THIS SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”) INITIALLY GOVERNS YOUR 30-DAY FREE TRIAL OF THE SUBSCRIPTION SERVICES.
This Agreement is made between 1) the named entity or individual entering into this Agreement through registration online and acceptance of the 30-Day Free Trial (“Customer“, “you“, “your“), and 2) Fitii Limited trading as My PT Hub (“us“, “our“), a limited company registered in England and Wales with company number 09374110 and having its registered office at Greenacre Court, Station Road, Burgess Hill, West Sussex, RH15 9DS. It is effective between Customer and My PT Hub as of the date of Customer’s acceptance of this Agreement (“Effective Date“) through the click-button contract acceptance mechanism on the MY PT Hub website at https://www.mypthub.net (“site“).
1.1 If you purchase the My PT Hub Subscription Services within 30 days of the start of the free trial, then the terms of this Agreement will also govern and apply to your purchase and ongoing use of the My PT Hub Subscription Services and shall be the contract terms applying between us.
1.2 If you do not purchase the Subscription Services in such period, in consideration of your having registered for the free 30-day trial, this Agreement will also govern and apply to your on-going use of the limited free of charge Subscription Services that will continue to be available to you from My PT Hub.
1.3 By accepting this Agreement through the ‘accept’ click button contract acceptance mechanism of the My PT Hub website, you are unequivocally agreeing to all the terms of this Agreement as being legally binding between you and My PT Hub. If you are entering into this Agreement on behalf of a company or other legal entity, you are personally representing that you have the proper and valid authority to bind such entity and its Affiliates to these Agreement terms and conditions. If you do not have such authority, or if you do not agree with any of these Agreement terms and conditions, YOU MUST NOT ACCEPT THIS AGREEMENT and MAY NOT USE the Subscription Services.
2.1 The following words and phrases as used in this Agreement shall have the following meanings ascribed to them (in addition to those defined elsewhere in the text):
a) “Affiliate” is an entity that controls, is controlled by or shares common control with My PT Hub or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
b) “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order.
c) “Clients” means the clients of its Customers who, through the Customers, link into and use the My PT Hub platforms and software functionality as part of the services that the Customers provide to their own customers.
d) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient“) by the discloser (“Discloser ”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, intellectual property, development and marketing plans, strategies, and forecasts; (ii) as to My PT Hub , and its licensors, the Subscription Services; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully already in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient as can be shown by reasonable written evidence.
e) “Controller to Processor SCCs” means the standard contractual clauses for processors for the purposes of the DP Laws.
f) “Customer Data“ means all electronic data or information submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer, including personal data.
g) “DP Laws” mean GDPR, the Data Protection Act 1998 and its successor when enacted and any other laws implementing EU Council Directive 95/46/EC.
h) “Fees” means the fees agreed by the Customer to be paid by the Customer to My PT Hub under this Agreement in consideration for the Subscription Services (and any other services otherwise provided by My PT Hub for which charges are agreed).
i) “GDPR” means the General Data Protection Regulations EU 2016/679.
j) “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase, the Capacity and the Fees to be paid the terms of which are incorporated into this Agreement.
k) “personal data” shall have the meaning given to it in GDPR.
l) “Subscription Services” means the proprietary My PT Hub hosted service which packages web-based access and the right-to-use the supported My PT Hub applications and associated reference, user and technical guides as named and described in Schedule 1 of this Agreement.
m) “User Guide” means the online documentation for the Subscription Service on the My PT Hub website, which includes functional guides and technical specifications, as updated by My PT Hub from time to time.
3. EXCLUDED FROM AGREEMENT
You shall not be entitled to access the Subscription Services if you are My PT Hub’s direct competitor, except with My PT Hub’s prior written consent, and you are expressly instructed not to do so. In addition, you shall not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or purposes competitive with My PT Hub’s activities.
4. THIRTY DAY FREE TRIAL
4.1 My PT Hub will make the Subscription Services available to Customer on a trial basis free of charge until the thirtieth day after Customer’s acceptance of this Agreement. After the thirtieth day, if the Customer has not paid for the Subscription Services then Customer will be automatically restricted by us to access only to a very limited range of the Subscription Services. Additional 30-Day trial terms and conditions may also appear on the 30-Day trial registration page on our site. Any such additional terms and conditions are deemed and agreed incorporated into this Agreement by reference and are legally binding.
