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Operator Terms and Conditions

PARTIES

1. The person or entity identified in the Operator Pages (defined below) intending to sell Products (defined below) to the Customers (defined below) (the “Operator”); and
2. MOVE TECHNOLOGIES GROUP LTD incorporated and registered in England and Wales with company number 13904894 whose registered office is at 11 Laura Place, Bath, Somerset, England BA2 4BL ("Move Technologies")

Background

Whereas:
1. The Operator intends by entering into this agreement to list its Products on the Platform to allow access to End Users and where relevant sell its Products to Customers for payment in MoveCredits. In return the Operator shall receive a Wholesale Price (defined below).

Agreed terms

1. INTERPRETATION

1. The definitions and rules of interpretation in this clause apply in this agreement.

2. "Data Controller" and "Personal Data" shall each have the meaning given to them by the Data Protection Legislation.

3. Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

2. CHARGES TO THE CUSTOMER AND OPERATOR

1. The Operator agrees to pay the Set Up Fees (fees paid to Move Technologies for the use of the platform) and any other Fees due to Move Technologies as described in the Operator Pages.

2. The Operator shall make the Products available and where relevant for sale to End Users and Customers.

3. The Operator agrees to accept MoveCredits from Customers by way of payment for the Products and acknowledges that in doing so it shall be entering into a contract for sale directly with the Customer.

3. PAYMENT AND TERM

1. In consideration of the provision of the Platform and any other services and products provided by Move Technologies to the Operator, The Operator agrees to pay Move Technologies the Fees within 5 days from receipt of invoice from Move Technologies.

2. In consideration of the provision of the Products by the Operator to the Customer, Move Technologies shall pay the Operator the Wholesale Price in accordance with this clause.

3. The Operator must supply any relevant tax number to Move Technologies via Operator Pages as well as the details of which Products are subject to sales tax and the correct percentage. The Operator warrants that this tax number and information is accurate and that they will ensure the Operator Pages are updated if there are any changes to the information listed in this clause 3.3.

4. Move Technologies shall issue (via the Operator Pages) a self-billed invoice in respect of:

- the Products sold by the Operator to the Customers during the Billing Period.

- subscription sales revenue share

Each invoice shall include the Operator name, address and any relevant tax registration number.

5. The Operator agrees to accept each invoice and not to raise its own invoices for transactions covered by this agreement

6. For the same Billing Period Move Technologies shall invoice the Operator the Fees due for the period in addition to:

- Payment processing fee as detailed in the Operator Pages.

- Any 3rd party fees charged to Move Technologies to enable the Customer to access the Product, including but not limited to booking API fees and Live Streaming platform fees where the Operator does not license independently.

7. for each Product sold by the Operator to a Customer during the Billing Period to cover the cost of collecting payment from customers Move Technologies shall pay the Operator (by bank transfer) the Wholesale Price in respect of all Products sold by the Operator to Customers during the Billing Period. The number of Products sold by the Operator to Customers during the Billing Period shall be calculated by reference to all legitimate Validations received by Move Technologies during the Billing Period. For Products sold directly by the Operator to End Users where Move Technologies processes the payment, Move Technologies shall transfer the payments to the Operator. All transfers will be made within 30 days of the billing period once payments due exceed a value of at least £1,000.

8. The Operator agrees to pay the Fees, payment processing fees and any 3rd party fees due within 5 days of the Invoice. Failure to pay on time will result in the Platform being deactivated, an interest rate of 5% per month applied to the outstanding Invoices as well as Move Technologies withholding any payments due to the operator.

9. The Term of this agreement is set by the renewal date specified in the Operator Pages and rolls over in 12 month durations unless termination notice is given in accordance to the Termination clause below.

4. REVIEW OF PRODUCTS & PRICES

1. The Operator may propose a variation to any of the Products or Wholesale Prices at any time during the term of this agreement. It shall be at Move Technologies' absolute discretion whether to accept such a proposal.

2. Beginning on the 1st anniversary of the Commencement Date as detailed in the Operator Pages, and on each succeeding anniversary of the Commencement Date during the term of this Agreement, the Fees shall be increased by an amount equal to the percentage increase in UK CPI in the previous twelve (12) month period, or 5%, whichever is higher.

5. QUALITY OF SERVICES

1. The Operator warrants to Move Technologies that:

2. where the Products in question are services, the Operator shall act with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services;

3. the Products shall conform with all descriptions and specifications listed on the Platform or otherwise provided to Customers by the Operator.

4. The Operator agrees and consents to Move Technologies (or any person acting on Move Technologies' behalf) attending any premises of the Operator for the purpose of inspecting the quality of the Products.

