BY CLICKING ON THE "ACCEPT" BUTTON BELOW (IF SUBSCRIBING ONLINE), BY RETURNING YOUR ACCEPTANCE IN WRITING (IF SUBSCRIBING VIA ANY OTHER MEANS), YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST DISCONTINUE THE SUBSCRIPTION PROCESS NOW. WHERE YOU ARE USING THIS SERVICE ON BEHALF OF A BUSINESS, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER THIS CONTRACT ON BEHALF OF YOUR COMPANY (OR OTHER PERSON AS DEFINED IN CLAUSE 1.3).
1.1 The definitions and rules of interpretation in this Clause apply in this agreement.
Additional Content: means any digital assets or other materials that are made available by Third Parties or CEMOS via the CEMOS Services.
Application: means any web based software application, mobile application (including the GetPTFit App) and any associated media (including any guides, videos or content) which CEMOS may make available (subject to the EULA) to install/use to access the CEMOS Services from a variety of sources, from time to time
Clients: where you are an individual health and fitness expert (Individual FitPro), these are your personal clients that you provide personal health and fitness services to. Where you are an Enterprise Client, these shall be the clients of the Individual FitPro you nominate as part of the GetPTFit Wizard when establishing your Subscription.
CEMOS: means CEMOS Solutions Limited a company registered in England with company number 8737273 and whose registered address is 145 Edge Lane, Liverpool, L7 2PF.
GetPTFit Wizard: means the question forms to be completed by you and submitted to CEMOS as part of your subscription including the identity of any Individual FitPro, and used from time to time to amend and update your details which includes key details, contact details and Client details.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as “Confidential Information”.
Customer Materials: the data and materials inputted by you, or CEMOS on your behalf for the purpose of using the CEMOS Services, including any Submitted Materials.
Documentation: the documents made available to you by CEMOS from time to time which set out a description of the CEMOS Services and the user instructions for your use of the services.
Enterprise Client: where you are entering into this agreement as an organisation on behalf of an Individual FitPro in your control, you are an ‘Enterprise Client’ and must purchase a Subscription for the number of Individual FitPro that are identified as part of the Subscription process and wish to use the CEMOS Services.
EULA: means the end user license agreement appendixed to this agreement.
Individual FitPro means, where you are requesting a Subscription as an individual provider of health and fitness services – you, and where you are requesting a Subscription as an organisation this means the individuals who provide health and fitness services under your control.
Initial Subscription Term: means the period beginning on the Start Date and ending on 23:59 GMT on the day prior to the anniversary of the Start Date.
Renewal Period: the period described in Clause 13.1.
Start Date: is the date on which you click accept or the date set out in an offer sent to you by CEMOS, or on CEMOS’s behalf by an authorised reseller, or such other date that CEMOS notifies you of (e.g. when changing levels of Subscription).
Subscription(s): the subscription purchased by you pursuant to Clause 9.1 either as an organisation on behalf of Individual FitPros within its employ or control or as an Individual FitPros and which entitle you and/or Clients to access and use the CEMOS Services and the Documentation in accordance with this agreement.
Subscription Fees: the subscription fees payable by you to CEMOS for the Subscriptions calculated in accordance with the Subscription Information and GetPTFit Wizard.
Subscription Information: can be viewed at http://www.getptfit.com/pricing/ and sets out the various levels of Subscription (including both Enterprise Client and individual subscriptions) and the applicable Subscription Fees.
Subscription Term: means the Initial Subscription Term together with any Renewal Period.
Third Parties: means third parties who have agreed with CEMOS to make available their Additional Content via the CEMOS Services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
you, your and yours: means you, the customer who wishes to be granted a Subscription.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 A reference to writing or written includes faxes but not e-mail.
1.9 References to Clauses and schedules are to the Clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2.1 This agreement shall come into force when you click accept, or CEMOS receives your confirmation of a subscription offer, stating you accept the Terms. Our agreement shall continue thereafter in accordance with this agreement.
2.2 Subject to you paying the Subscription Fees, the restrictions set out in this Clause 2, and you observing the Terms, CEMOS hereby grants to you (and your Individual FitPros identified during the Subscription Process where you are an Enterprise Client and subject always to those Individual FitPros being under your legal control) a non-exclusive, non-transferable right and permit to use the CEMOS Services and the Documentation during the Subscription Term as per the Subscription Information.