4.2 Any data Customer enters into the Subscription Services and any customisations made to the Subscription Services by or for Customer during the 30-Day free trial may be permanently lost unless Customer purchases a subscription from us to the same Subscription Services as those covered by his/her/its 30-Day trial.
4.3 Notwithstanding anything to the contrary contained in this Agreement, during the 30-Day free trial period the Subscription Services are provided “as is” with no warranty or representation as to their functionality or effectiveness whatsoever.
5. SCOPE (AFTER END OF 30-DAY TRIAL PERIOD OR FEES PAYMENT)
5.1 Subject to Customer’s payment of cleared applicable Fees, My PT Hub will provide Customer with access to the Subscription Services as described in the applicable Order, subject to the Customer’s compliance with the terms of this Agreement and a receipted invoice by email.
5.2 An Order may be entered into under this Agreement by and between (a) My PT Hub or an Affiliate of My PT Hub; and (b) the Customer or an Affiliate of Customer.
5.3 With respect to an Order, the terms “My PT Hub” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be deemed to be incorporated into this Agreement and its terms as one binding document on both parties.
5.4 My PT Hub will invoice only the Customer which enters into this Agreement (not an Affiliate) for the Fees in any Order, whether requested by Customer or the Affiliate. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into an Order.
5.5 No purported imposition of any other contract terms between the parties shall be of any effect unless specifically agreed in writing to supplement, amend or vary this Agreement.
6. THE SUBSCRIPTION SERVICES – RIGHTS AND RESPONSIBILITIES
6.1 Subject to the terms of this Agreement, My PT Hub hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sub licensable, limited license for Customer and its Clients to access and use the My PT Hub’s proprietary Subscription Services (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations only, (iii) for Client’s personal use only, and (iv) on the condition that the Customer does so fully in accordance with the User Guide and the Order (Customer’s failure to do such things being agreed a material breach).
6.2 My PT Hub will (i) provide the Subscription Services to the named Customer or its named Affiliate(s) with reasonable skill and care in a manner consistent with general industry standards reasonably applicable to the provision of similar services thereto; (ii) use commercially reasonable efforts to maintain the security of Customer passwords; (iii) provide the Subscription Services’ support described on My PT Hub’s website (“Support”) to Customer for the Subscription Services (and to Clients who properly register on the My PT Hub website), which may be changed by My PT Hub upon prior notice to Customer; and (iv) comply with GDPR and My PT Hub’s Data Protection Policy in connection with the collection, use, processing and safeguarding of the personal data of the Customer and the Clients. For more information, please visit our support portal and knowledge base .
6.3 The Customer will:
6.3.2 not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorised access to the Subscription Services or its related software, systems, platforms or networks; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease, sublicense or provide (or attempt to do any of the same) the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data;
6.3.3 ensure that his Clients with whom it/he/she contracts and who will be entitled to have access through this Agreement will provide to the Customer contractually binding consent to My PT Hub collecting, holding, using and processing their personal data in accordance with the My PT Hub Data Protection Policy, as will be required at the Client’s registration to the My PT Hub website..
7. FEES AND PAYMENT
7.1 The Fees payable and method of payment for the Subscription Services will be set out in the Order and are incorporated into this Agreement by reference and are legally binding.
7.2 Payment of Fees, depending upon the Customer’s options chosen, shall be:
7.2.1 where the Customer has a monthly account, the Customer’s credit/debit card (details of which are provided by the Customer in the Order) will be charged the Fees set out in the Order on the same date of each month beginning with the date the Subscription Services were first purchased; and
7.2.2 where the Customer has an annual account, the Customer’s credit/debit card (details of which are provided in the Order) will be charged the Fees set out in the Order on or around the same date each year beginning with the date the Subscription Services were first purchased.
7.3 Once a Customer has made a payment of Fees (including any additional services, custom apps and add-on features), the Customer has purchased by contract the Subscription Services for the corresponding period of time and My PT Hub will be under no obligation to refund any payment made if the Customer then chooses to terminate this Agreement earlier than the expiry of such time period or if he no longer wishes to use the Subscription Services at an earlier date than the end of such period of time.
