WHEREAS the First Party has developed a novel idea of creating a platform for healthy lifestyle by creating a mobile application (Which hereinafter shall be referred to as “App”) by enlisting gymnasiums the details of which are more specifically laid down in Schedule A to this agreement.
AND WHEREAS, the First Party proposes to enlist the Second Party on the App developed by the First Party.
AND WHEREAS the Second Party has with free will consented to be enlisted on the App developed by the First Party.
AND WHEREAS, the Second Party is a gymnasium that is in par with the gymnasium standard set by the First Party which is specified in the Schedule B of this agreement.
AND WHEREAS the Second Party has agreed to provide full access and support in the gymnasium owned by the Second Party to the customers (Who shall hereinafter be referred to as the “Customers”) who use the App for a consideration that is mentioned here under in this agreement.
AND WHEREAS the Second Party has expressly agreed to have a profit sharing with the First Party.
AND WHEREAS the Second Party hereby do understands that no relation other than a profit sharing shall exist between the parties and the First Party is inviting customers to utilize the gymnasium and its premises for a higher price to which the profit sharing as enunciated herein this agreement shall subsist.
AND WHEREAS the both parties have with free will agreed to adhere with the conditions and terms as mentioned here under in this agreement.
NOW, THEREFORE, the, Second Party for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, has agreed to be enlisted on the mobile app in accordance with the terms and conditions upon the following terms and conditions as set forth here under;
TERMS AND CONDITIONS:
A. APP – The mobile application which is developed by the First Party that lists various gymnasiums in which daily work outs can be done by paying a consideration.
B. Customers- The users of the App who approaches the Second Party for utilizing the gymnasium.
C. Instruments- The exercise machines that are provided in the gymnasium for performing the work out which is exclusive of the value added services such as sauna, spa etc.
D. Gym hour – It basically is 60 minutes and it is on this basis that the consideration/ fee is charged.
E. Subscription- The number of gym hours that the customer envisages in the gymnasium.
F. Annual Fee- The total fee for a period of 12 months that is levied by the gymnasium to allow the usage of gymnasium instruments and its facilities.
G. Complaint- It is a written form of grievance addressed to the First Party by the App customers.
H. Schedule A- It contains detailed information regarding the gymnasium and its premises which shall also include the instruments and its count, the number and details of amenities available to different genders and all other necessary details to have a detailed idea about the gymnasium.
I. Schedule B- It specifies the facilities and amenities that are expected
by the First Party for the smooth enjoyment of the customers.
2. APPOINMENT AND TENURE
A. The Second Party hereby accepts the offer given by the First Party to be enlisted on the App and this acceptance shall be a continuous acceptance unless being revoked as mentioned here in this agreement.
B. This agreement shall be for a period of …… months from the date of entering into this agreement.
3. SERVICES TO BE PROVIDED BY THE PARTIES
A. The Second Party shall provide a detailed report on a daily basis to the First Party informing the number of Customers, gym hours and the payments received therein.
B. The Second Party shall allow the Customer to utilize as many gym hours as requested by the Customer without refraining except to any cause that appears justifiable to any reasonable prudent man.
C. The Second Party shall everyday provide a count of maximum customers possible on the night of the day preceding and the Second Party shall be at liberty to add on the possible counts without affecting the earlier stated count.
D. The First Party shall assume the proper working conditions of the gymnasium and the instruments therein and on any reported instance of damage or under repair condition shall solely be the considered as the negligence of the Second Party alone.
E. The First Party shall provide the technical support in registering the gymnasium owned by the Second Party in the App and shall provide the technical assistance regarding the App during the course of this agreement to the Second Party.
F. The Second Party shall provide access to the Customers to utilize the instruments in the Second Party’s gymnasium.
G. The Second Party shall at all times treat the customers in a very healthy, cordial, and professional manner and shall at no time refuse any request made by the customer regarding the usage of its instruments that is valid to the understanding of any reasonable prudent man.
H. The Customers shall be entitled to use all the exercise machines available at the gymnasium except other value added services such as spa, sauna etc.
