Partner Terms & Conditions

PARTNER TERMS & CONDITIONS

                                                      (Last updated on 25-11-2024)                                                     

 

These Partner Terms & Conditions (“Agreement”) govern the relationship between ASR MARKET VENTURES PVT. LTD. (“FITPASS”, “we”, “our”, and “us”), a private limited company incorporated under the Companies Act, 2013 with its corporate office at 3E/2, Block E 3, Jhandewalan Extension, Jhandewalan, New Delhi, Delhi 110055 having its own Platform (defined hereinafter) and any person desiring of partnering with us (“Partner”, “you”, and “yours”).

 

Your acceptance of our welcome letter or onboarding document(s) (collectively “Applicable Documents”), and/or access to our Platform amounts to your acceptance of the terms of this Agreement (“Terms”). Unless otherwise provided in this Agreement, the Applicable Documents and the terms thereof shall be considered as part and parcel hereof and shall along with this Agreement constitute the entire legal binding agreement between you and FITPASS. Any continued availing of FITPASS Offering (as defined hereinafter) shall amount to continued acceptance of these Terms and the Applicable Documents.

 

Subject to fulfilment of conditions of this Agreement, you will be enrolled as a partner gym/ fitness facility in our network and by monetizing our vast user base across major cities, offer to the users of FITPASS who purchase one of various packages/ memberships/ subscriptions (as the case may be) (“Members”), access to your gym/fitness facilities (“Partner Location” and “Location”), equipment and services (collectively “your Services”).

 

THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH YOU SHALL HAVE ACCESS TO THE PLATFORM FOR AVAILING THE OFFERINGS OF FITPASS.

 

For all your rights in respect of usage and collection of information and data, and of accessing/using the Platform, the privacy policy accessible at https://fitpass.co.in/privacy-policy (“Privacy Policy”) and the terms of use accessible at https://fitpass.co.in/terms-and-conditions (“Usage Terms”) respectively, shall be the governing agreements.

 

FITPASS RESERVES THE RIGHT TO MODIFY THE TERMS HEREIN, FROM TIME TO TIME AND THE REVISED TERMS WILL APPLY TO YOU FROM THE DATE OF PUBLICATION OF THE REVISED TERMS. YOU ARE REQUESTED TO VISIT THE PLATFORM TO VIEW THE MOST CURRENT TERMS BY REFERRING TO THE LAST UPDATED VERSION. CONTINUED AVAILING OF FITPASS OFFERINGS OR USE/ACCESS OF PLATFORM SHALL AUTOMATICALLY AMOUNT TO ACCEPTANCE OF THE LAST UPDATED TERMS.

 

For the purpose of this Agreement, the capitalized terms used herein but not defined herein shall have the same meaning as assigned to them under the Privacy Policy or the Usage Terms.

 

1. PLATFORM

 

FITPASS owns the Platform comprising of (a) the domain name www.fitpass.co.in (“Website”); and (b) the software application for use on small, wireless computing devices such as a smart phone or tablet and on desktop or laptop computers (“App”) consisting of among other features, an interface specific to the partners onboarded by FITPASS (“Dashboard”).

 

2. ACCEPTANCE & CONSENT

 

1. 1. This document is published by virtue of a legal requirement under the provisions of the Information Technology Act, 2000 and the rules made thereunder and the amended provisions pertaining to electronic records/ documents in applicable statutes across jurisdictions. This Agreement does not require any physical, electronic or digital signature.

 

1. 2. This Agreement is a legally binding document between you and FITPASS. The Terms hereof will be effective upon (i) your acceptance of Applicable Documents or (ii) by your use and access to Platform in respect of availing FITPASS Offering (as defined hereinafter); and will govern the relationship between FITPASS and you.

 

3. FITPASS OFFERING

 

1. 1. FITPASS enables its Members to reserve, schedule and attend workout(s) at a Partner Location by using the Platform, for which purpose FITPASS enrolls/onboards and partners with gyms/ fitness facilities which post information about their Location such as available slots, services offered, on the Platform. You will be granted access and limited right to use the Platform to avail the userbase of FITPASS, in order to provide Services to FITPASS Members, in accordance with the terms of this Agreement (“FITPASS Offering(s)” and “Offering(s)”).

 

1. 2. Upon signing and delivery of Applicable Documents as described in the recitals and upon your account registration in accordance with these Terms, FITPASS shall show/present/host the details and other information regarding work hours, location, facilities, services, etc. offered by you at your Location, on the Platform. As per the terms of the subscription of such Members, they will be permitted to reserve workout(s) at your Location and visit on the reserved times and avail your Services. You can manage available slots, working hours and reservations pertaining to your Location, with the help of various features on the Dashboard.

 

1. 3. In consideration for your Services, you shall be given a per visit fee as may be agreed between you and FITPASS under the Applicable Documents and in the manner provided under these Terms.

 

1. 4. YOU AGREE AND ACKNOWLEDGE THAT BY ITS PROVISION OF FITPASS OFFERING TO YOU, FITPASS IS ONLY ACTING AS AN INTERMEDIARY FOR THE PURPOSE OF FACILITATING AND ENABLING ITS MEMBERS TO AVAIL, AND FOR YOU TO PROVIDE YOUR SERVICES. YOU ACKNOWLEDGE THAT THE PROVISION OF SERVICES TO THE MEMBERS AND THE ENTIRE INTERACTION, DEALING, AND COMMUNICATIONS BETWEEN YOU AND THE MEMBERS ATTENDING WORKOUT(S) AT YOUR LOCATION OR AVAILING YOUR SERVICES IS AN INDEPENDENT AND SEPARATE TRANSACTION/ RELATIONSHIP BETWEEN SUCH MEMBERS AND YOU.

 

1. 5. You have represented and FITPASS has relied on your representation that you are the rightful owner/ authorized representative of the gym/fitness facility at your Location with adequate infrastructure and personnel for providing Services to the Members. You shall submit proof of ownership, permits, certifications, NOCs, qualifications of your personnel, etc. if requested by FITPASS. Without prejudice to the foregoing, you hereby authorize FITPASS to make any inquiries, either directly or through a third party agency, to verify your identity. Such inquiry may include (i) searching third party databases and requisitioning associated reports; (ii) requesting you to furnish a government identification along with certain other information about you (including without limitation, PAN Card, Aadhaar/ Driver’s License/ Voter ID or Utility Bills) ; or (iii) requesting you to furnish documents to confirm ownership or any other right to onboard your Location, or banking information (including without limitation Incorporation documents of your entity/organization, PAN of your entity/organization, ownership/ lease/ license proof/agreement of your Location). In the event FITPASS is unable to obtain or verify any of the foregoing information necessary for verification of onboarding, FITPASS reserves a right to decline its Offering to you and refuse account registration on its Platform.

 

1. 6. For the purpose of all your communication, dealings and interaction with FITPASS, we shall designate a SPOC with email address partners@fitpass.co.in and office address 3E/2, Block E 3, Jhandewalan Extension, Jhandewalan, New Delhi, Delhi 110055, to be the special point of contact (“FITPASS SPOC”).

