CORE DIRECTION SERVICE AGREEMENT - CONDITIONS
Date of last revision: January 2018
1.1Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Friday or Saturday, or public holiday) when banks in the UAE are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.
Corporate: means a corporate or unincorporated body (but not an Individual).
Effective Date: has the meaning set out in the Term Sheet.
Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Individual: means a natural person acting in their own capacity and on their own behalf (but not a Corporate).
Member: means an Individual who, or a Corporate which, purchases a Membership or a number of Memberships from Core Direction to use the facilities provided by a Partner within the Partner Network.
Partner Network: means the network of Partners providing exercise and health facilities to Members.
Partner Requirements: means as set out in Schedule 3.
Report: means the monthly report generated by Core Direction detailing the type of Membership and the number of active Members attending the Partner facilities which is used to calculate the Monthly Fee payable to the Partner.
Supplier Materials: has the meaning set out in clause 5.1(i).
Term: has the meaning set out in clause 12.
1.2Construction. In these Conditions, the following rules apply:
(a)unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other gender;
(b)a reference to a party includes its personal representatives, successors or permitted assigns;
(c)a reference to a law, decree or regulation is a reference to such law, decree or regulation as amended or re-enacted. A reference to a law, decree or regulation includes any subordinate legislation made under that law, decree or regulation , as amended or re-enacted;
(d)any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
2.1The Partner wishes to receive Services from Core Direction under the terms and Conditions set out in this Agreement and its Schedules and Core Direction agrees to provide the Partner with the Services.
2.2During the course of the provision of the Services, any samples, drawings, descriptive matter or advertising issued by Core Direction, and any descriptions or illustrations contained in Core Direction's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them and shall not form part of the Agreement nor shall any of them have any contractual force.
2.3These Conditions apply to the Agreement to the exclusion of any other terms that the Partner seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.1During the Exclusivity Term of the Agreement, the Partner shall not by itself or with another party enter into any agreement (written or unwritten), or any arrangement and/or engagement:
(a)that is the same or similar to the Services; and/or
(b)by which the Partner offers to provide the Services or similar or identical services to the Services.
This clause 3.1 shall survive earlier termination of this Agreement in accordance with clause 12.
3.2The Partner acknowledges and agreed that there is no restriction on Core Direction entering into agreements or arrangements with any third party for the Services or services similar or identical to the Services.
3.3The Partner is permitted to sell its own memberships (which are not Memberships) save that a Partner shall have no authority to and shall not offer to nor accept any payment from Individuals or Corporates for any access to its facility as part of the Partner Network or other Partner facilities that are or have in the past twelve (12) months been a Partner or member of the Partner Network unless the Individual or the Corporate pays the Membership Fees to Core Direction using the Core Direction membership app, website or payment gateway in accordance with this Agreement.
3.4The Partner agrees that it shall immediately inform Core Direction in writing of:
(a)any Individual or Corporate that wishes to purchase, or makes an enquiry about purchasing, a Membership which is, for the avoidance of doubt, a Membership to the Partner Network (and not in respect of that Partner as a stand-alone facility and where the Individual or the Corporate does not wish to use the Partner Network); or
(b)any Individual or Corporate that is referred to that Partner by any other third party (including another Partner) for the purposes of purchasing a Membership.
4.Supply of Services
4.1Core Direction shall supply the Services to the Partner for the Term of the Agreement.
4.2As a pre-condition to the provision of the Services, Core Direction shall notify the Partner of its Designated Partner Level and the Partner agrees that it shall accept such designation. Core Direction shall have the right to change the Designated Partner Level of a Partner at any time if the Partner upgrades or downgrades the facilities that it provides to its Members. To the extent that Core Direction intends to downgrade a Partner, Core Direction shall first notify that Partner in writing of its intention to do so and the reason for such downgrade. Core Direction shall give that Partner ten (10) days’ notice to take appropriate remedial action to maintain its Designated Partner Level. To the extent that the Partner does not respond or not dispute the notice to downgrade, the new Designated Partner Level shall take effect in the next month following the decision by Core Direction.
