Terms and Conditions Affiliates
These terms may have changed since you last reviewed them
For a list of changes and when they were made.
1. Introduction
About us. Wowness Club Limited ("we") provide a booking platform on which practitioners ("you") can advertise the holistic health and wellness services, events, and experiences you offer to a wider range of potential customers. We are a limited company registered in England and Wales under company number 14185864 and have our registered office at 167-169 Great Portland Street, 5th Floor, London, England, W1W 5PF.
Agreement.
These terms and conditions ("Conditions"), and the other documents that we refer to below and on our Website, set out the legally binding agreement ("Agreement") between you and us which applies when you sell Practitioner Services via the Website.
It is important that you read and understand these Conditions before agreeing to them.
Definitions that apply to these Conditions are set out in the main body of these Conditions and in clause 17 (Definitions and Interpretation).
Updates to the Agreement. We may update the Agreement (including the Fees) from time to time. We will notify you by email of any proposed changes. Except in the limited situations described in clause 1.5 below, the proposed changes will not apply until at least 15 (fifteen) days from and including the date on which we notify you about them (and we will set out the date that the changes will apply from in the relevant notification). If a proposed change(s) means that you then need to make technical or commercial adjustments in order to comply with it, we will always give you a longer notice period before the change(s) apply.
Right to terminate if you don't agree to an update to the Agreement. Whenever we notify you of a proposed change to the Agreement, you will have the right to terminate the Agreement before the expiry of the applicable notice period. If you do wish to terminate and let us know during the applicable notice period, the termination will then take effect 15 (fifteen) days from your receipt of the notification. You will give up your right to terminate if you take clear action which indicates you wish to continue the Agreement with the proposed changes. For example, submitting new Practitioner Services during the notice period will be considered by us as clear affirmative action that you wish to give up your termination right. Please see clause 2.4 below for more information on the effects of termination.
When the notice period does not apply. The minimum 15 (fifteen) day notice period in clause 1.3 above will not apply where:
we are subject to a legal or regulatory obligation that requires us to change the Agreement in a way that does not allow us to give you that length of notice period; and
we need to change the Agreement to address an unforeseen and imminent danger that relates to defending the Wowness Club Service, the Website, Customers or Practitioners from fraud, malware, spam, data breaches or other cybersecurity risks.
Term and Termination
Term. The Agreement applies throughout the period of our provision of the Wowness Club Service to you ("Term"). The Term will start after:
we have received from you an Application Form completed to our satisfaction and the documents outlined in clause 4.1.2 and 4.1.3; and
we have notified you in writing of our acceptance of your Application Form and the documents outlined in clause 4.1.2 and 4.1.3. It will be entirely at our discretion whether we accept your Application Form; and
you have paid the Subscription Fee, if applicable.
The Term will continue until terminated as set out in these Conditions.
Mutual right to terminate. We both have the right to terminate the Agreement by simply giving the other party at least 30 (thirty) days' written notice.
Restriction, suspension or termination by us. We may restrict, suspend or terminate our provision of the Wowness Club Service (or any part of it), or terminate the Agreement if:
you significantly breach the Agreement (including a significant breach of any of the Policies);
we have the right to do so, as set out in the rest of the Agreement, and we validly exercise that right;
you fail to pay any Fees payable to us within 7 (seven) Working Days of their due date for payment;
you don't use the Wowness Club Service for a period of 90 (ninety) days or more;
if you don’t have enough money to pay your debts when they fall due, or you enter into a legal process or an arrangement relating to being unable to pay your debts;
in our sole discretion, we determine that your eligibility or suitability to be listed on the Website, or to receive the Wowness Club Service, changes.
Exercising our right to restrict, suspend or terminate.
If we restrict or suspend our provision of the Wowness Club Service (or any part of it), we will provide you with a clear explanation of our reasons for doing so (including referencing any specific relevant facts and circumstances, along with the applicable grounds we're relying on to do so) by email on or before the date on which the restriction or suspension becomes effective, in order to give you the opportunity to clarify the facts and circumstances.
If we terminate the provision of the Wowness Club Service to you or the Agreement, we will provide you with a statement setting out our reasons for that decision (including referencing any specific relevant facts and circumstances, along with the applicable grounds we're relying on to do so) by email at least 15 (fifteen) days' before termination takes effect, except where:
we are obliged by a legal or regulatory obligation to terminate the provision of the Wowness Club Service or the Agreement; or
you have repeatedly infringed your obligations under the Agreement,
in which case we will provide you reasonable notice in the circumstances (if we can) and the statement of reasons for that decision by email as soon as reasonably possible).
