer’s personal data.
2.5 If the Gym will or intends to notify Customers or other parties (e.g., competent data protectionand/or government authorities) of a data breach (any discovered or suspected incident resultingin accidental, unlawful, or unauthorized destruction of, loss of, alteration of, access to, disclosureof, or use of personal data) involving personal data received by the Gym from clickaclass.com,and the notification will reference clickaclass.com, the Gym shall first, to the extent permitted bylaw, provide any draft notification and related correspondence to clickaclass.com and reasonablycooperate with clickaclass.com in finalising such notification and correspondence and othercommunication that may follow with the Customer or authorities. The Gym acknowledges thatclickaclass.com retains the right to voluntarily inform its users about any such data breach. Forthe avoidance of doubt, The Gym shall not notify Customers or other parties of a data breachinvolving personal data that clickaclass.com hosts on the Partner Centre (defined in 4.2) withoutprior written authorisation from clickaclass.com.
2.6 In case the group contracting with clickaclass.com. is not directly processing personal data ofCustomers under its own control (e.g. as may be applicable in case of chains, gym managementcompanies etc.), this Clause 2 shall be read to apply to the Gym ultimately processing thepersonal data of Customers. In such case, either contracting party and/or Gym may beconsidered the (sole) data controller of any Customer data processed in the context of theAgreement.
3. MESSAGING TOOLS
Clickaclass.com may from time to time as part of its service to the Customer and Gym facilitatethe communication between the Customer and the Gym using tools provided by clickaclass.com.Clickaclass.com will process communications (the "Communications") in accordance with theclickaclass.com Privacy and Cookies Statement applicable to Gyms available onwww.clickaclass.com. The Gym hereby irrevocably and unconditionally agrees and consents tothe processing of Communications by clickaclass.com (including any processing, storage,receipt, access, insight and screening of communications by clickaclass.com) and states that ithas duly and diligently informed (and as required by applicable laws, obtained consent from) theGym’s employees, agents, representatives, staff members and other individuals of/for/whenusing the Communication for or on the Gym’s behalf (including the processing, receipt, insight,storage, screening and access of such communications by clickaclass.com).
4. USE OF CLICKACLASS.COM ONLINE SERVICES
4.2 Clickaclass.com may offer a Partner Centre facility to the Gym (the "Partner Centre"). TheGym shall safeguard and keep the user ID and password confidential and secure, and shall notdisclose the user ID and password to any person other than those who need to have access tothe Partner Centre to fulfil their job responsibilities. The Gym shall notify clickaclass.com email@example.com within 24 hours of any actual or suspected breach of security orconfidentiality involving the user ID and password used to access the clickaclass.com PartnerCentre.
4.3 The Gym agrees not to use the Communication to send unsolicited electroniccommunications to any individual. The Gym will fully indemnify clickaclass.com for any claims ofthird parties or fines resulting from unlawful or unauthorized use of the Communication Serviceby The Gym for its own purposes.