 

4. ACCOUNT REGISTRATION & OPERATION

 

1. 1. You hereby understand and acknowledge that you are competent to contract under the applicable laws and have attained at least 18 years of age and thereby can register your gym/ fitness facility in accordance with these Terms. Further, you represent that you are registering your gym/ fitness facility with FITPASS and creating an account on the Platform on behalf of a company, entity, or organization having ownership of such gym/fitness facility (“Your Organization”) and that you are an authorized representative of your Organization with the authority to bind your Organization to these Terms and you yourself agree to be bound by these Terms on behalf of your Organization.

 

1. 2. Upon fulfilment of initial formalities of acceptance/filling of Applicable Documents and pursuant to your verification by FITPASS, you will be enlisted on its Platform and be requested to create an account on the Platform by entering certain information, pictures of your Location showing the facility and its offerings and documents for the purpose of registration and enrollment (“Registration Data”).

 

1. 3. You shall ensure that the Registration Data provided by you in your account is accurate, complete, current, valid and true and is updated from time to time. FITPASS shall bear no liability for false, incomplete, old or incorrect Registration Data and if FITPASS suspects that the Registration Data is untrue or inaccurate, or violative of these Terms, FITPASS reserves a right to indefinitely suspend or terminate or block access to your account/ Dashboard and the Platform.

 

1. 4. Misuse, impersonation and misrepresentation as the identity and contact details, in respect of providing the Registration Data will lead to automatic denial of use/access to the Platform without any prior notice to that effect. You shall indemnify and hold harmless FITPASS against all/any losses, liabilities, claims, damages, demands, costs and expenses (including legal fees) arising out of or in connection with any claim, suit, action, or other proceeding brough against FITPASS based on or arising out of furnishing of false, incomplete, old or incorrect Registration Data on the Platform.

 

1. 5. The Dashboard enables the Partner to monitor the visits booked at their Partner Location and visits made by the Members along with the payments due in respect thereof and other relevant details. In order for you create an account on the Dashboard/ Platform to avail FITPASS Offerings, you will be required to set your log-in id and password (“Log-in Credentials”). It is your responsibility to maintain the confidentiality of your Log-in Credentials and to ensure that all activities under your account are conducted securely and by you alone. You agree and acknowledge to promptly notify FITPASS in case of any compromise of your Log-in Credentials. However, FITPASS shall not be liable for any losses, expenses, claims, costs or damages resulting from your failure to comply with the aforesaid obligation. Additionally, you are solely responsible for any activity on your account. You are responsible for providing us with accurate and complete Registration Data, and to update it as necessary. FITPASS reserves the right to validate the Data that you provide us at any time, and we may request any additional information / document that we deem relevant in order to verify the information that you have provided. You must select a name for your FITPASS User ID that you have the legal right to use, you may not use the name or other information of another person and you may not impersonate another person in any way on our Platform or in using our Services.

 

1. 6. In the event you know or suspect that someone unauthorized knows your Log-in Credentials or some other breach of security in respect of your account, you should immediately notify us and in no event later than 24 (Twenty Four) hours from such security breach and make a written request for blocking the account. If FITPASS has a reason to believe that there is a likely breach of security or misuse of your account, it may require you to change your Log-in Credentials and/or suspend your account temporarily without any notice to you. Without prejudice to the above, FITPASS reserved the right to recover from you any and all damages, losses, costs that are levied on or suffered by FITPASS due to misuse of your account whether or not due to a reason attributable to you.

 

1. 7. Your account or your Log-in Credentials cannot be transferred, sold, rented or assigned to any third party or any other organization.

 

1. 8. The use and access of your account by any person other than you shall be considered as an unauthorized use of the account and FITPASS shall have no liability in respect of or arising out of or in connection with such unauthorized use and access of your account. You shall indemnify, defend and hold harmless FITPASS against all losses, liabilities, claims, damages, demands, costs and expenses (including legal fees) arising out of or in connection with any claim, suit, action, or other proceeding brought against FITPASS based on or in connection with the unauthorized use of your account.

 

1. 9. For avoidance of doubt, FITPASS reserves the right to suspend or terminate your account with immediate effect and for an indefinite period, if FITPASS has a reason to believe (i) that the Registration Data or any other data provided by you is incorrect or false; (ii) that the security of your account has been compromised in any way; (iii) there is a breach of these Terms; (iv) there has been unauthorized use of your account by any third party; or (v) it is just and equitable to do so.

 

1. 10. It shall be your responsibility to ensure that you download the correct application for your device and FITPASS shall not be liable if you do not have a compatible mobile device of download a wrong application for your device.

 

1. 11. FITPASS allows each of its partner to open only one account in association with the Registration Data provided therefor.

 

1. 12. You shall ensure that (a) at all times during the working hours as shown by you on the Platform, you shall remain logged in through your account, and (b) the Platform, other internet portals as mandated/ provided by FITPASS are functioning normally on your device and that such device is connected to the internet and is functioning properly.

 

5. GRANT

 

1. 1. Grant by You. For the purpose of availing FITPASS Offering you hereby grant to FITPASS a non- exclusive, perpetual, irrevocable, right to exercise the copyright, or other rights which you have in the information provided by you to FITPASS and you agree for and permit FITPASS to share the said information with Members on the Platform, to the extent necessary for the said purpose.

 

1. 2. Grant by FITPASS. Pursuant to your account registration and acceptance of these Terms, FITPASS hereby grants you a non-exclusive and limited license/ permission to access and use the Platform in the manner set out under these Terms. You agree, undertake and confirm that your use/access to Platform shall strictly be governed by these Terms and the principles contained within.

 

1. 1. 1. You shall use the Platform only in connection with your Services, which alone constitutes legal use of the Platform.

 

1. 1. 2. You shall not use the Platform or any content thereon (i) for any purpose that is unlawful or prohibited by these Terms under Clause 7 or elsewhere, (ii) to solicit the performance of any illegal activity or other activity that infringes the rights of FITPASS or others, or (iii) in any manner that could damage, disable, overburden, block or impair any of the server connected to the Platform.

 

6. YOUR ROLE AND RESPONSIBILITIES

 

1. 1. You shall provide the necessary facilities, including space and equipment available at the Partner Location and ensure that all equipment is in working order and up to date with the latest available fitness technology. It shall be your responsibility to ensure that the facilities at the Partner Location shall comply with all local, health, safety and zoning laws and regulations. Further, you shall ensure that all staff at the Location are appropriately trained and certified.

 

1. 2. Any workout(s) being reserved by the Members will be notified to you through email, SMS, and notification(s) on the Partner Dashboard. You agree to honor these bookings by the Members and grant access to them to the Partner Location to attend workouts(s), except in the situations warranting denial of services as provided under Clause 7.1.5 hereinafter. You shall not cancel any bookings or reservations made by the Members at your Location except if the same has been cancelled by the Member itself.

 

1. 3. In the event that the workout reserved by the Member is not possible due to non-availability of the trainer/ personnel or for some other reason not arising from any malafide intention on your part, you shall inform the FITPASS SPOC of such unforeseen situation and the reasons why attending workout is rendered impossible by the Member on its booked slot, whereafter if FITPASS deems appropriate, it shall cancel the booking and inform the Member of such cancellation and may require you to provide such Member with the same or other workout.

