FitKey

FITKEY AFFILIATE TERMS OF USE

1. INTRODUCTION

1.1. FitKey owns and operates an online booking platform and subscription service that enables its subscribers to book and to attend classes at a range of affiliated fitness centres and studios.

1.2. The Studio wishes to access the FitKey online booking platform to enable FitKey subscribers to book and attend classes at the Studio's location(s). FitKey has agreed to grant the Studio access to its online booking platform in accordance with these Terms.

2. DEFINITIONS AND INTERPRETATION

2.1. In these Terms, the following words and expressions shall have the following meanings:

2.1.1. "Business Day" means a day which is not a Saturday, Sunday or a public holiday in the Republic of South Africa, or in such other country in which the Studio offers classes via the FitKey Platform from time to time;

2.1.2. "FitKey Platform" means the online booking platform owned and operated by FitKey, accessible via the website http://www.fitkey.co.za, and via the FitKey mobile application;

2.1.3. "Force Majeure Event" means any cause or event beyond the control of the party claiming force majeure, which cannot be foreseen, or if foreseeable cannot reasonably be avoided, which occurs after the commencement date and which prevents or hinders the carrying out of the obligations of the party claiming force majeure, including acts of God or acts of nature (the elements), war (whether declared or not), blockage, embargo, boycott, revolution, invasion, insurrection, riot, civil commotion, mob violence, sabotage, strikes, lock-outs, epidemics, quarantine, power outages or other similar reasons;

2.1.4. "Independent Auditors" means such independent auditors as may be agreed between the parties, or failing agreement within 10 (ten) Business Days from the date of a request by any party for such agreement, appointed by the Executive President, or failing him for any reason, then by the most senior officer for the time being of the South African Institute of Chartered Accountants;

2.1.5. "Loss" means any loss, damages, liabilities, costs (including legal costs and experts' and consultants' fees), claims, charges, expenses, payments or penalties, including any consequential losses;

2.1.6. "Service" means the monthly subscription service owned and operated by FitKey that enables Subscribers, via the FitKey Platform, to book classes at a range of affiliated fitness centres, including the Studio;

2.1.7. "Subscribers" means subscribers to the Service;

2.1.8. "Terms" means these terms and conditions; and

2.1.9. "Terms of Use" means the terms and conditions of use of the FitKey Platform, and privacy policy incorporated therein, a copy of which appears on the FitKey website http://www.fitkey.co.za.

2.2. In interpreting these Terms:

2.2.1. references to a "person" include a natural person, company, close corporation or any other juristic person or other corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of persons;

2.2.2. the use of any expression covering a process available under South African law shall, if either of the parties is subject to the law of any other jurisdiction, be interpreted in relation to that party as including any equivalent or analogous proceeding under the law of such other jurisdiction;

2.2.3. when any number of days is prescribed, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;

2.2.4. the expiration or termination of these Terms shall not affect any provisions as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;

2.2.5. the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply;

2.2.6. the words "include", "including" and "in particular" shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding word/s;

2.2.7. any reference to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;

2.2.8. any provision which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (pro non scripto) and severed from the balance of this agreement, without invalidating the remaining provisions of this agreement or affecting the validity or enforceability of such provision in any other jurisdiction;

2.2.9. any reference to a party shall include a reference to that party’s assigns expressly permitted under this agreement and, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee, as the case may be; and

2.2.10. references to any amount shall means that amount exclusive of value-added tax, unless the amount expressly includes value-added tax.

3. NO AGENCY

3.1. These Terms shall not be construed in any way to:

3.1.1. constitute an employment relationship or an agency, joint venture or partnership arrangement of any form between FitKey and the Studio; or

3.1.2. authorise either party to incur any liability whatsoever on behalf of the other.

3.2. Neither FitKey nor the Studio shall have any authority, express or implied, to act on behalf of or to bind the other, and neither of them shall take any action to create any such authority or the appearance of such authority.

