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Keapfit Terms of Use and License

Introduction

The KeapFit System is licensed by Studio Fury Limited a company incorporated andregistered in England and Wales with company number 05741566 and whose registeredoffice is at 114 Buspace Studios, Conlan Street, London W10 5AP (Us or we). Studio Furywill provide certain services in relation to the KeapFit System and shall license the use ofthe KeapFit System pursuant to the following terms and conditions.Please read these terms and conditions (“Terms”) carefully. Once you pay your deposit inrelation to the KeapFit System, a contract shall be formed between you (the party namedin the Statement of Work and invoice) and us. These terms and conditions shall prevail overany other terms and conditions or industry practice.

  1. We shall provide the services set out in the Statement of Work (“Services”)to you and shall license the KeapFit System to you in accordance withthese Terms.
  2. Our responsibilities

    1. We shall use our reasonable endeavours to supply the Services, and deliver alldeliverables set out in the Statement of Work to you, in accordance with these Termsand the Statement of Work in all material respects.
    2. We shall use reasonable endeavours to meet any performance dates specified in theStatement of Work but any such dates shall be estimates only and time forperformance by us shall not be of the essence of the agreement between us.
    3. You acknowledge that we cannot guarantee any level of email deliverability. We shallprovide you with documentation on how to improve email deliverability and if youchoose to do so, you can pay us an additional fee as set out in the Statement of Workfor us to provide services that aim to improve the email deliverability levels.
    4. For the avoidance of doubt, we have no obligation to monitor any third party plug insthat may be used in conjunction with the KeapFit System. If we become aware ofany incompatibility or unreliability in such plug ins, we will notify you as soon as practicable
  3. Your obligations

    1. You shall:

      1. co-operate with us in all matters relating to the Services;
      2. provide to us in a timely manner (and in any event within 30 days of ourrequest) all documents, information, items and materials in any form(whether owned by you or a third party) reasonably required by sus inconnection with the Services and ensure that they are accurate andcomplete;
      3. at all times during the period of this Agreement ensure that you have an up-to-date subscription with Infusionsoft;
      4. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable us to provide the Services, before the date on which the Services are to start;
      5. retain responsibility for training other members of your team in the use of the KeapFit System;
      6. instruct us to perform any work reasonably recommended by us on your Infusionsoft account in order to enable us to perform the Services. This shall be charged at our time and materials rates as set out in the Statement of Work
      7. notify us if a relevant plugin stops working or becomes unreliable, in which case we shall use our reasonable endeavours to recommend an alternative plugin and if required to by you shall provide a quote for implementing the replacement of the plugin;
      8. ensure that the owner and/or controller of your website (and/or any website developer hired by you) shall co-operate with us as requested by us and within the timeframes specified by us;
      9. ensure that the KeapFit System is suitable for your needs and requirements;
      10. if a campaign is edited by you (or a third party on your behalf) and subsequently does not work as it should do, instruct us to re-install the campaign and pay us the re-install fee (as set out in the Statement of Work);
      11. adhere to any instructions for use of the Infusionsoft platform provided by Infusionsoft that are relevant to the provision of the Services;
      12. continue to pay monthly payment to Infusionsoft and any other third-party apps, extensions or subscriptions that are required as part of the Services; and
      13. not introduce any third-party software that may affect the provision of the Services or the KeapFit System or attempt to improve or modify in any way the KeapFit System.
    2. You acknowledge that we will not be able to commence provision of the Services until you have delivered the required information, documents, items and materials requested by us.
    3. You acknowledge that if you fail to comply or delay in complying with the above obligations, this is likely to have an impact on the provision of the Services and that we shall have no liability whatsoever for any such delay or failure to perform its obligations under these Terms.
    4. If our performance of our obligations under these Terms is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy you may have, we shall be allowed an extension of time to perform its obligations equal to the delay caused by you.
  4. Change of work

    1. Either of us may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change of Work Order has been signed by both of us. The Change of Work Order shall set out the proposed changes and the effect that those changes will have on:

      1. the Services;
      2. our existing charges;
      3. the timetable of the Services; and
      4. any of the Terms.
    2. We may charge for the time we spend on preparing and negotiating Change of Work Orders youon a time and materials basis at our daily rates specified in the Statement of Work.
  5. Charges and payment

