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Client Agreement

KEEP FIT EAT FIT WELLBEING CLIENT AGREEMENT

This agreement is between the ("Customer") and Keep Fit Eat Fit Wellbeing Limited with company number 12186558 of Suite 301, Dorset House 25 Duke Street, Chelmsford, Essex, United Kingdom, CM1 1TB (“KFEFW”), email, enquiries@keepfiteatfit.com, and covers the provision by KFEFW to the Customer of the Services (the Agreement).

THE CONDITIONS

  1. Authorised users

    1.1 Subject to the terms of this agreement, KFEFW shall grant to the customer a non-exclusive, non-transferable, non-sublicenseable right to permit the Authorised Users (employees enrolled on the programme) to use the Services during the Subscription Term solely for the Customer's internal wellbeing programme.

    1.2 The Customer undertakes that:

         1.2.1 it will allow each of the Authorised Users to use the Services on a one employee, one subscription basis 
         (but that Authorised User subscriptions may be reassigned by the Customer when the Authorised User no 
         longer requires the Services;

         1.2.2 it will use the Services only for its internal business purposes and shall, at its own cost and expense, 
         acquire, install and maintain all hardware, software and other technology necessary to use and access the
         Services;

         1.2.3 each authorised User shall keep a secure password for his/her use of the Services and that each 
         Authorised User shall keep his/her password confidential.

  2. Additional authorised users

    1. The Customer may purchase additional Authorised User subscriptions for the Services from KFEFW.
    2. If the Customer wishes to purchase additional Authorised User subscriptions, the Customer shall notify KFEFW in writing. KFEFW shall activate the additional Authorised User subscriptions within 5 days of its approval of the Customer's request.
    3. If any additional Authorised User subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by KFEFW for the remainder of the Initial Subscription Term.

  3. Software availability

    KFEFW shall, during the Subscription Term, provide the Software to the Customer, except for:
    1. planned maintenance carried out during 10.00pm to 2.00am UK time; and
    2. unscheduled maintenance performed outside of the planned maintenance timeframe due to a Security Event or, when not due to a Security Event, provided that KFEFW has used reasonable endeavours to give the Customer at least 6 hours' notice in advance.

  4. Support services

    1. KFEFW will, and at no additional cost to the Customer, provide the Customer with the Support Services. KFEFW may amend the Support Services in its sole and absolute discretion from time to time.
    2. The Customer shall designate a contact person and only such contact person may notify KFEFW of any problems with the Service.
    3. KFEFW shall categorise, respond to and resolve any problems arising according to the Severity Level designated by KFEFW to the problem. KFEFW shall have no obligation to provide support or resolution for any error, malfunction, failure or other performance or operational problems to the Services that is not directly caused by KFEFW.

  5. Customer data

    1. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
    2. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against KFEFW shall be for KFEFW to use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by KFEFW. 
    3. Where the Customer Data includes personal data, the parties acknowledge that the Customer is the data controller and KFEFW is the data processor under this Agreement. The parties agree that KFEFW will be undertaking the Processing Activities pursuant to the Customer's instructions and this Agreement.
    4. The personal data will be hosted and stored within the EEA.
    5. KFEFW will, in relation to personal data processed by it in accordance with the performance of its obligations under this Agreement, comply with the obligations placed on it as set out in the Data Protection LegislationIf KFEFW receives any complaint, notice or communication which relates directly or indirectly to the processing of the personal data or to either party's compliance with the Data Protection Legislation, it shall promptly notify the Customer and it shall provide the Customer with reasonable assistance in relation to any such complaint, notice or communication.
    6. Each party shall ensure that it has in place appropriate and reasonable technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, in accordance with Article 32 of the GDPR.
    7. The Customer hereby consents to KFEFW appointing Amazon Web Services as a third-party processor of the personal data under this Agreement. KFEFW confirms that it has entered into a written agreement on Amazon Web Services’ standard terms of business which KFEFW confirms reflect and will continue to reflect the requirements of the Data Protection Legislation.
    8. The Customer hereby permits KFEFW to anonymise copy of the Customer Data. Once the Customer Data has been anonymised, such that it is no longer personally identifiable, the Customer hereby agrees that KFEFW has the right to undertake data analysis on the anonymised Customer Data.

  6. Third party providers

    1. The Customer acknowledges that the Services contain elements provided by the Third Party Providers. KFEFW makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the elements provided by the Third Party Providers.

  7. KFEFW's obligations

    7.1 KFEFW will not be liable under this Agreement where:

    1. the Customer or any Authorised User uses the Services contrary to KFEFW's instructions; and
    2. there is modification or alteration of the Services by any party other than KFEFW. 

      7.2 KFEFW does not warrant that:

      1. the Customer's and Authorised Users' use of the Services will be uninterrupted or error-free; and/or
      2. that the Services will meet the Customer's requirements or will be compatible with the Customer's systems; and

        7.2.2 KFEFW is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.

  8. Customer's obligations

    1. The Customer shall not:
    2. make the Services and Documentation available (in any way) to anyone other than the Authorised Users and shall not permit the Services to be accessed by more than the specified number of Authorised Users;
    3. access, store, distribute, introduce or transmit any:
      1. viruses, trojan horses or any other harmful, unlawful, offensive, discriminatory or illegal material into the Software; or
      2. other thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of the Services or adversely affect access to or the operation of the Services, or adversely affect the Authorised User experience.
    1. (except to the extent permitted by law), copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute, de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any portion of the Services in any way; or
    2. access all or any part of the Services to build a product or service which competes with the Services; or
    3. use the Services to provide services to third parties. 