 

1. 4. You shall present/ exhibit at the Partner Location, the QR Code of FITPASS which the Member who has reserved the workout at the Partner Location will scan for confirming its attendance. This attendance will reflect on the Dashboard and on FITPASS dashboard. It shall be incumbent upon you to ensure that the Member scans the said QR code each time it accesses the Partner Location for workout.

 

1. 5. FITPASS may from time to time supply to you a list of compliances, code of conduct, technical requirements, etc. for you to provide your Services to the Members in accordance with (“Standard Operating Procedures (SOP)”. It shall be your responsibility to ensure that all your dealings with the Members and provision of Services to the Members are compliant with the SOP supplied by FITPASS to you. From time to time, FITPASS may introduce new tools/ applications/ software in its SOP and require you to use/deploy the same for the purpose of performing your obligations under these Terms. It shall be your responsibility to effectively integrate such tools/ applications/ software at your Location and in your computer systems.

 

1. 6. It shall be your responsibility to verify that the Member accessing your Location for the workout is the same as the Member who has reserved the said workout. The said verification can be done by (i) referring to the image of the Member as shown on your Dashboard in the section where details of Members reserving workout(s) at your Location are contained; and/or (ii) requesting the Member visiting to attend the reserved workout for a valid Government issued identification with such Member’s image; and/or (iii) in the form and manner as may be communicated by FITPASS, from time to time.

 

1. 7. You shall at the beginning of each month, or the billing cycle, as informed by FITPASS, provide FITPASS with data on the expected inventory at your Location for that month, including without limitation the data on average per day availability of slots for the Members to reserve and your bandwidth in terms of personnel/ trainers/ staff/ equipment available at your Location.

 

1. 8. You shall inform FITPASS and/or update on your Dashboard the working hours of your Location during which the Members can make the relevant bookings. The list of holidays, timings and rules will be provided by you well in advance, to avoid any inconvenience to the Members. FITPASS RESERVES THE RIGHT TO MODIFY, LIMIT OR ALTER THE AVAILABLE SLOTS SHARED BY YOU ON THE DASHBOARD OR WITH FITPASS FOR PUBLISHING ON ITS WEBSITE.

 

1. 9. Without prejudice to these Terms, you may engage/ associate/ collaborate with any other third party offering its brand name, marketing services, goodwill or userbase or otherwise collaborating with you, as long as the prices offered to the users by you in collaboration of such third party are not lower or lesser than the prices offered by FITPASS to you for the Attended Visits of the Members at your Location. In the event that the deals/prices offered by you to your users are lower than the prices for each Attended Visit of Members paid by FITPASS, FITPASS will have the right to re-negotiate its arrangement with you and to demand similar pay scale as is offered by you to your users at your Location.

 

1. 10. You shall keep FITPASS updated with the latest version of your guest policy, gym policy and other policies governing your relationship with the persons attending workouts at your Location, and such policies along with any revisions/ novation thereof, pertaining to your Location shall be implemented only when the same are approved by FITPASS. In case of any repugnancy between the policies of FITPASS as communicated to you from time to time and your policies, the policies of FITPASS will prevail. Without prejudice to the generality of this Clause, you shall have in place a comprehensive code of conduct for your personnel/employees in accordance with the following Clause 6.11.

 

1. 11. FITPASS has excellent reputation for conducting business activities with integrity, fairness and in accordance with the highest ethical standards, the benefit whereof will inure to you by virtue of your partnering with us. For this reason, it shall be your responsibility to maintain FITPASS reputation by abiding by highest ethical standards in your conduct of dealings and provision of Services to Members. To this effect, you shall have in place an adequate code of conduct for your personnel which shall amongst the other things, contain the following mandates for your personnel:

 

 

1. 12. You shall honor cancellation by the Members of reservations in respect of your Location, irrespective of such cancellations being done within the cancellation window as provided to them under the terms of their membership/ subscription of FITPASS or not. For avoidance of doubt, even though a reservation cancelled by a Member post expiry of the cancellation window prescribed therefor under the terms of its membership/ subscription (“Late Cancelled Reservation”), is counted as a visit by FITPASS for the purpose of counting and monitoring the number of visits made by a Member in course of its membership/subscription, such Late Cancelled Reservation shall in no event, be counted as an Attended Visit (as defined in Clause 8.1 below) by you. FITPASS shall not be liable to pay any amounts in respect of such late cancelled visit/ reservation.

 

1. 13. In course of provision of your Services, you shall have the following responsibilities (the following being only an illustrative list of responsibilities):

 

1. 1. 1. You agree that you shall obtain, maintain and ensure compliance with applicable law in running of your business at your Location and have valid permits/ permissions/ certifications/ approvals as mandated under the law.

 

1. 1. 2. You must maintain a safe, hygienic, secure and sanitized gym/ fitness facility at all times and take all adequate measures and be responsible for safety and security of the Members attending workouts.

 

1. 1. 3. You shall verify at the time when the Member scans the FITPASS QR code, that the Member who visits/accesses your Location for attending a reserved workout is the same as the Member who booked/reserved the workout, in the manner and form as prescribed hereunder these Terms or as may be specified to you from time to time.

 

1. 1. 4. You must during the subsistence of this Agreement, obtain and maintain, solely at your risk and cost a public liability insurance policy with a reasonable insurance company which shall provide cover for accidents/occurrences causing damage or injury to Members visiting your Location, during the term of this Agreement.

 

1. 1. 5. You shall maintain adequate staff/ personnel to provide seamless Services to the Members. It is clarified that FITPASS shall bear no responsibility and/or liability in payment of any staff/employee salaries and such responsibilities shall vest solely with you.

 

1. 1. 6. You must ensure that the staff/personnel at the Location maintains integrity and abides by the good industry practices and appropriate professional standards. They shall have the qualifications and/or certifications as may be required for such personnel under applicable laws or government policies and regulations pertaining to gyms/ fitness facility/ personnel thereat.

 

1. 1. 7. In case of any change in the name or management of your gym/ fitness facility, you must promptly notify FITPASS of such change and ensure that your records are appropriately amended to reflect such change.

 

1. 1. 8. You must adhere to good professional conduct in your dealings with the Members and provide them good customer service.

 

1. 1. 9. You must not cancel or deny or restrict their access to or use of your facilities at your Location for any reason whatsoever, except in a situation where such denial is warranted as per Clause 7.1.5 of this Agreement.

 

1. 1. 10. You shall not make any negative, denigrating or defamatory statement(s) or comment(s) about FITPASS or its brand name or domain name or otherwise engage in conduct or act that might tarnish the image or reputation of FITPASS or dilute the reputation of FITPASS trade or service marks, goodwill and brand.

 

1. 1. 11. You must, whenever requested by FITPASS, make available your Location/ facility for the purpose of capturing images, doing photoshoots, at the instance of FITPASS for the purpose of marketing or advertisement of FITPASS, either by itself or through any third party marketing service provider. For this purpose, you shall grant FITPASS the necessary rights and authorities to publish photos and videos of your Location on its Platform or any other third party Platform for any digital, online or offline marketing.

 

1. 1. 12. In respect of the information/ data shared with you in respect of the Members who reserve workout(s) at your Location, you shall comply with the applicable data protection laws applicable to collection, processing, storage and erasure of such data.

 

7. PROHIBITTED CONDUCT

 

1. 1. You shall not indulge in any conduct not authorized under these Terms of as expressly prohibited under this Clause 7.1 and any act of yours that is specified as a prohibited conduct under this Agreement shall attract damages payable by you in accordance with Clause 7.2 below.

