1.1 The definitions and rules of interpretation in this clause apply in this agreement. “AskGym” means AskGym Limited incorporated and registered in England and Wales with company number 08308398 whose registered office is 22 New Street, Leamington Spa, Warwickshire, CV31 1HP. “Commencement Date” means the date identified as the commencement date in the Order Form. “Customer’s Commission” means a percentage (which is more particularly described in the Order Form) of the Net Income from sales of the Products via the Web Portal. “Customer’s Logo” means the Customer’s name, trade mark, device, logo as required by AskGym for the provision of the Services as agreed in advance with the Customer. “End-Users” means users of the Customer’s website directed to the Web Portal via the Link. “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. “Link” means the hypertext reference link from the initial, top-level display of the Customer’s website to the Web Portal as identified in the Order Form. “Net Income” means the payments made to AskGym by End Users for the Products less cost of product(s) any value added tax or other sales tax on them and any delivery costs or other expenses incurred by AskGym in the provision of e-commerce services and any discounts or rebates granted by AskGym. Including and not limited to £1.50 per product for packaging, 9 pence for each Sage Pay transaction and 2% of transactional value for merchant services. These changes are subject to periodic reviews and may increase or decrease. “Order Form” means AskGym’s order form provided overleaf. “Products” means the products offered by AskGym for sale via the Web Portal. “Services” means the services to be provided by AskGym under this agreement as described in greater detail in the Order Form along with any other services which AskGym provides or agrees to provide to the Customer. “Term” has the meaning given in the Order Form. “VAT” means value added tax chargeable under English law for the time being and any similar additional tax. “Web Portal” means the online portal which operates as part of the website www.gymcommerce.co.uk and from which End Users can enter into e-commerce transactions with AskGym.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Words in the singular shall include the plural and vice versa.
1.5 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.
1.6 A reference to writing or written includes faxes but not e-mail.
1.7 Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2.1 AskGym shall be the exclusive provider of e-commerce services for the promotion and sale of the Products via a link from the Customer’s website subject to the terms and conditions of this agreement.
2.2 AskGym shall provide the Services to the Customer from the Commencement Date.
2.3 The Services supplied under this agreement shall continue to be supplied for the Term and, unless otherwise specified in the Order Form, shall continue to renew for periods of time equal to the Term until this agreement is terminated by one of the parties giving to the other not less than 3 months’ notice such notice to expire on the anniversary of the Term or unless this agreement is terminated in accordance with clause 11.1.
2.4 Any samples, drawings, descriptive matter or advertising issued by AskGym and any descriptions or illustrations contained in AskGym’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of this agreement or have any contractual force.
2.5 This agreement applies to the exclusion of any other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.1 AskGym shall use reasonable endeavours to provide the Services to the Customer in all material respects. Time for performance by AskGym shall not be of the essence of this agreement.
3.2 The type and price of the Products and the terms on which they are sold to End Users will be determined by AskGym in its absolute discretion.
3.3 AskGym shall have the right to place the Link on the Customer’s website and to receive internet traffic via the Link.
3.4 AskGym shall sell its Products via the Web Portal to End Users as the principal contracting party. The contract for the sale of Products is formed between the End User and AskGym.
4.1 The Customer shall:
4.1.1 co-operate with AskGym in all matters relating to the Services;
4.1.2 provide for AskGym, its consultants and employees, in a timely manner and at no charge, access to the Customer’s information technology systems and data as reasonably required by AskGym to set the Link and perform the Services;
4.1.3 inform AskGym of all rules and regulations and any other reasonable security requirements that apply to the Customer’s information technology systems; and
4.1.4 ensure that all of the Customer’s information technology systems necessary for the operation of its website are in good working order and suitable for the purposes for which it is used and conform to all relevant United Kingdom standards or requirements.
4.2 If AskGym’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, AskGym shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
4.3 The Customer shall be liable to pay to AskGym, on demand, all reasonable costs, charges or losses sustained or incurred by AskGym (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this agreement, subject to AskGym confirming such costs, charges and losses to the Customer in writing.
4.4 The Customer shall not at any time during the Term or for 3 months after the termination of this agreement, solicit or entice away from AskGym or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of AskGym in the provision of the Services to the Customer.