7.4 If this Agreement is not terminated in accordance with clause 8 below, then the Agreement will continue on the basis of renewal for the same period of time as the prior Order and payments will continue to be taken from the Customer’s credit/debit card and the Order until such time as this Agreement is terminated in accordance with clause 8.
7.5 All Subscription Services automatically renew at the standard regular rate applying at that time (which will be different form the original first registration Fees) using the same payment method, unless the Customer requests a change or chooses to cancel/terminate. This is because My PT Hub often offers promotions and special offers to Customers during their initial term. These special offers are limited-time promotional prices that are available to new Customers only and are valid for the initial term only. Upon renewal, the Customer will be billed at the My PT Hub regular Fees rates, as are set out in the Order.
7.6 All Fees and prices quoted shall, when invoiced, have Value Added Tax added to them at the prevailing rate.
7.7 Customer will pay or reimburse My PT Hub or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on My PT Hub’s net income or arising from the employment relationship between My PT Hub and its personnel) imposed in connection with the Fees paid for the Services, which are exclusive of these taxes.
7.8 In the event of non-payment of Fees and in addition to its other rights and remedies, My PT Hub reserves the right, without any liability on its part or compensation to the Customer, to suspend any and all Customer (and its Clients’) access to the Subscription Services if Customer’s account and Fees remain unpaid after the date they are due for more than twenty (20) days past due until all accounts are paid in full.
7.9 Any due but unpaid Fees shall, at My PT Hub’s option, attract interest at the rate current in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 until actual payment. Any payment against an account which has interest being added shall first be set-off against the existing accrued interest.
8. TERM AND TERMINATION
8.1 This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to clauses 8.2 to 8.3 inclusive below.
8.2 Each Order will begin on the start date specified in the relevant Order and continue for the Subscription Services term as specified in the Order.
8.3 An Order may not be terminated for convenience unless otherwise agreed.
8.4 Where the Customer has a monthly account, either party is entitled at any time to terminate this Agreement without cause or for its convenience upon 3 day’s written notice by notifying the other party and shall have no liability to the other if it does so.
8.5 Where the Customer has an annual account, either party is entitled to terminate this Agreement at any time without cause or for its convenience upon the expiry of at least 30 days’ written notice served on the other party.
8.6 Either party may terminate this Agreement for cause: (i) upon the expiry of at least ten (10) days’ written notice of a material breach served on the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.7 In addition to its other rights and remedies, My PT Hub reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer (or its Clients) commits a material breach of this Agreement or an Order until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within ten (10) days, then My PT Hub is entitled (without any liability to the Customer) to immediately terminate this Agreement and/or any existing Order.
8.8 Upon termination for any reason, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of any outstanding obligation at the date of termination to pay any Fees accrued (whether or not invoiced), due or payable to My PT Hub. If the Customer makes a written request do so which is received within 30 days after the date of termination, My PT Hub will make available to Customer a file containing that Customer’s Customer Data. After such 30 day period, My PT Hub shall have no obligation to maintain or provide any Customer Data and shall be entitled to delete Customer Data in accordance with its internal Company Policies or earlier.
9.1 My PT Hub warrants to Customer that the Subscription Services:
9.1.1 will perform substantially in accordance with the then-current My PT Hub on-line user guide available through the Subscription Services up to the Capacity; and
9.1.2 will be performed in with reasonable care and skill in a manner consistent with industry standards reasonably applicable to the provision thereof.
9.2 No other warranties are given by My PT Hub and all are excluded save to the extent that such warranties cannot be excluded by general law.
9.3 Customer’s exclusive remedies and My PT Hub’s sole obligation for breach of the warranties in clauses 9.1 and 9.2 will be My PT Hub’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the applicable User Guide, or My PT Hub replacing the non-conforming portion of the Subscription Service within a reasonable period of time. If My PT Hub cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then My PT Hub will refund the amount of Fees paid by Customer for the Subscription Services pro-rated from the date of the notice of the claim.