 

1. 1. 1. Price undercutting. You shall not offer to the Members accessing your Location to attend workout(s), any reduced or discounted prices or otherwise undertake price undercutting in respect of the prices/subscription amount/ offers provided to such Members by FITPASS, in order to solicit separate and independent business from such Members.

 

1. 1. 2. Overcharging. You shall not charge the Members any amount in addition to the amounts paid by the Members to FITPASS in accordance with the terms of their respective subscription or package purchased from FITPASS.

 

1. 1. 3. Staff obtaining memberships. You shall ensure that none of the members of your staff, irrespective of the same being a family member or not, shall have obtained a FITPASS membership, in order to avoid any conflict of interest.

 

1. 1. 4. Fraudulent acts. You shall not undertake/ commit/ abet/ acquiesce (i) any act defrauding FITPASS, (ii) bypassing of these Terms to gain undue advantage or gain, (iii) violation of any of these Terms or the terms of the Privacy Policy/ Usage Terms/ Applicable Documents, (iv) failing or neglecting to verify that the Member attending the workout is the same as the Member who made the reservation therefor on the Platform, or (v) any other act amounting to a misconduct or act prejudicial to the interest of FITPASS committed in bad faith.

 

1. 1. 5. Denials. You shall not deny access or Services to any Member who has made a valid reservation for workout(s) at your Location and has presented himself at the time reserved, except only in the situation wherein such Member:

 

1. harasses, threatens, disrupts or defrauds the staff at your Location or any other person accessing your facilities;
2. creates or contributes to create an unsafe, harassing or threatening or disruptive environment;
3. acts in a deceptive or fraudulent manner, by among other things, impersonates another person or creates multiple memberships/accounts to reserve a workout or access the facilities at your Location;
4. attempts to gain unauthorized access to the facilities at your Location or remove, circumvent, disable, damage or otherwise interfere with security and security related systems installed at your Location;
5. FITPASS has cancelled the booking of a Member being denied access, in pursuance of your request with the FITPASS SPOC for such cancellation in accordance with Clause 6.3 above; and
6. indulges in any conduct or act, which is approved by FITPASS as being a situation warranting denial of access/Services.

 

1. 1. 6. Bribes, unauthorized gratification, etc. You shall not accept any bribes, favors gifts, unlawful or unauthorized gratification from a Member, personnel of FITPASS, or any other third party, in return for committing any act/omission that is specifically prohibited or is not expressly authorized under these Terms or the terms of the Applicable Documents/ Privacy Policy/ Usage Terms.

 

1. 1. 7. Unauthorized use, modification, etc. of the Platform. You shall not access or use the Platform (i) in any manner not authorized by these Terms or the Usage Terms; (ii) to modify, translate, reverse engineer, dismantle, decompile, disassemble, or attempt to reconstruct it; (iii) to create any derivative works therefrom or copy any features, functions, integrations, interfaces or graphics available or used thereon; (iv) to remove, obscure, or alter any proprietary rights markings/ content posted thereon; (v) to incorporate, merge, combine or integrate any part thereof with any other software tool or application to create a tool for bypassing procedures/ filters/ passwords; (vi) to engage in any data mining or scrapping by deploying any methodology or algorithm to monitor, copy or download data thereon without authorization; (vii) by impersonating any person or entity or otherwise misrepresenting your affiliation with a person or entity; (viii) use any “deep link”, “robot”, “spider” or other automatic device, program, algorithm or methodology, in order to access, acquire, copy, or monitor any portion of the Platform or any content thereon; (ix) in any way reproduce or circumvent the navigational structure or presentation of the Platform or any content thereon or; breach the security or authentication measures on the Platform or; trace or access information related to any other user of the Platform; and (x) in any manner that infringes or violates the intellectual property rights of FITPASS or any other third party or in violation of the applicable law.

 

1. 1. 8. Unauthorized displaying, uploading, hosting, sharing of information on Platform.  You shall not host, display, upload, modify, publish, transmit, update or share any information that:

 

1. 1. 1. Belongs to another person and to which you do not have any right to use/access; or interferes with another person’s use (another registered partner) and enjoyment of the Platform;
      2. Is harmful, harassing, blasphemous, defamatory, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever, or unlawfully threatening or unlawfully harassing including without limitation amounting to indecent representation of women as understood under the applicable law;
      3. Involves transmission of “junk mail”, “chain letters”, or unsolicited mass mailing or “spamming”;
      4. Infringes upon or violated third party rights including without limitation, intellectual property rights and publicity rights;
      5. Contains hidden images or bots; or is a tool to gain unauthorized access to Platform or access in excess of the scope of authorized access under these Terms or access to profiles, blogs, communities, account information, bulletins, or other areas of Platform or solicits passwords, personal information for commercial or unlawful purposes from the other users of the Platform;
      6. Engages in commercial activities and/or sales without FITPASS prior written consent such as advertising, pyramid schemes, barter, buying or selling of “virtual” items related to the Platform;
      7. Refers to any website or URL that, in the sole discretion of FITPASS, contains material that is inappropriate for the Platform or contains content that would be prohibited or violative of the letter and spirit of these Terms;
      8. Harms minors in any way;
      1. Impersonates another person;
      10. Contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; or contains any trojan horses, worms, time bombs, cancelbots, easter eggs, or other computer programming routines that may damage, detrimentally interfere with, diminish the value of, surreptitiously intercept or expropriate any system, data or personal identifiable information or attempt to interfere with the proper working of the Platform or any transaction being conducted on the Platform;
      11. Threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting to any other nation;
      50. Is false, inaccurate or misleading; or directly or indirectly, offer, attempt to offer, trade or attempt to conduct business of any item, the deals in which is prohibited or restricted in any manner under the provisions of the applicable law, rule, regulation or guideline for the time being in force; and
      1000. Creates any liability for FITPASS or cause FITPASS to lose, wholly or partly, the services of its vendors.

 

1. 1. 9. Unfair Solicitation. You must not approach, market, advertise, publicize, promote or solicit the existing or past Members of FITPASS, for gaining direct business from them bypassing FITPASS and thereby affecting FITPASS interests prejudicially.

 

1. 2. In the event that FITPASS suspects, discovers or gathers/receives evidence of any act or omission on your part which qualifies as prohibited conduct under Clause 7.1, it shall intimate you in that regard and seek rectification/ cure of such act/omission. If you refuse or fails to rectify or cure such act/ omission, as asked by FITPASS, (i) Without prejudice to the provisions of Clause 18, FITPASS reserves the right to terminate this Agreement and suspend or revoke your Account on its Platform thereby blocking your access to the FITPASS Offerings and the Platform, and/or (ii) you shall be liable to pay to FITPASS an amount equivalent to  the amounts paid by FITPASS to you from the date this Agreement became effective till the time of such termination or invocation of this Clause 7.2 as genuine pre-estimated liquidated damages (“Damages for Prohibited Conduct”), within a period of 10 (Ten) days from the invocation of this Clause 7.2. In the event the Damages for Prohibited Conduct are not paid in whole before the expiry of the said period of 10 (Ten) days, you shall also be liable to pay along with the Damages for Prohibited Conduct, an interest thereon at the rate of 18% (Eighteen percent).