I. The customers shall be at full liberty to utilize the vehicle parking facilities available to the Second Party’s customers and the customers shall also have full access to the luggage keeping arena in the Second Party’s gymnasium both of which shall be available only during the gym hour(s) as subscribed by the parties.
J. The First Party shall provide the agreed consideration per gym hour to the Second Party on the manner and nature as herein mentioned in this agreement.
K. All the amounts received by the Second Party shall be duly settled after the necessary set-offs and adjustments as stated in this agreement.
L. On any misbehavior or ill-demeanor by the Second Party to the customer(s), it shall be a ground for this agreement to be terminated by the First Party without any notice or intimation.
M. Second Party agrees that they shall not enter into similar agreements with the competitors or the agencies/companies which provide similar services as that of First party during the subsistence of this agreement. After 24 months from the termination of this agreement if the second party wish to enter into similar agreements with the competitors or the agencies/companies which provide similar services as that of First party, the same shall be done only after giving written notice to the First party.
4. Mode of booking by the Customers
A. The Customers applicable under this agreement shall only be those who registers and makes the booking through the App.
B. The people other than the App users shall not be a Customer and shall in no way be applicable or treated under this agreement.
A. The gym hour charge is Annual Fee + 25% of Annual Fee / 365. e.g. Assuming Annual fee to be Rs.1000, then Rs.1000 + 250 /365 = Rs.3.424 shall be the gym hour charge.
B. The First Party shall be the person entitled to collect at all times the gym hour charge from the customer.
C. Upon the Customer directly paying the Second Party, the amount so received from the Customer by the Second Party shall be deducted from the dues to the Second Party by the First Party and amount so being accrued shall be paid to the First Party by the Second Party.
A. All the payments arising and accruing to each party shall be dealt through and only through bank transactions.
B. The Second Party shall provide a detailed information to the First Party informing the number of customers, the gym hours used and all information therein and this detailed information shall be furnished to the First Party on all Fridays throughout the subsistence of this agreement before 12.00 AM IST (Friday Night).
C. After informing the First Party as stated above, it shall make the payment to the Second Party within 3 working days of the nationalized bank, after setting off any amount due to it.
D. On any dispute or argument with the Customers by the Second Party, the Second Party shall inform the First Party at the earliest possible opportunity and no furtherance or continuation of any dispute or argument shall be made by the Second Party and the First Party shall be the sole responsible and authorized personnel to settle and discuss the matter with the customer(s).
E. The Second Party shall never enter into a conversation or discussion with the Customer or try to entertain them by any means.
A. The Second Party shall be liberty to cancel this agreement only with a one month prior written intimation
B. Upon any cancelled or revoked agreement, any party who has been previously associated shall have to undergo the quality scrutiny prescribed by the First Party whatsoever.
8. Marketing Activities
A. The Second Party hereby agrees to provide access into the gym and its premises for the First Party to as part of the marketing activities of the name and label of this App.
B. The First Party shall be at liberty to keep or exhibit all kinds of its marketing tools which shall include standees, posters etc. and everything that are required to market the name and label of the App at any conspicuous place inside or outside the premises of the gym.
C. The Second Party shall not be entitled for any extra payment for the marketing activities performed by the First Party.
9. Indemnity and Liability
A. The First Party shall in no way whatsoever be liable for any losses incurred in the gymnasium and it shall solely be the burden for the Second Party to realize from the Customer(s).
B. The First Party shall not indemnify the Second Party for any and all losses and events caused by the First Party or the Customer(s).
C. The First Party hereby states that the complete and sole responsibility of the Customer(s) within the gymnasium shall be on the Second Party.
10. Force Majeure
A. The Force Majeure shall occur upon happenings of any event which is beyond the control of the Parties, including, but without limited to fire, flood, explosion acts of God or any Governmental agencies, public disorder, riots, embargoes, or strikes, acts of military authority, epidemics, strikes, lookouts or other labour disputes, insurrections, civil commotion, war, enemy action, Change in Law which substantially bars performance of obligation by the Affected Party (“Force Majeure Event” or “Force Majeure”).