4. ACCESS TO THE PLATFORM

4.1. In using or accessing the FitKey Platform, the Studio acknowledges that it has read, and agrees to be bound by, the Terms of Use, which document shall be read and interpreted together with these Terms. If there is any conflict between the Terms of Use and these Terms, the provisions of these Terms shall prevail.

4.2. FitKey may provide the Studio with login details for the FitKey Platform and instructions on how to upload and manage information to the FitKey Platform from time to time. The Studio shall use and access the FitKey Platform in accordance with these instructions, the provisions of these Terms and the Terms of Use strictly for the purposes set out in this agreement.

4.3. The Studio may not access the FitKey Platform by any other means than those officially permitted by FitKey.

4.4. The Studio shall at all times ensure the security of any login details issued by FitKey from time to time. FitKey shall not be liable for any Loss suffered by the Studio arising out of or otherwise connected to the unauthorised use of the Studio's login details for the FitKey Platform and the Studio indemnifies FitKey against any Loss FitKey may suffer in this regard.

4.5. The Studio shall ensure that all information uploaded on the FitKey Platform is accurate and secure and shall not cause any damage to the FitKey Platform.

4.6. FitKey shall be entitled to suspend or revoke the Studio's access to the FitKey Platform at any time for any reason it deems necessary or appropriate. FitKey shall be entitled to remove, edit or replace any information or content entered by the Studio on the FitKey Platform that FitKey considers unsuitable, misleading, inappropriate or out of date and shall notify the Studio of such removal, edit or replacement.

4.7. Other than as may be expressly permitted in writing by FitKey, the Studio shall not make any additions, modifications, adaptations or any other alterations that in any manner materially reduce, impair or otherwise negatively impact upon the accuracy, completeness, integrity or safety of the FitKey Platform.

4.8. In accessing or using the FitKey Platform the Studio shall not do anything that might bring FitKey's reputation, brand, image or trademarks into disrepute. The Studio may not include violent, nude, racial, discriminatory, unlawful, infringing, hateful, pornographic, sexually offensive or suggestive material, or any other offending information or content on the FitKey Platform or create or post any unwanted email, comments or other communication or harassing communication to Subscribers.

4.9. The Studio shall not interfere with or disrupt the FitKey Platform, or any third party services or networks linked thereto, including by knowingly or unknowingly transmitting any virus onto the FitKey Platform.

5. STUDIO OBLIGATIONS

5.1. The Studio shall honour all bookings made at any of its participating locations by Subscribers via the FitKey Platform.

5.2. The Studio shall verify the identity of Subscribers attending the Studio prior to the commencement of the relevant class. If the identity of the Subscriber cannot be verified, the Studio shall not permit participation in the class and shall notify FitKey accordingly.

5.3. The Studio shall deal with all Subscriber complaints efficiently and appropriately. Any complaint relating to FitKey or the FitKey Platform shall be referred to FitKey immediately.

5.4. The Studio hereby warrants that, at all times during the currency of this agreement, it has the necessary facilities, accreditation and permits, as applicable, and that its class instructors have the necessary skills, qualifications and experience, to carry on the business of the Studio, and to instruct Subscribers in its advertised fitness discipline, from time to time. The Studio shall not make any misrepresentations in this regard or as to any of its or its instructors' credentials, qualifications, experience or accreditation.

6. PAYMENT

6.1. FitKey shall pay the Studio a fixed fee to be agreed upon between the parties in writing per class booked by a Subscriber via the FitKey Platform and not cancelled via the FitKey Platform before the relevant cancellation cut-off time.

6.2. Within 5 (five) Business Days of the end of every calendar month, FitKey shall furnish the Studio with a reconciliation statement which shall detail the number of classes booked via the FitKey Platform by Subscribers during the preceding calendar month and the fee payable by FitKey to the Studio in respect of such month ("Monthly Fee"), and shall simultaneously pay such Monthly Fee into the Studio's nominated bank account within 5 (five) Business Days.

