Studio SaaS Terms
FISIKAL LIMITED is a technology business creating web and mobile Apps for the health and fitness industry. When you use our Software and Services you are agreeing to the terms and conditions as outlined in this Agreement. Please read this Agreement carefully as it contains important information regarding your legal rights and obligations. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.
This is a legally binding Agreement between you and FISIKAL LIMITED incorporated and registered in England and Wales with company number 06474303 whose registered office is at 71-75 Shelton Street, London, WC2H 9JQ (“Fisikal”). When you use our Software and Services you are agreeing to all the terms as detailed below.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
1st Line Customer Support: the service provided by you to handle questions and issues relating to use of the Software by your Customers and Professionals.
2nd Line Customer Support: the service provided by Fisikal to handle technical questions and issues raised by you relating to use of the Software by your Customers and Professionals as outlined in the Support Policy.
Agreement: the legally binding Agreement between Fisikal and you as to the course of action defined in this document.
Agreement Term: the duration of this Agreement.
Aggregated Data: means fully anonymised, aggregated data derived by or through the operation of the Services that is created by or on behalf of Fisikal and that does not reveal any personally identifying information.
App(s): a software programme built on the native platforms for iOS (Apple) and android (Google) Devices. Each App has been optimised to operate as intended on the Devices.
Authorised Users: those Employees, agents and independent contractors who, following your purchase of Services from Fisikal, are authorised by you to use the Software.
Back-Up Policy: our back-up policy for Customer Data, outlined online at https://cuttingedge.fisikal.com/#/home/small-print/show/back-up-policy.
Basic Branding: a type of environment branding supplied by Fisikal to you on the specific User Portals to include logos to comply with you brand guidelines.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Club: your fitness club or organisation consisting of Authorised Users and Customers.
Commencement Date: the date you accept this Agreement by clicking an “I Agree” button or the date you first access or use the Services.
Confidential Information: information of commercial value, in whatever form or medium, disclosed by one Party to the other Party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to your, pricing and marketing, including the existence of this Agreement.
Customer: a user that receives services or product offerings from you.
Customer Data: the data inputted by you, Authorised Users, a Customer or Fisikal on your behalf whilst using the Services or facilitating your use of the Services and any reports including that data.
Content: Media uploaded by you for use by their Customers.
Devices: the list of iOS and Android mobile phones upon which the Software has been designed to operate as outlined on our Website.
Employee: a person employed by a party to this Agreement.
Fair Use Policy: the agreed level of software usage by registered and licensed users as outlined on our Website.
Fees: all fees payable by you to Fisikal under this Agreement including (but not limited too) fees for administration and licences fees.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all Applications and rights to Apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, including the right to sue for and recover damages for past infringements.
Media: video, PDF and other related educational material uploaded by you or associate partner.
Party: refers to you or Fisikal in this Agreement.
Professional: an Authorised User that has access to an administration application where they have Customers associated to them and additional functionality that they can use for their business activities.
Support Policy: Fisikal’s support policy for the Services outlined on the Website.
Services: the subscription services provided by Fisikal to you under this Agreement via our Website, the Software or any other website notified to you by Fisikal from time to time.
Software: the technology software owned by Fisikal that forms part of the Services, including the Apps.
User Portal: an environment in Fisikal that has been licensed to you for use by their Authorised Users.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax including but not limited to turnover, sales or purchase tax or duty levied in any other jurisdiction.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Website: the Fisikal Website available online at https://fisikal.com/.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A reference to a clause shall be a reference to a clause of the main body of this Agreement, and a reference to a paragraph shall be a reference to a paragraph of the relevant Schedule.
1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s successors or permitted assigns.
1.5 A reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 A reference to matters being agreed in writing, or notices being given in writing, includes Agreement by exchange of e-mails, or notices sent via e-mail (subject to compliance with the provisions of clause 16) unless otherwise stated.
1.8 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.10 Clause and schedule headings do not affect the interpretation of this Agreement.
1.11 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns.
2. CLUB SUBSCRIPTIONS
2.1 Subject to you paying all Fees to us as and when they fall due and otherwise complying with your obligations under this Agreement, Fisikal hereby grants to you a non-transferable, revocable licence to permit Authorised Users to use the Software and the Services for the duration of this Agreement and solely within a Club and for your internal business operations.