4.3Unless expressly agreed in writing by Core Direction, if a Partner opens a branch in the same area of another Partner within the Partner Network, the Partner shall not allow a Member to use the services provided by that branch. Any breach by a Partner of this clause shall entitle Core Direction to provide immediate notice of termination of this Agreement to the Partner as set out in clause 12.
4.4Core Direction shall, and the Partner acknowledges and agrees that Core Direction shall, manage and operate the transition of all Members between Partners on a monthly basis. The Partner agrees that if a Member selects that Partner as part of its Membership for a month, the Partner shall provide the Partner Requirements to that Member for that month and in accordance with clause 8.1, Core Direction shall pay the Monthly Fees to that Partner for that month in respect of that Member. The Partner agrees that if the Member does not select that Partner for a subsequent month, Core Direction shall no longer pay the Monthly Fee to that Partner for that subsequent month in respect of that Member.
4.5Core Direction shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Core Direction shall notify the Partner in writing in any such event and upon notification such change will be deemed to be incorporated as part of these Conditions.
5.Partner 's obligations
5.1The Partner accepts and acknowledges that for the Term of this Agreement and in order to remain a part of the Partner Network, the Partner shall:
(a)perform and provide the Partner Requirements;
(b)supply the exercise and health facilities provided by that Partner to Members in accordance with best industry standards;
(c)accept the Designated Partner Level given to it by Core Direction;
(d)maintain premises provided by the Partner for the Member(s) and any gym/fitness equipment in a good condition for use by the Members and to maintain the reputation and quality of the Partner Network in accordance with best industry standards;
(e)co-operate with Core Direction in all matters relating to the Services;
(f)provide Core Direction, its employees, agents, consultants and subcontractors, with access to the Partner's premises, office accommodation and other facilities as reasonably required by Core Direction for the purposes of providing the Services;
(g)provide Core Direction with such information and materials as Core Direction may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(h)obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and
(i)keep and maintain all materials, equipment, documents and other property of Core Direction (Supplier Materials) at the Partner 's premises in safe custody at its own risk, maintain Supplier Materials in good condition until returned to Core Direction, and not dispose of or use the Supplier Materials other than in accordance with Core Direction's written instructions or authorisation.
5.2If Core Direction's performance of any of its obligations under:
(a)Clause 4.1; or
(b)this Agreement is prevented or delayed by any act or omission by the Partner or failure by the Partner to perform any relevant obligation (Partner Default),
then Core Direction shall, without limitation, at its discretion be able take any or a combination of the following:
(c)Core Direction shall be able to offer Members the use of the exercise and health facilities of a different Partner in the Partner Network;
(d)Core Direction shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Partner remedies the Partner Default, and to rely on the Partner Default to relieve it from the performance of any of its obligations to the extent the Partner Default prevents or delays Core Direction's performance of any of its obligations;
(e)Core Direction shall not be liable for any costs or losses sustained or incurred by the Partner arising directly or indirectly from Core Direction's failure or delay to perform any of its obligations as set out in this clause 5.2;
(f)Core Direction shall only be liable to pay the Monthly Fee to the Partner up and until the date immediately preceding any act or omission by the Partner or failure by the Partner to perform any relevant obligation; and
(g)the Partner shall reimburse Core Direction on written demand for any costs or losses sustained or incurred by Core Direction arising directly or indirectly from the Partner Default.
6.1For the duration of the Term, the Partner shall maintain in force, with a reputable insurance company, such insurances as would be maintained by a reasonably prudent supplier of the same or similar services to members that wish to use its exercise and healthcare facilities (including public liability insurance) and to cover the liabilities that may arise under or in connection with the Agreement and shall, on the Core Direction’s request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
7.1Both Parties warrant that they have the necessary and sufficient licences and legal authority to enter into this Agreement.
