THIS AGREEMENT IS MADE ON THE DAY THE INSTRUCTOR PARTICIPATES IN FLOATFIT INSTRUCTOR TRAINING
Between
A. AQUA PHYSICAL LIMITED a company registered in England and Wales with company number 09349121 whose registered office is at Sea Dogs, 25 Mereside, Portland, Dorset, DT5 1PY (“AquaPhysical”); and
B. the “Instructor”
1. OBLIGATIONS OF THE INSTRUCTOR
1.1 The Instructor shall:
(a) attend a FloatFit Training Day and, if successful, be awarded by AquaPhysical, at its sole discretion, the qualification of being a duly certified instructor of the FloatFit Class;
(b) at all times during the Term and Extended Term (if applicable) be, and maintain the status of, a duly certified instructor of the FloatFit Class;
(c) not promote, run or take part in (other than as a customer) any FloatFit Class if the FloatFit Class certification has lapsed, been suspended or terminated;
(d) ensure that the FloatFit Class taught by the Instructor conforms to the standards set out in the Class Guidelines and observes the reasonable directions of AquaPhysical with respect to them;
(e) at all times comply with the Branding Guidelines and observes the reasonable directions of AquaPhysical with respect to them;
(f) ensure that all FloatFit Classes use the AquaBase and no other floating mat or board without the prior written consent of AquaPhysical;
(g) not directly or indirectly sell or distribute any merchandise that uses AquaPhysical Intellectual Property, other than the Licensed Products, to any third party without the prior written consent of AquaPhysical;
(h) have and maintain at all times any necessary and relevant insurances during the Term and the Extended Term (if relevant) and for a period of 2 years following termination or expiry of this agreement;
(i) have and maintain at all times during the Term and the Extended Term (if relevant) any relevant licences for any third party Intellectual Property used during a FloatFit Class, including but not limited to, the use of any music;
(j) not file for any mark or design identical or similar to any of the AquaPhysical Intellectual Property, challenge or oppose any of the AquaPhysical Intellectual Property or otherwise do, or omit to do, anything that may diminish the value of AquaPhysical’s Intellectual Property, or assist any other person to do so, either directly or indirectly;
(k) not be assisted during a FloatFit Class by any individual that does not hold a valid FloatFit Class certification;
(l) be a competent swimmer, ensure that appropriate safety measures are in place at the venue where the FloatFit Class takes place, and ensure that all FloatFit Class attendees have signed appropriate documentation certifying their fitness to undertake the class (such as a PAR-Q form); and
(m) exercise the rights granted under this agreement subject to all applicable laws, enactments, regulations and other similar instruments, and the Instructor understands and agrees that they shall at all times be solely liable and responsible for such observance and performance.
2. OBLIGATIONS OF AQUAPHYSICAL
2.1 In consideration for the Fee, AquaPhysical shall:
(a) Provide to the Instructor the:
i. FloatFit Training Day;
ii. Class Guidelines;
iii. Branding Guidelines; and
iv. Marketing Support;
(b) If appropriate, award the Instructor a certificate confirming the successful completion of the FloatFit Training Day (such passing and failing shall be at AquaPhysical’s sole discretion);
(c) grant the Instructor access to the ‘online instructor’s portal’ currently found at www.AquaPhysical.com; and
(d) add the location of the Instructor’s FloatFit Class to the AquaPhysical website.
3. GRANT
3.1 In exchange for the payment of the Fee, the Instructor’s compliance with the obligations in clause 1.1 and in accordance with this agreement, AquaPhysical hereby grants to the Instructor a non-exclusive revocable licence (the “FloatFitLicence”) to do the following during the Term and Extended Term (if applicable) subject to, and in accordance with, the terms of this agreement:
(a) provide the FloatFit Class in accordance with the Class Guidelines;
(b) sell the Licensed Product to FloatFit Class customers; and
(c) reproduce AquaPhysical’s Intellectual Property in any advertising or promotional material relating to the FloatFit Class in accordance with the Branding Guidelines.