2.2 In relation to the Authorised Users, you undertake that:
(a) you will not allow or suffer any Authorised User login to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software;
(b) each Authorised User shall keep a secure password for their use of the Software, and each Authorised User shall keep his or her password confidential;
(c) details of all current Authorised Users will be recorded in the Software’s database so that Fisikal is able to check the list of Authorised Users at any time;
(d) you will ensure that any Customer who terminated his or her contractual relationship with you will be denied access to the Software.
2.3 In relation to Customers, you undertake that:
(a) it will offer Customers login access to limited parts of the Software only, and only while those Customers that are currently engaging with your service offering;
(b) each Customer will keep a secure password for their use of the Software.
2.4 You shall not, and shall use reasonable endeavours to ensure that all Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender (including pregnancy and childbirth), marital status, colour, race, religious belief, sexual orientation, disability, or any other prohibited grounds of discrimination within The United Kingdom; or
(f) causes damage or injury to any person or property.
2.5 You shall not, except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the Parties and except to the extent expressly permitted under this Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Services in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Services and/or Software in order to build a product or service which competes with Fisikal; or
(d) use the Software and/or Services to provide services to third parties other than your Customers; or
(e) subject to clause 2.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third Party except the Authorised Users or Customers, or
(f) attempt to obtain, or assist third Parties in obtaining, access to the Software, other than as provided under this Agreement.
2.6 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of becoming aware of any such unauthorised access or use, shall promptly notify Fisikal.
2.7 Notwithstanding any other part of this Agreement, the Software and Services are only provided to you for use in respect of your Club and only to Authorised Users.
3. PAYMENT AND FEES
3.1 The Software is licensed by Fisikal to you in consideration for your payment of the Fees to Fisikal. The Fees payable will depend on the type of subscription purchased and are outlined online on our Website.
3.2 When you purchase the Services on our Website you will be required to provide Fisikal with valid, up-to-date and complete contact and credit/debit card details.
3.3 Fisikal shall automatically charge your credit/debit card each month in advance for the Fees due that month.
3.4 If for any reason Fisikal are unable to automatically charge your credit/debit card, then we shall contact you immediately to request that payment is made, or your credit/debit card details be updated online. If Fees remain unpaid for 7 days after the due date for payment, then without prejudice to any other rights and remedies of Fisikal;
(a) interest shall accrue on the overdue amount at the rate of 4% per annum above HSBC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment; and
(b) we may, without liability to you, disable your Authorised Users accounts and access to all or part of the Services with no obligation to provide any or all the Services while payment remains outstanding.
3.5 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4. FISIKAL’S OBLIGATIONS
4.1 Fisikal shall use all reasonable endeavours to maintain the Software and the App(s) as outlined in this Agreement during the term of this Agreement.
4.2 Fisikal warrants that the Services will be performed substantially in accordance with the Website, with reasonable skill and care and that the Software shall conform substantially to the specification outlined on the Website.
4.3 The warranty at clause 4.2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Fisikal’s instructions, or modification or alteration of the Services by any party other than the Fisikal or the Fisikal’s duly authorised contractors or agents. If the Services do not conform with the foregoing warranty, Fisikal will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 4.2. Notwithstanding the foregoing, Fisikal:
(a) does not warrant that use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by you through the Services will meet your exact 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, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.4 Fisikal shall monitor the Software to ensure that the Fair Use Policy is not breached as outlined on the Website.
4.5 Fisikal warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
4.6 Fisikal shall notify you in writing if they become aware of any changes in regulation that effect how you may operate the Software.
4.7 Fisikal shall provide 2nd Line Customer Support to you.
5. YOUR OBLIGATIONS
5.1 You shall provide Fisikal with:
(a) all reasonable co-operation in relation to this Agreement; and
(b) all reasonably necessary access to such information as may be required by Fisikal;
in order to perform the Services and otherwise comply with our obligations under this Agreement, including but not limited to Customer Data, security access information and configuration services;
5.2 You shall comply with all applicable laws and regulations in respect to your use of the Software and Services in the territory that you access them in;
5.3 You shall carry out all responsibilities set out in this Agreement in a timely and efficient manner. Fisikal shall not be liable for any loss, damage or delay in Functionality or operation of the Software directly caused by or arising from your failure to comply with your obligations under this Agreement. If such event arises, the time for performance of Fisikal’s obligations under this Agreement shall be extended correspondingly.