7.2Core Direction warrants that it will perform the Services with reasonable skill and care. To the extent permitted by law and unless expressly set out herein, Core Direction hereby disclaims all implied warranties relating to this Agreement, including warranty of merchantability or fitness for any particular purpose.
7.3The Partner warrants and undertakes that:
(a)It shall provide the exercise and health facilities to Members with all reasonable skill and care;
(b)It shall provide the premises and exercise and healthcare facilities at all times during the Term of this Agreement, which shall be fit for their purpose as contemplated under the terms of this Agreement; and
(c)It shall comply with all applicable health and safety laws and regulations and shall cause that its employees, personnel and any of its subcontractors understand the applicable health and safety requirements and are bound by the health and safety requirements.
7.4The Partner shall procure that the Partner’s employees and personnel will take all reasonable steps to safeguard their own safety and the safety of any other person (including the Members) who may be affected by their actions, and the Partner agrees to indemnify and keep indemnified Core Direction from any and all liabilities, costs, expenses and other obligations arising from any loss, damage, or injury caused to Core Direction or any third party or any other person (including the Members) by the Partner, its employees and personnel.
8.Monthly Fee and Charges
8.1On condition that the Member has selected to attend the facilities provided by the Partner using the Core Direction membership app, website or payment gateway for the relevant month and Core Direction has received the Membership Fee in respect of each relevant Member, Core Direction shall pay (subject to clauses 8.2 and 8.3), the Partner the Monthly Fee for that Member based on the Report as follows:
(a)within thirty (30) days of the respective month end; and
(b)in full and in cleared funds to a bank account nominated in writing by the Partner.
8.2If a Member pays greater Membership Fees for a month to attend the facilities provided by a Partner with a higher Designated Partner Level, Core Direction shall pay the selected Partner the applicable upgraded Monthly Fee for that month. If, after that month, the Member does not:
(a)upgrade its Membership again; or
(b)attend the following month,
Core Direction shall pay the last selected Partner the Monthly Fee at the Base rate.
8.3For any Member who has purchased a Membership for 12 months and no longer uses their Membership by actively attending any facility provided by any Partner, the last selected Partner shall be paid the Monthly Fee at the Base rate.
8.4In consideration of the provision of the Services by Core Direction, the Partner shall pay to Core Direction an amount equivalent to the Charges. For ease of payment only, the Partner agrees that the Charges shall be retained and/or deducted from the Membership Fees by Core Direction.
8.5Core Direction reserves the right to increase or decrease its Charges. Any increase or decrease in the Charges shall not affect the amount of the Monthly Fee payable to the Partner unless expressly agreed in writing with the Partner.
8.6The parties agree that there shall be no payment of Membership Fees, the Monthly Fee and/or the Charges with regard to the promotional Memberships referred to in Schedule 3.
8.7All amounts received and payable by Core Direction under this Agreement are exclusive of amounts in respect of any applicable sale tax, value added tax or other taxes chargeable for the time being in the Territory. Should there be any applicable sales taxes in the Territory, each Party shall pay the applicable sales tax or otherwise in accordance with the applicable laws or regulations in the Territory.
9.Intellectual property rights
9.1All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Core Direction.
9.2The Partner acknowledges that, in respect of any third party Intellectual Property Rights, the Partner's use of any such Intellectual Property Rights is conditional on Core Direction obtaining a written licence from the relevant licensor on such terms as will entitle Core Direction to license such rights to the Partner.
9.3All Supplier Materials are the exclusive property of Core Direction.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Agreement. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 10 shall survive termination of the Agreement.
11.Limitation of liability:
11.1Nothing in these Conditions shall limit or exclude either party’s liability for:
(a)death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b)fraud or fraudulent misrepresentation.
11.2Subject to clause 11.1:
(a)Core Direction shall under no circumstances whatever be liable to the Partner, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement; and
(b)Core Direction's total liability to the Partner in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Monthly Fee due and owing to the Partner up until the date of the act or omission giving rise to the liability.
11.3This clause 11 shall survive termination of the Agreement.