9.4 Subject to clause 9.5, My PT Hub’s cumulative liability for breach of this Agreement or an Order shall be in aggregate limited for any claim or series of claims throughout the period the Subscription Services are provided to the total Fees paid by the Customer in the last 12 months prior to My PT Hub receiving the required details of a claim referred to in clause 9.6.
9.5 Nothing in this Agreement or in an Order shall limit My PT Hub’s liability to the Customer in respect of death or personal injury caused by My PT Hub’s negligence or for fraud.
9.6 The rights, obligations and limits in this clause 9 are conditional upon the Customer providing My PT Hub with written notice of the claim, a reasonably complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
9.7 Subject to clause 9.5, the parties agree that neither of them nor their Affiliates shall be liable to the other party for any a) loss or damage to i) profits, ii) savings; iii) goodwill, iv) reputation, v) business, vi) computer usage or vii) contracts; or b) any indirect or consequential loss or damage relating to or arising either out of this Agreement, the other’s negligence, the performance or non-performance of the Subscription Service.
9.8 The Customer acknowledges and agrees that, except as otherwise expressly provided herein, My PT Hub, its Affiliates and licensors make no warranty, express, implied or statutory with respect to any use or application of the Subscription Services.
9.9 My PT Hub expressly disclaim any warranty that the Subscription Services will be uninterrupted, error free or without delay, and any warranties implied by law or which relate to implied warranties of merchantability, fitness for a particular purpose, non-interference, non-infringement and information content shall not apply to the fullest extent permitted by law.
9.10 The Customer agrees that it is fair and reasonable in all the circumstances of the Customer’s or its Clients’ use or application of the Subscription Services that the liability of My PT Hub, it’s Affiliates’ and licensors’ is limited as described in this clause 9.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY
10.1 My PT Hub, its Affiliates or licensors own and retain all right, title and interest in and to the Subscription Services and all related intellectual property and proprietary rights therein. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. My PT Hub owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Subscription Services or made available to Customer as a result of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. My PT Hub reserves any rights not expressly granted to Customer.
10.2 Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in contravention of this Agreement.
10.3 The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser.
10.4 Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
10.5 If the Recipient becomes aware of any unauthorised use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorised use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, requests for information, or documents in legal proceedings, summons , or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
10.6 Notwithstanding the foregoing, Customer agrees that My PT Hub may refer to Customer as a customer of My PT Hub, both internally and in externally published media.
10.7 Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. My PT Hub will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement.
10.8 At any time during the term of the Subscription Services, Customer may request in writing from My PT Hub copies of Customer Data within the Subscription Services.
10.9 Customer is responsible for complying with all legal and contractual requirements, including applicable privacy laws and regulations and its agreements with third parties who generate and/or process the Customer Data, relating to the collection, use, processing and transfer of Customer Data.
11. DATA PROTECTION
11.1 My PT Hub and Customer specifically agree that when Customer is located in the European Economic Area (“EEA”) the terms “Personal Data”, “Process”, “Data Controller”, “Special Categories of Data”, “Processing”, “Data Subject”, “Third Party Processing” and “Data Processor” will have the meanings given to them in the DP Laws.
11.2 In respect of Personal Data processed under this Agreement, the parties agree that the Customer is the Data Controller and My PT Hub is the Data Processor.
11.3 Customer and My PT Hub both agree that they will comply with the DP Laws in connection with the processing of personal data and the provision and use of the Subscription Services.