5.4 You shall use reasonable steps to ensure that the Authorised Users and Customers use the Software in accordance with the terms and conditions of this Agreement and shall take all reasonable steps to ensure that Authorised Users and Customers do not breach this Agreement;
5.5 You shall obtain and shall maintain all necessary licences, consents, and permissions for Fisikal, its contractors and agents to perform their obligations under this Agreement to you, including without limitation delivery of the Services;
5.6 You shall ensure that your network and systems comply with or exceed the relevant specifications required as provided by Fisikal to you from time to time;
5.7 You shall be solely responsible for procuring and maintaining your network connections and telecommunications links from its systems to Fisikal’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links;
5.8 You shall be responsible for managing the Content in the Software and ensure correct formatting, configuration, copy and branding requirements are met;
5.9 You shall be responsible for all Customer Data in the Software and ensure that it is correctly configured;
5.10 You will be responsible for frequently checking the Customer Data and notifying Fisikal if there are any problems with it;
5.11 You shall inform Fisikal if you become aware of any breach of your provisions outlined in clause this Agreement using the contact details outlined on our Website. You accept that Fisikal reserves the right to suspend or terminate the overall Services after consultation with you and with reasonable notice, should Fisikal find that the breach is deemed as a direct threat to the Software, until the threat to the Software has been resolved.
5.12 You shall provide 1st Line Customer Support to your Customers and Professionals. Should you establish there is a generic fault in the Software, you should inform Fisikal as outlined in the Support Policy on our Website.
6. INTELLECTUAL PROPERTY
6.1 All existing and future Intellectual Property Rights in the Software, the Services, the Apps and all materials embodying these rights belong to Fisikal or the relevant third-party owners (as the case may be), and you shall have no rights in or to the Software, Services and Apps other than the right to use them in accordance with this agreement.
6.2 Fisikal acknowledges that the Customer owns all Intellectual Property Rights or has the right to grant licences in the Customer Data. You hereby grant to the Fisikal a non-exclusive, worldwide, perpetual, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works from, grant sublicenses in (with your consent, not to be unreasonably withheld) and otherwise exploit any Intellectual Property Rights in the Customer Data during Fisikal’s delivery of the Services and in the creation of and commercialisation of any Aggregated Data. This clause 6.2 shall survive the termination of the agreement.
6.3 You acknowledge that all Intellectual Property Rights in the Aggregated Data shall at all times be owned by Fisikal and Fisikal shall be permitted to deal with and/or commercialise the Aggregated Data in any way they see fit without restriction.
6.4 All existing and future Intellectual Property Rights in the Media and Content shall belong to you and you hereby grant to Fisikal a non-exclusive, worldwide, perpetual, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works from, grant sublicenses in (with the consent of the Customer, not to be unreasonably withheld) and otherwise exploit any Intellectual Property Rights in the Media as may be reasonably required for Fisikal’s delivery of the Services.
7. DATA OWNERSHIP AND USE
7.1 As above, you shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2 Fisikal shall follow its archiving procedures for Customer Data as set out in its Back Up Policy as may be amended by Fisikal in its sole discretion from time to time.
7.3 In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for Fisikal to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Fisikal in accordance with the archiving procedure described in its Back-Up Policy. Fisikal shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Fisikal to perform services related to Customer Data maintenance and back-up).
7.4 Fisikal, in relation to the security of the data and its possible exchanges, undertakes that:
(a) In the case of a cloud computing service and hosting the Customer Data on Fisikal servers, the physical security of its facilities will be guaranteed and the equipment of Fisikal services will be housed in data centers extremely protected with standards of high security and great capacity.
(b) Fisikal’s software platform and associated solutions will be available through high security access and protected against unauthorised third-party access through explicit access permission.
(c) The infrastructure of software and application solutions will be located in an architecture integrated by all protection systems, including databases, firewalls, monitoring systems and application servers.
(d) Software versions will be updated regularly to ensure application security and limit possible security breaches.
7.5 Fisikal shall provide secure access to data through:
(a) The compartmentalisation of data and the management of accesses through the use of user IDs and passwords, as well as the possibility of defining the access rights for each Authorised User based on their profile.
