Terms of Service Trainers

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY

BY CLICKING ON THE "I AGREE" BUTTON ON THE ACCOUNT REGISTRATION PAGE, YOU AGREE TO THESE TERMS WHICH WILL BIND YOU. The Licensor may amend these terms of use from time to time. The Licensor will notify the Licensee of any update to these terms of use and the updated terms of use will be available on request from the Licensor. You will be required to accept our updated terms of use when you connect to The Spott Tech.

1. Definitions and interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms of use.

1.1.1. App: The Spott application that the personal trainer accesses through the portal.

1.1.2 Confidential Information: any information (including, without limitation, in written, oral, visual or electronic form, or on tape or disk) which is not publicly available including, but not limited to, any information specifically designated by the Licensor as confidential; any information supplied to the Licensor by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence. This includes know-how and information about design, products, know-how, trade secrets, development, specifications, manuals, instructions, PT Client or customer lists, sales, marketing, promotion, distribution, business plans, forecasts and technical or other expertise of the Group Company.

1.1.3. Group Company: the Licensor, its subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time.

1.1.4 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, 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.

1.1.5 Licensor: The Spott Fitness Limited incorporated and registered in England and Wales with company number 13100371 whose registered office is at 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ (we, us, our).

1.1.6 Licensee: the person that uses The Spott Tech in accordance with these terms of use, referred to as the Licensee (you, your).

1.1.7 Mark: any registered or unregistered trademarks of the Licensor.

1.1.8 Payment Processor: Stripe, or any other third party processor used to process payments on The Spott Platform from time to time.

1.1.9 PT Client: any client of the Licensee that uses any of The Spott Tech.

1.1.10 Purpose: the reason for which, and the manner in which, the Licensee may use The Spott Tech, which is in accordance with the Licensor’s objectives for The Spott Tech.

1.1.11 Reserved Rights: all rights in, or in relation to, The Spott Tech any and all derivative works, and any other rights (whether known now, or created later).

1.1.12 These terms of use: these terms of use that apply to the contract between the Licensor and the Licensee.

1.1.13 The Spott Tech: The Spott Platform, the App and all related technology provided by the Licensor to the Licensee.

1.1.14 The Spott Platform: The cloud-based platform that runs the application, hosted by the Licensor.

1.1.15 The Spott Subscription Fee: The fee charged by the Licensor to the Licensee for access to the Spott Platform and Spott Tech, invoiced to the Licensee through The Spott Platform, can be obtained on request from the Licensor.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these terms of use.

1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.4 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Grant of Licence, The Spott Subscription Fee, Billing and Term

2.1 Subject to the Licensee’s full payment The Spott Subscription Fee:

(a) the Licensor hereby grants to the Licensee a non-transferable, non-exclusive licence to use The Spott Tech during the term of your subscription, for the Purpose;

(b) The Spott Subscription Fee that the Licensor will charge the Licensee is detailed on the plan pricing page shown at check out. We strongly recommend that you save a copy of the plan pricing page for your records. After that time The Spott Subscription Fee can be obtained on request from the Licensor.

2.2 These terms and conditions apply for any period during which the Licensee has a subscription with the Licensor, and any such subscription will be confirmed by email to the Licensee upon purchase.

2.3 The Licensor reserves the right to increase The Spott Subscription Fee from time to time.

2.4 The Licensor uses a Payment Processor, to process payments through a payment account linked to the Spott Platform. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor available on the Payment Processor’s website or provided to you when you make a payment in addition to these terms and conditions. Please refer to our Privacy Policy on our website for more details. The Licensor accepts no liability for errors by the Payment Processor.

2.5 By accepting these terms and conditions the Licensee agrees to pay the Licensor, through the Payment Processor, The Spott Subscription Fee at the prices then in effect and the Licensee authorises the Licensor, through the Payment Processor, to charge the Licensee’s chosen payment method. If the Licensor, through the Payment Processor, does not receive payment of The Spott Subscription Fee from the Licensee, the Licensee agrees to pay all amounts due upon demand.

2.6 The Licensee must provide current, complete and accurate information to the Payment Processor and keep such information up to date (such as a change in billing address, credit card number, or credit card expiration date).

2.7 The licence granted to the Licensee is strictly limited to, and the Licensee shall use The Spott Tech solely for, the Purpose.

2.8 The Licensee shall not grant sub-licences, in whole or in part, of any of the rights granted under these terms of use, or sub-contract any aspects of exploitation of the rights licensed to it, without the Licensor's prior written consent.

2.9 The Spott Tech is made available to the Licensee on an ‘as is’ basis. Subject to the exclusion in clause 11.2 the Licensor disclaim all warranties, express or implied, including any implied warranties of non-infringement, merchantability and fitness for a particular purpose.

2.10 These terms of use are deemed to apply from the time when the Licensee first used any of The Spott Tech, or on the date the Licensee first agreed to these terms of use, whatever being the earliest, and shall continue, unless terminated in accordance with clause 10.