6. OPERATOR OBLIGATIONS

1. The Operator shall:

1. co-operate with Move Technologies in all matters relating to the Products;
2. prepare its premises for the supply of the Products;
3. comply with all applicable laws, including health and safety laws;
4. ensure that all Personnel have the necessary skill and expertise to provide the Products;
5. have in effect and will maintain in effect during the continuance of this agreement professional indemnity insurance with total cover of not less than the sum per territory as set out in the table below for each and every claim and will not do or omit to do anything whereby such insurances may be vitiated in whole or in part;

6. on Move Technologies' request, produce a valid insurance certificate for the current year's premium;
7. The Operator is responsible for ensuring they have the correct music licensing rights in place for the sale of the Product and fully indemnifies Move Technologies from any claims resulting from music rights disputes.
8. report any Duplicate Customer Account to Move Technologies' service team via email within 48 hours of identifying it (the Operator understands that Move Technologies is not liable to cover the cost of duplicate accounts or any losses suffered by the Operator arising from a duplicate account).
9. Use best endeavours to promote the Product to their End Users and the wider market.
10. use the Platform to promote products related to physical activity. It is strictly forbidden to use the Platform to promote any products of an adult or porngraphic nature.

7. INTELLECTUAL PROPERTY

1. The Operator and its licensors shall retain ownership of all Intellectual Property Rights in its Materials

2. The Operator grants Move Technologies permission to use the Materials during the term of this agreement for the purpose of promoting the business, location and the Products within the Platform. The Operator warrants that the receipt and use of Materials by Move Technologies shall not infringe the rights, including any Intellectual Property Rights, of any third party.

8. PROCESSING PERSONAL DATA

1. Both the Operator and Move Technologies shall be Data Controllers in respect of any Personal Data shared between the parties under this agreement (the "Shared Personal Data").

2. The Operator and Move Technologies shall only process the Shared Personal Data for the purpose of:

1. providing the Products to End Users and/or Customers;
2. complying with the obligations under the Data Protection Legislation; and
3. complying with the legal obligations
4. Where consent is gained from the End Users and/or Customer each party shall be able to process the Personal Data in accordance with such consent.

3. Both parties agree that the details of processing set out in this clause 8.3 are an accurate statement of each parties responsibilities as a joint Data Controller of the Shared Personal Data for the provision of the Products to End Users and/or Customers.

1. Purpose and Duration - The Shared Personal Data is processed by the Operator for the provision of the Products to Customers pursuant to this agreement. Shared Personal Data shall be processed by the Operator for the duration of this agreement and may be retained to the extent that the End Users and/or Customer has a prior or subsequent independent engagement with the Operator on termination of this agreement. Where a Customer is a Customer solely pursuant to this agreement, Shared Personal Data may be retained but not used for commercial gain by the Operator for a period of 6 months after this agreement has been terminated.
2. Categories of Data - Personal Data of End Users and/or Customers provided by either party to the other party in order to provide the Products to the End Users and/or Customers. In relation to some Products this could include Special Category Data.
3. Data Subjects - Shall include any individual identified in any documents or information provided by one party to the other in conjunction with the provision of the Products.

4. The parties shall ensure that any Shared Personal Data is collected and processed in accordance with the Data Protection Legislation.

5. The disclosing party shall ensure that it is entitled to share the Shared Personal Data with the receiving party for the purposes of providing the Products, and that the disclosing party has complied with its responsibilities under the Data Protection Legislation to enable the receiving party to process the Shared Personal Data for the purpose of providing the Products;

6. Each party shall be separately responsible for compliance with its obligations under the Data Protection Legislation, in its capacity as Data Controller, in respect of:

1. the security of the Personal Data when it is under its control,
2. any transfers of the Personal Data outside the EEA for which that party is responsible,
3. any requests received from individuals in respect of their rights under the Data Protection Legislation exercised in respect of the Personal Data in that party's possession and/or control.

7. Neither party shall, by its acts or omissions, cause the other party to breach its respective obligations under the Data Protection Legislation.

8. The Operator consents to Move Technologies processing customer data, directly or using 3rd parties, for the purposes of providing the Products to End Users and/or Customers. Anonymised data may be processed for the purposes of statistical analysis, product development and content. Such anonymous data will not include any attributes that uniquely identify individuals, for example name, email address or phone number.

9. INDEMNITY

1. The Operator shall indemnify and hold Move Technologies and any of its employees or officers harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, Move Technologies or any of its employees or officers as a result of or in connection with:

1. any alleged or actual infringement, of any third party's Intellectual Property Rights or other rights arising out of the promotion or the use or supply of the Products or Materials by the Operator;
2. any breach of the Data Protection Legislation as a result of the Operator failing its obligations under clause 8 of this agreement;
3. any liability, loss, damage, injury, cost or expense sustained by a Customer or any third party as a result of the supply or use of the Products or any other goods or services supplied by the Operator;
4. any refund which Move Technologies at its discretion (to be exercised reasonably) grants to a Customer as a result of any failure by the Operator to perform any of its obligations pursuant to a contract for the sale of Products to the Move Technologies Customer.

