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Fitu technologies, All Rights Reserved, 2021
Thank you for visiting our website www.fitune.io. By creating an account, you (“the Merchant”) agree to be bound by the following Terms of Service with Fitu Technologies Limited a company registered in England and Wales, with company registration number 10784728 and whose registered office is 7, 162-164 Abbey Street, London, United Kingdom, SE1 2AN (“Fitu”).
Fitu is an online platform that enables customers to book fitness classes on demand through its App and Site (the Platform).
The Platform includes online features such as booking tools, marketing channels, user content management, payment solutions, website builder, CRM tools and may be supplied to third-party businesses as a customisable white label storefront (“Fitune”).
The Merchant wishes to offer online services to its customers by subscribing to Fitune as an ongoing software service (Saas) subject to the following terms and conditions:
Administrator: either party's employee or authorized person who is designated to be the point of contact for the support of the Services.
Aggregate Data: any merely technical data which is derived from the Services, excluding any End User's personal data.
Confidential Information: information that is clearly labelled as proprietary or confidential or that would be reasonably regarded as such in a business context, including but not limited to financial, contractual and marketing information as well as intellectual property rights.
Data Controller: Fitu Technologies Limited, ICO registration number ZA286805.
Data Processor: technical partner/ server.
Data Protection Officer: Koen van den Heuvel.
End Users or End Customers: the Merchant's customers.
Fitune: Fitu’s white label customisable software platform integrating the Merchant's storefront operated by Fitu and other features as described in the online materials.
Intellectual Property Rights: online multimedia and audio-visual contents, copyright and neighbouring rights, trademarks and service marks, business names and domain names, rights in designs, models, processes, displays, look and feel, database, confidential information (including know-how and trade secrets) and all other rights, whether registered or unregistered, including actual or pending applications, current or future forms of protection in any part of the world, as well as all modifications to and derivative works of all of the foregoing.
Merchant: the term used to identify you in this agreement and Fitu’s User Terms of Services.
Payment Providers: Stripe and PayPal, whose Terms and Conditions apply.Personal Data: any information relating to an identified or identifiable natural person (data subject) pursuant to the General Data Protection Regulation (GDPR).
Platform: online environment where Fitu is identified as such to its own customers.
Privacy Policy: Fitu’s policy on the collection and processing of End Customers' Personal Data that must be accepted together with the End Users' Terms of Services when they hire the Merchant’s service.
Subscription Offer: a fixed price monthly subscription for the Service described in the online offer.
Subscription Term: either the annual or monthly subscription starting at the expiry of the 3 months free trial (where applicable).
Third Party Supplier: Fitune’s technical partners.
Trademarks: the trademarks, logos and trade-names owned respectively by Fitu and the Merchant, which shall at all times remain each party's sole and exclusive property.
User Terms of Service: online agreement binding upon all Fitu services end users, which shall
also be accepted by the Merchant’s customers.
2.1 The Service provided under this agreement consists of a non-exclusive and non-transferable license to the Fitu’s Platform and a range of ancillary services available under the Subscription offer.
2.2 Fitu’s Platform customisation as the Merchant’s branded storefront shall be of the essence of the Service, ensuring the Merchant’s instant identification by its target audience. To this end, Fitune includes a range of tools and features whereby the Merchant’s Administrator creates its online storefront by:
(a) using a branded Fitune subdomain or hosting the Merchant’s storefront on its own domain;
(b) linking social media and website to the storefront or embedding the booking process directly into the Merchant’s existing website;
(c) adding logos and imagery to create its own signature look;
(d) editing the storefront with the ability to write up text to introduce the brand, offer services and include an ‘’about/contact’’ page.
2.3 Whilst the Platform is operated by Fitu (the statement "Powered by Fitune" will appear in the Merchant’s branded storefront), the Merchant may not represent itself as Fitu’s agent, associate, partner, nor pledge Fitu’s credit, give any warranty, undertaking, make any representation on Fitu’s behalf or commit Fitu to End Users or third parties in any way. Furthermore, the Merchant shall not make any representations, warranties, guarantees or other commitments with respect to the Platform's specifications, features or capabilities without Fitu’s prior written consent.