6.3. If the Studio disputes the Monthly Fee paid to it in terms of clause 6.2:

6.3.1. the Studio shall notify FitKey in writing, setting out the basis of the Studio's objection;

6.3.2. if the dispute is not resolved between the parties within 5 (five) Business Days, it will be referred to the Independent Auditors for determination, who shall act as experts and not as arbitrators, who shall be directed to make a determination within 10 (ten) Business Days after the dispute is referred to them, in writing but without reasons, and whose certification and determination of the dispute shall be final and binding on the parties. The experts shall have the fullest and freest discretion with regard to the determination and the method to be followed in arriving at their decision including whether or not to have a hearing or to call evidence from other experts;

6.3.3. the Independent Auditors' costs shall be paid by the parties in such proportions as the Independent Auditors may determine is just and equitable; and

6.3.4. any amount payable by either party to the other as a result of the Independent Auditor's written determination shall be payable within 5 (five) Business Days of receipt by the parties of such written determination.

7. SUBSCRIBERS

In using the Service, Subscribers are bound by a separate set of terms and conditions, which are incorporated into the Terms of Use ("Subscriber Terms"), and with which the Studio acknowledges it is familiar. The Studio acknowledges that:

7.1. FitKey does not guarantee any minimum bookings or attendance by Subscribers at the Studio;

7.2. in any subscription month, a Subscriber cannot book into more than 3 classes at the Studio (across all of its locations) via the FitKey Platform;

7.3. Subscribers cannot transfer their subscriptions or any classes booked via the FitKey Platform to anyone else, including other subscribers to the Service; and

7.4. without limiting the generality of clause 8.2, FitKey shall not be liable for any Loss incurred or suffered by the Studio arising out of a Subscriber's use or misuse of the Service or which is in any way connected with their attendance, or participation in a class, at the Studio.

8. INDEMNITY AND LIMITATION OF LIABILITY

8.1. The Studio indemnifies and holds FitKey harmless, to the fullest extent permitted by law, against all Loss which FitKey may suffer as a result of or which may be attributable to a breach of these Terms, or the Terms of Use, by the Studio, any wilful or negligent act or omission on the part of the Studio in connection with these Terms or the Terms of Use or as otherwise arises out of or is connected to any wrongful act or omission of, or attributable to, the Studio. Notwithstanding the generality of the aforegoing, the Studio hereby indemnifies and holds FitKey harmless, to the fullest extent permitted by law, against all Loss which FitKey may suffer arising out of any harm alleged or proven by a Subscriber to the extent that the harm arose out of, or is connected to, a Subscriber's attendance at the Studio or is attributable to the negligent or intentional conduct of the Studio.

8.2. It is recorded that, when subscribing to the Service, all Subscribers agree to hold participating studios harmless against any injury or Loss which a Subscriber may incur or suffer as a result of using the Service. Subscribers also agree to indemnify participating studios against any Loss a studio may suffer as a result of a Subscriber's use of the Service. These undertakings by the Subscribers are for the benefit of participating studios and are capable of acceptance by studios at any time.

8.3. Save for Loss suffered by the Studio which is attributable to the gross negligence or wilful misconduct of FitKey, FitKey shall not be liable to the Studio for any Loss suffered by the Studio arising under or in connection with these Terms or the Terms of Use. This includes Loss relating to the use of the FitKey Platform, the unavailability of the FitKey Platform or any errors, bugs or viruses that may occur with or in the FitKey Platform.

8.4. Any liability of FitKey to the Studio arising from time to time under or in connection with these Terms or the Terms of Use shall not exceed an amount equal to the fees paid by FitKey to the Studio in the calendar month immediately preceding the calendar month during which the cause of action giving rise to FitKey's liability arose.

9. FORCE MAJEURE

Neither party shall be liable to the other as a result of any delay or failure in the performance of its obligations under this agreement if and to the extent that such delay or failure is caused by a Force Majeure Event. Each party shall:

9.1. promptly notify the other of the occurrence of a Force Majeure Event including the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure Event;

9.2. use its reasonable endeavours to remedy or mitigate the effect of the Force Majeure Event; and

9.3. continue to perform its respective obligations under this agreement to the extent possible during the period of the Force Majeure Event.

