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TERMS FOR GYMS

  1. DEFINITIONS:

    In these Terms and Conditions, the following words and expressions have the following meaning:

    • "Account" means the Gym’s account on the Allup App Service;
    • "Account Manager" means the person at Allup App responsible for managing the Gym’s account with Allup App;
    • "Agreement" means the agreement between the Gym and Allup App, comprising the Order Form, the On-Boarding Documents, Data Privacy Policy, the Medical Disclaimer and the Terms of Service for the provision of the Allup App Service and, if applicable, any Additional Services;
    • "Allup Services" means the services provided by the Allup App, a fitness marketplace that provides users real time information about gyms around, price and location and enable users to enter into any of these fitness classes and gym by paying per minute among other functionalities.
    • "Authorised User" means a person who is authorised by the Gym to access and use the Allup App Service on the Gym’s behalf;
    • "Business Day" means a day other than a Saturday, Sunday or public holiday in the Territory when banks are open for business;
    • "Commencement Date" means the date from which the Gym will have access to the Allup App Service (and any applicable Additional Services), as set out in the Order Form;
    • "Confidential Information" means information which is identified as confidential or proprietary by either party, or by the nature of which is clearly confidential or proprietary;
    • "Data Protection Laws" means the Law on Protection of Personal Data enacted in the Territory and other related legislation;
    • "Data Privacy Agreement “DPA" or “Data Processing Agreement" means the data processing agreement set out in our Website
    • "End User" means a user of the App who is also a customer of the Gym;
    • "Extended Term" means the period for which the Agreement will be renewed after expiry of the Initial Term;
    • "Fees" means the Service Fee and any Additional Fee, and/or such other amount that is payable pursuant to the Agreement or that the parties may agree in writing from time to time for the provision of the Allup App Service (and any Additional Services);
    • “Gym” or “you” means the person identified in the Agreement as the second party.
    • "Gyms” means gyms, athletic or fitness facilities and health clubs.
    • "Gym Benefits" means purchase to Gym and the Gym’s amenities, services, classes, facilities and equipment to participate in workout activities on the Gym premises.
    • "Initial Term" means the period set out in the Order Form;
    • "New End User” means any new customer that, from the execution of this Agreement, uses the App to request the Services.
    • "On-Boarding Documents" means the documents provided to the Gym for completion as part of the on-boarding process, including the Gym Registration Form, Store Details, and Gym Menu Form attached to the Order Form as Schedule 4;
    • "Order Form" means the order form signed (whether electronically or otherwise) by the parties, and which, amongst other things, identifies the Gym and sets out the Fees;
    • "Purchase Price" means the payment received from End Users for the purchase of Products made through the App;
    • "Personal Trainer" means gym fitness instructors.
    • "Products” to view and purchase fitness, health or athletic-related products or services offered by the Gyms and/or promotion partners through the Services
    • User means the customer that use the App to request the Services.
    • "VTS" means virtual personal training sessions with gym fitness instructors.

  2. ACCESS TO THE ALLUP SERVICE

    1. Allup App grants the GYM a non-exclusive, non-transferable licence for the Term to access, use, and permit Authorised Users to access and use the ALLUP App Service, in accordance with and subject to the terms and conditions of the Agreement.
    2. The Gym may not sublicence the rights granted in this Agreement other than to allow Authorised Users to access and use the Allup App Service.
    3. Where indicated in the Order Form, Allup App will provide the Additional Services and/or Incentives to the Gym.
    4. The Gym shall ensure that all Authorised Users are aware of the terms of the Agreement and act in compliance with them.
    5. The Gym must treat any username and password used to access the Allup App Service or an Account as Confidential Information, and must not disclose such information to any third party (other than to Authorised Users) and must take appropriate safeguards in accordance with good industry practice to prevent unauthorised access to the Allup App Service.
    6. The Gym shall procure that each Authorised User keeps secure and confidential any username and password provided to, or created by, that Authorised User for their use of the Allup App Service, and that they will not disclose such username and password to any third party.
    7. The Gym is responsible for maintaining the confidentiality of its login details for its Gym Account and for any activities that occur under its Gym Account, including the activities of Authorised Users.
    8. The Gym must prevent any unauthorised access to, or use of, the Allup App Service, and must promptly notify Allup App in the event of any such unauthorised access or use. If the Gym has any concerns about the login details for its Account, or thinks any of them may have been misused, the Gym shall notify Allup App at support@allup.app and the Account Manager. The Gym must immediately notify Allup App if the Gym becomes aware that the login details of any Authorised User are lost, stolen, or otherwise compromised.
    9. The Gym shall indemnify and defend Allup App, and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer's fees) arising out of a claim brought by an End User or any other third party relating to the Gym's use of the Allup App Service (except to the extent caused by Allup App's negligence).
    10. The Gym accepts, declares and undertakes that it shall be the party to sales agreement to be executed with the End Users as per the consumer legislation, it shall be exclusively liable for the obligations arising from the relevant agreement and consumer legislation, in case the End Users address Allup App due to issues such as access denied, inaccurate schedule or false information, and Allup App becomes obliged to pay any amount to End Users within this regard, the Gym shall compensate all the damages of Allup App, Allup App shall be entitled to deduct such damages from payments to be made to the Gym as per this Agreement.

