Terms of Service
Please read these Terms & Conditions carefully as they contain important information about legal rights, remedies and obligations. By accessing or using the Gympanzee Platform, you agree to comply with and be bound by these Terms of Service.
TERMS OF SERVICE
These Terms of Service ("Terms") constitute a legally binding agreement ("Agreement") between Platform Partner and GYMPANZEE governing access to and use of the GYMPANZEE website, including any subdomains thereof, and any other websites through which GYMPANZEE makes the GYMPANZEE Services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application") and all associated services (collectively, "GYMPANZEE Services"). The Site, Application and GYMPANZEE Services together are hereinafter collectively referred to as the “GYMPANZEE Platform”. Your use of the Website, Application and/or agreement signed (either electronically or otherwise) is an acknowledgment that you have reviewed the Terms and Conditions listed at and agree to comply with these Terms. GYMPANZEE reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the GYMPANZEE Platform. We will also provide you with notice of the modifications by email when they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the GYMPANZEE Platform will constitute acceptance of the revised Terms.
GYMPANZEE has through the investment of considerable time and money developed a unique and distinctive system of creating a network of high quality budget friendly gyms and connecting such network gyms to potential customers in a large scale under the mark “GYMPANZEE” and other associated logos, designs and brands (“Marks”) while each Platform Partner in the network continues to be an independent entity having an independent business which continue to provide services to their customers under their respective and distinct brand name/ logo/ name of establishment. The system includes proprietary and distinctive techniques, technology, training methods, operating methods, designs and decor, uniform apparel, colour schemes, furnishings, marketing materials, promotional strategies, and customer service requirements (“Know-How”), all of which may be modified from time to time by GYMPANZEE, and which are directed towards promoting the network Platform Partner in a manner that will enhance the goodwill associated therewith. GYMPANZEE identifies high quality budget gyms or helps existing gyms to implement systems to enable them to transform into high quality budget gyms. Upon being satisfied that a gym meets the standards prescribed by GYMPANZEE, GYMPANZEE lists and promotes the gym as “GYMPANZEE”. GYMPANZEE acknowledges that the Platform Partner may, for its promotional purposes, need to highlight that it is a part of the network of gyms to which GYMPANZEE provides its services and strictly to that end, GYMPANZEE authorizes the Platform Partner to use the Marks. The Platform Partner undertakes not to do anything to prejudice or damage the goodwill in the Marks or the reputation of GYMPANZEE. If the Platform Partner becomes aware of any infringement of the Marks by any other party trading with Marks similar or identical to the Marks, the Platform Partner shall immediately notify the GYMPANZEE thereof in writing. Any use of the Marks by the Platform Partner shall be deemed to be a use of the same by GYMPANZEE for the purpose of trademark protection and thus where required by GYMPANZEE, the Platform Partner shall join with or assist GYMPANZEE at GYMPANZEE’s cost and expense in making or to make application to become the registered user of the Marks. The Platform Partner agrees in order to protect the GYMPANZEE’s intellectual property rights and maintain the common identity and reputation of the network, the Platform Partner must comply with quality specifications laid down by GYMPANZEE from time to time. Any breach by Platform Partner in respect thereof may cause irreparable harm and injury to GYMPANZEE and its intellectual property. The Platform Partner shall use all reasonable endeavors to conceive and develop new and improved methods of carrying out the Business and improvements in operating procedure and other additions or modifications to the existing technology and Know-How of GYMPANZEE (hereinafter referred to as “Improvements”). The Platform Partner agrees to disclose fully any Improvements to GYMPANZEE and GYMPANZEE shall determine the feasibility and desirability of incorporating them into GYMPANZEE’s existing technology and Know-How. The Platform Partner shall transfer all rights in any such Improvement to GYMPANZEE without any additional consideration.