5.1 Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
5.2 The Customer shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind AskGym in any way, and shall not do any act which might reasonably create the impression that the Customer is so authorised. The Customer shall not make or enter into any contracts or commitments or incur any liability for or on behalf of AskGym including for the sale of Products or the price for them, and shall not negotiate any terms for the sale of the Products.
6 WEBSITE LINK
6.1 The Customer shall:
6.1.1 not in any way reproduce the Link or any part of its contents other than with AskGym’s prior written consent;
6.1.2 not in any way suggest that AskGym or the Customer is endorsing any products or goods other than the Products;
6.1.3 not misrepresent the relationship between AskGym and Customer or present any other false information about AskGym; or
6.1.4 except for the Link, not use AskGym’s trade marks without express written permission from AskGym;
6.1.5 not alter, block or otherwise prevent the display of any content of the Website;
6.1.6 not link to the Web Portal through any other URL or mirrored website; or
6.1.7 not to do or permit to be done anything on the Customer’s website (or any website to which it is connected or linked) which may reasonably be considered to be obscene, defamatory, harassing, offensive or malicious, or which may cause damage to the goodwill or reputation of AskGym (in AskGym’s reasonable opinion).
7.1 In consideration of the mutual obligations and benefits set out in this agreement, AskGym will provide the Services to the Customer.
7.2 AskGym will pay to the Customer the Customer’s Commission in consideration for the referral of End Users to the Web Portal via the Link.
7.3 At the end of each month AskGym will produce a report which shows the total numbers of Products sold to End Users and the amount of the Customer’s Commission due for the sales made in the said month. The amount of Customer Commission will be paid to the Customer within 30 days from the date of the report via BACS payment to the Customer’s nominated account.
7.4 If any dispute arises as to any amount payable by AskGym to the Customer, the dispute shall be referred to AskGym’s accountants for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties and the NAH auditors costs shall be paid as they shall direct.
7.5 The Customer’s Commission will not be due to the Customer until AskGym has received payment in cleared funds from the End User for the Products. Where the Customer subsequently cancels his contract or returns his Products to AskGym or its nominated suppliers, the amount of Customer Commission paid in respect of that sale shall at AskGym’s option be either:
7.5.1 recoverable from the Customer by way of set-off against future Customer Commission payments; or
7.5.2 recoverable from the Customer as a debt owned to AskGym by the Customer.
7.6 If AskGym fails to make any payment due to the Customer under this agreement by the due date for payment, then interest will accrue on the overdue amount at the rate of 2.5% per year above the Bank of England base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount.
8.1 As between the Customer and AskGym, all Intellectual Property Rights in the supply of the Services and all other rights in the Web Portal (including without limitation, all content, text, images, software, media and other materials on the Website) shall be owned by AskGym, save for the Intellectual Property Rights in the Customer’s Logo. The Customer acknowledges that the Link is proprietary to AskGym and protected under copyright and other intellectual property laws and may not be reproduced, transmitted, displayed, published or distributed without the express prior written consent of AskGym.
8.2 In the provision of the Services, AskGym will use the Customer’s Logo for the design and presentation of the Web-Portal. The Customer licenses all Intellectual Property Rights in the Customer’s Logo to AskGym free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable AskGym to operate the Web Portal. This licence will automatically terminate on termination or expiry of this agreement.
9.1 Each party (“Receiving Party”) agrees that it shall at all times (both during the term of this agreement and after its termination) keep confidential, and shall not without the prior written consent of the other party (“Disclosing Party”) use or disclose to any third party any Confidential Information of the Disclosing Party.
9.2 The Receiving Party may, to the extent necessary to implement the provisions of this agreement (but for no other reason), disclose the Disclosing Party’s Confidential Information:
9.2.1 where necessary to comply with any law, regulation, order or legitimate request, to any relevant governmental or other authority or regulatory body;
9.2.2 where the Receiving Party is a body corporate, to any member of the same group of companies; or
9.2.3 to any employees, officers or representatives of the Receiving Party or any of the above.provided that, before any such disclosure, the Receiving Party shall make those persons aware of its obligations of confidentiality under this agreement.