  3. FEES AND PAYMENT

    1. Within 7 business days at the end of each calendar month, Allup App shall send the Fitness Provider:
      • A statement summarizing the corresponding amount due to the Service Provider, i.e., the Purchase Price after the deduction of Allup App’s service commission, Payment Processing fees, the delivery, and any other applicable discounts or additions.
    2. Allup App shall collect, on behalf of the Fitness Provider, the Purchase Price that has been done through the App via online payments method, and shall deposit such Purchase Price for all of the sales made in the previous month to the Service Provider's bank account mentioned in the Fitness Provider Registration Form within twelve (12) days of sending the statement, to allow for queries from the Vendor, after the deduction of Allup App’s service commission, Payment Processing Fees, delivery fee, and any other applicable discounts or additions.
    3. If the amount payable to Allup App is higher than the amount due to the Fitness Provider, the balance shall be carried over to the next statement.
    4. All amounts and Fees stated or referred to in the Agreement:
      • are payable in AED; and
      • are exclusive of VAT unless otherwise expressly stated, which shall be paid.

  4. SUSPENSION AND TERMINATION

    1. Without prejudice to any other rights and remedies available to Allup App, Allup App may terminate the Agreement by notice with immediate effect, or such notice as Allup App may in its sole discretion elect to give, if the Gym:
      • Infringes Allup App's intellectual property rights in the Allup App Service;
      • is in breach of clauses 7.1 and/or 9; and/or
      • is in breach of any applicable law.
    2. Without prejudice to any other right and remedies available to Allup App, Allup App may immediately suspend its Account, and the Gym's or any Authorised User's right to access and use the Allup App Service without giving prior notice to the Gym, if:
      • the Gym is in material or persistent breach of any of the terms of the Agreement;
      • in Allup App's reasonable determination, the Gym is suspected of being in material breach of any of the terms of the Agreement,
      • and for the purposes of this clause 3.2, the parties acknowledge that any breach of clauses 5.1 and 7 will be a material breach of the Agreement.
    3. Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:
      • is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within thirty (30) days after receiving written notice requiring it to remedy the breach; or
      • becomes insolvent, goes into bankruptcy, becomes subject to proceedings such as suspension of bankruptcy, concordat or dissolution.
    4. On termination of the Agreement for any reason:
      • all rights and licenses granted under the Agreement shall immediately terminate and the Gym's right to access and use, and grant Authorized Users the right to access and use the Allup App Service will end;
      • each party shall return to the other party or (at the other party's request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority).
    5. Allup App shall permit the Gym to download any Gym Data from the Allup App Service for a period of fourteen (14) days after the expiry or termination of the Agreement. Allup App may thereafter:
      • delete any Gym Data at any time;
      • retain Gym Data upon expiry or termination of the Agreement in order to comply with applicable law, or as Allup App may deem necessary to prosecute or defend any legal claim (in which case Allup App may retain Gym Data for a reasonable period of time pending resolution of such obligation or issue
    6. In each case, protection of Gym’s Data will be subject to the Law. Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.
    7. Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiry or termination of the Agreement shall survive and continue in full force and effect.

