Terms of Use

(Updated 25 Sep 2020)

 

1         APPLICATION OF TERMS

1.1  These Terms apply to your use of the Service (as that term is defined below).  By accessing and using the Service:

a.            you have read, understand, and agree to these Terms; and

b.            where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

1.2        If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.

 

2         CHANGES

2.1        We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice.  You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.

2.2        These Terms were last updated on 25th Sep 2020.

 

3         INTERPRETATION

In these Terms:

SparkFit Website and Software referred to as SparkFit Website means the website (“https://www.sparkfit.com.my”) and software owned by us (and our licensors) that is used to provide the Service.

Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the SparkFit website. Your Confidential Information includes the Data.

Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service.

Fees means the applicable fees set out on our pricing page on the SparkFit Website or as agreed otherwise in writing between you and us, as may be updated from time to time.

Force Majeure means an event that is beyond the reasonable control of a party, excluding:

– an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or

– a lack of funds for any reason.

including and similar words do not imply any limit.

Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

a party includes that party’s permitted assigns.

Permitted Users means your personnel who are authorised to access and use the Service on your behalf in accordance with clause 5.3.

a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.

personal information means information about an identifiable, living person, and includes personal data, personally identifiable information and equivalent information under applicable privacy and data protection laws.

personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.

Service means the online marketplace through the Website that connects fitness professionals (collectively, “Service Providers”) who offer sessions and classes to those seeking fitness services (collectively, “Service Seekers”), a platform for Service Providers to list information about themselves and the types of services they offer and for Service Seekers to schedule and pay for Services offered by Service Providers through the Website.

Location means the place where the Service Provider will provide the Service to the Service Seeker, the location may be including but not limited to studio, gyms in residential buildings, commercial gyms, parks, and any other location that can facilitate the Service.

Start Date means the date that you first access or use the Service. 

Terms means these terms titled SparkFit terms of use.

Underlying Systems means the SparkFit website, Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third-party solutions, systems and networks.

We, us or our means Spark Life Sdn. Bhd., company number 202001021654, a company incorporated in Malaysia whose registered office is at 19B, Jalan Tapah, Off Jalan Goh Hock Huat, 41400 Klang, Selangor, Malaysia.

Website means the internet site at www.sparkfit.com.my, or such other site notified to you by us.

Year means a 12-month period starting on the Start Date or the anniversary of that date.

You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

Words in the singular include the plural and vice versa.

A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

 

4         PROVISION OF THE SERVICE

4.1        We must use reasonable efforts to provide the Service:

a.            in accordance with these Terms and Malaysia law; and

b.            exercising reasonable care, skill and diligence; and

c.            using suitably skilled, experienced and qualified personnel.

4.2        Our provision of the Service to you is non-exclusive.  Nothing in these Terms prevents us from providing the Service to any other person.

4.3        We must use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website advance details of any unavailability.

4.4        Through the use of web services and APIs, the Service interoperates with a range of third-party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation.

 

5         YOUR OBLIGATIONS

5.1        You and your personnel must:

a.            use the Service in accordance with these Terms solely for:

i               searching for fitness professionals to engage for personal training according to the agreements between the Service Provider and the Service Seeker; and searching for fitness classes and purchasing tickets to these classes to attend them according to the date and time defined through the tickets purchase process; and

ii              searching for fitness events and being able to visit the event related website which can be out of SparkFit website; and

iii            managing user profile; and creating class and events and managing their details; and

iv            lawful purposes including complying with any applicable law regulating unsolicited electronic messages.

b.            not resell or make available the Service to any third party, or otherwise commercially exploit the Service.

5.2        When accessing the Service, you and your personnel must:

a.            not impersonate another person or misrepresent authorisation to act on behalf of others or us; and

b.            correctly identify the sender of all electronic transmissions; and

c.            not attempt to undermine the security or integrity of the Underlying Systems; and

d.            not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service; and

e.            not attempt to view, access or copy any material or data other than:

i               that which you are authorised to access; and

ii              to the extent necessary for you to use the Service in accordance with these Terms; and

f.             neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

5.3        Without limiting clause 5.2, no individual other than a Permitted User may access or use the Service. You may authorise any member of your personnel to be a Permitted User. You must procure each Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you. Any other individual other than the Permitted User is required to set up their own unique account.

