DIGITAL SERVICES TERMS AND CONDITIONS

1.     INTRODUCTION

1.1.  We are Fluid Fitness, a company registered in England and Wales with a registered address of 61 Bridge St, Kington, Herefordshire, HR5 3DJ.

1.2.  Our website is available here: www.fluidfitness.fit, the latest version of our terms and conditions are available here: Terms and Conditions, and the latest version of our privacy policy is available here: Privacy Policy

1.3.  These terms and conditions together with our privacy policy (the “Terms”) apply to the services and any deliverables we provide (our “Services”) pursuant to the Terms and the rights and obligations we each have in relation to the provision of the Services.

1.4.  In these Terms, when we talk about “you” or “your”, we mean you, the company or individual who is buying our Services; and when we talk about “we”, “us” or “our”, we mean Fluid Fitness. Both you and we are a “party” to these Terms.

1.5.  When you instruct us using your work email address or buy our Services for the benefit of a business, you are representing to us that you are signing up on behalf of that business and that you have the authority to accept these Terms on behalf of that business.

2.     STATEMENTS OF WORK

2.1.  Details, prices and specifications regarding the Services we will provide you with are set out in a Statement of Work (“SOW”) that we will agree with you before commencing work. Either of us may incorporate these Terms by linking to them in the SOW. Where these Terms are linked to in an accepted SOW both parties agree that these are the Terms that shall apply to the scope of work set out in that SOW.

2.2.  SOWs shall only be valid if documented in writing and agreed to by both parties. Such agreement may be evidenced by signature, over email, or any other electronic medium the parties consider appropriate. Changes to the SOW must be agreed by both parties in writing.

2.3.  In the event of a conflict between these Terms and the SOW, the terms of the SOW shall prevail. When agreed, the SOW shall be treated as forming part of these Terms.

3.     TERMS AND ACCEPTANCE

3.1.  These Terms may be varied by us from time to time. Such revised terms will not apply to ongoing SOWs, but will apply to any future SOWs. You should check this page regularly to ensure your familiarity with the most up to date version. Your agreement to a SOW shall constitute your affirmative acknowledgement of any modification and your continued agreement to be bound by the modified Terms.

3.2.  When providing the Services we may use third party tools and services (for example cloud storage services or third party payment tools). These third party tools and services may have additional terms and conditions that apply to their use (“Additional Terms”). Where applicable, you give us authority to accept these Additional Terms on your behalf and you agree you will be bound by such Additional Terms.

4.     PROVISION OF SERVICES

4.1.  We will deliver to you the Services described in the applicable SOW.

4.2.  Services will be deemed accepted upon performance or delivery.

4.3.  You agree that our ability to deliver Services will depend on the accuracy and completeness of any information provided by you and your reasonable and timely cooperation.

4.5.  Each Party agrees to appoint a project manager to serve as the contact point in charge of managing the delivery of the Services and dealing with any issues that may arise.

5.     PRICE

5.1.  The prices we quote are exclusive of taxes, unless otherwise stated.

5.2.  Where we agree them in advance with you in writing, we can charge you separately for our reasonable expenses, such as travel expenses. We will provide you with receipts for these expenses upon request.

6.     PAYMENT TERMS

6.1.  You agree to pay all our invoiced amounts within 14 days of the date you receive our invoice. We shall be entitled to charge statutory interest on any late payments.

6.2.  We may suspend performance of our obligations under SOWs if you breach your obligations under this clause.

7.     WARRANTIES

7.1.  We will perform the Services using generally recognised commercial practices and standards. You agree that you will provide prompt notification of any concerns that you have about the provided Services, and where we agree (acting reasonably) we will re-perform any service that fails to meet this agreed standard.

7.2.  Where we agree in a SOW to provide you with deliverables (“Deliverables”), we warrant that the Deliverables will materially conform to their written specifications for 7 days following delivery (the “Warranty Period”).

7.3.  Where you notify us that Deliverables don’t meet their written specification during the Warranty Period, we will either fix this breach of warranty within a reasonable period of time or, at our discretion, refund to you the fees you have paid for those specific Deliverables.