 

8. PAYMENT

 

1. 1. For each reservation attended by a Member at your Location, in accordance with these Terms including without limitation, valid reservation of workout(s), scanning of QR code and verification of Member (“Attended Visit”), subject to these Terms, FITPASS shall pay to you an amount agreed in Applicable Documents, for each of such Attended Visit, in accordance with the billing cycle, terms of payment, invoice generation, taxes, etc., contained in the Applicable Documents (“Payment Terms”). For avoidance of doubt, we shall make no payments in respect of any reservation of workout(s) made by the Member which is either a Late Cancelled Reservation or a missed reservation.

 

1. 2. Subject to the Payment Terms applicable to you, upon reconciliation of data by FITPASS, the payments verified by FITPASS as per its records (“Undisputed Payments”) shall be released to you in accordance with the billing cycle applicable to you under the said Payment Terms. However, as far as other payments in respect of visits which are not verified or which need further clarification (“Disputed Payments”) are concerned, such Disputed Payments will be released to you only upon verification and satisfaction of FITPASS that such visit is duly attended by the Member and that there has been no act of fraud, misrepresentation or act amounting to Prohibited Conduct under Clause 7 in respect of or in connection with such visit. For avoidance of doubt, FITPASS shall in no event be liable to make any payments towards any visits by the Members, in respect whereof, you have committed a fraud or an act prohibited under Clause 7, in which FITPASS is entitled to invoke Clause 7.2 above.

 

9. YOUR DATA

 

1. 1. Except for the Registration Data or any other data provided, posted, uploaded or submitted by you on the Platform during your access/use of the Platform or in course of availing FITPASS Offering through the Platform, FITPASS does not want you to, and you shall not, send any confidential or proprietary information to FITPASS on the Platform or otherwise, unless the same is required by the applicable laws. In accepting these Terms, you agree that any information or materials that you provide to FITPASS through the Platform other than the information aforementioned will not be considered confidential or proprietary.

 

1. 2. Without prejudice to the generality of Clause 9.2 above, FITPASS shall require you to also submit to FITPASS, pictures/images of your Location, for the purpose of publishing the same on the FITPASS website so that the Members can access those images at the time of reserving the workout(s) at your Location. You hereby represent and warrant that nothing in the pictures/images shared by you shall contain anything that amounts to infringement of third party intellectual property rights including without limitation, copyright, publicity rights of any third party.

 

1. 3. Subject to the applicable laws, FITPASS will be entitled to process and transfer your information as and when it deems fit and it may store or transfer such information in a server outside India in order to perform FITPASS obligations under these Terms and the Applicable Documents.

 

1. 4. You hereby agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty free, sub-licensable right to exercise the copyright, publicity, database rights or any other rights which you have in your information, data or pictures, in any media now known or not currently known. Further, you expressly agree and acknowledge that your Data and information provided by you, including without limitation the pictures of your location/ facility and your company logo or name, may be used by FITPASS from time to time, for the purpose of marketing or advertisement by FITPASS for the benefit of FITPASS, either being online/digital marketing on its own Platform or any third party platform or offline marketing through third party marketing service providers.

 

1. 5. Notwithstanding the right of FITPASS to monitor the information posted by you on the Platform, you remain solely responsible for the content of the materials you may post on the Platform. In no event shall FITPASS assume or have any responsibility or liability for any content posted/shared or for any claims, damages or losses resulting from use of content and/or appearance of content on the Platform. You hereby represent and warrant that it has all necessary rights in and to all content you provide (including the pictures of the Location showing the facility, equipment, branding, signage, hoardings, etc.) and all information it contains and that such content shall not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information.

 

1. 6. By partnering with FITPASS, you consent to being a signatory and participant in any Petition(s) initiated, managed, or facilitated by FITPASS (and/or its group entities) in respect of its Business and Services. You hereby authorize FITPASS to collect, process, and/or share the User Data (including, inter alia, name, contact information, and other information provided by you) with Third-Party Service Providers or any other Third-Party Platforms for the purpose of facilitating, administering, and supporting the Petition(s).
      You may withdraw your consent or opt out of future participation in Petition(s) at any time by submitting a written request to FITPASS in accordance with Applicable Laws. For the purpose of these Terms, “Petition(s)” shall mean and include any awareness, public interest drive, campaign, initiative, representation, request, and/or petition (whether in digital, written, or any other form) initiated, managed or facilitated by FITPASS, aimed at influencing or requesting action from governmental authorities, regulatory bodies, or relevant governing bodies/organizations in respect of its Business and Services including, inter alia, for the purpose of promoting, supporting and/or advancing matters of public health, wellness, fitness, preventive healthcare, and taxation or regulatory policies affecting access to health and wellness services including provision of Services by FITPASS. For avoidance of doubt, the term “Petition(s)” shall exclude legal petitions, regulatory submissions, judicial or quasi-judicial proceedings, or any other formal legal action instituted by FITPASS in its own name and capacity.

 

10. PRIVACY

 

1. 1. You may at the time of onboarding, and otherwise from time to time supply to FITPASS or upload on your Dashboard certain information, including without limitation generic information such as pictures/ images of your Location as mentioned in Clause 9.2 above, contact information, name, etc. All such information provided by you, either being generic or sensitive, including without limitation your Registration Data (“Your Data”) shall be true and accurate and you shall be solely responsible for the legality, reliability and appropriateness of your Data.

 

1. 2. FITPASS will only collect, use, disclose or process your Data in accordance with the Privacy Policy accessible at https://fitpass.co.in/privacy-policy, which you accept by your continued use and access of the Platform and/or availing the FITPASS Offering. You shall have all the rights provided to you thereunder in respect of handling of your Data in accordance with the terms of the Privacy Policy.

 

1. 3. In addition to and not in derogation of the measures and procedures regarding storing and securing of your Data, as stipulated in the Privacy Policy, you acknowledge, accept and agree that FITPASS utilizes standard security configurations for securing data and information on the Platform which are sufficient as per the industry standards and for the purpose of the Information & Technology Act, 2000 read with the rules and regulations made thereunder. You agree that in case of any leakage, destruction, unauthorized access or the like, to the information stored on the Platform, you waive your right to file a complaint for compensation under all applicable laws.

 

1. 4. You acknowledge that use of Platform does not require and absent express request by FITPASS, you shall not provide to FITPASS, any categories of data the transmission or sharing whereof is prohibited under the applicable law. We are under no obligation to review and filter out usage of any such prohibited data and you shall ensure that no prohibited data is shared with us.

 

1. 5. You hereby grant to FITPASS the right to use your Data and usage data in connection with betterment of our offerings and for purposes of internal research and development including training and improvement solutions.

 

1. 6. By posting your Data on the Dashboard or supplying it to FITPASS otherwise, during the subsistence of this Agreement, you represent and warrant that:

 

1. Your Data is yours and is owned by you or that you have the right to reproduce, use and share it;
2. You have the right to grant FITPASS the right to use, store, process, and handle it for the purpose of this Agreement;
3. By posting your Data on the Dashboard, or by supplying the same to FITPASS, does not violate the privacy right, publicity right, copyright or any other rights of any person or entity.