(b) blocking prediction functions to block Authorised Users passwords as a result of failed access attempts.
8. OTHER ACTIVITIES
8.1 Nothing in this Agreement shall prevent the Parties from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the term of this Agreement provided that such activity does not cause a breach of any of the terms of this Agreement.
9.1 Each Party shall ensure and procure its consultants, Employees, agents and sub-contractors to treat all Confidential Information provided or acquired under this Agreement is treated as secret and confidential and not disclose it to any third Party without the prior written consent of the other Party unless:
(a) the information was already lawfully known or became lawfully known to the other Party independently of its involvement in this Agreement; or
(b) the information is or becomes within the public domain other than due to the wrongful disclosure by the other Party; or
(c) disclosure or use is necessary for the proper and effective performance and/or the lawful exercise of a Party’s rights under this Agreement, subject to the other Party’s consent (not to be unreasonably withheld or delayed); or
(d) disclosure is required by a person or body having a legal right, duty or obligation to have access to the information and then only in pursuance of such a legal right, duty or obligation and providing prior notice to the other Party.
9.2 This clause shall continue in force after and despite the expiry or termination of this Agreement whatever the reason for termination.
9.3 Notwithstanding clause 9.1, Fisikal is entitled to announce the existence of this Agreement, including details of the Services being provided by Fisikal and a credit on its website (subject to your prior written approval not to be unreasonably withheld or delayed), provided that the actual terms of this Agreement remain defined as Confidential Information subject to the restrictions in clause 9.1. If the Parties agree to the issuing of a press release, the content shall be agreed in writing by both Parties before it is issued.
10.1 Subject to clause 10.3 and save to the extent that liability arises as a result of the actions or omissions of Fisikal, you shall defend, indemnify and hold harmless Fisikal against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and/or Software, provided that:
(a) you are given prompt notice of any such claim;
(b) Fisikal provides reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
(c) you are given sole authority to defend or settle the claim.
10.2 Subject to clause 10.3 and save to the extent that liability arises as a result of the actions or omissions of you or your Authorised Users, Fisikal shall defend you, your officers, directors and Employees against any claim that the Services infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Fisikal is given prompt notice of any such claim;
(b) you provide reasonable co-operation to Fisikal in the defence and settlement of such claim, at Fisikal’s expense; and
(c) Fisikal is given sole authority to defend or settle the claim.
10.3 Any claims arising under clauses 10.1 or 10.2 above shall be subject to the limitation of liability outlined in Clause 12.
10.4 In the defence or settlement of any claim, Fisikal may procure the right for you to continue using the Services, replace or modify the Services replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.5 In no event shall Fisikal, its Employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
(a) a modification of the Services and/or Software by anyone other than the Fisikal; or
(b) you or your Authorised Users use of the Services and/or Software in a manner contrary to the instructions given to you by Fisikal; or
(c) you or your Authorised Users use of the Services and/or Software after written notice of the alleged or actual infringement from Fisikal or any appropriate authority.
10.6 The foregoing and clause 11.4 state your sole and exclusive rights and remedies, and Fisikal’s (including Fisikal’s Employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. LIMITATION OF LIABILITY
11.1 Except as expressly and specifically provided in this Agreement:
(a) You assume sole responsibility for results obtained from the use of the Services by you and the Authorised Users, and for conclusions drawn from such use. Fisikal shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Fisikal by you in connection with the Services, or any actions taken by Fisikal at the your direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services, Software and the Apps are provided to the Customer on an “as is” basis.
11.2 Neither Party excludes or limits their liability for:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury caused by their negligence;
(c) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any matter for which it would be unlawful for the Parties to exclude liability.
11.3 Subject to clause 11.1 or 11.2, neither Party shall be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
(a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
(b) any loss or corruption (whether direct or indirect) of data (including Customer Data) or other information;
(c) pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
(d) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
(e) any loss or liability (whether direct or indirect) under or in relation to any other contract.
11.4 Each Party’s total aggregate liability in contract (including in respect of the indemnities at clause 10.1 and 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement within each 12 month period shall not exceed the total Fees, paid by you to Fisikal during the previous 12 months.