    1. In consideration of the provision of the Services by us and the granting of the license set out in paragraph 6, yyou shall pay the Charges.
    2. Where the Charges are calculated on a time and materials basis:
      1. our daily fee rates for each individual person as set out in the Statement of Work are calculated on the basis of an eight-hour day, worked during Business Hours; and
      2. we shall be entitled to charge an overtime rate of 130% of the daily fee on a pro rata basis for any time worked outside Business Hours.
    3. The Charges exclude the following which shall be payable by you, following submission of an appropriate invoice at such time as we think fit:
      1. the cost of hotel, subsistence, travelling, viewing facilities and any other ancillary expenses reasonably incurred by in connection with the Services which shall be charged at cost price plus a handling fee of 20%; and
      2. the cost to us of any materials or services procured by us from third parties for the provision of the Services shall be charged at cost price
    4. We shall invoice you at the time of onboarding for the entire amount of the Charges. The payment dates shall be asspecified in the Statement of Work and you shall send us evidence of standing orders from your bank account that are set up to make the payments on such dates
    5. Without prejudice to any other right or remedy that we may have, if you fail to pay usus any sum due on the due date:
      1. you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%; and
      2. we may suspend all or part of the Services until payment has been made in full.
    6. All sums payable usunder these Terms:

      1. are exclusive of VAT, and you shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice
      2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law); and
      3. are deemed to be received by us when received in cleared funds in our bank account.
    7. For the avoidance of doubt, any work performed that is outside the scope of the Services (including without limitation website developer costs, graphic designer costs, marketing advice, strategy advice, editing, content creation, technical advice, trouble shooting outside of the KeapFit system, video platform access, additional content or modules) is not included within the Charges.
  6. Intellectual Property Rights

    1. In relation to the deliverables of the Services and the KeapFit System:
      1. we shall retain ownership of all Intellectual Property Rights in the KeapFit System and all deliverables of the Services, excluding any materials that you have provided us with;
      2. we grant you a worldwide, non-exclusive licence during the term of the agreement between us to use and modify the deliverables for the purpose of receiving and using the Services and the deliverables in your business; and
      3. you shall not sub-license, assign or otherwise transfer the rights granted in paragraph 6.1(b).
    2. For the avoidance of doubt, you may only use one implementation of the KeapFit system in your business and you can use it on one single website domain. You may not use it to assist other businesses with their lead generation or otherwise, whether as a charged for service or not.
    3. In relation to youm aterials that you have provided us with, you:
      1. shall retain ownership of all Intellectual Property Rights in such materials; and
      2. grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify materials you have provided to us for the purpose of providing the Services.
    4. We:

      1. warrant that the use of the Services and the deliverables by you shall not infringe any rights of third parties to the extent that infringement results from copying;
      2. shall not be in breach of the warranty at 6.3(a) to the extent the infringement arises from:
        1. the use of materials provided by you in the development of, or the inclusion of such materials in any deliverable;
        2. any modification of the deliverables or Services, other than by or on behalf of us; and
        3. compliance with your specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions
    5. You:

      1. warrant that the receipt and use of materials provided by you in the performance of the agreement between us by us, ouragents, subcontractors or consultants shall not infringe the Intellectual Property Rights of third parties; and
      2. shall indemnify us in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim brought against us, our agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of the agreement between us of materials provided by you.
    6. You shall:

      1. notify us in writing of any claim against it in respect of which it wishes to rely on the indemnity at paragraph 6.4(b) (as applicable) (IPRs Claim);
      2. allow us, at our own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim;
      3. provide us with such reasonable assistance regarding the IPRs Claim as is required by us; and
      4. not, without prior consultation with us, make any admission relating to the IPRs Claim or attempt to settle it.
  7. Compliance with laws and policies

    In performing its obligations under these Terms, each of us shall comply with all applicable laws.