10. INTELLECTUAL PROPERTY

FitKey, or its licensors, shall own all intellectual property rights subsisting in or arising in connection with the FitKey Platform and the Studio shall not acquire any rights to those intellectual property rights, whether pre-existing or created during the term of this agreement (except where the Studio has provided its own intellectual property for display on the FitKey Platform, including text, pictures, logos and graphics ("Studio IP")). The Studio grants FitKey a license to use the Studio IP solely for the purposes of displaying same on the FitKey Platform for the duration of these Terms. FitKey shall not acquire any ownership rights in and to the Studio IP.

11. TERMINATION AND BREACH

11.1. Either party shall be entitled to terminate this agreement upon 20 (twenty) Business Days' written notice to the other party. Subscribers will still be able to book and attend classes via the FitKey Platform at the Studio during such notice period (as well as any notice period contemplated in clause 11.2) and the Studio shall continue to honour such bookings.

11.2. If either party breaches any provision or term of this agreement, and fails to remedy such breach within 5 (five) Business Days (or such longer period as may be reasonably necessary in the circumstances) of the date of receipt of written notice requiring it to do so, then, the other party (the "Aggrieved Party") shall be entitled, in addition to any other remedy available to it at law, to cancel this agreement or to claim specific performance, in either event without prejudice to the Aggrieved Party's rights to claim damages.

11.3. FitKey may terminate this agreement with immediate effect on written notice to the Studio if:

11.3.1. the Studio breaches, or is suspected by FitKey of breaching the Terms of Use;

11.3.2. FitKey receives a complaint from a Subscriber in connection with the Studio, which FitKey deems in its discretion to be of so serious a nature that justifies the immediate termination of these Terms;

11.3.3. the Studio acts, or fails to act, in such a manner that, in FitKey's opinion, might impair, prejudice or injure the reputation of FitKey or the Service, if FitKey were to continue to be affiliated to the Studio in any manner;

11.3.4. the Studio breaches, or FitKey reasonably suspects that the Studio has breached the provisions of clause 5.3;

11.3.5. FitKey determines or suspects that the Studio's premises, facilities and/or equipment are hazardous or do not comply with any applicable safety standards and or laws from time to time; or

11.3.6. the Studio breaches, or FitKey reasonably suspects that the Studio has breached clause 5.2.

11.4. Upon termination of this agreement:

11.4.1. the Studio shall no longer be able to access the FitKey Platform and the Studio shall return any login details for the FitKey Platform to FitKey and shall return or destroy (as directed by FitKey) any material relating to the FitKey Platform except for material the Studio is legally required to retain for its records; and

11.4.2. Subscribers shall no longer be permitted to attend any classes at the Studio via the FitKey Platform, even if a class was booked via the FitKey Platform prior to the termination date. If the Studio permits a Subscriber to attend a class after the termination date of this agreement, such attendance shall be for the Studio's own account.

12. DISPUTE RESOLUTION

12.1. Subject to clause 6.3, if a dispute arises out of or in connection with these Terms or the breach, termination or invalidity thereof, the parties shall use their best efforts to settle the dispute by mediation.

12.2. Upon written notice from any party to the other (the "Dispute Notice") the dispute shall be referred to a suitably qualified independent mediator, whose identity shall be agreed between the parties in writing, within 7 (seven) days of receipt of the Dispute Notice, and failing agreement as aforesaid, to a suitably qualified independent mediator appointed by the President for the time being of the Cape Law Society (or its successor body in the Western Cape). The mediator shall be an Africa Centre for Dispute Settlement accredited mediator.

12.3. The mediation shall be held at a venue in Cape Town. The parties shall agree on the mediation procedure and failing agreement within 14 (fourteen) days of receipt of the Dispute Notice or such longer period of time as may be agreed to in writing, then, the mediation shall take place in accordance with the United Nations Commission on International Trade Law Model Conciliation Rules in force at the time of the dispute.