3. Not Used.

4. Licensor's Rights

4.1 The Licensor may develop, market, sell and promote derivative works and may exploit (including by licensing it to third parties) The Spott Tech in any media, format or products and for purposes other than the Purpose.

4.2 The Licensor may require the Licensee to cease all use of any or all of The Spott Tech, if it reasonably believes that the Licensee's use infringes the Intellectual Property Rights of any third party, or breaches any applicable law or regulation. In this instance, the Licensor may terminate your subscription immediately on written notice.

4.3 Not used.

4.4 The Licensor may discontinue any of the plans offered on The Spott Platform at any time for any reason.

4.5 From time to time the Licensor may automatically update The Spott Tech and change the services on The Spott Tech to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, the Licensor may ask the Licensee to update any relevant parts of The Spott Tech for these reasons. If the Licensee chooses not to install such updates or if the Licensee opts-out of automatic updates, the Licensee may not be able to continue using The Spott Tech.

4.6 The Spott Tech relies on the use of internet, which is outside of the Licensor’s control. The Licensor does not guarantee that The Spott Tech will run uninterrupted or that it will be error free.

4.7 The Licensor reserves the right to update The Spott Tech at any time and The Spott Tech may be unavailable when the Licensor performs maintenance services or upgrades to it.

4.8 The Spott Tech may contain links to other independent websites or apps which are not provided by the Licensor. Such independent sites and apps are not under the Licensor’s control, and the Licensor is not responsible for and have not checked and approved their content or their privacy policies (if any). The Licensee will need to make their own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them. The Licensee will be responsible for reading and accepting the terms and conditions and privacy policies of any third party websites or apps that The Spott Tech links to.

5. Licensee's Rights and Obligations

5.1 The Licensee may not change, amend or develop The Spott Tech, or any part of it, in any way without the Licensor's prior written consent.

5.2 The Licensee shall comply with all applicable laws in performing its obligations and exercising its rights under these terms of use.

5.3 The Licensee shall not infringe any moral rights (as defined in Chapter IV of the Copyright, Designs and Patents Act 1988) (CDPA) that subsist in respect of The Spott Tech or any part of it.

5.4 If the Licensee becomes aware of any misuse of any of The Spott Tech, or any security breach in connection with these terms of use that could compromise the security or integrity of The Spott Tech or otherwise adversely affect the Licensor, the Licensee shall, at the Licensee's expense, promptly notify the Licensor and fully co-operate with the Licensor to remedy the issue as soon as reasonably practicable. The Licensor may suspend the Licensee's rights under these terms of use until the misuse or security breach is remedied.

5.5 The Licensee shall agree to any further terms of use proposed by the Licensor in relation to The Spott Tech, for example in relation to use of the App.

5.6 The Licensor is not obliged to monitor, review, filter, moderate or remove any content on the App and the Licensee shall take sole responsibility for its actions, content, advice, information or otherwise which the Licensee provides to any PT Client via The Spott Tech and the Licensor shall in no way be held liable for the same.

6. Intellectual Property Rights

6.1 The Licensor expressly retains the Reserved Rights and all and all current and future Intellectual property Rights in The Spott Tech, and in any derivative works.

7. Warranties

7.1 The Licensee warrants that it has full power and authority to enter into and perform its obligations under these terms of use.

7.2 The Licensee warrants that its use of The Spott Tech:

(a) will not infringe any third party's Intellectual Property Rights;

(b) is not defamatory, libellous, obscene, in any manner inconsistent with these terms of use, objectionable or otherwise unlawful;

(c) not use it in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;

(d) does not violate any applicable law, statute or subordinate legislation; and

(e) does not, to the best of its knowledge and belief, contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information.

8. Indemnity

8.1 The Licensee shall indemnify the Licensor against all liabilities, costs, expenses, damages and losses (including but not limited to 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 the Licensor arising out of or in connection with

(a) the Licensee's activities under these terms of use;

(b) any personal injury;

(c) any infringement of any rights of the Licensor or of any third party by the use of The Spott Tech by the Licensee; or

(d) the Licensee's failure to comply with all applicable laws and regulations.

9. Infringement

9.1 Each party shall promptly notify the other of any actual or suspected infringement of The Spott Tech that comes to its attention (Infringement).

9.2 The Licensee shall co-operate fully with the Licensor by taking all steps required by the Licensor (in its sole discretion) in connection with any Infringement, including, without limitation, legal proceedings in the name of the Licensor or in the joint names of the parties. The Licensor shall be responsible for the cost of any legal proceedings it requires, and is entitled to any damages, account of profits and/or awards of costs recovered. The Licensee shall use its best endeavours to assist the Licensor in any legal proceedings relating to any Infringement.