2.3 CEMOS shall provide you with unique credentials to access the CEMOS Services. Where you are an Enterprise Client, CEMOS shall provide you with credentials for each individual Individual FitPro identified during the Subscription Process. These credentials shall be required to access and use the CEMOS Services. Where you are an Enterprise Client, during Subscription you must nominate an individual as administrator for your Subscription. CEMOS shall provide that individual with an ‘Admin Account’ access from which each Individual FitPro’s use of the CEMOS Services can be monitored and orders made for Additional Content in accordance with Clause 4.
2.4 Once you, or the Individual FitPros signs in using the credentials provided in accordance with Clause 2.3, you may add the details of your Clients, subject always to Clause 7. When you add Client details the CEMOS Service shall send an automated invite to the details inputted inviting that Client to sign up to the use of the Application to be able to communicate with their Individual FitPro. Each Client shall be assigned unique user credentials and must accept the EULA prior to being able to use the Application.
2.5 You warrant, represent and undertake that:
- (a) you are over the age of 18 (or have express consent from an adult over the age of 18);
- (b) you shall keep the security token, or any password and log-in information confidential and only provide it to those Clients, Individual FitPros or nominated administrator who require it;
- (c) you shall notify CEMOS immediately if you become aware of, or suspect, that any unauthorised third party has knowledge of, or access via, security token or any password and log-in information provided to you;
- (d) you shall comply with all computing security procedures that may be deemed reasonably necessary as directed by CEMOS;
- (e) you shall comply with all applicable laws and regulations with respect to your activities under this agreement;
- (f) you shall only permit the identified Individual FitPros access to the CEMOS System unless you increase your Subscription in accordance with Clause 3;
- (g) you shall be solely responsible for procuring and maintaining your network connections and telecommunications links from its systems to CEMOS’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet:
(h) you shall subscribe to use the CEMOS Services and Documentation on one occasion only and shall not make a further subscribtion on behalf of any third party.
2.6 You shall not upload, store, distribute or transmit any Viruses, or any material during the course of your use of the CEMOS Services, including via any contact with the Clients, that:
- (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- (b) facilitates illegal activity;
- (c) depicts sexually explicit images;
- (d) promotes unlawful violence;
- (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
- (f) causes damage or injury to any person or property;
and CEMOS reserves the right, without liability to you, to disable your access to any material that breaches the provisions of this Clause. You hereby indemnify CEMOS, and shall keep CEMOS indemnified, against any and all losses it may incur as a result of you breaching this Clause.
2.7 You shall prevent any unauthorised access to, or use of, the CEMOS Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify CEMOS.
2.8 You warrant that any answers you give in the GetPTFit Wizard are true and correct to the best of your knowledge. If CEMOS becomes aware of any inconsistencies in the answers given by you, CEMOS reserves the right to:
- (a) adjust the level of Subscription and the Subscription Fee accordingly and invoice you retrospectively for any shortfall in the actual Subscription Fee paid by you and the Subscription Fee due from you which will be paid by you immediately; or
- (b) terminate the Subscription.
- 2.9 Where we make available to you a marketplace platform that enables you to sell services and/or goods to Clients you are entering into a contract with the Client direct and must agree the terms of the transaction. You must at all times:
- (a) Not infringe the intellectual property rights of any third party;
- (b) Promptly and diligently deal with any sale made and any enquiries;
- (c) Comply with all relevant laws and regulations.
2.10 You shall provide such information to CEMOS as it may reasonably request and that CEMOS considers reasonably necessary for the purpose of providing the CEMOS Services.
2.11 The rights provided under this Clause 2 are granted to you only, and shall not be considered granted to any subsidiary or holding company of yours.
2.12 Any Application that CEMOS make available to you to access the CEMOS Services shall be at all times subject to the EULA which you hereby accept.
2.14 Where you are an Enterprise Client you hereby warrant that you have full legal control over the Individual FitPros identified during the Subscription process and hereby accept full responsibility for the acts and omissions of those Individual FitPros having made those Individual FitPros expressly aware of the terms of this agreement.
3. Changes to Subscription
3.1 During the Subscription Term you may, from time to time, wish to increase the level of Subscription in accordance with the Subscription Information.
3.2 Where you are an organisation, if you wish to add additional Individual FitPros to the Subscription, you shall notify CEMOS via the GetPTFit Wizard or in writing. CEMOS shall evaluate such request for an increase to your Subscription and respond to you with approval or disapproval of the request.
3.3 If CEMOS approves your request to increase your Subscription, you agree to pay the relevant increase in fees on the next payment date, such change to be effective for the remainder of the Subscription. If such additional Subscriptions are purchased by you part way through a month of your Subscription, the first such payment shall include such additional fees pro-rated for the month during which the change is implemented.