5.4        A breach of any of these Terms by your personnel, including, to avoid doubt, a Permitted User is deemed to be a breach of these Terms by you.

5.5        You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.

 

6         DATA

6.1        You acknowledge that:

a.            we may require access to the Data to exercise our rights and perform our obligations under these Terms; and

b.            to the extent that this is necessary but subject to clause 10, we may authorise a member or members of our personnel to access the Data for this purpose.

6.2        You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.

6.3        You acknowledge and agree that:

a.            we may:

i               use Data and information about you and your end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data);

ii              use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;

b.            our rights under clause 6.3a above will survive termination of expiry of the Agreement; and

c.            title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.

6.4        You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent and/or as a data processor for the purposes of applicable privacy and data protection laws.  You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.

6.5        While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.

6.6        You agree that we may store Data including any personal information in secure servers in overseas territories like Singapore and Japan and may access that Data including any personal information in Singapore and Japan from time to time.

6.7        You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

 

7         FEES

Service Providers;

7.1     You must pay us the Fees based on the cost of service in form of subscription to use our website to promote your services, classes and events. 

7.2     We will provide you with invoices on a monthly or annual basis depending on your subscription payment preference prior to the due date for payment.

7.3     The Fees exclude any applicable goods and services, value-added, sales or other similar tax, which you may be required to pay on taxable supplies.

7.4     You must pay the Fees:

7.4.1.following the date of invoice and the start date or renewal date of your subscription; and

7.4.2 electronically in cleared funds without any set off or deduction.

7.5   We may increase the Fees by giving at least 30 days’ notice.  If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Service by cancelling your subscription through the site.  If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees.

7.6   Any request to cancel the subscription will be processed within five working days and if any refund is applicable will be made within five working days. You may also cancel your subscription through the Website. Any cancellation of subscription will only take effect from the following month and the fees for the current month will be applicable.

7.7   Upon cancellation of the subscription all the promotions and benefits which were available within the subscription will be forfeited and Service Providers profile will be removed from the Website.

Service Seeker;

7.8   You must pay the Fees for services offered by Service Providers such as but not limited to personal training or fitness classes based on the cost of service described in the Website.

7.9   We will provide you with invoices upon any payment made through the Website.

7.10  The Fees exclude any applicable goods and services, value-added, sales or other similar tax, which you may be required to pay on taxable supplies.

7.11  We may increase the Fees without any prior notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Service by not purchasing any of the Services offered through the Website.  If you do not terminate these Terms and your right to access and use the Service in accordance with this clause and continue to purchase any Service through the Website, you are deemed to have accepted the increased Fees.

7.12  You indemnify SparkFit and Service Providers against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

 

8         CANCELLATION AND RE-SCHEDULING

Service Provider;

8.1   You may re-scheduled Services through the Website and contacting the Service Seekers.

8.2   If the cancelled Service is in the category of personal training services, you are obliged to reschedule the Service at a date and time that is agreed by the Service Seeker. Failing to do so will mean cancellation of that specific session by Service Provider and the fees will be refunded to Service Seeker.

8.3   If the cancelled Service is in the category of classes or events, the collected fees from the Service Seekers will be refunded to them and the Service Provider will not be receiving any amount from the collected fees.

8.4   It is recommended that class cancellations happen at least 2 days prior to the class date.

Service Seeker;

8.5   If a scheduled service is cancelled by Service Provider in the category of personal training, you may be notified via telephone or email through the telephone number or the email address associated with the account, and will be entitled to schedule a new session in place of the cancelled Service at no extra cost. If the session is cancelled by Service Seeker, or Service Seeker does not attend the session without informing the Service Provider and without their agreement to reschedule, the fees for that session will be forfeited and paid to the Service Provider. SparkFit has a no cancellation and no refund policy, and any re-scheduling is only at Service Providers discretion. If Service Provider does not attend scheduled sessions, the paid fees will be forfeited and no refund will be done.

8.6   If a scheduled service is cancelled in the category of classes and events, you may be notified via telephone or email through the telephone number or the email address associated with the account, and will be entitled to full refund for the cancelled Service.

8.7   A Service Seeker that has purchased the tickets to attend a Service will not be able to cancel or reschedule or ask for refund for a purchased service.