 

1. 7. FITPASS reserves the right to terminate this Agreement in the event your Data is discovered to be infringing any third party rights or to be untrue/ produced by impersonating a third party.

 

1. 8. Upon acceptance of these Terms, you agree that FITPASS may list your organization as a partner of FITPASS and use your organization name and logo for marketing or promotional purposes and in communications with future Members/ users/ partners/ investors.

 

11. REPRESENTATIONS & WARRANTIES

 

1. 1. Your Representations. You represent and warrant that (i) you are at least 18 years of age and that you have not been previously suspended of removed from the panel/roster of partners of FITPASS; (ii) you meet the eligibility under Clause 4 above (iii) you will be solely responsible for ensuring that the business in respect of the subject matter contemplated in this Agreement is carried out strictly in accordance with these Terms; (iv) execution of this Agreement does not violate any statutory judgment, order, decree, regulation, right, obligation or rule of any court, government authority or arbitrator of competent jurisdiction or any other statutory enactment or rules and regulations made thereunder; (v) you are not under any obligation or restriction, nor will it assume such obligation or restriction, either under contract/ arrangement or otherwise, that would in any way interfere, adversely impact or conflict with the performance of its obligations under this Agreement; (vi) you have a valid registration under the GST Act in accordance with thresholds as prescribed thereunder; (vii) you have all the necessary permits, certifications, licenses or NOCs as required under the applicable law for undertaking your business at your Location; and (vii) all taxes, charges, demands, claims, etc. in connection with the running of your business shall be borne and paid by you alone.

 

1. 2. FITPASS Representations. FITPASS represents and warrants that (i) it has full legal right, power and authority to enter into this Agreement and perform its obligations hereunder and that there are no legal impediments in its entering into this Agreement; (ii) the execution of this Agreement does not violate any statutory judgment, order, decree, regulation, right, obligation or rule of any court, government authority or arbitrator of competent jurisdiction or any statutory enactment or rules and regulations made thereunder; (iii) it shall comply with these Terms; and (iv) it is not under any obligation or restriction, nor will it assume such obligation or restriction, either under contract/ arrangement or otherwise, that would in any way interfere, adversely impact or conflict with the performance of its obligations under this Agreement.

 

12. INTELLECTUAL PROPERTY RIGHTS

 

1. 1. Each party to this Agreement owns and will continue to own all rights, title and interest in and to any intellectual property that it owned prior to this Agreement, or that it created or acquired independently of its obligations under these Terms. Each party shall co-operate with the other party in preserving such reputation and goodwill and pledges to refrain from doing any act which in any way impair or infringe the said proprietorship of a party. Nothing contained herein shall at any time during the continuation of this Agreement or after the expiry or earlier determination thereof provide or be deemed to provide or intended to provide or confer upon the parties any right, title or interest or claim in or to the said trade mark, copyright, and logos etc., belonging to each other and shall continue to vest solely and absolutely in favour of the respective parties.

 

1. 2. For the purpose of this Clause 12, Intellectual Property Rights shall mean and include patents, trademarks, service marks, tradenames, registered designs, copyright, rights of privacy and publicity, other forms of intellectual property, know how, confidential or secret processes, trade secrets or any licenses and permissions in connection therewith, whether or not registered or registrable, along with all applications for registration in connection with the foregoing.

 

1. 3. FITPASS owns all right, title and interest, including all intellectual property, proprietary and confidentiality rights, in and to the Platform and FITPASS Offering, including without limitation, content, materials, software, text, compilation of information, databases of users, images, videos, displays, designs and all derivatives thereof.

 

1. 4. You agree and acknowledge that FITPASS shall have absolute ownership in any content, derivative works created or developed by FITPASS in course of its FITPASS Offerings being availed by you, including without limitation any works created basis your data or information provided to FITPASS in course of your association with FITPASS under this Agreement, or any advancement/ improvement thereof (“Derivative Works”). For avoidance of doubt, FITPASS Intellectual Property rights shall also include all rights arising out of or in connection with Derivative Works including derivative rights in respect of concepts, works, content developed by FITPASS in the manner described hereinbefore.

 

1. 5. The logo, name and other material of FITPASS on the Platform constitute trademarks or other intellectual property of FITPASS. You must not reproduce, distribute, modify, communicate to the public, download or transmit any of the material or marks on the Platform otherwise than in connection with your Services and otherwise than as expressly permitted under these Terms. For avoidance of doubt, this Agreement grants only a limited right to use/access the Platform and nothing herein constitutes any transfer of ownership in the intellectual rights pertaining to the Platform.

 

13. LIMITATION OF LIABILITY

 

1. 1. Third Party Links. The FITPASS website may provide links to other portals, websites, offers, services and information owned or controlled by third parties. FITPASS is in no way responsible for such third party sites, contents and providers and your use of the same shall solely be at your own risk. You agree that FITPASS has no liability whatsoever in connection with your use of such third party sites, content and providers.

 

1. 2. Third Party Unauthorized Activity. You acknowledge that it is possible that certain other unauthorized users or hackers may post or transmit offensive or obscene materials on the Platform and that you may be involuntarily be exposed to such offensive and obscene materials. It is also possible for others to obtain personal information about you through unauthorized access or circumvention of the Platform which may be used by such hackers to harass or injure you. FITPASS does not approve of such unauthorized activity but by using the Platform you acknowledge that FITPASS shall not be responsible for the same.

 

1. 3. Your Business Operations. FITPASS has no role to play in connection with operations undertaken by you at your Location, except as provided in these Terms in respect of provision of Services to the Members. FITPASS merely provides its network to you and you shall be responsible solely for bearing the operational expenses and other costs of running your business and for ensuring the quality of Services rendered at your Location. Without prejudice to the generality of the foregoing, all operating costs, including the cost of employees, manpower, consumables, utilities, rents, taxes, approvals/ permits, safety measures, etc. shall solely be your responsibility.

 

1. 4. Express Release for Negligence. It has been agreed and acknowledged by you that the provision of Services by you to the Members and the entire transaction, dealing and communications between you and such Members is an independent and separate transaction between you and such Member alone. FITPASS only acts as an intermediary for the purpose of facilitation and enabling the Members to avail your Services and for you to provide your Services to such Members through the Platform. You alone shall be responsible for and hereby, expressly release FITPASS from any liabilities, losses, claims and damages that may arise out of or in connection with the provision of your Services, and agree to hold harmless and indemnify FITPASS in this regard.

 

1. 5. Limitation of Liability. In addition, and without limiting the foregoing, to the fullest extent permitted by applicable law, in no event will the aggregate liability of FITPASS arising out of or in connection with these Terms or the terms of the Applicable Documents, whether in contract, tort (including negligence, product liability, or other theory), warranty, or otherwise.

 

14. DISCLAIMERS

 

1. 1. THE PLATFORM/ FITPASS OFFERING MADE AVAILABLE TO YOU BY FITPASS, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FITPASS DISCLAIMS ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY FOR ACCURACY, AVAILABILITY, CONTINUITY, UNINTERRUPTED ACCESS, TIMELINESS, SEQUENCE, QUALITY, PERFORMANCE, SECURITY, EFFICIENCY AND MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OR COMPLETENESS, EXCEPT OTHERWISE SPECIFIED IN WRITING.