7.4.  Our warranty and other obligations do not cover claims resulting from: (i) viruses or malware not introduced by us, (ii) failure or limitations in any of your systems unless you specifically made us aware of these limitations before we agreed the SOW, (iii) modifications not made or approved by us, (iv) your failure to properly maintain your systems, (v) your non-compliance with these Terms or the SOW, (vi) your improper use of our Services or the Deliverables, or (vii) negligence, abuse, accident or other causes beyond our control.

7.5.  We exclude all other warranties, other than those we are not allowed to exclude under applicable law.

8.     INTELLECTUAL PROPERTY

8.1.  No transfer of intellectual property will occur under these Terms. Instead, intellectual property will be licensed on the following terms.

8.2.  You grant us a worldwide, non-exclusive, transferable, royalty-free right and licence to any intellectual property that is necessary for us to perform our obligations under Terms. This licence will last for as long as is necessary for us to fulfil our obligations under these Terms or comply with our legal obligations.

8.3.  We grant you a worldwide, non-exclusive, transferable, royalty-free, perpetual licence to such extent as is necessary for you or your assignees to make use of the Services and Deliverables

8.4.  Unless otherwise stated in the SOW, we are under no obligation to provide you with any source code, designs or other preparatory material used in creating the Services or Deliverables.

8.5.  You agree to indemnify us against all costs we suffer arising out of a third party’s claim for alleged or actual infringement in any materials you provide to us under this clause.

8.6.  If you fail to comply with these Terms, we may terminate any licence we grant you under these Terms on written notice.

9.     CONFIDENTIALITY

9.1.  Where either you or we disclose to the other party information that is marked as confidential, or the circumstances of its disclose reasonably dictate that it should be considered confidential (“Confidential Information”), the other party shall treat that information as confidential. The receiving party shall protect the Confidential Information it receives using the higher of commercially reasonable efforts or the same standard the receiving party uses to protect its own confidential information.

9.2.  Confidential Information must: (i) only be used by the receiving party for the purpose of fulfilling its obligations under these Terms, and (ii) not be disclosed by the receiving party to any other company or person unless strictly necessary for the purpose of fulfilling its obligations under these Terms. This clause does not apply to information that: (i) was known or becomes known to the receiving party without obligation of confidentiality; (ii) is created separately by the receiving party; or (iii) where disclosure is required by applicable law.

10.  DATA PROTECTION

10.1.  Definitions

10.1.1.  In this clause “Personal Data” shall have the meaning given to that phrase under UK data protection law, including the General Data Protection Regulation (“GDPR”) (the “Data Protection Laws”).

10.2.  Compliance with the law

10.2.1.  Both parties shall comply with the Data Protection Laws so far as they relate to their obligations set out in these Terms.

10.3.  Categories of data

10.3.1.  You shall only provide us with the Personal Data that we strictly need to provide our services.

10.3.2.  Where you decide we need your Personal Data, the Personal Data you send us shall only relate to the following categories of data subjects:

10.3.2.1.      your employees, contractors and representatives

10.3.2.2.      (not used)

10.3.3.  And the categories of Personal Data that you provide us will only be of the following categories:

10.3.3.1.      names, email addresses, telephone numbers and other contact information

10.3.3.2.      (not used)

10.3.3.3.      (not used)

10.3.3.4.      (not used)

10.3.3.5.      personal data relating to health, ethnic origin, race, religious or philosophical beliefs, membership of a trade-union or political party, sex life or sexual orientation

10.4.  Our processing of the data

10.4.1.  We will process the Personal Data solely for the purposes of providing our Services and in accordance with your documented instructions and not for any other purpose, unless required to do so by applicable law. Where we are required to process Personal Data under applicable law we shall inform you of that legal requirement before commencing processing, unless that law prohibits such disclosures on important grounds of public interest.

10.4.2.  We will immediately inform you if we are of the opinion that an instruction from you regarding the processing of the Personal Data infringes Data Protection Laws.

10.4.3.  We will ensure that any persons authorised by us to process the Personal Data have entered into suitable obligations of confidentiality or are under an appropriate statutory obligation of confidentiality.