TERMS OF OPERATIONS
A. USE OF GYMPANZEE PLATFORM & INTELLECTUAL PROPERTY
GYMPANZEE grants to the Platform Partner during the period of this Agreement and subject to the terms and conditions hereof the permission to (i) utilize the Know-How and (ii) be listed on GYMPANZEE Platform or any other online website, as may be expressly permitted by GYMPANZEE in writing, to market or promote bookings at the Platform Partner by associating with the Mark “GYMPANZEE”. The Platform Partner undertakes that it will provide 100% of its total gym amenities listed on GYMPANZEE Platform. The Platform Partner acknowledges that in order to facilitate the completion of GYMPANZEE’s obligations under this Agreement and other similar agreements, GYMPANZEE has the right to list all Platform Partners within the network of GYMPANZEE as “GYMPANZEE” on the GYMPANZEE Platform; this is irrespective of the fact that the Platform Partner provides its services to customers (whether attracted through GYMPANZEE Platform or in any other manner) independently, under its own brand name. However, each Platform Partner shall be solely responsible for providing the fitness services to its customers. Once a booking has been confirmed to a customer on GYMPANZEE Platform, the Platform Partner shall honour such bookings. In the event, the Platform Partner is unable to honour the booking for any unforeseeable circumstances, the Platform Partner shall without prejudice to its right to indemnification, the Platform Partner shall be liable to pay liquidated damages amounting to twice the booking amount converted in Rupees payable in respect of the booking period. GYMPANZEE may advise the Platform Partner in modifying the Premises to meet GYMPANZEE standards and agree on alterations or modification that may be required at the Premises through a mutually agreed “Transformation Audit Report”. The Platform Partner shall ensure that the Premises is maintained and run as per the standards set out in the Transformation Audit Report and/or the operating, brand and GYMPANZEE standards as may be published (online or otherwise) from time to time during the term of this Agreement. GYMPANZEE shall have the right to amend these standards unilaterally and shall keep the Platform Partner notified of any alterations and/or improvements in or to the operating, brand or GYMPANZEE standards. The operating, brand and GYMPANZEE Standards which exist as on date have been provided to Platform Partner and it undertakes to make all such modifications/ alterations at its own cost and expenses. GYMPANZEE may assist the Platform Partner by providing the Know-How which shall at all times remain the property of GYMPANZEE and train the Platform Partner’s staff in the operation of the gym as per the GYMPANZEE Standards. GYMPANZEE shall keep the Platform Partner notified of any alterations and/or improvements in or to the operating or brand standards. All operating costs, including the cost of employees, manpower, consumables, utilities rents, taxes etc. shall be the sole responsibility of the Platform Partner. GYMPANZEE may provide the Platform Partner with digital tablet or software application or any other device (hereby collectively referred as “Device”) that may be necessary to manage all bookings from the Platform Partner and record the payment receipt. Such device is an integral part of GYMPANZEE’s booking and reservation management system. Platform Partner shall be solely responsible for safe and proper operation of such device. The Platform Partner shall ensure that the device is not used to make any fraudulent booking or any other illegal purpose that may compromise the records or the accounts of the Platform Partner or GYMPANZEE. The Platform Partner shall be liable to pay for the cost of replacement or repair of the device in case any damage is caused to the device. The Platform Partner shall assign the use and operation of the device to its authorized representatives and the Platform Partner shall remain responsible as principle to the act of its agents. The Platform Partner acknowledges that it may be entitled to incentives or may be subject to disincentives based on its performance ranked and measured in accordance with the GYMPANZEE’s Platform Partner Scoring Policy as may be communicated by GYMPANZEE from time to time. The Platform Partner agrees that the ranking and performance rating shall be as per the sole opinion of GYMPANZEE and the same shall not be subject to dispute by the Platform Partner. GYMPANZEE shall have the sole discretion to change the terms of the said policy from time to time.
B. GUEST BOOKING POLICY
GYMPANZEE follows a standard 90 minutes Booking policy starting from the moment a booking is successfully made by the Guest. Advance bookings or Booking in arrear is forbidden. In case of any such bookings, Platform Partner has the right to decide whether to allow entry or not as per their discretion.
C. AMENITIES POLICY
The Platform Partner agrees to abide with GYMPANZEE’s Amenities Standard; where the Platform Partner fails to meet these requirements, such failure will be accounted for while scoring the gym under GYMPANZEE’s Platform Partner Scoring Policy. Platform Partner has the option to select from the following amenities and display it on their Gym listing:
Platform Partner should ensure that they provide all amenities listed under their gym listing to their guests. In case Platform Partner is unable to provide any amenity, such amenity should immediately be unlisted from their listing. Not providing any listed amenity to the guest will be entitled to disincentives.