 

9         INTELLECTUAL PROPERTY

9.1        Title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property).  You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

9.2        Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property.  You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms. If you provide any content in any form but not limited to images, videos, text, you confirm that you have the rights and permission to use and provide those contents and SparkFit will not be liable for any damage or complaint from any party in relation to the contents provided by Service Provider or Service Seekers.

9.3        To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.

9.4        If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):

a.            all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and

b.            we may use or disclose the feedback for any purpose.

9.5        You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service.  Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

 

10       CONFIDENTIALITY

10.1     Each party must, unless it has the prior written consent of the other party:

a.            keep confidential at all times the Confidential Information of the other party;

b.            effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and

c.            disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 10.1a and 10.1b.

10.2     The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:

a.            for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;

b.            required by law (including under the rules of any stock exchange);

c.            which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

d.            which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or

e.            by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.

 

11       WARRANTIES

11.1     Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.

11.2     To the maximum extent permitted by law:

a.            our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to MYR 100; and

b.            we make no representation concerning the quality of the Service and do not promise that the Service will:

i               meet your requirements or be suitable for a particular purpose

ii              be secure, free of viruses or other harmful code, uninterrupted or error free.

11.3     Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms.  However, our liability for any breach of that condition or warranty is limited, at our option, to:

a.            supplying the Service again; and/or

b.            paying the costs of having the Service supplied again.

 

12       LIABILITY

12.1     Service Seekers use the services of Service Providers in any form at their own risk. Service Seekers understand and agree that Service Providers are not employees, agents, joint ventures or partners of SparkFit. The SparkFit Website solely offers a marketplace for Service Providers and Service Seekers to connect with one another and to engage directly or purchase the classes offered by Service Providers.

12.2     Service Providers act exclusively on their own behalf and not on behalf of SparkFit. SparkFit make no representations, warranties, guarantees, or endorsements as to any Service Provider or other third party products or services, the compatibility of any Service Seeker with any Service Provider, or the quality, timing, legality, or other aspect of the Services or products offered or delivered by Service Providers, or otherwise recommended, advertised, or offered on or through the SparkFit Website.

12.3     SparkFit makes no representation, warranties or guarantees as to amounts trainers may earn through the SparkFit Website, the conduct of any Service Seeker, the safety of suitability of any Service location, or Service Seeker cancelling any Service.

12.4     Neither party including Service Provider, Service Seeker, and SparkFit, is liable to the other under or in connection with these Terms or the Service for any:

a.            loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

b.            consequential, indirect, incidental or special damage or loss of any kind.

12.5     Clauses 12.4 and 12.5 do not apply to limit our liability under or in connection with these Terms for:

a.            personal injury or death;

b.            fraud or wilful misconduct; or

c.            a breach of clause 10.

12.6     Clause 12.5 does not apply to limit your liability:

a.            to pay the Fees;

b.            under the indemnity in clause 7.13; or

c.            for those matters stated in clause 12.6a to 12.6b.

12.7     Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.

12.8     Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.

12.9     You are solely responsible for all of your communications, interactions and dealings with other users of the SparkFit Website and with other individuals or entities that you communicate, interact or deal with through the SparkFit Website or as a result of your use of the SparkFit Website, including, but not limited to, Service Seekers, Service Providers, and other third parties. SparkFit is not obligated to conduct reviews, verifications, background checks or other screenings (such as sex offender register searches) of trainers or users. accordingly, you agree to take all reasonable precautions and to conduct whatever investigation you feel necessary or appropriate before proceeding with such communications, interactions or dealings. SparkFit is not responsible or liable for any losses of any kind or nature incurred as the result of such communications, interactions or dealings.

12.10  By using the SparkFit Website, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users of the SparkFit Website or with other individuals or entities that you communicate, interact or deal with as a result of your use of the SparkFit Website including, but not limited to, Service Seekers, Service Providers, and other third parties, will be limited to a claim against the particular individual or entity that caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from SparkFit with respect to such actions or omissions.

12.11  You agree to indemnify, hold harmless and defend the SparkFit from and against any and all Losses arising out of, relating to, resulting from or in connection with: (a) your breach or violation of any term, condition, obligation, representation, warranty or covenant set forth in these Terms, violation of any applicable law or violation of the rights of SparkFit or any third party damaged by your actions or by the actions of anyone else accessing the account; (b) any information (including your User Content or any other content) that you submit, post, or transmit on or through the SparkFit Website; or (c) any activity that occurs in connection with use of the account, your activity and conduct in connection with any session, or your dispute with any other user of the SparkFit Website or with other individuals or entities that you communicate, interact or deal with as a result of your use of the SparkFit Website, including, but not limited to, Service Seekers, Service Providers, and other third parties.