What happens when the Wowness Club Service or Agreement is suspended or terminated. If the Wowness Club Service or our Agreement is suspended or terminated:
you must pay us all Fees due up to and including the date of suspension or termination;
you will remain liable to pay any outstanding refunds to Customers and associated Refund Fees (as detailed below) following suspension or termination;
we will not keep copies of any information provided or generated by you following the termination of the Agreement. If you need access to the information you have generated, you are responsible for keeping your own copies and we suggest that you should download such information during any notice period prior to suspension or termination;
your Profile Page will be hidden from Customers and/or will show as unverified, but you will continue to have access to the DashBoard for 30 days in order to pay any outstanding Fees and download information in accordance with clause 2.5.3 above; and
termination of this Agreement doesn't affect any of our or your rights or liabilities, and doesn't affect any provision set out in the Agreement which is expressly or by implication intended to come into force or continue in force after termination.
The Wowness Club Service
Provision of the Wowness Club Service. Following the start of the Term, we will:
provide you with a password so that you can set up your Profile Page and, once we’ve made the functions available to you, update your Profile Page;
provide the Wowness Club Service with reasonable skill and care; and
use reasonable efforts to restore any faults in the Wowness Club Service as soon as reasonably possible. As you will appreciate, the transmission of information via the internet is not completely secure, there is always a risk that communications by electronic means may not reach their intended destination, or may do so much later than intended, for reasons outside of our control, and that it is technically impossible to provide the Wowness Club Service entirely free of fault at all times.
Changes to the Wowness Club Service. We reserve the right to revise or alter the Wowness Club Service. Any variation in the Wowness Club Service will be subject to these Conditions.
The Platform. The Website provides a platform to allow you to offer and sell your Practitioner Services directly to Customers. In doing so, you authorise and appoint us as your commercial agent to directly negotiate and/or conclude the sale and/or purchase of Practitioner Services between you and Customers via the Wowness Club Service and we accept this appointment in accordance with these Conditions. As part of this process:
any contract to sell and buy Practitioner Services is made only between you and the Customer concerned and we are not a party to any such contract;
we facilitate the negotiation of the sale of Practitioner Services between you and Customers through the use of the Dashboard and e-mail communication services operated and managed by us, together with the Wowness Club Service, which contribute to increasing your goodwill, promote your Practitioner Services and generally encourage Customers to place orders with you; and
products and services offered for sale through the Website are neither owned by us nor come into our possession at any time.
Customer Feedback. We use a third-party service provider to provide Customer Feedback ("Customer Feedback Agent"). By using the Website and the Wowness Club Service you agree that:
we and/or the Customer Feedback Agent may, at our/their discretion, post on your relevant Service Page and on the Customer Feedback Agent's website any and all Customer Feedback relating to a transaction for a period of up to two (2) years after we and/or the Customer Feedback Agent receives that Customer Feedback;
following the provision of any Customer Feedback, we will make the Customer Feedback available to you via the Dashboard. You may submit a Response to any negative Customer Feedback via the facility provided by us on the Dashboard within 5 days of receipt of the negative Customer Feedback, and we and any Customer Feedback Agent will display any Response with reasonable prominence and proximity to the corresponding Customer Feedback, which may be posted on the Website and on the Customer Feedback Agent's website after 5 days have passed following receipt of the negative Customer Feedback. You agree that you will not contact any Customer directly, whether via the Dashboard, through an order or service enquiry or otherwise in response to any Customer Feedback;
you agree that you will ensure that any Response is true and accurate and not misleading in any way, and does not contain any material that may be construed as offensive, defamatory, or unlawful; and
we may, in accordance with the applicable terms and conditions of the Customer Feedback Agent, elect to amend, or not to post, any Response that we and/or the Customer Feedback Agent consider, in our/their sole discretion, to be offensive, defamatory, unlawful or otherwise inappropriate.
Introductions to other parties. We may from time to time introduce you to third parties with whom special terms have been arranged unique to our Practitioners. Any contract entered into between you and any such third party is concluded directly between you and the third party concerned and, except as expressly set out in these Conditions, we cannot be involved in the fulfilment or liability for any such contracts. We will let you know if we benefit from any special terms with such third parties.
Your obligations as a Services Practitioner
Your account and identity details
You promise that:
your business is incorporated and/or established (whether as a company, partnership, unincorporated association, or sole trader) in the United Kingdom or the Republic of Ireland;
where your business is established as a limited or public limited company, you are listed as a director on Companies House and all other information held on Companies House reflects the information you provide to us (e.g. company registration number, director(s) name(s), trading address, company name);
you are at least 18 years old;
you have a trading (operating) address in the United Kingdom or the Republic of Ireland;
you have in place, and will keep in place during the Term, valid insurance in accordance with clause 4.1.3; and
you have in place and will maintain in place all qualifications and certifications applicable to your profession.