  5. GYM’S OBLIGATIONS

    1. The Gym
      1. must comply with all applicable laws and regulations with respecting to use Allup Service and its activities under this Agreement, including any applicable health and fitness laws, and fire safety legislation;
      2. shall obtain and shall maintain all necessary licenses, consents, and permissions necessary for Allup App to perform its obligations under the terms of the Agreement;
      3. shall ensure that the Gym ends an authorized user’s right to access and use the Allup APP Service, if the authorized user ceases its employment or other relationship with the Gym;
      4. shall notify Allup App in writing if there is any changes to any of the Gym’s details as set out in the Order Form, any changes to any of the Gym information, and/or any changes to any information in the On-Boarding Documents, any such changes will not apply until agreed to by Allup App in writing;
      5. must ensure that its network and systems including its internet browser and operating system, comply with any relevant specifications provided by Allup App in writing (including e-mail) from time to time,
      6. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Allup App Service; and
      7. must not do, or allow any Authorized Users or other persons to do, any of the following:
        1. use the Allup App Service to access, store, distribute, or transmit any Virus or material that is unlawful, harmful, threatening, defamatory, violent, obscene, infringing, harassing, or racially or ethnically offensive;
        2. use the Allup App Service in a manner that is illegal or causes damage or injury to any person or property;
        3. use any automated system, including without limitation "robots", "spiders", or "offline readers", to access the Allup App Service in a manner that sends more request messages to the Allup App Service than a human can reasonably produce in the same period of time by using a conventional online web browser;
        4. attempt to interfere with or compromise the integrity or security of the Allup App Service, and Allup App reserves the right, without liability or prejudice to its other rights under the Agreement, to disable its Account or access to all or any part of the Allup App Service by any Authorized User, for any breach of any provision of this clause 5.1(h).
    2. With regards to the Products, Gym Benefits, VTS, Personal Trainers, the Gym shall:
      1. Ensure that all Products, Gym Benefits, VTS, Personal Trainer are available for purchase through the App by users during Gym working hours;
      2. Ensure that the Gym Services information is accurate;
      3. Ensure that all Services and Products comply with the Gym information provided by the Gym to Allup App and as set out in the App by Allup App;
      4. Comply with all applicable laws and regulations (including health and safety laws and fire safety regulations) with regard to the performance of the Service;
      5. Set any Products, Gym Benefits, VTS, Personal Trainer to a “not available” status on the App if the Product, Gym Benefits is not available to the User anymore;
      6. Ensure that all Services and Products are available with a reasonable performance, and the Gym shall indemnify and defend Allup App, and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer's fees) arising out of a claim brought by a User or any other third party arising from the Gym's breach of any provision of this clause 5.2 (except to the extent caused by Allup App's negligence).

  6. INTELLECTUAL PROPERTY RIGHTS

    1. Allup App is the owner or licensee of all intellectual property rights in the Allup App Service. These works are protected by copyright and other laws around the world. All such rights are reserved. Except as expressly set out in the Agreement, Allup App does not grant to the Gym any rights to or licenses in respect of the Allup App Service. The Gym will not, when using the Allup App Service:
      • attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Allup App Service in any form or media or by any means;
      • attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Allup App Service;
      • access all or any part of the Allup App Service in order to build a product or service which competes with the Allup App Service, or use or attempt to use the Allup App Service to directly compete with Allup App.
    2. The Gym grants Allup App a licence to access, download and use the Gym Data for the purpose of:
      • providing the Allup App Service to the Gym, including analysing the Gym Data in accordance with the functionalities of the Allup App Service;
      • developing, testing, improving and altering the functionality of the Allup App Service; and
      • producing anonymised or anonymised and aggregated statistical reports and research.
    3. The Gym represents and warrants to Allup App that it has the necessary right, title, interest and consent, in each case as necessary to allow Allup App to use the Gym Data in accordance with the Agreement. The Gym shall maintain a backup of the Gym Data and Allup App shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Gym Data.
    4. Allup App may use the Gym's name, logo, and related trademarks and other Gym Information in any of Gym App's publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Gym uses the Allup App Service and alongside any testimonials that the Gym has agreed to give. The Gym grants Allup App such rights as are necessary to use it name, logo, related trademarks and testimonials and other Gym Information for the purpose of this clause
    5. The Gym agrees to provide regular feedback to Allup App in relation to its use of the Allup App Service.

  7. DATA PROTECTION

    1. To the extent that Allup App processes any personal data on behalf of the Gym as a processor or sub processor as a result of hosting the Gym Data or otherwise as a result of the Gym's use of the Allup App Service, it shall do so in accordance with the DPA.
    2. Where Allup App processes personal data of Users that have placed Purchase for Products through the Allup App Service, the parties agree that Allup App will act as a controller and will process that personal data in accordance with its privacy policy
    3. The Gym shall also process personal data of Users placing Purchase for Products through Allup App in the capacity of data controller. The Gym accepts, declares and undertakes that it shall perform its liability to obtain explicit consent and inform the data subjects arising from the Law, separately from Allup App and in accordance with the Law; it shall take the necessary measures to ensure security of personal data; in case the Users exercise their rights under the Law, the Gym shall inform Allup App and cooperate with Allup App (to the extent that the request concerns Allup App); in case the Gym fails to fulfil such obligations and therefore, Allup App is addressed by data subjects or authorized institutions and becomes obliged to pay any amount, the Gym shall compensate any and all damage incurred by Allup App
    4. Each party shall ensure that it processes personal data in connection with the Agreement in accordance with Data Protection Laws.
    5. For the purpose of this clause 8 the terms "controller", "processor", "data subject", "personal data", and "process" shall have the same meaning as set out in the Data Protection Laws.

