Partner Terms & Conditions
Last Updated January, 2020
MumShape Europe Limited (“MumShape or “we”) mediates contracts between any fitness studios, sport facility operators, recreational, wellness, or other classes, experiences, activities, events, services, recordings, products (“Partner” or “you”)) made available through MumShape and mums and mums-to-be. We operate under the domain www.mumshape.app. Please read these Terms and Conditions (“Terms”) carefully. These form part of the Partner Agreement between the Partner and MumShape. By signing the Agreement you accept these Terms, which apply to all classes and services offered via the MumShape platform.
1. TERM AND TERMINATION
This Agreement has an initial term of one year and will renew for an additional year unless canceled by the Partner in accordance with these Terms. Both Parties have the right to cancel this Agreement for any reason upon 90 days advance notice.
2. CONFIDENTIALITY & EXCLUSITIVITY
The Partner will use best endeavours to ensure that the details of this legal arrangement will never be accessible to any MumShape members or external parties. Any MumShape member who chooses to purchase directly via the Partner will not receive the benefit of the special rate provided to MumShape. During the term of this agreement, the Partner agrees to work exclusively with MumShape and not offer any classes via any other pre-/postnatal multi-partner membership program. For avoidance of doubt, Deal and Coupon sites are not subject to the aforementioned restriction. MumShape confidential information includes, but is not limited to, data and reports. MumShape may provide you information, from time to time, about the fitness industry, your location(s), classes and/or other services. Such information is provided for informational purposes only and is not to be relied upon. Any decisions based on the information provided are at the sole discretion of the Partner.
a. Bank Account Information. As part of the registration process you will need to provide MumShape with your Bank Account Information. Once the Bank Account has been verified, we or a third party on behalf will make payments to you by electronic transfer. You are responsible for all information provided. Please inform MumShape immediately if your Bank Account information changed via email.
b. MumShape will pay the rate for each reservation booked through MumShape on an accured monthly basis. Unless such reservation (1) was canceled by MumShape or the MumShape member in accordance with cancellation policy; or (2) was canceled by the Partner; or (3) otherwise was not honored by Partner.
4. PAYMENTS & REPORTING
a. Reports & Payment Date. MumShape pays the Partner monthly at the end of each month but no later than 10 business days after the last day of the month. MumShape will provide a summary of visited classed per customer, which will be submitted to the Partner via email monthly.
b. Reconciliation. MumShape reserves the right to make reconciliation adjustments for a time period of 90 days for any canceled classes and classes that are not listed in the monthly gym report. We may credit overpayments against any other payments due to you hereunder.
a.Class Availability. The Partner agrees to hold a minimum of three spots per class available solely for MumShape members. Your classes or other services will be available for use by MumShape members after you are launched on our Website.
b. Reservations. MumShape will provide reservation requests to the Partner venues as they are received.
c. Partner’s Page. Each Partner gym has an individual page with information about studio, services, teachers, etc. We will send you a link to review your page on our Website and provide feedback. The Partner will provide MumShape with venue address, contact emails for bookings, class descriptions, teacher description (if available), venue photographs in landscape format (750 x 500), logo and class schedule. The Partner gives MumShape permission to use its logo, class description, trademark, and photos on the MumShape website/application, in press releases, and in any marketing campaigns. MumShape will confirm that all photos and design comply with MumShape brand requirements.
d. Marketing. MumShape will advertise Partner classes, products and other services and will aim to find class attendees through various marketing channels.
a. Member Interface. MumShape will provide a central user interface for MumShape members to access gym info, schedules, to make reservations, and to review classes.
b. Member Fees. You agree not to charge MumShape members any fees associated with attending classes and services booked through our Website, equipment use or rental fees. MumShape has no responsibility for any additional payments that may be due to you from MumShape members.
The Partner is responsible for all tax liabilities, which are due in respect of the Partner Agreement (including VAT).
8. PERSONAL DATA
a. Definitions. As used herein, the following terms shall have the following meanings:
-"Controller," "Processor," "Data Subject," "Personal Data," and "Processing" (and "Process") shall have the meanings given in EU Data Protection Law.
- "Applicable Data Protection Law" means all worldwide data protection and privacy laws and regulations applicable to the Personal Data in question, including, where applicable, EU Data Protection Law.
- "EU Data Protection Law" means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data (the "Directive"); (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, General Data Protection Regulation, (the "GDPR"); (iii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iv) any and all applicable national data protection laws made under or pursuant to (i), (ii) or (iii); in each case as may be amended or superseded from time to time.