12.Term and Termination
12.1Unless earlier terminated in accordance with the terms set out below, this Agreement shall commence on the Effective Date and continue for the Initial Term. During the Initial Term, Core Direction shall have the right to terminate this Agreement at any time and for convenience on thirty (30) days’ written notice to the Partner. If Core Direction exercises this right, it shall pay the Partner the applicable and relevant Monthly Fee to reflect the selection of Members up until the date of termination.
12.2Subject to clause 12.3, on expiry of the Initial Term, the Agreement shall continue for consecutive twelve (12) month periods (each an Additional Term). The Initial Term and each Additional Term are together the ‘Term’.
12.3After the expiry of the Initial Term, either party may terminate the Agreement at any time by giving the other party thirty (30) days’ written notice.
12.4Without limiting its other rights or remedies, Core Direction may terminate the Agreement with immediate effect by giving written notice to the Partner if:
(a)the Partner accepts any payment directly from a Corporate or Individual for access to the Partner Network;
(b)for any breach by the Partner of:
(i)the Partner Requirements; or
(ii)clause 3.1, 3.3 or 4.3;
(c)the Partner commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(d)the Partner suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is either unable to pay its debts or as having no reasonable prospect of so doing, in either case, or (being a partnership) has any partner to whom any of the foregoing apply;
(e)the Partner 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;
(f)to the extent that the Partner is an individual is the subject of a criminal investigation, bankruptcy petition or order;
(g)a creditor of the Partner 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;
(h)any event occurs or proceeding is taken with respect to the Partner in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause;
(i)the Partner suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(j)the Partner’s financial position deteriorates to such an extent that in Core Direction's opinion the Partner's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; or
(k)the Partner (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.5Without limiting its other rights or remedies, Core Direction may suspend provision of the Services under the Agreement or any other contract between the Partner and Core Direction if the Partner becomes subject to any of the events listed in clause 12.4(c), or Core Direction reasonably believes that the Partner is about to become subject to any of them.
13.Consequences of termination
13.1 On termination of the Agreement for any reason:
(a)Members shall have the option to attend the facilities of other Partners within the Partner Network;
(b)the Partner shall return all Supplier Materials and other Core Direction Materials. If the Partner fails to do so, then Core Direction may enter the Partner's premises and take possession of them. Until they have been returned, the Partner shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement;
(c)the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
(d)clauses which expressly or by implication survive termination shall continue in full force and effect.
14.1For the purposes of this Agreement, Force Majeure Event means an event beyond the reasonable control of Core Direction including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Core Direction or any other party), failure of a utility service or transport 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 subcontractors.
14.2Core Direction shall not be liable to the Partner as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
14.3If the Force Majeure Event prevents Core Direction from providing any of the Services for more than thirty (30) days, Core Direction shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Partner.
15.1Assignment and other dealings.
(a)Core Direction may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.
(b)The Partner shall not, without the prior written consent of Core Direction, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement.
(a)Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b)A notice or other communication shall be deemed to have been received:
(i)if delivered personally, when left at the address referred to in clause 15.2(a);
(ii)if delivered by courier or other messenger (including registered mail) when delivered during normal business hours of the recipient party; or
(iii)if transmitted by fax or e-mail when a successful transmission report or return receipt is generated.
(c)The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a)If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
(b)If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.4Waiver. A waiver of any right under the Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.5No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
15.6Entire Agreement. The Agreement constitutes the entire agreement between the parties. The Partner acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Core Direction which is not set out in the Agreement.
15.7Third parties. A person who is not a party to the Agreement shall not have any rights to enforce its terms.
15.8Variation. Except as set out in these Conditions, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Core Direction.
15.9Governing law. 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.
15.10Jurisdiction. The parties hereby agree that any disputes arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the Arbitration Rules of the Dubai International Financial Centre/London Court of International Arbitration (“DIFC/LCIA”) by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall be held in Dubai, UAE. The language used in the arbitration, including the language of the proceedings, the language of the decision, and the reasons supporting it, shall be in English.