No separate charge shall be demanded by Platform Partners for the amenities provided. Booking charges constitutes the charges for all services and amenities provided by the Platform Partner.
D. SERVICES & PLATFORM FEES
GYMPANZEE shall be entitled for a fees (hereinafter, “Listing Commission”) for providing GYMPANZEE services to the Platform Partners. This Listing Commission shall be exclusive of all taxes applicable on such transaction. Listing Commission** shall be charged 15% of the gross income* received from bookings (hereinafter, “Listing Income”).
*Listing Income (in ₹) = Number of Tokens multiplied by 1.
**Listing Commission (in ₹) = Listing Income multiplied by 15 per cent.
E. TITLE OF THE PROPERTY
Platform partner will maintain, at all times during the term of this contract, full ownership of the property and the business now or hereafter conducted therein or there from (or, if Platform partner’s right and interest in the Property is derived through a lease, concession or other agreement, the Platform partner shall keep and maintain such lease, concession or other agreement in full force and effect at all times throughout the term of the contract) free and clear of any lien, mortgage, charge or any other encumbrance. Gympanzee reserves the full right to undertake any modifications to the property. Platform partner shall, at its own cost and expense, pay and discharge when due any property rents (including lease rents) and other rental payments, concession charges and any other charges payable in respect of the Property and undertake and prosecute all actions including appropriate actions, judicial or otherwise, required to assure quiet and peaceful possession and management of operations of the gym during the term of the contract.
GYMPANZEE will retain full ownership of the materials provided by GYMPANZEE to the Platform Partners with the intention to promote or facilitate its services.
All documents, instructions, details collected under this Agreement including the customer/guests’ personal data, brand standards, operating standards, technology, systems, training manuals, financial details, terms of this Agreement, account and sales information etc. shall be considered as secret and confidential information and Gym undertakes not to copy or disclose any of its contents or concepts to any other party and not to make any direct or indirect use thereof except as required for due performance under this Agreement. This Agreement is confidential in nature and shall not be disclosed by the Parties to any other third person except as otherwise required by law. During the performance of its obligations under this Agreement, the Gym and its employees, officers, agents, proprietors, directors, shareholders, stakeholders (“Representatives”) may have access to Confidential Information of GYMPANZEE, which shall be kept fully confidential by the Gym and its Representatives. The Gym shall execute necessary non-disclosure agreement with its Representatives and take any other steps that it would reasonably take to protect such confidential information. The obligation under this provision shall survive termination or expiration of this Agreement.
Each Party with respect to the services rendered in its individual capacity would be solely responsible for compliance of all applicable laws and payment of all applicable taxes, cess or duties as may be required. Service fees fee charged by GYMPANZEE to Platform Partners for providing Services shall be exclusive of all taxes applicable on such transaction. In the event GYMPANZEE is made liable to pay any tax under any law for the time being in force applicable on “Platform Partner”, then Parties agree that GYMPANZEE shall have a right to recover the same from the Platform Partner. The Platform Partner shall pay such amount without any demur or protest. GYMPANZEE may furnish certificate/ document to demonstrate such claim for payment and proof of deposit of such tax from time to time.
Keeping in line with global standards of data protection, security and integrity, GYMPANZEE has made significant investment in our systems, training and people and are revising our policies to have in place robust safeguards around data you collect through you and updating our guest privacy policies and standards.
The Platform Partner shall not during the period of its Agreement with GYMPANZEE, enter into any agreement directly or indirectly to engage with online aggregators in any manner for or in relation to selling/ marketing / promoting booking services at their gym. Provided, however that the Platform Partner may continue to promote their gym either directly or through any other business partner, service provider (other than specifically named above) for marketing or booking services through online or offline Platform with prior written consent of GYMPANZEE. Notwithstanding anything stated herein, if the Platform Partner defaults / breaches its obligation under this clause then the Platform Partner shall be deemed to have breached a material obligation and shall be liable to pay liquidated damages as may be determined by GYMPANZEE. Breach of obligation under this clause shall be deemed to be a breach of material obligation and in addition to the remedies provided.