B. In the occurrence of Force Majeure the First Party shall have no liability whatsoever.
A. The Parties shall be at fully liberty to terminate this agreement with a one month prior written agreement.
B. Upon more than 3 complaints being received by the First Party against the Second Party, the First shall issue a notice which shall ask for reasons as to why this agreement shall not be revoked and on not receiving any satisfactory reply, the First Party shall be at full liberty to cancel this agreement without any further notice or intimation.
A. It is mutually agreed to by the parties that amendments to this agreement shall be made only upon mutual consent by way of a written agreement. All such amendments made shall be read as part of this agreement.
13. Governing Law
A. This agreement shall be governed by and interpreted by the laws of India. If any portion of this agreement shall be found illegal, invalid or contrary to public policy by a court of competent jurisdiction, such striking or modification by a court of law shall not have the effect of invalidation of the agreement as a whole.
14. Dispute Resolution
A. Any controversy or claim arising out of or relating to this contract or the breach thereof will be settled exclusively in accordance with the procedures set forth herein.
B. The party seeking resolution of a Dispute will first give notice in writing of the Dispute to the other party, setting forth the nature of the Dispute and a concise statement of the issues to be resolved. If the Dispute has not been resolved through good faith efforts and negotiations of senior officers or representatives of the parties within fifteen (15) days of receipt by the relevant party of the notice of Dispute, such notice will be deemed to be a notice of arbitration and the parties agree to submit the Dispute to a single arbitrator mutually agreeable to both parties.
C. In the event that the parties cannot agree on a sole arbitrator, the arbitrator will be appointed in accordance to the arbitration law prevalent at the jurisdiction of the venue of arbitration. The expenses of arbitration shall be borne by the parties to the agreement and the venue of which shall be at Cochin, Kerala, India, under the Arbitration and Conciliation Act 1996.
A. First Party may provide Second Party with certain confidential or proprietary information (“Confidential Information”).
B. Confidential Information includes information, whether written, electronic or oral, which Second Party knows or reasonably should know is proprietary, confidential or a trade secret of First Party, including any and all technical or business information, the Software including its source codes and documentation, specifications and design information for the First Party Products, servicing information, customer lists, pricing information, marketing information, policies, procedures and manuals regarding First Party’s Second Party’s or distribution channels, research and development and other proprietary matter relating to the First Party Products or business of First Party.
C. Second Party will refrain from using the Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement.
D. Second Party will likewise restrict its disclosure of the Confidential Information to those who have a need to know such Confidential Information in order for Second Party to perform its obligations and enjoy its rights under this Agreement. Such persons will be informed of and will agree to the provisions of this Section and Second Party will remain responsible for any unauthorized use or disclosure of the Confidential Information by any of them.
E. Upon termination of this Agreement the Second Party shall cease to use for a period of 5 years all Confidential Information and promptly return to First Party within a week of termination (or destroy, upon request by First Party) any documents (whether written or electronic) in its possession or under its control that constitutes Confidential Information.
F. During the term of this Agreement and thereafter, neither Second Party, nor Second Party’s employees, independent contractors nor other agents shall (a) reverse engineer, decompile or otherwise disassemble the First Party Products from the products themselves or from any other information made available to them, or (b) otherwise use any of the Confidential Information or First Party provided training to support, maintain or otherwise service a third party’s products or services.
G. Each Party shall immediately notify the other in writing of any suspected or actual loss or unauthorized use, copying or disclosure of the Confidential Information of the other Party and provide the other Party with all reasonable assistance in relation to any such actual loss or unauthorized use, copying or disclosure of the Confidential Information.
16. RELATIONSHIP OF THE PARTIES
A. Second Party is an independent entity and not an employee, agent, affiliate, partner or joint venture with or of First Party. Neither Second Party nor First Party shall have any right to enter into any contracts or commitments in the name of, or on behalf of the other or to bind the other in any respect whatsoever, except insofar as is allowed by this Agreement.
A. Except as provided in this section, the First party makes no other warranty, promise or obligation with respect to the products; their use, repair or performance.
B. First party hereby disclaims all other warranties, promises and obligations, express, implied or statutory, including any warranties, promises and obligations arising from a course of dealing or usage of trade.
C. The warranties set forth in this section are intended solely for the benefit of First party.
D. All claims under this agreement shall be made by second party and
may not be made by second party’s customers.