2.4 The rights contemplated by this agreement are granted to the Merchant only and shall not be extended or considered granted to any other party, subsidiary or holding company of the Merchant.
3.1 This agreement is entered into for either an initial fixed term of 12 months at preferential commercial terms or an automatically renewable monthly subscription, unless:
(a) either party serves no less than 30 days’ notice prior to the expiration of the Subscription Term where the Merchant has opted for an annual subscription;
(b) either party serves no less than 7 days’ notice prior to the expiration of the Subscription Term where the Merchant has opted for a monthly subscription; or
(c) it is terminated earlier in accordance to clause 14.2 or clause 14.3.
3.2 Where the Agreement is automatically renewed without prior notice or notification from either Party, the Merchant may assume that the same commercial terms apply.
3.3 Merchants may cancel or change their subscription plan in their dashboard.
4.1 Fitu shall, during the Subscription Term:
(a) deploy the Service as specified in the online communication materials and the Subscription Offer;
(b) ensure the performance of supporting services, including maintenance and ongoing assistance via its technical helpdesk;
(c) procure that Third Party Suppliers honour their service levels and troubleshoot response; and
(d) provide updates, new features or releases to the Platform as they become generally available throughout the Term of this agreement.
4.2 Fitu warrants and holds the Merchant harmless against any claims that the Platform infringes any third party’s rights.
4.3 The Merchant understands that Fitu is merely providing its business technology and is not part to any transactions between the Merchant and their customers. Notwithstanding, all End Customers shall be bound by a set of legal documents (End User Terms of Service, Privacy Policy and Cookie Policy) produced by Fitu in order to ensure compliance with applicable laws, the Platform use policy and Data Protection regulations. Any dispute, risk or liability arising out of the commercial relationship formed via Fitune shall be exclusively borne by the Merchant.
4.4 The Merchant (including its Administrator, employees, officers, agents and subcontractors) shall not promote or create any business that competes with the Platform during the Term of this agreement and for a period of 2 years following its expiration or termination pursuant to clause 12.
4.5 The Merchant shall bear all and any tax liabilities, including but not limited to VAT, customs and excise duties, import duties as well as any ancillary costs associated with their supply of products and services via Fitune.
4.6 The Merchant shall bear liability for all multimedia contents feeding the Platform and their respective audio-visual rights, including but not limited to video-on-demand background music or any third party intellectual property that may incidentally appear in the audio-visual content uploaded to the Platform by the Merchant - Fitu will assume that any such rights have been duly cleared by the Merchant. Furthermore, the Merchant shall hold Fitu harmless against any claims brought by third parties as a result of the Merchant’s End Users' activity on the Platform.
5.1 The fees for the Services may vary depending on the monthly Subscription online offer chosen by the Merchant.
5.2 An annual subscription is offered at a discounted fee.
5.3 By opting for the annual subscription, the Merchant shall benefit of a 3 months trial period, following which the first annual payment will be due.
5.4 A trial period may be granted for monthly subscriptions at Fitu’s discretion.
5.5 Payments shall be made by upfront direct debit. If the payment fails by the expiration of the trial period, Fitu shall be entitled to suspend access to the Platform without notice or liability.
5.6 End Customers’ payments are processed and repaid to the Merchant by Payment providers Stripe and PayPal. Should these services not be available in the Merchant’s country, such payments will be collected by Fitune and transferred to the Merchant manually at the end of each month subject to a 5% handling fee.
6.1 Other than the license expressly granted under this agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property rights. The Merchant shall have no rights in respect of any trade names or trademarks used by Fitu in relation to the Platform or the associated goodwill and further acknowledges that all such rights and goodwill shall inure for the benefit of and shall remain vested in Fitu.
6.2 The Merchant shall promptly give notice in writing to Fitu in the event that it becomes aware of any infringement or suspected infringement of the Intellectual Property rights in or relating to the Platform, or any claim that the Platform infringes the rights of any third party.
6.3 Each party shall, at the request and expense of the other, provide all reasonable assistance to the other where the defence of any claim in connection with the Platform becomes necessary.