RIGHT TO INSPECT
GYMPANZEE shall have a right to undertake periodic audits/ surprise checks to ensure that the Platform Partner is adhering to the standards of GYMPANZEE from time to time. GYMPANZEE shall have a right to conduct such audit without prior notice and through mystery customers. The Platform Partner shall not object to such audits and challenge the findings based on the fact that no prior notice was given for such audit. GYMPANZEE shall have a right to review the Guest records of the Platform Partner. The Platform Partner shall co-operate during such audit and provide necessary and correct information
The Platform Partner shall not assign this Agreement to any third party without GYMPANZEE’s prior written consent. In the event there is a change in the control or management of the Platform Partner, the Platform Partner shall inform GYMPANZEE in writing and GYMPANZEE shall be entitled to terminate the Agreement with immediate notice in such case. In case of sale of business or transfer of ownership, the owner or the shareholder of the Platform Partner shall ensure that the intended purchaser of the business agrees to adhere to the terms of this Agreement. GYMPANZEE shall not be under any obligation to abide by this Agreement, unless the Agreement is novated. If the Platform Partner intends to change the ownership structure of his trading style to a partnership or to a limited company or in any other manner it is agreed that any such intended change shall be deemed to be an assignment of this Agreement; GYMPANZEE shall be entitled to assign the benefit of this Agreement to any other party at any time and shall inform the Platform Partner thereof within a reasonable time thereafter.
TERM AND TERMINATION
The term of this Agreement shall be valid and binding upon the Parties for a period of 12 months from the date of acceptance of Agreement. The Agreement will be considered to be automatically renewed for another 12 months unless terminated by either Party in accordance with the Terms of this Agreement.
It is expressly agreed that nothing in this Agreement shall be construed as to create the relationship of employee, partners, collaborators, joint venture or principle agent between Parties hereto. The Parties are independent contractors agreeing to provide mutual service on the basis of this rate and marketing contract. Neither Party shall bind the other by its acts, deed nor omissions other than to the extent set out in this Agreement.
Notwithstanding other obligations, the Platform Partner shall indemnify GYMPANZEE and hold harmless, its officers, directors, employees, assigns harmless against all losses, damages, liabilities, costs or expenses of whatever form or nature, including without limitation, attorney’s fees and expenses and other cost of legal defence whether direct or indirect that they or any of them may sustain or incur as a result of booking or by any acts of GYMPANZEE CUSTOMER or omissions of the Gym or any of it directors, employees, officers or agents including but not limited to (i) breach of any obligation under this Agreement (ii) negligence or other tortious conduct (iii) misrepresentation made herein (iv) any delay in payment/ non-payment of taxes. GYMPANZEE shall indemnify the Platform Partner and hold harmless, its officers, directors, employees, assigns harmless against all losses, damages, liabilities, costs or expenses of whatever form or nature, including without limitation, attorney’s fees and expenses and other cost of legal defence whether direct or indirect that they or any of them may sustain or incur as a result of booking or by any acts of GYMPANZEE CUSTOMER or omissions of GYMPANZEE or any of it directors, employees, officers or agents arising out of (i) breach of any obligation under this Agreement (ii) negligence or other tortious conduct or (iii) misrepresentation made herein. Neither Party shall be liable to the other for any indirect, incidental, punitive, special or consequential damages or losses (including without limitation loss of profit or revenue etc.) whether under contract or in tort and even if the other party had been advised of the possibility of such damage or loss.
The obligation under this Clause shall survive for a period of one year after termination of this Agreement.
Disclosures and Declarations:
1. Platform Partner hereby agree to share with GYMPANZEE or upload on GYMPANZEE Platform, certain information and documents as may be necessary for the Platform Partner to list their gym on GYMPAZNEE Platform.
2. GYMPANZEE will not edit content uploaded/shared on the GYMPANZEE Platform unless requested by the Platform Partner in writing.
3. Platform Partner warrants to GYMPANZEE that all information provided hereunder is true and accurate in all respects. Platform Partner will promptly update if any of the information Platform Partner provides hereunder, changes.