10.4.4.  We will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of processing the Personal Data.

10.4.5.  We may utilise sub-processors when providing the Services and you generally authorise us to use third parties that we consider appropriate. You accept that some of these third parties may be based outside of the UK or the EU and consent to the international transfer of Personal Data.

10.4.6.  During the period of each SOW, we will not engage any additional third parties to process the Personal Data without your written authorisation.

10.4.7.  When appointing third parties we shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on us under these terms.

10.4.8.  During the period of each SOW, we will seek your prior permission in circumstances where we wish to replace any of our existing Personal Data processors or we wish to appoint new processors; if you do grant us permission you should stop using our services and we will treat your refusal as your desire for us to no longer provide the Services to you. In these circumstances you will not be entitled to a refund of any monies paid, owed or due.

10.4.9.  We will provide you with all assistance as is reasonably necessary for you to meet your obligations in respect of data subject rights as required by the Data Protection Laws.

10.4.10. We will provide all assistance that is reasonably necessary for you to meet your obligations in respect of performing data protection impact assessments and in consulting with competent supervisory authorities, as required by the Data Protection Laws.

10.4.11. We shall process the Personal Data for no longer than is necessary to fulfil our obligations under these terms and under all applicable laws. We will then delete or return the Personal Data.

10.4.12. We will provide you with all information necessary to demonstrate compliance with applicable laws and on reasonable notice, where strictly required under Data Protection Laws, we will allow you to conduct audits of the systems we use to process the Personal Data.

10.4.13. We will notify you without undue delay of any:

10.4.13.1.   security breach or incident that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data and provide you with all information reasonably required for you to notify, as applicable, the relevant authorities and the affected data subjects;

10.4.13.2.   request for information or complaint from a data protection authority that reasonably relates to or impacts our provision of the Services to you; and

10.4.13.3.   request we receive from a data subject where that data subject is seeking to exercise their rights under Data Protection Laws in relation to our provision of Services to you.

10.5.  General rights, obligations and approvals under Data Protection Laws

10.5.1.  You warrant that you have the legal right to provide us with any Personal Data you provide us with.

10.6.  Standard Contractual Clauses

10.6.1.  In circumstances where the Data Protection Laws would require you to send us data under the protection of the Standard Contractual Clauses, your agreement to these Terms shall be treated as you signing the latest version of the Standard Contractual Clauses and their Appendices for the purposes of any transfer of Personal Data in connection with our provision of Services.

11.  LIMITATION OF LIABILITY

11.1. Our liability to you under these Terms is limited to the amount paid by you to us under these Terms in the 6 months period preceding the date on which you first formally bring a claim against us.

11.2. We will not be liable for indirect, special or consequential costs or damages, or lost revenues or profits, downtime costs, or loss or damage to data.

11.3. This clause does not limit our liability for any liability which may not be limited or excluded by applicable law.

12.  FORCE MAJEURE

12.1. Except for payment obligations, neither party will be liable for delays due to causes beyond its reasonable control.

13.  TERMINATION

13.1. A SOW may be terminated on written notice by either of us if the other materially breaches these Terms and fails to remedy that breach within a reasonable period after being notified of such a breach in writing by the other.

14.  SEVERABILITY

14.1. The provisions of these Terms are intended to be severable and in the event that any part of them is held to be illegal or unenforceable (in whole or in part) such part shall not affect the validity and enforceability of the remaining provisions or the remainder of the affected provision.

15.  SURVIVAL

15.1. Any provision of these Terms which should reasonably be expected to survive termination of these Terms will survive termination of these Terms and shall apply to both parties’ respective successors and permitted assigns.

16.  THIRD PARTIES

16.1. The ability of third parties to enforce any rights under the Contracts (Rights of Third Parties) Act 1999 is excluded.

17.  ENTIRE AGREEMENT

17.1. These Terms represents our entire understanding with regard to their subject matter and shall supersede any prior communications or agreements.

18.  GOVERNING LAW

18.1. These Terms and any dispute arising under or in any way connected to them (whether contractual, tortious or otherwise) shall be governed by and construed in accordance with the laws of England and Wales, and both parties submit to the exclusive jurisdiction of the English and Welsh Courts.

19.  GENERAL

19.1. These terms and conditions were created on www.redefinelegal.co.uk