- “Customer Data” means any data relating to a former, current, or potential MumShape member, or any information that may be derived from such data, including but not limited to the member’s name, home, business or other physical address, email address, phone number, birthdate, information about class participation, member tendencies, and financial transaction data.
b.Use of Customer Data. If MumShape discloses (or has disclosed) any Customer Data to you (or you otherwise have gained access to such Customer Data in connection with MumShape), you may only Process such Customer Data as necessary for the purpose of booking reservations strictly in accordance with any documented instructions of MumShape (“Permitted Purpose”). You shall not Process any Customer Data that MumShape sends you for any other purpose, including but not limited to marketing or sending communications via mail or email. In order to use Customer Data for any purpose other than the Permitted Purpose, you must collect it directly from the MumShape members in a manner that complies with Applicable Data Protection Law. You are solely and exclusively responsible for ensuring that your independent collection and Processing of Customer Data complies with all requirements of Applicable Data Protection Law.
c. Relationship of the parties. The parties acknowledge that each party is a Controller of the Personal Data it discloses to the other or otherwise provides access to the other directly or indirectly, and that each party will Process such Personal Data as a separate and independent Controller strictly for the permitted purposes described herein. In no event will the parties process the Data as joint Controllers.
d.Compliance with Law. Each party shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under Applicable Data Protection Law.
e. Security. You shall implement technical and organisational measures to protect the Customer Data from unauthorized access, disclosure, loss, alteration, and accidental or unlawful destruction (a “Security Incident”). Such measures shall reflect the state of the art, the costs of implementation, and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
f. Third Parties. You may, at your election, appoint third party Processors to Process the Customer Data for the Permitted Purpose, provided that you remain fully liable for any breach of an Applicable Data Protection Law that is caused by an act or omission of such third party Processor, and you ensure that such third party Processors (including but not limited to your staff, agents and subcontractors): (a) agree in writing to process the Customer Data solely in accordance with your documented instructions and for the Permitted Purpose; (b) implement appropriate technical and organisational security measures to protect the Customer Data against a Security Incident; (c) provide sufficient guarantees that they will process the Customer Data in a manner that will meet the requirements of Applicable Data Protection Law, including agreeing to the same restrictions that are applicable to you under this Section; and (d) agree to comply with a strict duty of confidentiality.
g. Unauthorized Access or Security Incidents. Upon becoming aware of any actual or suspected unauthorized access or use of or a Security Incident relating to Customer Data or other MumShape confidential information, you shall inform MumShape immediately, take all such measures and actions as are necessary to remedy or mitigate the effects of the unauthorized access or use or Security Incident, take all actions necessary to comply with Applicable Data Protection Law, and keep MumShape informed of all developments in connection with the unauthorized access or use or the Security Incident. You agree to cooperate with any independent investigation by MumShape, assist in mitigating damages, and bear all expenses that MumShape incurs to comply with applicable laws arising from any unauthorized access to or use of MumShape Customer Data or other confidential information by you or any of your employees, agents, or subcontractors.
h. Data Subject Requests. In the event of a correspondence, enquiry or complaint from a data subject including its rights of access, correction, objection, erasure and/or data portability, as applicable), regulator or other third party ("Correspondence"), each party shall respond in a manner compliant with its respective obligations under Applicable Data Protection Law.
i. International transfers. You shall neither Process any Customer Data nor permit any Customer Data to be Processed in a territory outside of the European Economic Area ("EEA") unless you have taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for Personal Data, to a recipient that has achieved binding corporate rules authorisation in accordance with Applicable Data Protection Law, to a recipient in the United States that maintains a valid and up-to-date EU-US Privacy Shield certification, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.
j. Survival. This clause shall survive termination or expiry of the Partner Agreement. Upon termination or expiry of the Agreement, you may continue to Process the Personal Data solely for the Permitted Purpose provided that such Processing complies with the requirements of this clause and Applicable Data Protection Law.
k. Breach or Security Incident. In the event of a Security Incident or any other breach of your obligations hereunder or under Applicable Law, you must promptly take all necessary steps to remedy the issue, MumShape shall have the immediate right to terminate the Venue Agreement or suspend your participation in the MumShape network, and you shall be responsible for any damages, costs, or fines arising out of or in connection with the issue.
l. Other Data. If you provide us, directly or indirectly, with any data or access to data, including but not limited to Personal Data, such as data about your customers, instructors, employees and staff, or any third parties, you will only provide such access if you have taken all steps necessary under Applicable Data Protection Law (including but not limited to providing them with all necessary privacy disclosures and obtaining any applicable consents) to share such data with us, and for us to Process such data in connection with our business in an ongoing manner as an independent Controller, including via international transfers, including but not limited to the United States. Among other things, you agree to provide compliant privacy notices to all customers that reserve your classes or use your services, and to comply with such notices.
m. Further Documentation and Cooperation. You agree to execute any additional documentation and take any other further action that is or may become necessary to comply with Applicable Data Protection Law. You further agree to reasonably cooperate with MumShape in this regard, if MumShape seeks your assistance.