4. GYMPANZEE does not warrant uninterrupted access to the GYMPANZEE Platform, and access to the GYMPANZEE Platform may be suspended, restricted or terminated at any time.
5. Platform Partner warrants that Platform Partner has taken all reasonable precautions to ensure that any data or document Platform Partner uploads or otherwise submits to the GYMPANZEE Platform is free from viruses and anything else which may have a contaminating or destructive effect on any part of the GYMPANZEE Platform or any other technology.
6. The content and material available on the GYMPANZEE Platform is for informational purposes only and should not be regarded as an offer, solicitation, invitation, advice or recommendation to buy or sell any financial services or banking product.
7. GYMPANZEE owns all present and future copyright, registered and unregistered trademarks, design rights, unregistered designs, database rights and all other present and future intellectual property rights and rights in the nature of intellectual property rights existing in or in relation to the GYMPANZEE Platform.
8. Platform Partner agrees to indemnify and hold harmless GYMPANZEE against all losses, suits, claims, damages and demands arising out of any act of GYMPANZEE customer.
9. Platform Partner shall be liable to GYMPANZEE for any loss or damage suffered by GYMPANZEE as a result of any breach of these terms and conditions or any fraudulent use of the GYMPANZEE Platform.
10. These terms and conditions shall be applicable in addition to the other terms and conditions of the GYMPANZEE Platform. GYMPANZEE may update or amend these terms and conditions from time to time to comply with law or to meet our changing business requirements. GYMPANZEE may not always be able to give Platform Partner advanced notice of such updates or amendments but GYMPANZEE will always post them on the GYMPANZEE Platform so that Platform Partner can view them before using the GYMPANZEE Platform. By continuing to use the GYMPANZEE Platform, Platform Partner agrees to be bound by the terms of these updates and amendments.
11. If any of these terms and conditions is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the remainder shall continue in full force and effect.
12. No single or partial exercise, or failure or delay in exercising any right, power or remedy by GYMPANZEE shall constitute a waiver by GYMPANZEE of, or impair or preclude any further exercise of, that or any right, power or remedy arising under these terms and conditions or otherwise.
Platform Partner represents and warrants that it has full legal right, power and authority to carry on its business and to enter into this Agreement and perform all its obligations, terms and conditions hereunder and neither the execution nor delivery of this Agreement, nor fulfilment nor compliance with the terms and provision hereof, will conflict with, or result in a breach of terms, conditions or provisions of, or constitute a default under, or result in any violation of its charter document or bye law, if any, or any agreement, restriction, instrument, order , judgement, decree, statute, law, rule or regulation to which it is subjected or require any consent, approval or other action by any court, tribunal, administrative or governmental body. Platform Partner additionally represents that it is operating its business in compliance with all the applicable laws, regulations and statutes and it has the requisite licenses in place (including lift operating, fire department clearance, local municipality approvals and licenses etc.) to operate the business
BREACH OF CONTRACT
The failure of the Platform Partner to comply with any of the provisions, covenants or conditions of this agreement shall be a material breach of this Contract.
REMEDIES FOR BREACH OF CONTRACT
In the event of Breach of Contract, GYMPANZEE has the right to decide the damage amount. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages. The parties agree that GYMPANZEE has the right to forfeit any pending payment to recover its losses incurred by reason of any breach of obligation.
If any dispute shall arise between the Parties hereto concerning the construction interpretation or application of any of the provisions of the Terms & Conditions, such dispute shall be referred to the arbitration of a single arbitrator to be appointed by Parties. The arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996. The arbitration shall be conducted in Bhopal, Madhya Pradesh. Any failure, delay or forbearance on the part of GYMPANZEE in: (i) exercising any right, power or privilege under this Agreement; or (ii) enforcing terms of this Agreement, shall not operate as a waiver thereof, nor shall any single or partial exercise by GYMPANZEE of any right, power or privilege preclude any other future exercise or enforcement thereof. The Parties hereto agree that each of the provisions contained in this Agreement shall be severable, and the unenforceability of one or more provisions of this Agreement shall not affect the enforceability of any other provision(s) or of the remainder of this Agreement. The courts in Bhopal shall have exclusive jurisdiction to settle any disputes between the Parties under this Agreement.