 

13       TERM, TERMINATION AND SUSPENSION

13.1     Unless terminated under this clause 13, these Terms and your right to access and use the Service:

a.            starts on the Start Date; and

b.            continues until a party gives at least 30 days’ notice that these Terms and your access to and use of the Service will terminate on the expiry of that notice.

13.2     Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:

a.            breaches any material provision of these Terms and the breach is not:

i               remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or

ii              capable of being remedied; or

b.            becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

13.3     You may terminate these Terms and your right to access and use the Service in accordance with clause 7.5 and 7.12.

13.4     Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.

13.5     On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.

13.6     No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.  

13.7     Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 13.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control. 

13.8     At any time prior to one month after the date of termination, you may request:

a.            a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy.  On receipt of that request, we must provide a copy of the Data in a common electronic form.  We do not warrant that the format of the Data will be compatible with any software; and/or

b.            deletion of the Data stored using the Service, in which case we must use reasonable efforts to promptly delete that Data. 

To avoid doubt, we are not required to comply with clause 13.8a to the extent that you have previously requested deletion of the Data.

13.9     Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:

13.10  undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;

13.11  used, or attempted to use, the Service:

i               for improper purposes; or

ii              in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;

13.12  transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

13.13  otherwise materially breached these Terms.

13.14  SparkFit reserves the right, at its sole discretion, immediately and without notice, to suspend, discontinue, or terminate your access to the SparkFit Website or any portion thereof for any reason, including, without limitation, any breach by you of these Terms. You agree that SparkFit shall not be liable to you or any third party for any such suspension, discontinuance or termination. If you breach or violate any of these Terms, your permission to access or use the SparkFit Website is automatically and immediately revoked and you may not continue using the SparkFit Website or participate in any Session.

 13.15  Agreement to Arbitrate. You agree that in the event of any dispute, claim, question, or disagreement arising out of or relating to the Services, this Agreement, or the breach thereof, shall be settled by arbitration administered by Asian International Arbitration Centre (AIAC) in accordance with the Asian International Arbitration Centre Rules.

 

14       GENERAL

14.1     Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

14.2     No person other than you and us has any right to a benefit under, or to enforce, these Terms.

14.3     For us to waive a right under these Terms, that waiver must be in writing and signed by us.

14.4     Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

14.5     If we need to contact you, we may do so by email or by posting a notice on the Website.  You agree that this satisfies all legal requirements in relation to written communications.  You may give notice to us under or in connection with these Terms by emailing info@sparkfit.com.my.

14.6     These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the law of Malaysia.  Each party submits to the non-exclusive jurisdiction of the Courts of Malaysia in relation to any dispute connected with these Terms or the Service.

14.7     Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.7, 9, 10, 12, 13.4 to 13.8 and 14.6, continue in force.  

14.8     If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.  If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms.  The remainder of these Terms will be binding on you.

14.9     Subject to clauses 2.1 and 7.5 and 7.12, any variation to these Terms must be in writing.

14.10  These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.  Without limiting the previous sentence, the parties agree that it is fair and reasonable that the parties are bound by this clause 14.10.

14.11  You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld.  You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer. 

14.12  you represent that you are 18 years of age or older, or of an age to form a legal binding contract where you reside and you are that not prohibited from accessing or using the SparkFit Website and engaging with any of the Service Providers under the laws of Malaysia or any other applicable jurisdiction. SparkFit does not knowingly collect information from any person under age 18. If you are under age 18, you are not permitted to use the SparkFit Website or to submit any personally identifiable information to the SparkFit Website. If you provide information to SparkFit or any Service Provider or Service Seeker through the SparkFit Website, you represent that you are 18 years of age or older. Notwithstanding the foregoing, if you are under 18 years of age, you may participate in a Services if your parent or guardian schedules and pays for the Service through the SparkFit Website, agrees to these Terms on your behalf, and supervises or participates in the Session. If you schedule a Service for someone who is under 18 years old, you represent and warrant to SparkFit that: (a) you are that individual’s parent or guardian, (b) that you agree to these Terms on that individual’s behalf, (c) that you have permission to provide personally identifiable information about that individual to SparkFit and that SparkFit may use such personally identifiable information, and (d) that you will supervise or participate in the Session.