12. DATA PROTECTION
12.1 In this clause:
(a) Data Controller, Data Subject, international organisation, Personal Data, Personal Data Breach, Data Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly);
(b) Data Protection Laws means, as binding on either party or the Services:
(A) the General Data Protection Regulation (EU) 2016/679 (GDPR);
(B) the Data Protection Act 2018;
(C) any laws which implement any such laws; and
(D) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
(c) Protected Data means Personal Data received from or on behalf of you in connection with the performance of Fisikal’s obligations under this Agreement; and
(d) Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by Fisikal for carrying out any processing activities on behalf of you in respect of the Protected Data.
12.3 The parties agree that you are the Data Controller and that Fisikal is the Data Processor for the purposes of processing Protected Data pursuant to this Agreement. You shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to Fisikal in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.
12.4 Fisikal shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
12.5 You shall indemnify and keep indemnified Fisikal against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by you of your obligations under this clause 11.
12.6 Fisikal shall:
(a) only process the Protected Data in accordance with this Agreement (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform you of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
(b) if Fisikal believes that any instruction received by it from you is likely to infringe the Data Protection Laws it shall promptly inform you and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
12.7 In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing of the Personal Data to be carried out in accordance with the Services, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, Fisikal have implemented appropriate technical and organisational security measures appropriate to the risk.
12.8 Fisikal shall:
(a) not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of you;
(b) prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Schedule that is enforceable by Fisikal and ensure each such Sub-Processor complies with all such obligations;
(c) remain fully liable to you under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
(d) ensure that all persons authorised by Fisikal or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
12.9 Fisikal shall (at your cost):
(a) Assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Fisikal; and
(b) taking into account the nature of the processing, assist you (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of your obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
12.10 Fisikal shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the European Economic Area without the prior written consent of you.
12.11 Fisikal shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Fisikal’s compliance with the obligations placed on it under this clause 11 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by you (or another auditor mandated by you) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 11.10).
12.12 Fisikal shall notify you without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
12.13 On the end of the provision of the Services relating to the processing of Protected Data, at your cost and your option, Fisikal shall either return all of the Protected Data to you or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Fisikal to store such Protected Data.
13. ASSIGNMENT AND SUBCONTRACTING
13.1 You shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
13.2 Fisikal may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
13.3 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
14.1 This Agreement shall, unless otherwise terminated as provided in clause 15, begin on the Commencement Date and shall continue, for the duration of 1 month and thereafter shall be automatically renewed for successive periods of 1 month (each an “Auto-Renewal”) unless:
(a) either Party notifies the other party of termination, in writing, at least 1 month prior to the first day of the next Auto-Renewal, in which case the Agreement shall terminate upon expiry of the next Auto-Renewal; or
(b) otherwise terminated in accordance with the provisions of this agreement;
15.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other by giving notice in writing to the other party if:
(a) the other party commits a material breach of any of the terms of this Agreement and fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its you directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986 (UK); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors within an insolvency proceeding, or makes an application to a court of competent for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt owed by it to third parties.
15.2 On termination of this Agreement for any reason:
(a) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
(b) no later than 90 days after the effective date of the termination of this Agreement, you may in writing request the delivery of the then most recent back-up of your Data. Fisikal shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Fisikal in returning or disposing of you Data; and
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
16.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to:
(a) FISIKAL (postal) – the address at the start of this Agreement; or
(b) FISIKAL (email) – firstname.lastname@example.org; and
(c) You (postal) – the correspondence address that you name when you purchase the Services; or
(d) The Customer (email) – the email address that you name when your purchase the Services;
or such address notified to the other party from time to time.
16.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17. ENTIRE AGREEMENT
17.1 This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
17.3 Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
17.4 Nothing in this clause shall limit or exclude any liability for fraud.
18.1 No variation of this Agreement or of any of the documents referred to in it shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
19. FORCE MAJEURE
19.1 Neither Party shall have liability to the other under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control after the exercise of reasonable diligence, including, strikes, lock-outs or other industrial disputes (other than involving the workforce of Fisikal and any other Party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, provided that the other is notified of such an event and its expected duration. The Party prevented from, or delayed, in performing its obligations under this Agreement will take all reasonable alternative measures to mitigate the consequences of the Force Majeure event in order to comply with the performance of its obligations under this Agreement.
20. THIRD PARTY RIGHTS
20.1 A person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
20.2 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
21. GOVERNING LAW
21.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.1 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Updated on 20/01/2020