 

1. 2. IN NO EVENT SHALL FITPASS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FITPASS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

 

1. 3. FITPASS ACTS ONLY AS AN INTERMEDIARY AND CANNOT BE HELD LIABLE FOR ANY DISPUTE/CLAIMS/DAMAGES/COSTS/EXPENSES THAT ARISE OR MAY ARISE BETWEEN THE MEMBER AND YOU IN RESPECT OF OR IN CONNECTION WITH YOUR SERVICES FOR WHATSOEVER REASON. FITPASS WILL MAKE REASONABLE EFFORTS TO KEEP THE SERVICES OPERATIONAL. HOWEVER, CERTAIN TECHNICAL DIFFICULTIES OR UPDATES REQUIRED TO REFLECT CHANGES IN RELEVANT LAWS, REGULATIONS, AND CONTRACTUAL REQUIREMENTS MAY ON OCCASION RESULT IN TEMPORARY INTERRUPTIONS IN SERVICE OR FITPASS OFFERINGS. FITPASS RESERVES THE RIGHT, PERIODICALLY AND AT ANY TIME, TO MODIFY OR DISCONTINUE ANY FUNCTION OR FEATURES OF THE FITPASS OFFERINGS EXCEPT AS EXPRESSLY PROHIBITED BY LAW. FITPASS WILL MAKE REASONABLE EFFORTS TO PROVIDE YOU WITH ADVANCE NOTICE WHERE POSSIBLE OF ANY MATERIAL INTERRUPTION, DISCONTINUATION OR MODIFICATION IN FITPASS OFFERINGS. YOU UNDERSTAND, AGREE, AND ACCEPT THAT FITPASS HAS NO OBLIGATION TO MAINTAIN, SUPPORT, OR UPDATE THE FITPASS OFFERINGS, OR TO PROVIDE ANY SPECIFIC CONTENT THROUGH ITS OFFERINGS.

 

1. 4. FITPASS DOES NOT WARRANT THAT THE PLATFORM WILL BE CONSTANTLY AVAILABLE OR AVAILABLE AT ALL TIMES OR THAT THE PLATFORM AND CONTENT THEREON OR THE ELECTRONIC COMMUNICATION SENT TO YOU FROM FITPASS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

1. 5. THE AFORESAID DISCLAIMERS, WAIVERS, RELEASES, LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER THE CAUSE OF ACTION OR THE LIABILITY ARISES IN LAW (CONTRACT, TORT OR OTHERWISE).

 

15. INDEMNITY

 

You agree to indemnify, defend and hold harmless FITPASS, its affiliates, agents, employees, directors, officers, shareholders, subsidiaries, successors and assigns etc. (collectively “Indemnified Party”) against any and all Losses arising out of or in connection with any claims, liabilities, losses, expenses, costs (including legal costs) and damages  (“Losses”) brought against FITPASS, to the extent such Losses are based on or arising out of or are in connection with (a) running and operation of your business at the Location; (b) any/all acts of negligence or omissions amount to negligence; (c) any misstatement, inaccuracy or breach of any of your representations and warranties contained herein or under the terms of the Applicable Document(s); (d) any violation of an applicable law or permit/certification; (e) breach or non- fulfilment of any of these Terms, fraud, default or breach of statutory duty; (f) any act/ omission attracting tortious liability, including without limitation not fulfilling duty of care, etc.; (g) any personal damage/ injury or property damage to any third party or to a Member visiting your Location; and (h) any exchange of information, transaction, dealing, interaction with your customers/clients and Members, by you or your personnel.

 

16. CONFIDENTIALITY

 

1. 1. Confidentiality Obligation. Both you and FITPASS shall (a) use confidential information of the disclosing party only for and to the extent necessary for performance of respective obligations under these Terms and the terms of your Applicable Documents; and (b) not disclose to third parties any confidential information, except in the manner and situation permitted under these Terms, without the express consent of the disclosing party.

 

1. 2. Permitted Disclosures. Disclosure of confidential information can be made by the recipient of confidential information (i) to its employees, agents, advisors, affiliates, contractors, investors, lenders or acquirers having a legitimate need to know, provided they are bound by the confidentiality obligations no less stringent than the confidentiality obligation of the recipient under this Clause and provided further that the recipient shall be responsible for their compliance with the confidentiality obligation; (ii) to the extent required under applicable law in pursuance of a court order/ requisition, provided that the disclosing party is given reasonable advance notice of recipient’s compulsion to disclose the confidential information; and (iii) in case express consent or waiver is granted in favor of the recipient authorizing it to disclose confidential information of the disclosing party.

 

1. 3. Unauthorized Disclosure. In the event a recipient discloses confidential information of the disclosing party otherwise than in accordance with this Clause 16, the disclosing party shall have the right to seek injunctive relief to prevent any breach or threatened breach of this Clause, in addition to any other remedy available under law or equity.

 

1. 4. Exclusion of Obligation. No confidentiality obligations shall subsist with respect to any information which (i) is or becomes publicly available through no fault of the recipient; (ii) is known or possessed by the recipient prior to receipt thereof from the disclosing party without confidentiality obligations attached thereto; (iii) the recipient received rightfully from a third party without confidentiality obligations attached to it; and (iv) the recipient independently developed or discovered without using or referencing the disclosing party’s confidential information.

 

1. 5. Confidential Information. For the purpose of this Clause, confidential information means the terms of this Agreement, the Applicable Documents and any other information including technical or business information, designs, plans, requirement, pricings, security and compliance documents, inventions, know how, etc. which the disclosing party identifies as confidential or which should be understood as confidential due to its nature and/or circumstances of the disclosure.

 

17. COMPLAINTS FROM MEMBERS

 

If FITPASS receives a complaint from any person with respect to your activities/ dealings with the Members on your Location, or your use of the Platform, FITPASS will forward the same to the primary email address provided to us under the Registration Data. In case you fail to respond to the complaint forwarded to you within 10 (ten) days of receiving the same, FITPASS may disclose your name, contact information to the complainant for enabling the complainant to take redressal or action against you. The said failure by you to respond to the complainant within the said period of 10 (ten) days shall be construed as your consent for disclosure by FITPASS of your name and contact information to the complainant.

 

18. TERM & TERMINATION

 

1. 1. Term. This Agreement will have an initial term of 5 (Five) years and will automatically renew for additional one-year terms until such time as this Agreement is terminated. Such automatic renewal shall be subject to any revision/change/modification in Terms, as may be communicated to you by FITPASS.

 

1. 2. Termination for Convenience

 

1. 1. 1. By You. You may terminate this Agreement any time after expiry of 24 (Twenty Four) months period (“Lock-in Period”) by serving to FITPASS a written notice of 90 (Ninety) days. In the event of termination by you post expiry of Lock-in Period, in accordance with this Clause 18.2, amounts payable to you under these Terms and the terms of your Applicable Documents, shall become immediately due and shall be reconciled with our data and thereafter be paid/processed by us within 30 (Thirty) to 45 (Forty Five) days from the date of termination. In the event you wrongfully terminate this Agreement prior to expiry of Lock-in Period, for any reason whatsoever, then any payment due to you till the date of termination under these Terms or the terms of your Applicable Documents shall stand forfeited by FITPASS and FITPASS shall be entitled to receive from you an amount of Rs.50,000  as a genuine pre-estimate of liquidated damages for such wrongful termination.