2. The provisions of this clause 10 shall survive termination of this agreement, however arising.

10. LIMITATION OF LIABILITY

1. Nothing in this agreement shall limit or exclude Move Technologies' liability for:

1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
2. fraud or fraudulent misrepresentation.

2. Subject to clause 11.1, Move Technologies shall under no circumstances whatever be liable to the Operator, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

1. any loss of profit
2. any indirect loss; or
3. any consequential loss arising under or in connection with this agreement.

3. Except as set out in this agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.

4. Subject to clause 10.1, Move Technologies' total liability to the Operator, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall in no circumstances exceed the sum equal to 12 months' Operator Fees received by Move Technologies.

11. CONFIDENTIALITY

1. Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party including the Wholesale Prices, except as permitted by Clause 12.2.

2. Each party may disclose the other party's confidential information:

1. 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 this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this Clause 12; and
2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

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 this agreement

12. EXCLUSIVITY

1. During the term of this agreement the Operator shall not participate in or launch any other services or arrangements that are similar in form and substance to or competitive with those which you are agreeing to with Move Technologies pursuant to this agreement: including but not limited to live-streaming exercise classes, online booking of live streaming classes and a marketplace of alternative live-streaming activities.

13. TERMINATION

1. Either party can remove a Product that is no longer available from the Platform on no less than 30 days' written notice to the other party.

2. Either party may terminate this agreement for any reason by giving not less than 7 days' written termination notice to expire not less than 90 days prior to the agreement renewal date as displayed in the Operator Pages.

3. Without prejudice to any other rights or remedies which Move Technologies may have, it may terminate this agreement immediately on giving written notice to the Operator if:

1. the Operator is found to have deliberately or recklessly made a false or inaccurate Validation;
2. the Operator is in breach of its obligations under either clause 8 of this agreement, or the Data Protection Legislation;
3. the Operator commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 7 days of the Operator being notified of the breach;
4. the Operator suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a Operatorship) has any Operator to whom any of the foregoing apply;
5. the Operator commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party;
6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Operator other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party;
7. an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the Operator;
8. a floating charge holder over the assets of the Operator has become entitled to appoint, or has appointed, an administrative receiver;
9. a person becomes entitled to appoint a receiver over the assets of the Operator, or a receiver is appointed over the assets of the Operator;
10. a creditor or encumbrancer of the Operator attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.6.4 to clause 14.6.10 (inclusive);
12. the Operator suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
13. there is a change of control of the Operator (as defined in section 574 of the Capital Allowances Act 2001).

4. On termination of this agreement (however arising) the accrued rights and liabilities of the parties as at termination, and clauses 9, 10, 11, 12, 14 and 26 shall survive and continue in full force and effect.

14. VARIATION

1. Move Technologies reserves the right to vary this agreement with 60 days’ written notice to the Operator (the "Variation Notice Period”). In the event of such a variation, the Operator shall be deemed to have accepted any and all variations unless it notifies Move Technologies to the contrary within the Variation Notice Period. Notice will be delivered to the email address held for the relevant contact in Move Technologies' system.

15. SALES TAX

1. All sums payable under this agreement are exclusive of sales tax (VAT), and the paying party shall in addition pay an amount equal to any sales tax chargeable on those sums on delivery of a sales tax invoice.

16. WAIVER

1. Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.

2. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that right or remedy.

17. SEVERANCE

1. If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.

18. ENTIRE AGREEMENT

1. This agreement and the information contained within the Operator Pages and marked as “approved” by Move Technologies from time to time together constitute the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.

2. Each party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only remedies in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.

3. Nothing in this clause shall limit or exclude any liability for fraud.

19. ASSIGNMENT

1. The Operator shall not, without the prior written consent of the Move Technologies assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.

2. Move Technologies may at any time, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.

20. NO PARTNERSHIP OR AGENCY OR DISTRIBUTOR

1. Products are sold directly to the End Users and/or Customer by the Operator. Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other party in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

2. Each party confirms it is acting on its own behalf and not for the benefit of another person .

21. RIGHTS OF THIRD PARTIES

1. No one other than a party to this agreement and their permitted assignees shall have any right to enforce any of its terms

22. NOTICES

1. A notice or other communication given to a party under or in connection with this agreement:
shall be in writing in English (or accompanied by a properly prepared translation into English);
shall be signed by or on behalf of the party giving it; and
shall be sent to:
In respect of Move Technologies: the email address specified in the Contact Us page of the Platform from time to time;
In respect of the Operator: the email address specified in the My Account page of the Platform from time to time.
The provisions of this clause 23 shall not apply to the service of any process in any legal action or proceedings.

24. DISPUTE RESOLUTION

1. If any dispute arises in connection with this agreement, the Operator and Move Technologies shall, within 21 days of a written request from one party to the other, attempt in good faith to resolve the dispute via the telephone

25. GOVERNING LAW AND JURISDICTION

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

2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date Move Technologies first marks the Partner’s Product or Products as “accepted” within the Operator Pages.