4. Additional Content
4.1 From time to time you may request the purchase of a licence to certain Additional Content available on via the CEMOS Services. For instance, a specific personal training or food plan. All Additional Content requests made via the CEMOS Services (including the GetPTFit Wizard) are subject to CEMOS confirming your order. Where you are an Enterprise Client, either an individual Individual FitPro can make a purchase and share it with their Clients, or a purchase may be made via the ‘Admin Account’ as set up in accordance with Clause 2 in which case the purchased Additional Content will be shared with all Individual FitPros under your Subscription. Where a request for Additional Content is accepted by CEMOS any use:
- (a) is subject to you paying any fees that are required for such Additional Content as detailed via the CEMOS Services (any use and access is subject to prior payment); and
- (b) is on the basis of a non-exclusive, non-sub licensable, non-transferrable licence for use and access of the Additional Content using the CEMOS Services (and to allow your Clients to do the same); and
- (c) Notwithstanding (b), above, where you are entering this Agreement as an Enterprise Client, the use envisaged under this Clause extends to your Individual FitPros and their Clients; and
- (d) is subject to you having a valid and up to date Subscription.
4.2 When accessing some Additional Content you may be required to accept a Third Party’s terms of access. You will be displayed the relevant third party terms and conditions prior to accessing the Additional Content. You must not access such Additional Content unless you accept and observe at all times the Third Party’s terms.
4.3. You may, from time to time, submit to CEMOS content that you wish to make available to other subscribers of the CEMOS Services as Additional Content (“Submitted Content”). When submitting Submitted Content you shall confirm on what basis you would like to make the Submitted Content available as Additional Content; please see Marketplace within GetPTfit (“Licensing Basis”) for a breakdown of options available.
4.4. CEMOS will not return to you any electronic files or physical content or media you deliver to us that contains the Submitted Content. You must deliver all electronic files free and clear of Viruses. All Submitted Content submitted must comply with the requirements of Clause 2.6.
4.5. You grant to CEMOS a worldwide, nonexclusive, irrevocable, right and license to distribute the Submitted Content as Additional Content via the CEMOS Services to third parties that hold a valid subscription to the CEMOS Services. This right includes, without limitation, the right to: (a) reproduce, index, cache and store Submitted Content on one or more computer facilities, and reformat, convert and encode Submitted Content; (b) display, market, transmit, distribute, sell and otherwise digitally make available all or any portion of Submitted Content through the CEMOS Service as ‘Additional Content’, for customers and prospective customers to download, access, copy and paste, print, annotate and/or view online and offline, including on portable devices; (c) to permit customers to re-download such Submitted Content from time to time whilst they hold a valid Subscription. The rights granted in accordance with this clause include the rights to use any trade mark you may include in the Submitted Content
4.6. In CEMOS’ discretion, CEMOS may from time to time reformat Submitted Content and correct errors. Should CEMOS make any errors you may request the withdrawal of the Submitted Content in accordance with Clause 4.7; this will be your sole remedy with respect of errors made.
4.7. You may withdraw your Submitted Content from further sale in the Program at any time on 30 days written notice. Any withdrawal will have effect from the expiry of the written notice and will not apply with respect to any customers who purchased the Submitted Content prior to the date of removal.
4.8. You hereby warrant and represent that all Submitted Content meets the requirements of ‘Customer Materials’ as set out in Clause 7.
4.9. Subject always to you not being in breach of the provisions of this agreement, CEMOS shall pay to you a royalty in accordance with your chosen Licensing Basis net of any:
4.9.1. Applicable taxes;
4.9.2. Returns and/or refunds;
4.9.3. Outstanding monies due from you to CEMOS for any reason.
4.10. Payments due in accordance with Clause 4.9 shall be made monthly in arrears by PayPal as soon as reasonably possible following the end of each calendar month.
5. Intellectual Property
Where you have Submitted Content for sale as Additional Content in accordance with Clause 4, you shall be deemed to be a ‘licensor’ for the purpose of this clause.
5.1 You acknowledge and agree that CEMOS and/or its licensors own all intellectual property rights in the CEMOS Services, the Documentation and the Additional Content. Except as expressly stated herein, this agreement do not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the CEMOS Services, the Documentation or the Additional Content.
5.2 You acknowledge that in providing the CEMOS Services CEMOS is acting as distributor of the Additional Content. CEMOS therefore excludes, to the fullest extent possible and permitted by law, any liability whatsoever with regard to Additional Content accessible via the CEMOS Services including but not limited to, any defamatory, libellous, offensive, inappropriate, illegal or immoral Additional Content.