14.13  SparkFit may make changes to all content available on or through the SparkFit Website including, without limitation, text, brands, photographs, documents, graphics, audio, videos, logos, icons, images, media, data, charts, maps, software and other information and materials ideas, proposals, concepts, content, materials, works and deliverables (collectively, the “Content”), services or features of the SparkFit Website, and any other aspect of the SparkFit Website or any part or any of the foregoing, at any time. You understand and agree that SparkFit may discontinue or restrict your use of all or any part of the SparkFit Website at any time for any reason or no reason and with or without notice.

14.14  SparkFit is not responsible for the Location of the Service or the fees associated to the Location and the Service Provider and Service Seeker are responsible for arranging a suitable Location for the Service. Any Location provided by Service Seeker or Service Provider, you represent and warrant that this Location is a safe and suitable Location for the Service and you or the other participants are authorized to host the Service in such Location. SparkFit itself is not a gym, fitness studio or Service Provider and does not own, operate or control any of the classes, services, facilities, and overall Services accessible through the Website.

14.15  Duration, cost, and the number of sessions for the Service are defined in the Service details page for each Service Provider and is decided by the Service Provider.

14.16 The SparkFit Website may include features that enable you to send information, materials, emails and other types of messages or notices to SparkFit or to other users of the SparkFit Website, create a profile in connection with your Account accessible to other users of the SparkFit Website or the public, submit reviews, opinions, biographical information and other content that others may be able to access or view, or to make other information, materials or submissions available on or through the SparkFit Website (“User Content”). User Content shall be deemed part of the defined term “Content” for purposes of these Terms. You retain the rights you hold in your User Content. All User Content made available on the SparkFit Website is strictly that of the originating author or user, who shall be solely responsible for such content. SparkFit may or may not screen, review, monitor or respond to any User Content submitted by users, and is not responsible for the accuracy or truthfulness of any User Content. However, SparkFit reserves the right to edit, block, or remove any User Content at any time for any reason, in its sole discretion. Use of or reliance on User Content is entirely at your own risk. SparkFit has no obligation to screen or monitor any user content and does not guarantee that any content complies with these terms or is suitable for all users of the SparkFit Website. By submitting User Content, you grant SparkFit a royalty-free, perpetual, irrevocable, worldwide license, without further compensation, to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute such User Content for any purposes, including, without limitation to advertise and promote SparkFit or the SparkFit Website. You warrant and covenant that your User Content is true, your own original work, and does not violate any applicable law, infringe or violate any other person’s or entity’s rights, or require any third-party releases or any payment to a third party.

 

15       ACCEPTABLE BEHAVIOUR POLICY

15.1     SparkFit has a zero-tolerance policy for any behaviour, communication, expression in various forms of content such as but not limited to written, audio, video, and anything that can be considered as sexual abuse, seductive, harassment, grooming, and any other behaviours that can suggest similar behaviours have taken place. In case a Service Seeker or Service Provider do not comply with this policy, their account and subscription will be terminated and they will not longer be allowed to access the SparkFit Website or any of the services related to Spark Life Sdn. Bhd., all data related to the Service Seeker and Service Provider that may relate to such cases will be stored for an indefinite time to assist any possible legal cases that may arise.

15.2     You are responsible for your use of the SparkFit Website. You agree that the following actions, without limitation, are prohibited and constitute a material breach of these Terms. This list is not meant to be exhaustive, and SparkFit reserves the right to determine what types of conduct it considers to be inappropriate use of the SparkFit Website or any part thereof. In the case of inappropriate use, SparkFit may take such measures as it determines in its sole discretion. By way of example, and not as limitation, you agree that you will not:

a.            use the Website for any purpose other than obtaining or offering personal training, classes, events, and fitness services; no other services may be obtained or offered in connection with the Website Services;

b.            display any disrespectful or inappropriate behaviour at any time during any Services;

c.            contact a Service Seeker if you are a Service Provider or contact a Service Provider if you are a Service Seeker for any reason other than for reasons that pertain to a Service that was scheduled, provided that a Service Seeker may only contact a Service Provider, and a Service Provider may only contact a Service Seeker, through text or telephone during the following times: (a) between the hours of 8:00 a.m. and 8:00 p.m. local time, (b) if your Service is scheduled for a time before 8:00 a.m. local time, on the day of your Service you may also be contacted before 8:00 a.m. local time, but no earlier than one hour before your scheduled Service; and (c) if your Service is scheduled for a time after 8:00 p.m. local time, on the day of your Service you may also be contacted after 8:00 p.m. local time, but no later than one hour following your scheduled Service.