    4. The Customer shall:
    1. promptly provide to KFEFW, and update on a regular basis,
      1. the Customer Data (to the extent it is within its control)
    2. use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify KFEFW;
    3. ensure that its network and systems comply with the relevant specifications provided by KFEFW from time to time; and
    4. be, except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and links from its systems to KFEFW's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

  9. Charges and payment

    1. The Customer shall pay the Charges to KFEFW for the Services by card payment on a monthly basis in advance.  Monthly billing will be adjusted to take account of active users, i.e. if a user enters their portal twice or more per month, they will be counted as active and the company will be billed accordingly, at the end of each month.  (Please note, this does not apply to an Individual subscription, where the user will be billed the same charge every month).
    2. If KFEFW has not received payment of the Charges within 30 days after the due date, and without prejudice to any other rights and remedies of KFEFW, KFEFW may, without liability to the Customer, disable and suspend the Customer's (and its Authorised Users') access to the Services until the Customer has paid all outstanding amounts due.
    3. All Charges under this Agreement are exclusive of VAT or other applicable tax, which shall be added to KFEFW's invoice(s) at the appropriate rate.

  10. Proprietary rights
    1. KFEFW own all rights, title and interest in and to the Services and the Documentation (including all intellectual property rights). Except as stated in this Agreement, this Agreement does not grant the Customer any rights to, under or in the Services or the Documentation.
    2. KFEFW confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights to the Customer under this Agreement.
    3. The Customer owns all rights, title and interest in and to the Customer Data (including all intellectual property rights) and warrants that the Customer Data does not infringe any third party intellectual property rights.

    4. The Customer hereby grants to KFEFW:
    5. a royalty free, non-exclusive, worldwide, licence to use the Customer Data to provide the Services for the Subscription Term and for 6 months following termination of this Agreement; and
    6. a royalty free, non-exclusive, worldwide, irrevocable and perpetual licence to run data analysis (including deep learning and machine learning analysis) on the anonymised, aggregate Customer Data.
    7. Any intellectual property rights arising out of, or in connection with, KFEFW's analysis, development, modifications, adaption or other use of the Customer Data pursuant to clause 6.12  shall vest immediately in KFEFW. 

  11. Confidentiality

    1. Each party undertakes that it shall keep confidential and shall not at any time during this Agreement, and for a period of five years thereafter, disclose to any person any confidential information of the other party, meaning any confidential information concerning the business, affairs, technology, know how, customers, clients or suppliers of the other party or any other information of a confidential nature, except to its employees, officers, representatives, subcontractors or advisers to the extent they need to know such information for the purposes of carrying out the party's obligations under this Agreement and as may be required by law.
    2. Each party shall not use the other party's confidential information for any purpose other than to perform its obligations under this Agreement.
    3. The Customer acknowledges that details and know how of the Services constitute KFEFW's confidential information. KFEFW acknowledges that the Customer Data is the confidential information of the Customer.
    4. The Customer hereby agrees that KFEFW may publicly announce and list the Customer as a customer of KFEFW and the Customer hereby grants to KFEFW a non-exclusive, royalty free, irrevocable and perpetual licence to use the Customer Trade Mark for such purposes, including on KFEFW's website.

  12. Limitation of liability

    1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions or inferences drawn from such use. KFEFW shall have no liability for any actions taken by the Customer following results or trends identified from the Authorised Users' use of the Services;
    2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement (including that the Services will not infringe third party intellectual property rights).

    1. Except as expressly and specifically provided in this Agreement:
    2. Nothing in this Agreement excludes either party's liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
    3. Unless directly due to its negligence, KFEFW shall have no liability for any death or personal injury to an Authorised User and the Customer hereby agrees that each Authorised User remains responsible at all times for determining whether or not to receive the benefit of the Services. The Services cannot, and are not intended to, replace the relationship between Authorised Users and health care professionals. 

  13. Term and termination

    1. This Agreement shall commence on the Start Date for the Initial Subscription Term. Thereafter, this Agreement shall, unless otherwise terminated as provided for in this clause 16, automatically renew and continue for successive periods of 12 months (each a Renewal Period), or for month to month contracts will continue indefinitely.
    2. Either party may terminate this Agreement by giving to the other written notice, at least 60 days before the end of the Initial Subscription Term or any Renewal Period. If terminated under this clause, this Agreement shall terminate upon the expiry of the Initial Subscription Term or applicable Renewal Period.
    3. Without affecting any other right or remedy available to it, KFEFW may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.

  14. Force majeure

    KFEFW shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of KFEFW or any other party), failure of a utility service or transport or telecommunications 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 sub-contractors (including the Third Party Providers).

  15. General

    1. Any notice given under or in connection with this Agreement shall be in writing and shall be sent to the relevant email addresses provided by each party in the Cover Sheet. This clause does not apply to the service of any proceedings or other documents in any legal action which will be sent to the registered address of each party.
    2. This Agreement and any documents referred to in it constitutes the entire agreement and understanding of the parties. No amendment to this Agreement shall be effective unless in writing and signed by both parties.
    3. English law applies to this Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them. The parties irrevocably submit to the exclusive jurisdiction of the English Courts.
    4. Except in relation to the Authorised Users, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999. The rights of the parties to rescind or vary this Agreement is not subject to the consent of any other person.