  8. CONFIDENTIAL INFORMATION

    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:
      • is or becomes publicly known other than through any act or omission of the receiving party;
      • was in the other party's lawful possession before the disclosure;
      • is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
      • is independently developed by the receiving party, which independent development can be shown by written evidence; or
      • is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.
    2. Each party shall hold the other party's Confidential Information in confidence and, unless required by law, shall not make the other party's Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.
    3. Each party shall take all reasonable steps to ensure that the other party's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

  9. CHANGES TO THE ALLUP SERVICE

    The Gym recognizes that Allup App is always innovating and finding ways to improve the Allup App Service with new features and services. The Gym therefore agrees that the Allup App Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Allup App Service.

  10. AVAILABILITY AND SUPPORT
    1. Allup App will use commercially reasonable endeavours to make the Allup App Service available with an uptime rate of 98%, except for:
      • planned maintenance for which twenty-four (24) hours' notice will be given; and
      • unscheduled maintenance during normal business hours or otherwise, for which Allup App will use reasonable endeavours to give the Gym advance notice.
    2. Allup App will conduct one training session for the Gym within ten (10) Business Days of the Commencement Date, and will use reasonable endeavours to provide a level of support and advice on the use of the Allup App Service that is appropriate to the nature of any issues requiring support or advice during normal working hours in the Territory.
    3. The Gym shall provide all support reasonably required by Allup App to perform its obligations under this clause 10, including providing reasonably detailed descriptions of issues and updates on the performance of the Allup App Service.

  11. LIMITED WARRANTY

    1. Except as expressly provided for in the Agreement:
      • all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
      • Allup App will not be responsible for any interruptions, delays, failures, or non-availability affecting the Allup App Service or the performance of the Allup App Service which are caused by third party services (including third party sites), errors or bugs in third party software, hardware, or the Internet on which Allup App relies to provide the Allup App Service, or any changes to the Allup App Service made by or on behalf of the Gym, and the Gym acknowledges that Allup App does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.

  12. ALLUP APP'S LIABILITY

    1. Allup App will not be liable to the Gym, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the Agreement in conditions that fall into any of the following categories: loss (whether direct or indirect) of profit, goodwill, business, business opportunity, revenue, turnover or reputation; loss (whether direct or indirect) of anticipated saving or wasted expenditure; loss of or damage to data; or any special, indirect or consequential damage or loss, costs or expenses.
    2. Allup App will not be liable to the Gym or to the User, for any injury, illness, loss of property or life arising from or related to use of Gym or Gym Benefits, participation in VTS with Personal Trainers, or the purchase of and/or use of the Products, as Allup App does not provide the Products offered by the Gyms, and does not own, operate or control any Gym.
    3. Gym App's total liability in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, arising under or in connection with the Agreement shall in all circumstances be limited to the Fees payable to the Gym in respect of the twelve (12) months prior to the event giving rise to the claim.

  13. GENERAL

    1. Written Communications: Applicable laws may require that some of the information or communications that Allup App sends to the Gym should be in writing. When using the Allup App Service, the Gym accepts that communication with Allup App will mainly be electronic. Allup App will contact the Gym by e-mail or provide the Gym with information by posting notices on the Allup App Service. For contractual purposes, the Gym agrees to this electronic means of communication and the Gym acknowledges that all contracts, notices, information and other communications that Allup App provides to the Gym electronically comply with any legal requirement that such communications be in writing.
    2. Transfer of any rights and obligations: The Gym may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Gym's rights or obligations arising under the Agreement, without Allup App's prior written consent.
    3. Event outside party’s control: Neither party shall be liable to the other party for any delay or nonperformance of any of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party unless an approved sub-contractor of Allup App, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this clause shall excuse the Gym from any payment obligation under the Agreement. If such events continue for more than 30 days, the Party of which the rights are violated may terminate this Agreement immediately and without paying any compensation.
    4. Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    5. Waiver: No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
    6. Severability: f any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of the Agreement shall not be prejudiced.