15.3     transfer or sell any Service; Service may not be transferred to other individuals and may not be sold;

15.4     violate any law or regulation or use the SparkFit Website for any improper purpose or to take any action in violation of any law or regulation;

15.5     violate or infringe any other users of the SparkFit Website or third party’s intellectual property, privacy, publicity, or other legal or contractual rights;

15.6     use the SparkFit Website to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs or personal contact information of others, without their permission, other than with respect to reviews that you may leave for Service Providers or Service Seekers through the SparkFit Website;

15.7     transmit anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;

15.8     send unsolicited or unauthorized advertising or commercial communications, such as spam;

15.9     transmit any malicious code, computer viruses, cancel bots, Trojan horses, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;

15.10  stalk, harass, defame, threaten, or harm another individual;

15.11  impersonate or misrepresent your identity or your affiliation with any person or entity;

15.12  create a false impression that you are endorsed by, partnering with, or acting on behalf of or for the benefit of SparkFit;

15.13  use any automated devices, bots, agents, crawl, scraping, scripts, intelligent search or any similar means of access to Content or other information or materials available through the SparkFit Website;

15.14  systematically retrieve data or other Content from the SparkFit Website to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual or automated methods (although operators of public search engines may use spiders to index materials from the SparkFit Website for the sole purpose of creating publicly available searchable indices of the materials, and SparkFit reserves the right to revoke these exceptions either generally or in specific cases);

15.15  use automated methods to use the SparkFit Website in a manner that sends more requests to the SparkFit servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser;

15.16  interfere with or damage, or attempt to interfere with or damage, the SparkFit Website or any functionality thereof, in any way, including, without limitation, by using any device, software or routine or the like, or attempt to access any area of the SparkFit Website to which your access is not authorized;

15.17  register for more than one account, register for an account on behalf of an individual other than yourself, or transfer the account to another party without our consent;

15.18  use the SparkFit to recruit or otherwise solicit any users to join third party services or websites that are competitive to SparkFit, without SparkFit’s prior written approval;

15.19  use, display, mirror, or frame the SparkFit Website or any individual element within the SparkFit Website, SparkFit’s name, any SparkFit trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without SparkFit’s express written consent;

15.20  copy, adapt, modify, prepare derivative works based upon, distribute, aggregate, license, sublicense, sell, resell, transfer, assign, publicly display, publicly perform, transmit, broadcast or otherwise exploit the SparkFit Website or its content, except as expressly permitted in these Terms;

15.21  access, tamper with, or use non-public areas of the SparkFit Website, SparkFit’s computer systems, or the technical delivery systems of SparkFit’s providers;

15.22  falsify or delete any author attributions, legal or other notices, or proprietary designations or labels of origin or source;

15.23  attempt to probe, scan, or test the vulnerability of any SparkFit system or network or breach any security or authentication measures;

15.24  take any action that imposes an unreasonable or disproportionately large burden on the SparkFit Website’s infrastructure or that otherwise may adversely affect performance of the SparkFit Website or restrict any other users or SparkFit from using or enjoying the SparkFit Website;

15.25  harvest or otherwise collect information about others, including, without limitation, email addresses or other contact information, without their consent, or hack or violate any security measures of the SparkFit Website;

15.26  avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by SparkFit or any of SparkFit’s providers or any other third party (including another users) to protect the SparkFit Website;

15.27  attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the SparkFit Website, except as permitted by applicable law;

15.28  engage in any other action that, in the judgment of SparkFit, exposes it or any third party to potential liability or detriment of any type; or

15.29  cause, advocate, encourage, or assist any third party in doing any of the foregoing.

15.30  You acknowledge that SparkFit has no obligation to monitor your access to or use of the SparkFit Website, but has the right to do so for any purpose, in its sole discretion. SparkFit may at its discretion investigate and prosecute violations of these Terms to the fullest extent of the law. SparkFit may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.

 

 

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