12.4. If for any reason, including lack of co-operation by the parties, a dispute is not settled by mediation within 30 (thirty) days of receipt of the Dispute Notice or such longer period of time as may be agreed to in writing, then the dispute shall be settled by arbitration in accordance with the following provisions:

12.4.1. the arbitrator shall, if the dispute is agreed in writing by the parties to be:

12.4.1.1. primarily an accounting matter, be an independent practising accountant of not less than 10 (ten) years' standing as such;

12.4.1.2. primarily a legal matter, be an attorney of not less than 10 (ten) years' standing as such or a practising senior counsel;

12.4.1.3. any other matter, be a suitably qualified independent person,

agreed upon in writing by the parties; provided that if the parties do not, within 14 (fourteen) days of the 30-day period contemplated in clause 12.4, agree in writing as to the identity of the arbitrator, the arbitrator shall, irrespective of the nature of the dispute, be appointed by the Registrar of the Arbitration Foundation of Southern Africa upon request by any party to make such appointment;

12.4.2. the arbitration shall be held at a venue in Cape Town and shall be conducted in accordance with the Uniform Rules of Court;

12.4.3. immediately after the arbitrator has been appointed, any party shall be entitled to call upon the arbitrator to fix a date and place when and where to meet with the arbitrator to settle the manner in which the arbitration proceedings will be held;

12.4.4. subject to clause 12.5, any order or award that may be made by the arbitrator:

12.4.4.1. shall be final and binding;

12.4.4.2. shall be carried into effect; and

12.4.4.3. may be made an order of any competent court.

12.5. Nothing in this clause 12 shall preclude any party from seeking interim and/or urgent relief from a court of competent jurisdiction

13. NOTICES AND DOMICILE

13.1. For the purposes of the giving of notices and the serving of legal process in terms of these terms, each of the parties chooses the following addresses ("Domicile"):

13.1.1. the Studio at the physical, postal and e-mail addresses set out on the front page of these Terms.

13.1.2. FitKey at:

Physical: 10 Kelvin Street, Gardens, Cape Town, Western Cape, 8001

Postal: 10 Kelvin Street, Gardens, Cape Town, Western Cape, 8001

Email: info@fitkey.co.za

13.2. Any notice or communication required or permitted to be given in terms of these Terms shall be valid and effective only if in writing but it shall be competent to give notice by e-mail.

13.3. Any party may by notice to any other party change the physical address chosen as its Domicile vis-à-vis that party to another physical address where postal delivery occurs in the Republic of South Africa or country in which the Studio offers classes via the FitKey Platform, or its postal address or e-mail address, provided that the change shall become effective vis-à-vis that addressee on the 7th (seventh) Business Day from the receipt of the notice by the addressee.

13.4. Any notice to a party:

13.4.1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its Domicile to which post is delivered shall be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);

13.4.2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its Domicile shall be deemed to have been received on the day of delivery; or

13.4.3. sent by e-mail to its chosen e-mail address shall be deemed to have been received on the date of despatch (unless the contrary is proved).

13.5. Despite the provisions of this clause 13, a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen Domicile.

14. WHOLE AGREEMENT

14.1. No addition to, variation or agreed cancellation of these Terms, shall be of any force or effect unless reduced to a written document and signed by or on behalf of the parties.

14.2. These Terms constitute the whole agreement between the parties relating to the subject matter hereof and supersede any other discussions, agreements and/or understandings regarding the subject matter hereof.

14.3. No extension of time, waiver or relaxation or suspension of, or agreement not to enforce, or to suspend or postpone the enforcement of, any of the provisions or terms of these Terms given or made by either party shall be binding unless recorded in a written document signed by the party granting an extension, waiver, relaxation or suspension, or by the parties between whom agreement was reached not to enforce, or to suspend or postpone the enforcement of, any of the provisions or terms of these Terms, as the case may be.

14.4. To the extent permissible by law no party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.

15. GOVERNING LAW

This agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.

16. COUNTERPARTS

These Terms:

16.1. may be signed in one or more counterparts all of which shall be considered one and the same agreement; and

16.2. shall become effective when a counterpart has been signed by each of the parties.