7.1 Subject to the terms of this agreement, the Parties mutually agree to grant to each other a non-exclusive, revocable, non-transferable licence to use their respective logos and trademarks in their websites, marketing and promotional materials and refer to the Service provided under this agreement for the duration of the Term.
7.2 The Parties shall not use any of the other party's logos and trademarks in any way which might prejudice their distinctiveness, validity or goodwill or use any of the other party's logos, trademarks or trade names with a view to, or to the effect of causing confusion or deception.
8.1 Each party may have access to Confidential Information of the other party under this agreement, which shall not include information that:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party's lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2 Each party shall protect the other's Confidential Information and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this agreement.
8.3 Each party agrees to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
8.4 This clause shall survive termination of this agreement for a period of two (2) years.
9.1 The Merchant remains the owner of its online content and of all rights in the data that arises in connection with its End Customers’ use of the Platform and hereby grants Fitu a non-exclusive, irrevocable, perpetual, non-transferable licence to use the Platform data for marketing, business and technical purposes, in order to improve the performance and functionality of the Service or develop improvements, updates, upgrades, modifications and derivative works thereof.
9.2 Fitu shall own all right, title and interest in and to all of the Aggregate Data arising under this agreement. Fitu may share such Aggregate Data with third parties, provided that any such data does not include any identifying information about End Users.
10.1 Each party represents, warrants and undertakes that:
(a) it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licenses referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) it shall comply with all applicable Legislation in the performance of its obligations under this agreement.
10.2 Fitu warrants to the Merchant that the Platform licensed will substantially operate and perform the functions and features as presented in the online offer. Notwithstanding the foregoing, Fitu:
(a) does not warrant that the Services will be uninterrupted or error-free or that the Services will meet the Merchant’s or any End User's requirements; and
(b) is not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet - the Merchant acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.1 Fitu’s total aggregate liability in contract, tort or otherwise arising in connection with the performance or contemplated performance of this agreement shall in all circumstances be limited to the amount actually paid by the Merchant under this agreement.
11.2 Neither party shall be liable to the other for indirect, consequential or business loss, costs, damages, charges or expenses.
11.3 Except as expressly and specifically provided, all warranties, conditions and other terms implied by statute, common law or otherwise are excluded from this agreement to the fullest extent permitted by law.
11.4 Nothing in this agreement excludes the liability of either party for death or personal injury caused by its negligence and for fraud or fraudulent misrepresentation.
12.1 The Merchant may terminate this agreement by giving:
(a) 7 or 30 days’ written notice prior to the expiration of the Subscription Term for monthly and annual subscriptions, respectively;
(b) 30 days’ written notice where a Force Majeure event persists for more than 90 days;
(c) 90 days’ written notice at any other time; or
(d) immediate termination notice upon proven repeated technical failure on Fitu’s part.
For the avoidance of doubt, the fee for the whole Subscription Term will be due if the Merchant
terminates the agreement for mere convenience.
12.2 Without prejudice to any other rights or remedies, Fitu may terminate this agreement with immediate effect without liability to the Merchant if:
(a) the Merchant fails to pay any amount due under this agreement;
(b) the Merchant commits a material breach of any term of this agreement;
(c) Fitu reasonably believes there has been a breach of the provisions of clause 4.3, 4.4
and 4.5; or
(d) the Merchant fails to settle or resolve any incidents with its customers or becomes involved in any dispute that Fitu reasonably considers detrimental to its reputation.
12.3 Upon termination or expiry of this agreement for any reason, the accrued rights of the parties and any provision expressly stated to survive termination shall not be affected.
12.4 Subject to the foregoing provisions, all rights and licenses granted under this agreement shall terminate.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm, or more generally, any acts of God. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 30 days' written notice to the other party.
14.1 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.
14.2 If any 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 and enforceable. If such modification is not possible, the relevant provision shall be deemed not applicable without affecting the remaining provisions of the agreement.
14.3 This agreement constitutes the entire agreement between the parties and include the End User Terms of Service, Privacy Policy and Cookie Policy by reference, which apply to all services deployed by Fitu.
14.4 No variation of this agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
14.5 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, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
14.6 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales and the parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement.
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