10. Termination

10.1 Without affecting any other right or remedy available to it, the Licensor may terminate the Licensee’s subscription with the Licensor at any time for any reason. The reason the Licensor may terminate the Licensee’s subscription includes but is not limited to:

(a) if the Licensee does not pay The Spott Subscription Fee;

(b) the Licensee breaches these terms of use;

(d) any step or action being taken in connection with you entering into bankruptcy, administration, provisional liquidation (as may be relevant) or any composition or arrangement with your creditors (other than in relation to a solvent restructuring);

(e) bringing the Licensor into disrepute; or

(f) if your financial position deteriorates to such an extent that in the Licensor’s opinion your capability to adequately fulfil your obligations under these terms of use has been placed in jeopardy.

10.2 Not used.

10.3 On any termination of your subscription:

(a) all rights and authorisations granted by the Licensor to the Licensee under these terms of use shall automatically terminate and immediately revert to the Licensor; and

(b) the Licensee shall immediately cease all marketing and promotion of The Spott Tech, and shall, at the Licensor's option and according to the Licensor's instructions, immediately return to the Licensor or destroy all of The Spott Tech in the Licensee's possession or subject to its control including from back-up systems and any cached date related to The Spott Tech within the Licensee's control.

11. Liability

11.1 Save where expressly provided, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.

11.2 Nothing in this licence shall operate to exclude or limit the Licensor's liability for:

(a) death or personal injury caused by its negligence;

(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

(d) any other liability which cannot be excluded or limited under applicable law.

11.3 The Licensor shall have no liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(a) loss of use;

(b) loss of profits;

(d) loss of business opportunity;

(e) loss of contracts;

(f) loss of goodwill; or

(g) loss arising from damaged, corrupted or lost data;

provided that this 11.3 shall not prevent claims for direct financial loss that are not excluded by any of categories (a) to (g) inclusive of this clause 11.3.

11.4 Subject to 11.2 and 11.3, the Licensor's liability, whether in contract, tort (including negligence), or otherwise and whether in connection with this licence or any collateral contract, shall not exceed The Spott Subscription Fee paid in the last year.

12. Insurance

12.1 The Licensee shall maintain in force, with reputable insurance companies:

(a) comprehensive public liability insurance with a limit of no less than £5,000,000; any

(b) any other insurance policies against all risks that would normally be insured against by a prudent businessperson in connection with the risks associated with these terms of use and/or the Licensee’s business and potential claims by PT Clients.

12.2 The Licensee shall ensure that such insurance policy names the Licensor as co-insured with the Licensee and remain in effect throughout the duration of your subscription and for a period of 6 years after termination of your subscription, and only on request shall supply the Licensor with copies of certificates of insurance and proof of premium payments. In the event that the Licensee is not able to arrange for the Licensor to be named as co-insured on their policy, they shall contact the Licensor and if the Licensor agrees (which is in their sole discretion) to waive this particular requirement they will confirm that to the Licensee in writing.

13. Third party rights

13.1 These terms of use do not give rise to any rights to third parties, under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to enforce any term of these terms of use.

14. Assignment and Other Dealings

14.1 The Licensee shall not assign, transfer, mortgage, charge, subcontract, sub-license, delegate, declare a trust over or deal in any manner with these terms of use or any of its rights and obligations under these terms of use without the prior written consent of the Licensor.

14.2 The Licensor may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under these terms of use. The Licensor may subcontract or delegate any or all of its obligations under these terms of use to any third party.

14.3 The Licensee shall, at the Licensor's request, execute any agreements or other instruments (including any supplement or amendment to these terms of use) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge or other dealing referred to in 14.2.

15. Trademarks

15.1 The Licensee shall not do, or omit to do, or permit to be done, any act that will or may weaken, damage or be detrimental to any Mark or the reputation or goodwill associated with any Mark or the Licensor, or that may invalidate or jeopardise any registration of any Mark.

15.2 The Licensee shall not apply for, or obtain, registration of any Mark for any goods or services in any country.

15.3 The Licensee shall not apply for, or obtain, registration of any trade or service mark in any country which consists of, or comprises, or is confusingly similar to, any Mark.

16. Not Used.

17. Confidentiality

17.1 The Licensee undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, PT Clients or suppliers of the Licensor or Group Company, nor any of the terms of these terms of use, except as permitted by 17.2.

17.2 Each party may disclose the other party's Confidential Information:

(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with these terms of use. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this 17.2; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

17.3 No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these terms of use.

18. General

18.1 Any notice given to a party under or in connection with these terms of use shall be in writing.

18.2 Without prejudice to any other rights or remedies that the Licensor may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of these terms of use by the Licensee. Accordingly, the Licensor shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of these terms of use.

18.3 Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these terms of use.

18.4 No failure or delay by a party to exercise any right or remedy provided under these terms of use or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.5 These terms of use constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.6 Each party agrees that it 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 of use. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these terms of use.

18.7 Not used.

18.8 If any provision or part-provision of these terms of use 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 these terms of use.

18.9 If any provision or part-provision of these terms of use is deemed deleted under 18.8 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.

18.10 Not used.

18.11 Nothing in these terms of use 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.

18.12 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

18.13 These terms of use 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.

18.14 Each party 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 of use or its subject matter or formation.