5.3 You shall not:
- (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- (i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the CEMOS Services and/or Documentation and/or Additional Content in any form or media or by any means; or
- (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the CEMOS Services; or
- (b) access all or any part of the CEMOS Services and Documentation in order to build a product or service which competes with the CEMOS Services; or
- (c) use the CEMOS Services and/or Documentation and/or Additional Content to provide CEMOS Services to third parties; or
- (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the CEMOS Services and/or Documentation and/or Additional Content available to any third party, or
- (e) attempt to obtain, or assist third parties in obtaining, access to the CEMOS Services and/or Documentation and/or Additional Content, other than as provided under this Clause 5.3.
- 5.4 CEMOS may, from time to time, withdraw any Additional Content which it has reasonable grounds to suspect that it infringes the intellectual property rights of any third party or is deemed defamatory, obscene, unlawful or objectionable.
5.5 Whilst CEMOS uses reasonable endeavours to ensure that Additional Content is appropriate, CEMOS makes no warranty that the Additional Content is, and will be, appropriate. Should you should wish to comment or complain about the Additional Content please contact CEMOS in accordance with Clause 21 providing in reasonable detail the complaint, your details and details of the Additional Content subject to the complaint. This is the extent of your remedy available for amendments made.
6. CEMOS Services
6.1 CEMOS shall, during the Subscription Term, provide the CEMOS Services to you on and subject to this agreement.
6.2 CEMOS shall use commercially reasonable endeavours to make the CEMOS Services available 24 hours a day, seven days a week, except for planned maintenance which CEMOS will try to notify you of in advance.
6.3 CEMOS reserves the right at any time to modify the CEMOS Services and/or Documentation without notice.
7. Customer Materials
7.1 You shall own all rights, title and interest in and to all of the Customer Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Materials. You hereby warrant that you are the owner or have the rights to use the Customer Materials at all times as envisaged by this agreement.
7.2 You are solely responsible for archiving and maintaining the Customer Materials and CEMOS accepts no liability for any loss of Customer Materials. CEMOS shall not be responsible for any loss, destruction, alteration or disclosure of Customer Materials caused by any third party.
7.3 You warrant and represent that you have all appropriate consents relating to any Client data that forms part of the Customer Materials and hereby fully indemnify (and shall keep CEMOS indemnified) CEMOS on demand against any and all losses that it may suffer as a result of a breach of this Clause.
7.5 If CEMOS processes any personal data (e.g. of Clients) on your behalf when performing its obligations under this agreement, the parties record their intention that you shall be the data controller and CEMOS shall be a data processor and in any such case:
- (a) you acknowledge and agrees that the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Offices are located in order to carry out CEMOS’s obligations under this agreement;
- (b) you shall ensure that you are entitled to transfer the relevant personal data, and any data relating to an End Client, to CEMOS so that CEMOS may lawfully use, process and transfer the personal data in accordance with this agreement on your behalf;
- (c) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
- (d) CEMOS shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by you from time to time; and
- (e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
8. CEMOS's Undertakings
8.1 CEMOS undertakes that the CEMOS Services will be performed and made available with reasonable skill and care.
8.2 Notwithstanding the foregoing, CEMOS:
- (a) does not warrant that your use of the CEMOS Services will be uninterrupted or error-free, nor that the Additional Content, Documentation and/or the information obtained by you through the CEMOS Services will meet your requirements; and
- (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the CEMOS Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.3 CEMOS warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
9. Charges and Payment
9.1 You shall pay the Subscription Fees to CEMOS for the Subscription in accordance with this Clause 9.
9.2 During the subscription process you will be required to provide an up to date billing method and details. By accepting this agreement you hereby agree that CEMOS may charge/debit your account as necessary in accordance with this agreement.
9.3 CEMOS shall bill you and you shall pay the Subscription Fees payable in respect of the Initial Subscription Term (where Subscription Fees apply in accordance with the Subscription Information) on the Start Date and each month thereafter; and
9.4 If CEMOS has not received payment/is unable to take payment by the relevant date, without prejudice to any other rights and remedies of CEMOS:
- (a) CEMOS may, without liability to you, disable your password, account and access to all or part of the CEMOS Services and shall be under no obligation to provide any or all of the Cloudstore or associated services while the invoice(s) concerned remain unpaid; and
- (b) interest shall accrue on such due rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1988 at the date the relevant invoice was issued, commencing on the Due Date and continuing until fully paid, whether before or after judgment.
9.5 All amounts and fees stated or referred to in this agreement:
- (a) shall be payable in pounds sterling;
- (b) are non-cancellable and non-refundable;
- (c) are exclusive of value added tax, which shall be added at the appropriate rate.