11.4 My PT Hub agrees that:
11.4.1 it will only collect, process and use Customer and Client Personal Data in a lawful manner for the sole purpose of performance of the Subscription Services for the benefit of the Client and the Customer and in accordance with the Customer’s and Client’s instructions, as the case may be;
11.4.2 any Clients using the Subscription Services directly shall first, before being enabled to do so, be required to register with My PT Hub and shall be made aware of and shall positively consent to the details of the processing of their Personal Data by My PT Hub, the purposes and use thereof, the period for which Personal Data is retained and whether the personal data is passed to a sub-Data Processor;
11.4.3 any sub-Data Processor that has access to any Personal Data shall have first agreed binding contract provisions to comply with obligations imposed on Data Processors under the DP Laws (and the laws and guidance relating to data protection in the territory of the sub-Data Processor);
11.4.4 where the sub-Data Processor is located outside the EEA then i) the details of the transfer of the Personal Data and the purpose for which they are being transferred shall comply with DP Laws; and ii) My PT Hub shall appoint such sub-Data Processor under a binding contract incorporating the Controller to Processor SCCs to ensure an adequate level of protection as regards security, safeguarding and confidentiality of Personal Data;
11.4.5 it will notify the Customer and the Client on the reasonable suspicion of there being a breach in the use of or any loss or damage to any Personal Data controlled by the Customer and assist the Customer in responding to Data Subject requests;
11.4.6 it will respond as soon as reasonably practicable to enquiries from any data protection supervisory body;
11.4.7 it will maintain and implement technical, technological, practical and organisational measures and a level of data security in accordance with good industry practice in relation to the processing of Personal Data to adequately protect Personal Data against (i) unauthorised access, (ii) unauthorised disclosure, (iii) misuse, (iv) corruption, and (v) loss and to generally protect the rights of Data Subjects; and
11.4.8 keep records of the processing activities carried out by My PT Hub and any of its sub-Data Processors, the categories of Personal Data processed, location and details of the sub-Data Processor and a description of its data protection security measures.
11.5 The Customer agrees that:
11.5.1 it/he/she will only permit Personal Data to be passed to My PT Hub for the sole purpose of performance of the Subscription Services for the benefit of the Client and the Customer;
11.5.2 it/he/she will not transfer any special categories of Personal Data without first obtaining explicit instructions from the Client concerned as to the purposes for it and communicating the same to My PT Hub and getting My PT Hub’s written acceptance to receive such Personal Data (which shall be entitled to refuse and reject receiving any such Special Categories of Personal Data to which the Customer shall not be entitled to object);
11.5.3 it/he/she will notify My PT Hub on the reasonable suspicion of there being a breach in the use of or any loss or damage to any Personal Data processed by My PT Hub and assist My PT Hub in in responding to Data Subject requests;
11.5.4 it/he/she will procure that in every contract it/he/she has with a Client who is allowed to register at My PT Hub to use the Subscription Services purchased by the Customer under this Agreement, the Customer shall procure that valid and effective clauses to the effect described in the principles given in Schedule 2 shall be within such contract and that the Client is bound by them to the Customer;
11.5.5 it will respond as soon as reasonably practicable to enquiries from any data protection supervisory body; and
11.5.6 it will maintain and implement technical, technological, practical and organisational measures and a level of data security in accordance with good industry practice in relation to the Personal Data it controls and transfers to My PT Hub to adequately protect Personal Data against (i) unauthorised access, (ii) unauthorised disclosure, (iii) misuse, (iv) corruption, and (v) loss and to generally protect the rights of Data Subjects.
12. INFRINGEMENT CLAIMS
12.1 If a third party asserts a claim against Customer asserting that Customer’s use of the Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then My PT Hub will, at its own expense:
12.1.1 defend or settle the Infringement Claim; and
12.1.2 indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services.
12.2 If My PT Hub believes the Subscription Services may violate a third party right, then My PT Hub will, at its expense:
12.2.1 modify the Services, or
12.2.2 procure the right to continue using the Services, or
12.2.3 if clauses 12.2.1 and 12.2.2 are not commercially viable or reasonable, terminate Customer’s right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of the Fees for such Subscription Services.
12.3 Subject to the terms of this Agreement, if a third party asserts a claim against My PT Hub asserting that the Customer Data or Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense:
12.3.1 defend or settle the Claim; and
12.3.2 indemnify My PT Hub for any damages finally awarded against My PT Hub and all associated legal costs based on the Claim.
12.4 Neither party’s obligations under this clause 12 will apply if:
12.4.1 the indemnifying party does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified,
12.4.2 the indemnifying party is not able to retain sole control of the defence of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or
12.4.3 the indemnifying party does not receive all reasonable assistance from the party being indemnified.
12.5 Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
Customer agrees that My PT Hub or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement.
14.1 It is agreed that My PT Hub shall not liable for any failure or delay to perform any of its obligations in accordance with this Agreement or the Subscription Services or an Order if such failure is caused by or contributed to by the acts or omissions of the Customer or its Clients.