  8. Data Protection

    1. Each of us will comply with all applicable requirements of the Data Protection Legislation. This paragraph 8 (Data protection) is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
    2. We each acknowledge that for the purposes of the Data Protection Legislation, you are the controller and we are the processor. Annex 1 to these Terms sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
    3. Without prejudice to the generality of paragraph 8.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of the agreement between us.
    4. Without prejudice to the generality of paragraph 8.1, we shall, in relation to any personal data processed in connection with the performance by us of our obligations under the agreement between us:
      1. process that personal data only on your documented written instructions unless we are required by applicable law to otherwise process that personal data. Where we are relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the applicable law unless the applicable law prohibits us from so notifying you;
      2. ensure that we have in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us);
      3. without prejudice to paragraph 12 (Confidentiality), ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
      4. not transfer any personal data outside of the European Economic Area unless your prior written consent has been obtained and the following conditions are fulfilled:
        1. you or we have provided appropriate safeguards in relation to the transfer;
        2. the data subject has enforceable rights and effective legal remedies;
        3. we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
        4. we comply with reasonable instructions notified to it in advance by you with respect to the processing of the personal data;
      5. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      6. notify you without undue delay on becoming aware of a personal data breach;
      7. without prejudice to paragraph 12.1(c), at your written direction, delete or return personal data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the personal data; and
      8. maintain complete and accurate records and information to demonstrate its compliance with this paragraph 8 (Data protection) and allow for audits by you or your designated auditor and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.
    5. We confirm that if we subcontract any part of the processing, we will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this paragraph 8 (Data protection). As between you and us, we shall remain fully liable for all acts or omissions of any third party processor appointed by us pursuant to this paragraph 8
  9. Confidentiality

    1. Each of us undertakes that we shall not at any time during this agreement, and for a period of five years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by paragraph 9.2.
    2. Each of us may disclose the other party’s confidential information:
      1. to our employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising our rights or carrying out our obligations under or in connection with this agreement. Each of us shall ensure that our employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other’s confidential information comply with this paragraph 9; and
      2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    3. Neither of us shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
  10. Limitation of liability

    1. Scope of this paragraph. References to liability in this paragraph 10 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
    2. No limitation of your payment obligations. Nothing in this paragraph 10 shall limit your payment obligations under this agreement
    3. Liabilities which cannot legally be limited. Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation; and
      3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
    4. Cap on our liability. Subject to paragraph 10.4 (liabilities which cannot legally be limited), our total liability to you shall be £10,000.
    5. Specific heads of excluded loss. Subject paragraph 10.3 (No limitation on the customer’s payment obligations) paragraph 10.3 (Liabilities which cannot legally be limited), this paragraph 10.6 specifies the types of losses that are excluded:
      1. loss of profits;
      2. loss of sales or business;
      3. loss of agreements or contracts;
      4. loss of anticipated savings;
      5. loss of use or corruption of software, data or information;
      6. viral infection of electronic data;
      7. loss caused by third-party plugins;
      8. loss of or damage to goodwill; and
      9. indirect or consequential loss.
    6. Exclusion of statutory implied term. We have given commitments as to compliance of the Services with relevant specifications in paragraph 4 (Supplier’s responsibilities). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
    7. No liability for claims not notified within 6 months. Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of you having grounds to make a claim in respect of the event and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
    8. No guarantee. We do not guarantee any result by you using the KeapFit system.
    9. No service levels for technical support Whilst we shall strive to provide prompt technical support, no warranties or guarantees are made as to response time.
  11. Termination

    1. We may terminate this Agreement at any time for any reason on two weeks’ notice.
    2. Without affecting any other right or remedy available to it, either part of us may terminate this agreement with immediate effect by giving written notice to the other party if:
      1. the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
      2. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
      3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
      4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more oth
      6. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
      7. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
      8. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
      9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
      10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraph 11.1(c) to paragraph 11.1(i) (inclusive); or
      11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    3. Without affecting any other right or remedy available to it, we may terminate this agreement with immediate effect by giving written notice to you if:
      1. you fail to pay any amount due under this agreement on the due date for payment and remain in default not less than 14 days after being notified in writing to make such payment; or
      2. there is a change of Control of you.
  12. Obligations on termination and survival

    1. On termination of this agreement:
      1. (except where terminated by us pursuant to paragraph 11.1) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt.
      2. you shall immediately cease to use the KeapFit System and shall delete any documentation or deliverables provided by us;
      3. the license granted in paragraph 6 shall immediately terminate; and
      4. you shall allow us access to your Infusionsoft account so that we can remove all campaigns that hawse have put into place
    2. Survival
      1. On termination of this agreement, the following clauses shall continue in force: paragraph 29 (Interpretation), paragraph 6 (Intellectual property rights), paragraph 9 (Confidentiality), paragraph 10 (Limitation of liability), paragraph 12 (Consequences of termination), paragraph 16 (Waiver), paragraph 18 (Severance), paragraph 20 (Conflict), paragraph 25 (Dispute resolution procedure), paragraph 26 (Governing law) and paragraph 27 (Jurisdiction).
      2. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
  13. Force majeure