9. INTELLECTUAL PROPERTY RIGHTS
a. Partner IP. During the term of this Agreement, and solely in connection with our promotion of your products and services. You grant MumShape a non-exclusive, worldwide, royalty free, paid‐up, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform Partner IP and 3rd Party IP, in each case in all media or formats now known or hereinafter developed (the “License”). While MumShape’s use of the Partner IP or 3rd Party IP as contemplated by this License shall be within our discretion, you expressly retain the right to request that we use Partner IP or 3rd Party IP pursuant to any written guidelines that you provide to us. After any termination of this Agreement, we will use commercially reasonable efforts to remove Partner IP and 3rd Party IP from our Website and other marketing materials; however, we will be authorized to maintain Partner IP and 3rd Party IP to the extent reflected in blog entries, cached pages or in marketing materials where more than one Partner is referenced or which otherwise would not be commercially feasible for MumShape to remove and/or modify.
b. MumShape IP. During the term of this Agreement, you may use the MumShape name, logo and other MumShape IP specified by us in writing in select locations (e.g. on Partner’s website, at check in) solely in accordance with any marketing guidelines that we provide to you and subject to our right to withdraw or limit such permission at any time. Without our express written authorization (from an executive officer), you shall not otherwise use MumShape IP for any purpose. You agree not to disparage or otherwise denigrate MumShape and not to promote a competitive offering.
c. All rights to Partner IP and 3rd Party IP not expressly granted in this Agreement to us are reserved by you, and all rights to MumShape IP not expressly granted in this Agreement to you are reserved by us.
d. You shall not prepare any derivative work based on the MumShape IP or translate, reverse engineer, decompile or disassemble the MumShape IP. You acknowledge and agree that, as between the parties, MumShape owns all interest in and to MumShape IP. You further agree not to take any action to challenge or object to the validity of MumShape’s rights in the MumShape IP or MumShape’s ownership or registration thereof.
e. If you provide us with Feedback, you irrevocably assign and agree to assign to MumShape and its affiliates all right, title, and interest in and to any intellectual property rights associated with such Feedback. You agree to provide MumShape such assistance as MumShape may reasonably require to document, perfect, or maintain MumShape’s rights in and to the Feedback.
f. MumShape shall have no liability to you, your employees, contractors, agents and its or their affiliates in respect of any reviews or comments posted by our members on our Website or otherwise.
g. Definitions. As used in this Agreement, “MumShape IP” means any intellectual property associated with our Website, Customer Data, MumShape trade names, logos, trademarks, domain names, social media identifiers, all data collected through or from our Website, all audiovisual content, video or audio recordings, photographs, graphics, artwork, text or any other content created by MumShape or at MumShape’s direction, or assigned to MumShape, and any materials, software, technology or tools used or provided by MumShape to promote the goods and services and conduct its business in connection therewith; “Feedback” means feedback, suggestions, reviews, modifications, data, images, text, or other information or content about our products or services or otherwise in connection with this Agreement, any MumShape IP, or your participation in this Agreement; “Partner IP” means Partner’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video or recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Partner; and “3rd Party IP” means any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video or recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Partner.
You represent and warrant that:
a. The Partner has the right, power and authority to enter into this Agreement.
b. You ensure that you are registered, to the extent required by applicable law, with appropriate tax authorities in all jurisdictions where the classes and/or services you provide to MumShape members and the MumShape platform will be provided.
c. You warrant that you and your employees, contractors, service providers and agents have had proper education and training and hold all required and up-to-date regulatory authorizations, licenses and certifications relating to any goods or services described in the Partner Agreement.
d. You ensure that you comply with all laws and regulations applicable to your business (including business licenses, insurance documents, etc.)
e. You warrant that your business information and Bank Account provided to MumShape are accurate and you are the authorized person to receive the funds sent by MumShape.
The Partner must hold a minimum professional and public liability insurance of £2,000,000 for during the term of this Agreement and for a period of one year thereafter. MumShape holds the right to request an insurance certificate which details of cover.
12. LIMITATION OF LIABILITY
As far as is permissible under applicable law, in no event shall MumShape be liable or obligated to you or any third party for any special, incidental, exemplary, consequential, punitive, or indirect damages regardless of the form of action, whether in contract, tort or otherwise, even if informed of the possibility of any such damages in advance. In addition, as far as is permissible under applicable law, MumShape shall have no liability to you in connection with any acts or omissions of its members, their guests or any other third parties.
a. Relationship of the Parties. MumShape and the Partner are independent contractors. Nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, or an agency relationship between the parties and neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.
b.Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. MumShape may amend the Agreement (including the Partner Agreement and/or the Terms) at any time without advance notice or consent. The most recent version of the Terms will be available online and MumShape will inform Partner via e-mail or homepage. If the Agreement is terminated promptly upon such notification because Partner does not agree to a material change to a term of the Agreement then MumShape will continue to honor the terms in effect prior to such amendment for the duration of the applicable termination period. This Agreement may not otherwise be amended or modified except by mutual agreement of authorized representatives of the parties in writing.
c. Severability. If any provision (or part of any provision) of this Agreement should be held to be illegal, invalid or unenforceable in any respect at any time: (a) it will not affect or impair the legality, validity or enforceability of any other provision of this Agreement; and (b) that provision (or part provision), will be deemed deleted.
d. Governing Law; Jurisdiction; Waiver. This Agreement shall be governed by the law of England and Wales, without regard to its conflict or choice of law principles. You hereby waive any right to a jury trial and agree that any proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action.