 

1. 1. 2. By FITPASS. This Agreement may be terminated by FITPASS anytime, for whatever reason, subject only to a written notice of 30 (Thirty) days served on you. In event of such termination, amounts payable to you under these Terms and the terms of Applicable Documents shall become immediately due and shall be reconciled with our data and thereafter paid/processed by us within 30 (Thirty) to 45 (Forty Five) days from the date of termination.

 

1. 3. Termination for Cause

 

In case of occurrence of any of the following events (“Cause”), which has not been remedied within the time stipulated therefor, FITPASS may, with immediate effect terminate this Agreement, in which case, any payment due to you till the date of termination, under these Terms or the terms of your Applicable Documents shall stand forfeited by FITPASS and FITPASS shall be entitled to receive from you an amount of Rs.1,00,000 as a genuine pre-estimate of liquidated damages:

 

1. Breach of these Terms or the terms of your Applicable Documents, which is not remedied within 30(Thirty) to 45 (Forty Five) days of FITPASS requesting you to cure the said breach;
2. Gross negligence (i.e., a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause grave injury or harm to the Members or FITPASS, its property, shareholders, officers or employees) in respect of performing Services or other obligations on you in accordance with these Terms;
3. Being charge-sheeted for any act of embezzlement, theft, commission of a felony, or dishonesty or harassment or any crime or fraud;
4. Not keeping the representations and undertakings on your part under this Agreement, true and valid at any point of time during the subsistence of this Agreement;
5. Inability to pay debts or appointment of a receiver or manager appointed on any part of your Organization or assets or in the event of bankruptcy of liquidation of your Organization; or a valid application, as determined by FITPASS is made or an action is initiated with a view to cancelling its registration or appointing a liquidator or other officer to investigate any of its affairs, pursuant to any applicable law; or any circumstance exist which would enable the court upon application to order its winding up in accordance with the applicable law;

 

19. FORCE MAJEURE

 

1. 1. Neither FITPASS nor you shall be liable for any failure to perform any of its obligations under these Terms if the performance is prevented, hindered or delayed by a Force Majeure Event and in such a case, the obligations of the party affected by occurrence of such Force Majeure Event shall be suspended so long as such event continues, provided the same could not have been prevented or overcome by such affected party and the occurrence of which has material adverse effect on the affected party.

 

1. 2. For the purpose of this Clause, a “Force Majeure Event” shall mean and include circumstances beyond the control of a party and which could not have been prevented by it by exercise of reasonable care/ caution and due diligence, including without limitation, war, armed conflict, invasion, hostilities, riot, rebellion, revolution, civil war, riot, insurrection, acts of God, epidemics, natural calamities/disasters, change of applicable laws which materially restricts a party from carrying out its business activities, strikes and lock out.

 

1. 3. Upon occurrence of a Force Majeure Event, the affected party may give to the other party a written notice of such event immediately upon the occurrence or presence of such conditions and FITPASS shall not be obliged to make any payments during the subsistence of the Force Majeure Event. The party affected by the Force Majeure shall exercise reasonable diligence to seek to overcome the Force Majeure Event. If a Force Majeure Event occurs, the term of this Agreement shall get automatically extended in proportion to the time during which the Force Majeure circumstances continued. Further, if the Force Majeure Event continues for more than 3 (Three) months, the parties shall hold further negotiations to find acceptable alternative ways of fulfilling obligations under this Agreement and mutually agree on the revised terms on continuation of this Agreement or FITPASS shall have the option to terminate this Agreement.

 

20. RELATIONSHIP BETWEEN YOU AND FITPASS

 

1. 1. You agree to provide your Services to the Members through the Platform and FITPASS shall merely facilitate and enable Members to avail your Services by reserving workouts(s) at your Location on the Platform. For avoidance of any doubts, the Platform only serves as an online technology demand based platform offering your Services to its Members. FITPASS and you are independent contractors entering into these Terms freely of their own volition.

 

1. 2. It has been agreed between the parties that nothing in these Terms shall be deemed to allow you (i) to in any way represent, portray or promise that the Services are being provided by FITPASS; (ii) to enter into any contract or agreement with any third party which purports to obligate, bind or make or attempt to make any commitments on behalf of FITPASS; or (iii) to claim, represent or hold yourself out, to be an agent or representative of FIPASS.

 

1. 3. Notwithstanding anything anywhere in these Terms, FITPASS shall in no eventuality be liable for any delivery of Services by you or loss incurred by you arising out of or in connection with such provision of Services. You shall hold harmless and indemnify FITPASS in this regard.

 

21. DISPUTE RESOLUTION AND GOVERNING LAW

 

1. 1. These Terms shall be construed in accordance with the applicable laws of India and any dispute arising out of or in connection with these Terms shall be subject to the exclusive jurisdiction of courts at New Delhi.

 

1. 2. The parties shall negotiate in good faith and use reasonable efforts to settle any dispute, difference or claim raised, arising out of or in connection with these Terms including the construction, validity, execution, performance, termination or breach hereof (“Dispute”). If the parties are unable to within a period of 10 (ten) days, reach an amicable resolution, such Dispute shall be settled by binding arbitration in accordance with the terms of the Arbitration & Conciliation Act, 1996, by a sole arbitrator to be mutually appointed by the parties, the proceedings whereof shall be conducted in English language and the seat whereof shall be New Delhi. The award passed by the sole arbitrator shall be final, conclusive and binding on the parties.

 

22. MISCELLANEOUS

 

1. 1. Entire Agreement. These terms together with the terms of the Applicable Documents, Privacy Policy and the Usage Terms shall constitute the entire agreement between the parties and supersede all previous agreements, promises, understanding or negotiations, whether in writing or oral, between the parties, pertaining to the subject matter hereof.

 

1. 2. Notices. FITPASS may give notice to you by means of (a) general notice on your account/ Dashboard or on the Platform or (b) electronic email to your email address or message on your registered mobile number or written communication by regular mail to your registered address, as provided under the Registration Data. You may give notices to FITPASS by electronic mail or regular mail at the registered email address or office address of the FITPASS Contact Person as provided on the Platform.

 

1. 3. Transfer/Assignment. Rights and obligations under these Terms are non-assignable and non- transferrable by you, except with prior written consent of FITPASS.

 

1. 4. Sub-Contracting. You shall not appoint any sub-contractor, affiliates or any third party for performance of your obligations under these Terms, except with prior written consent of FITPASS. No appointment of sub-contractor, affiliates or any third party shall relieve you from your obligations under these Terms.

 

1. 5. Waiver. No failure or delay by either party in exercising its rights under these Terms shall constitute waiver of that right or any other right.

 

1. 6. Severability. If any provision of these Terms is determined to be invalid or unenforceable under any applicable law, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under the applicable laws, and the remaining provisions shall continue in full force and effect.

 

1. 7. Survival. All terms of this Agreement which by their nature are meant to extend beyond expiration or termination of this Agreement or which are necessary to interpret the respective rights and obligations of the parties hereunder, shall survive the termination or expiration of the Agreement.

 

1. 8. Order of Precedence. In case of any conflict between these Terms and the terms of the Applicable Documents, the provisions of the Applicable Documents shall prevail to the extent of such conflict.