    1. Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
      1. acts of God, flood, drought, earthquake or other natural disaster;
      2. epidemic or pandemic;
      3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
      4. nuclear, chemical or biological contamination or sonic boom;
      5. any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;
      6. collapse of buildings, fire, explosion or accident.
    2. Provided it has complied with paragraph 13.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
    3. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party
    4. The Affected Party shall:
      1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
      2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
    5. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving one weeks’ written notice to the Affected Party.
  14. Assignment and other dealings

    1. This agreement is personal to you and you shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
    2. We may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of our rights under this agreement.
  15. Variation

    Subject to paragraph 4 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  16. Waiver

    1. A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    2. 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 prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
  17. Rights and remedies

    The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  18. Severance

    1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement
    2. If any provision or part-provision of this agreement is deemed deleted under paragraph 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  19. Entire agreement

    1. These Terms constitute the entire agreement between us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
    2. Each of us agree that we shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each of us agrees that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
  20. Limited warranty

    If you notify us within 60 days of the payment of the first deposit that the KeapFit system is not operating as it should be as according to the Statement of Work and if the reason it is not doing so is because of our action or inaction (and not due to your actions or inactions or those of a third party), we shall remedy such operational failure without any further charge to you.

  21. No partnership or agency

    1. Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
  22. Third party rights

    1. Unless it expressly states otherwise, these Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Terms.
  23. Notices

    1. Any notice or other communication given to a party under or in connection with these Terms shall be in writing and shall be:
      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      2. sent by email to the address specified in the Statement of Work.
    2. Any notice or communication shall be deemed to have been received:
      1. if delivered by hand, at the time the notice is left at the proper address;
      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
      3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this paragraph 23.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt
    3. This paragraph does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  24. Dispute resolution procedure

    1. If a dispute arises out of or in connection with these Terms or the performance, validity or enforceability of them (Dispute) then except as expressly provided in these Terms, the parties shall follow the procedure set out in this paragraph:
      1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, you and us shall attempt in good faith to resolve the Dispute;
      2. if we are for any reason unable to resolve the Dispute within 30 days of it being referred to us, we will each attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between us, the mediator shall be nominated by CEDR. To initiate the mediation, one of us must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
      3. Neither of us may commence any court proceedings under paragraph 27 (Jurisdiction) (in relation to the whole or part of the Dispute until 60 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
    2. If the Dispute is not resolved within 60 days after service of the ADR notice, the Dispute shall be finally resolved by the courts of England and Wales in accordance with paragraph 27 (Jurisdiction).
  25. Governing law

    These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

  26. Jurisdiction

    Each of us irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation.

  27. Publicity

    1. We may publicise the existence of the relationship with you, any results achieved by you and use any testimonials provided by you for marketing purposes and otherwise as we think fit We shall agree the form of any testimonials with you before making them public. We may use project information as case studies and for marketing purposes.
  28. Interpretation

    The following definitions and rules of interpretation apply in these Terms.

    1. Definitions
      Business Day:
      a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
      Business Hours:
      the period from 9.00 am to 5.00 pm on any Business Day.
      Charges:
      the sums payable for the Services, as set out in Schedule 2.
      Control:
      Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
      Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures:
      as defined in the Data Protection Legislation
      Data Protection Legislation:
      the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
      KeapFit System:
      the system devised by us for lead generation and selling for the independent gym market comprising Infusionsoft campaigns, processes, nurture sequences and ebooks.
      Intellectual Property Rights:
      patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
      Statement of Work:
      the statement of work that explains the KeapFit System in more detail, the costs of the Services, payment dates and implementation dates.
      UK Data Protection Legislation:
      all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
      VAT:
      value added tax or any equivalent tax chargeable in the UK or elsewhere.
    2. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
    3. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
    4. Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on 31 January 2020.
    5. A reference to writing or written includes email
    6. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

Annex 1 – Processing, Personal Data and Data Subjects

  1. Processing by us
    1. Scope
    2. To provide the Services

    3. Nature
    4. Email addresses, names, addresses, telephone numbers and other contact details

    5. Purpose of processing
    6. To provide the Services

    7. Duration of processing
    8. The duration of the agreement between the parties

  2. Types of personal data
    Email addresses, names, addresses, telephone numbers and other contact details
  3. Categories of data subject
    Customers and prospects