14.2 It is also agreed that My PT Hub shall not liable to the Customer or a Client for any failure or delay by it to perform any of its obligations in accordance with this Agreement or the Subscription Services or an Order if such failure is caused by any event that is beyond the reasonable control of My PT Hub (including without limitation Acts of Gods, failure of utilities supply, withdrawal of licensed technology, power or I.T. breakdowns, war and civil disobedience, flood, fire, earthquake and industrial or labour disputes).
14.3 The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.4 Customer will receive system notifications from My PT Hub and its licensors, if applicable (i.e. planned downtime notices, etc.) and the Customer and Clients shall have no right of recourse for any works being undertaken to the system or system downtime.
14.5 This Agreement and all Orders constitute the entire agreement between Customer and My PT Hub and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement.
14.6 No third party acquires any rights or benefits under this Agreement and no third party shall be entitled to take legal action to enforce any obligation of either party hereto other than My PT Hub’s Affiliates.
14.7 Customer acknowledges and agree that it/he/she is not entering into a contractual relationship with My PT Hub’s licensors and My PT Hub’s licensors have no liability to Customer.
14.8 No modification or waiver of any provision hereof will be effective unless made in a writing signed by both My PT Hub and Customer.
14.9 Customer may not assign or transfer this Agreement or the receipt of the Subscription Services to a third party, whether by merger or otherwise. My PT Hub shall be entitled to assign or transfer its rights and benefits in this Agreement to a third party.
14.10 Should any provision of this Agreement be held to be invalid or unenforceable, the remainder of the provisions will remain in effect.
14.11 Any purported, subsequent or imposed additional or conflicting terms from the Customer, whether through email or in Customer’s purchase orders, shall have no effect (unless expressly agreed by My PT Hub in writing in advance) and are rejected by My PT Hub.
14.12 Any additional documents presented to a My PT Hub representative by Customer for signature as a condition for going on a Customer’s website will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of England and Wales, and any interpretation or disputes arising out of this Agreement or an Order shall be subject to the exclusive jurisdiction of the Courts of England and Wales to which both parties irrevocably submit.
Schedule 1 – SUBSCRIPTION SERVICES DESCRIPTIONS
Web and mobile based application enabling Personal Trainers and Fitness Professionals (i.e. the Customers) to manage their Clients health and fitness regime by creating customisable training and nutrition programmes whilst actively tracking their progress and achievements.
In addition, the application can be customised to fit the Personal Trainer / Fitness Professional’s own business branding by uploading their own logo and changing the colour scheme.
Schedule 2 – PRINCIPAL CONDITIONS THAT THE CUSTOMER AGREES IT/HE/SHE SHALL HAVE IN THE CONTRACT WITH ALL CLIENTS WHO ARE TO USE THE SUBSCRIPTION SERVICES
1) To state how the Customer (and My PT Hub) collect, use and protect their personal data and their rights in relation to it; and that the categories of data collected and processed include personal name, address, email address, phone numbers, bank account details and the like; and to get the Client’s express agreement to it.
2) To state why the Customer uses the personal data collected and why My PT Hub is the processor of it.
3) To state the lawful reason for the use and process of the personal data.
4) To state the contact details of the Customer’s Data Protection Officer or responsible person in relation to personal data controlling, processing and dealing with all types of data subject requests and responses.
5) To state that any personal data transferred to My PT Hub will be given by the Client on a voluntary basis.
6) To state that the personal data is shared with My PT Hub (and anyone else the Customer shares it with) but only if the Client personally enters and registers into the My PT Hub website and expressly consents to the uses and processing of their personal data by My PT Hub and its sub-data processors; and that if they do not agree with such terms then they will not be able to use the My PT Hub website.
7) To state how long the Customer and My PT Hub shall keep the personal data for (it being 6 years in the case of My PT Hub).
8) To state that their personal data may be transferred to, stored and processed in a country that is not regarded as ensuring an adequate level of protection for personal information under English and/or European law; but that if the personal data is to be transferred outside the UK, then the Customer will ensure that there are appropriate safeguards in accordance with applicable legal requirements to protect the information.
Questions, comments and requests regarding this Subscriptions Services Agreement are welcomed and should be addressed to [email protected].
Dated: 15 June 2018