4. CHARGES AND PAYMENT
In order to conduct programme classes and to maintain your status as a certified instructor you must attend a FloatFit Workshop every 2 years
4.1 In consideration of AquaPhysical providing the FloatFit Training Day and granting the FloatFit Licence to the Instructor, the Instructor shall pay to AquaPhysical or to a FTP officially designated by AP:
(a) the Fee; and
(b) attend a FloatFit Workshop every 2 years
For the avoidance of doubt, AquaPhysical and any FTP will accept payment of the Fee and FloatFit Workshop costs on behalf of the Instructor by a third party.
4.2 The Instructor shall pay the Fee within 7 days of receiving AquaPhysical’s or the FTP’s invoice to the bank account nominated by AquaPhysical or the FTP from time to time.
4.3 It is the responsibility of the Instructor to ensure that the Fee and FloatFit Workshop costs are paid in a timely manner regardless of whether they are paid by the Instructor or a third party. If the Instructor fails to make a payment in line with AquaPhysical or the FTP’s invoice, AquaPhysical reserves the right to:
(a) suspend the Instructor’s FloatFit Class certification; and/or
(b) terminate the agreement by following the process in clause 9.4(b); and/or
(c) charge interest on the overdue amount at the rate of 4% per annum above HSBC Bank’s base rate from time to time.
5. REPUTATION OF AQUAPHYSICAL AND ITS INTELLECTUAL PROPERTY
5.1 The Instructor shall not at any time make any statement that is knowingly defamatory, disparaging or derogatory of or to AquaPhysical, the FloatFit Class or the AquaBase, or become involved in a public dispute or scandal that, in AquaPhysical’s sole opinion, affects the Instructor or AquaPhysical’s image or reputation. A breach of this clause 5.1 by the Instructor shall entitle AquaPhysical, in its sole discretion, to terminate this agreement.
6. CONFIDENTIALITY
6.1 Each party undertakes that it shall not at any time during this agreement, and for a period of 2 years after the expiry or termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, nor any of the terms of this agreement, except as specifically required under law.
7. PROTECTION OF AQUAPHYSICAL’S INTELLECTUAL PROPERTY
7.1 The Instructor shall immediately notify AquaPhysical in writing giving full particulars if any of the following matters come to their attention:
(a) any actual, suspected or threatened infringement of AquaPhysical’s Intellectual Property; or
(b) any claim made or threatened that the AquaBase or the FloatFit Class infringes the rights of any third party.
7.2 In respect of any of the matters listed in clause 7.1:
(a) AquaPhysical shall, at its absolute discretion, decide what action to take, if any;
(b) AquaPhysical shall have exclusive control over, and conduct of, all claims and proceedings;
(c) the Instructor shall not make any admissions other than to AquaPhysical and shall provide AquaPhysical with all assistance that they may reasonably require in the conduct of any claims or proceedings; and
(d) AquaPhysical shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
8. LIABILITY AND INDEMNITY
8.1 To the fullest extent permitted by law, AquaPhysical shall not be liable to the Instructor for any costs, expenses, loss or damage (whether direct, indirect or consequential, and whether economic or other) arising from the Instructor's exercise of the rights granted to it under this agreement.
8.2 The Instructor shall indemnify AquaPhysical against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, legal costs and all other professional costs and expenses) suffered or incurred by AquaPhysical arising out of or in connection with:
(a) the Instructor's exercise of its rights granted under this agreement;
(b) any claim made against AquaPhysical by a third party for death, personal injury or damage to property arising out of or in connection with a FloatFit Class;
(c) the Instructor's breach or negligent performance or non-performance of this agreement; and
(d) the enforcement of this agreement.
8.3 This indemnity shall apply whether or not AquaPhysical has been negligent or at fault.
8.4 Nothing in this agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence.
9. DURATION AND TERMINATION
9.1 This agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 9, for 2 years of the Effective Date (the “Term”) when it shall expire automatically.
9.2 This agreement shall extend for consecutive further 2 year periods on the Instructor’s successful completion of a FloatFit Workshop, such passing and failing shall be at AquaPhysical’s sole discretion (each further 2 year period shall be an “Extended Term”).