9.6 Subject to Clause 9.7, CEMOS shall be entitled to increase the Subscription Fees at the start of each Renewal Period.
9.7 If CEMOS decides to exercise its right under Clause 9.6, CEMOS shall provide you with at least 1 (one) month’s written notice prior to the end of the Initial Subscription Term or subsequent Renewal Period. Upon receipt of this notice, you may:
- (a) reply in writing to CEMOS within 14 days stating that you do not wish to continue to receive a Subscription for a further Renewal Period on the proposed new charges. If you exercise this right, you shall continue to receive the Subscription until the end of the Initial Subscription Term or Renewal Period in which your written notice is received; or
- (b) not do anything, in which case, if CEMOS has not received a written notice stating otherwise in accordance with Clause 13.1, CEMOS will ensure that the Subscription Term is automatically renewed for a further Renewal Period on the basis of the revised Subscription Fees.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
- (a) is or becomes publicly known other than through any act or omission of the receiving party;
- (b) was in the other party's lawful possession before the disclosure;
- (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
- (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 This Clause 10 shall survive termination of this agreement, however arising.
11.1 You shall defend, indemnify and hold harmless CEMOS against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the CEMOS Services and/or Documentation and/or Additional Content.
12. Limitation of Liability
12.1 This Clause 12 sets out the entire financial liability of CEMOS for:
- (a) any breach of this agreement;
- (b) any representation, statement or tortious act or omission (including negligence) arising out of, or in connection with, this agreement.
12.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
12.3 Nothing in this agreement shall limit or exclude the liability of CEMOS for:
- (a) death or personal injury resulting from negligence; or
- (b) any damage or liability incurred by the other party as a result of fraud or fraudulent misrepresentation.
12.4 Subject to Clause 12.3 CEMOS shall not be liable for:
- (a) loss of profits;
- (b) loss of business;
- (c) loss of goodwill and/or similar losses;
- (d) loss of anticipated savings;
- (e) loss of goods;
- (f) loss of contract;
- (g) loss of use;
- (h) loss of, or corruption of, data or information or software; or
- (i) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.5 Except and subject to Clause 12.3, the entire liability of CEMOS to you, howsoever caused, (including breach of contract, tort, misrepresentation or breach of statutory duty), shall not exceed 100% of the Subscription Fee paid by you to CEMOS in the 12 months immediately preceding the event giving rise to a claim.
13. Term and Termination
13.1 This agreement shall, unless otherwise terminated as provided in this Clause 13, commence on the Start Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
- (a) either party notifies the other party of termination, in writing, at least 7 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- (b) otherwise terminated in accordance with the provisions of this agreement; or
(c) you give CEMOS written notice that you do not accept any proposed changes to this agreement in accordance with Clause 23 (in such case CEMOS shall refund to you any Subscription Fee paid pro rated by how many weeks you have had access to the CEMOS Services during the Subscription Term),
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
- (a) that other party commits any material breach or persistently breaches any of its obligations under this agreement which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
- (b) that other party ceases to trade (either in whole, or as to any part or division involved in the performance of this letter) or becomes insolvent or is otherwise unable to pay its debts within the meaning of the insolvency legislation applicable to that party.
13.3 On termination of this agreement for any reason:
- (a) all licences granted under this agreement shall immediately terminate including any right of Clients to access the CEMOS Services;
- (b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- (c) CEMOS may destroy or otherwise dispose of any Customer Materials in its possession; and
- (d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. Force Majeure
CEMOS shall have no liability to you under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of CEMOS or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
15.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17. Entire agreement
17.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
18.1 You shall not, without the prior written consent of CEMOS, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 CEMOS may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
19. No Partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. Third Party Rights
This agreement do not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1 Any notice required to be given under this agreement shall be in writing and shall be:
- (a) delivered by hand , or by prepaid first class post or recorded delivery to either party’s registered address or such other address as given; or
- (b) sent by email to the email address provided by you in the GetPTFit Wizard, or in the case of CEMOS, to email@example.com
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). A notice sent by email shall be deemed to have been received at the time of transmission (as shown by an email send receipt).
22. Governing Law and Jurisdiction
22.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
22.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement.
23. Amendments to this agreement
23.1 CEMOS reserves the right to update this agreement at any time by displaying amended terms when you login to use the CEMOS Services and sending you notice via email to the email account notified to CEMOS via the GetPTFit Wizard. You will be deemed to have agreed to the amended terms when you next use the CEMOS Services following any amendment.