9.3 The Receiving Party shall procure that members of its group of companies (if any), its own employees, officers and representatives and those of members of its group of companies are made aware of and comply with the confidentiality obligations set out in this clause 9.
9.4 All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by the Receiving Party to the Disclosing Party shall be returned promptly to the Disclosing Party on termination of this agreement, and no copies shall be kept.
10.1 Nothing in this agreement limits or excludes AskGym’s liability for death or personal injury caused by its negligence or fraud or fraudulent misrepresentation.
10.2 Subject to clause 10.1, AskGym shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of agreements or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of or damage to goodwill;
10.2.6 loss of use or corruption of software, data or information;
10.2.7 any indirect or consequential loss.
10.3 Subject to clause 10.1 and clause 10.2, AskGym’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to 125% of the Customer Commission due to the Customer in the 12 months preceding the claim or, if the agreement has been in force for less than 12 months, the average actual monthly Customer Commission multiplied by 12.
10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
11.1 For the purpose of this clause, “Personal Data”, “Data Controller”, “Data Processor”, “Data Subject”, “Processing” and/or “Process” shall have the meanings given to them in the Data Protection Act 1998.
11.2 AskGym and the Customer acknowledge that the provision of the Services will require the parties to share and process Personal Data belonging to the other party and/or to End Users. Each party acknowledges that the other party is acting as a Data Controller and not as a Data Processor regarding the Processing and transfer of Personal Data arising from or occasioned by the Services in respect of Personal Data belonging to End Users.
11.3 Each party warrants to the other that it will process the Personal Data referred to in clause 11.2 in compliance with all applicable laws, enactments, regulations, regulatory guidance, orders, standards and other similar instruments.
11.4 Each party warrants that it has and will maintain adequate notification with the Information Commissioner’s Office for the Processing of Personal Data.
12.1 A party shall be entitled to terminate this agreement with immediate effect by giving written notice to the other party if:
12.1.1 the other party commits a material breach of its obligations under this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or
12.1.2 an order is made or a resolution is passed for the dissolution or winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.
13.1 On termination of this agreement for any reason:
13.1.1 AskGym shall immediately disable the Link from the Customer’s website;
13.1.2 The Customer shall immediately cease to associate itself with AskGym (whether on the Customer’s website or otherwise);
13.1.3 If AskGym has purchased a domain name for use in the provision of the Services to the Customer, that domain name will remain in AskGym’s ownership and will not be renewed on its expiry date;
13.1.4 AskGym shall calculate the amount of unpaid Customer Commission accrued up to the date of termination. This amount shall be paid at the end of the month following the month in which the agreement is terminated; and
13.1.5 the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
14.1 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. 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 3 months the party not affected may terminate this agreement by giving 14 days’ written notice to the other party.
14.2 Any party that is subject to a force majeure event shall not be in breach of this agreement provided that it promptly notifies the other parties in writing of the nature and extent of the force majeure event causing its failure or delay in performance.
15.1 No variation of this agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16.1 A waiver of any right or remedy under this agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
16.2 No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
17.1 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
18.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
18.2 If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19.1 This agreement and any documents referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.
19.2 Each party acknowledges that, in entering into this agreement and the documents referred to in it, it does not rely on and shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this agreement or those documents. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement or those documents (whether made innocently or negligently) shall be for breach of contract.
19.3 Nothing in this clause shall limit or exclude any liability for fraud.
20.1 The Customer shall not, without the prior written consent of AskGym, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
20.2 AskGym may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
20.3 Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
21.1 A person who is not a party to this agreement shall not have any rights under or in connection with it.
22.1 All communications between the parties about this agreement must be in writing and delivered by hand or sent by pre-paid first class post by email to its registered office or email address or such changed address as shall be notified to the other party from time to time.
22.2 Communications shall be deemed to have been received:
22.2.1 if sent by pre-paid inland first class post, 2 days after posting (exclusive of the day of posting);
22.2.2 if delivered by hand, on the day of delivery;
22.2.3 if sent by email on a working day (in the UK) prior to 4.00 p.m., at the time of transmission and otherwise on the next working day.
23.1 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.
23.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
If you have any questions regarding the terms and conditions contact AskGym on +44 (0)1905 477582 or email firstname.lastname@example.org.