9.3 AquaPhysical shall have the right to terminate this agreement:
(a) immediately if the Instructor does not pass the FloatFit Training Day or FloatFit Workshop;
(b) immediately if in AquaPhysical’s sole opinion the Instructor is in breach of clause 5.1 (Reputation of AquaPhysical and its Intellectual Property); or
(c) for any reason on giving the Instructor not less than 3 months' written notice of termination.
9.4 Either party may terminate this agreement with immediate effect by giving written notice if:
(a) the other suffers an Insolvency Event;
(b) the other commits a material breach of this agreement that is not remedied within 14 days (if capable of remedy) of written notice being provided; or
(c) a force majeure event occurs in accordance with clause 11.8 and the requisite 14 days’ written notice is served and completed.
10. CONSEQUENCES OF TERMINATION
10.1 On expiry or termination of this agreement for any reason and subject to any express provisions set out elsewhere in this agreement:
(a) all outstanding sums payable by the Instructor to AquaPhysical shall immediately become due and payable;
(b) the FloatFit Licence, Photo Licence and all other rights granted pursuant to this agreement shall immediately cease;
(c) the Instructor shall cease to make any use of the AquaPhysical Intellectual Property; and
(d) the Instructor shall return promptly to AquaPhysical, at the Instructor's expense, all records and copies of any information of a confidential nature communicated to it by AquaPhysical, either preparatory to, or as a result of, this agreement, to the extent such material remains confidential.
11. GENERAL
11.1 The Instructor shall not grant sub-licences under this agreement nor shall the Instructor be entitled to subcontract any of the rights under this agreement.
11.2 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
11.3 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 If any provision or part-provision of this 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.
11.6 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
11.7 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of the other party.
11.8 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 1 month, the party not affected may terminate this agreement by giving 14 days' written notice to the affected party.
11.9 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) and be deemed to be received on the same day if delivered by hand or the second Business Day after posting; or
(b) sent by email to the address specified by the parties from time to time and be deemed received at 9:00am on the next Business Day.
11.10 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales whose courts shall have exclusive jurisdiction.
12. INTERPRETATION
The following definitions and rules of interpretation apply in this agreement.
12.1 Definitions:
AquaPhysical’s Intellectual Property | means: (i) any Intellectual Property belonging to AquaPhysical prior to this agreement including without limitation the trade marks AquaBase, FloatFit, AquaPhysical™ and ; and (ii) any Intellectual Property in a FloatFit Class. |
Branding Guidelines | will be sent to the FloatFit instructor following the training day and will be amended by AquaPhysical from time to time. |
Business Day | means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. |
Class Guidelines | are as set out at Schedule 2 as amended by AquaPhysical from time to time. |
Effective Date | means the of attendance by the Instructor on the FloatFit Training Day. |
Extended Term | has the meaning given to it in clause 9.2. |
Fee | the fee paid in accordance with clause 4 of this agreement together with any VAT (if applicable). |
FloatFit Class | means the exercise classes using the AquaBase created and designed by AquaPhysical. |
FloatFit Licence | has the meaning given to it in clause 3.1. |
FloatFit Training Day | means a full day’s workshop provided by AquaPhysical in which individuals are taught how to become FloatFit Class instructors. |
FloatFit Workshop | (A) means a full day’s update workshop to be taken on a biennial basis by the Instructor to maintain their FloatFit Class certification. |
Insolvency Event | means the other party 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, being a company or limited liability partnership, is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or, being an individual, is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986. |
Intellectual Property Rights or Intellectual Property | means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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. |
Licensed Products | means the Products on which AquaPhysical’s Intellectual Property has been reproduced for sale to FloatFit Class customers. |
Photo Licence | means the licence to use any photographs that are sent to the Instructor for use in accordance with the terms of that licence and which may be found at Schedule 3 as amended by AquaPhysical from time to time. |
Products | are as set out at Schedule 4 as amended or as otherwise notified to the Instructor in writing by AquaPhysical from time to time. |
Quarterly Update | means the updates to the Class Guidelines provided by AquaPhysical to the Instructor every three months. These can be purchased from AquaPhysical |
Term | has the meaning given to it in clause 9.1. |
VAT | means value added tax or any equivalent tax chargeable in the or elsewhere. |
12.2 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
12.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
12.4 A reference to writing or written includes fax and email.