You promise to provide the following details along with your Application Form and that they are accurate:
your driving licence or passport;
a recent utility bill in your name (within the last 3 months at the point of application);
a bank statement (this should include your name, address, sort code and account number and should correspond with any details held on Companies House where the statement relates to a limited or public limited company);
telephone and email address of the main account holder and any additional users of the account;
a copy of your insurance policy certificate and details of cover; and
copies of all relevant and recognised qualifications and certifications, applicable to the service you provide, in particular with any regulatory or governing body for your profession.
Please see our Privacy Policy for more information on how we handle this information.
As a condition of our providing the Wowness Club Service, we require that you have and maintain in place at all times appropriate insurance in accordance with good industry practice with a reputable insurer in relation to your business. On our written request, you agree to promptly provide us with any information we reasonably require concerning your insurance.
You agree to keep your account details up-to-date on the Dashboard throughout your use of the Wowness Club Service.
Technical requirements.
You agree to:
establish and maintain access to the internet at your own cost, through the use of a computer or other access device;
ensure that at all times all computer hardware and software you use to access and interoperate with the Website is equipped and functions with up-to-date software (including up-to-date internet browser software) and up-to-date protection against Viruses; and
ensure that all information you supply electronically to us and to the Website is submitted free from Viruses.
We have no responsibility for the provision, support and maintenance of any of your hardware or software used to provide you with access to the internet or the Website, or any related hardware or software (including any IP router, proxy server, firewall or anti-virus software), the responsibility for which will remain exclusively with you.
Security
You:
are responsible for the security and proper use of all passwords, or other security devices used in connection with the provision of the Wowness Club Service and access to the Profile Page and Dashboard (which includes changing passwords on a regular basis);
will take all necessary steps to ensure that passwords and other security devices remain confidential, secure, used properly and not disclosed to unauthorised third parties;
will inform us immediately if there is any reason to believe that a password or any other security device has or is likely to become known to someone not authorised to use it, or is being or is likely to be used in an unauthorised way;
will inform us immediately if you forget or lose a password and must satisfy such security checks as we may operate in order to obtain a new password; and
will ensure that the Dashboard and its content remain entirely confidential, and that no other person beside those in your employment has sight of the Dashboard or any of its content.
We reserve the right:
to suspend access to the Wowness Club Service if at any time we consider that there is or is likely to be a breach of security, in which event we will notify you of any steps to be taken by you as soon as possible; and
to require you to change (or to ourselves change, and then notify you) any or all of the passwords used by you in connection with the provision of the Wowness Club Service and access to the Profile Page and/or Dashboard, in which event we will notify you of the requirement to change passwords and any further steps to be taken by you as soon as possible.
Your Profile Page
We have absolute discretion as to:
the look, feel and content of the Website (including all Profile Pages);
the inclusion, positioning, content, location and all other presentation of Practitioner Information (including in our sole discretion the right to remove any Practitioner Information from the Website at any time during the Term); and
the Practitioner Services set live on the Website (including in our sole discretion the right to remove any Practitioner Service from the Website in line with one or more of our Policies, or not allow a Practitioner Service to be set live for sale on the Website).
You agree at all times to comply with all Policies as updated by us from time to time.
You agree not to review, nor engage any third party to review, Practitioner Services appearing on your Profile Page. This prohibition includes, without limitation, paying for reviews or any other means of artificially increasing the number of reviews of Practitioner Services on your Profile Page.
Each Profile Page contains up to 30 (thirty) listings as standard but that number can be extended at our sole discretion.
Ownership of your Profile Page (including any transfer of ownership as a result of the sale of your business e.g. a sale of more than 50% of the shares in your business or a sale of substantially all the assets of your business) may only be transferred with our prior written agreement. You must give us at least 30 days written notice of any transfer of ownership and you agree to provide us with the information set out in clause 4.1.2 and 4.1.3 above in relation to the new Practitioner or new owner of your business. We will suspend the Profile Page while we verify the new Practitioner's or new owner's details, which shall include checking their eligibility and suitability to be listed on the Website. Where applicable, we will only provide access to the Wowness Club Service to a new Practitioner once they have agreed to enter into an agreement incorporating these Conditions. The Profile Page will be suspended until all payments owed to you, the outgoing Practitioner, have been cleared. If protocol is not followed, we retain the right to suspend a Profile Page until new ownership has been verified and identification provided. We reserve the right to terminate our agreement if, in our sole discretion, we determine that the change of ownership of the Profile Page or of your business renders your Profile Page or business no longer eligible or suitable to be listed on the Website. We will comply with the provisions of clause 2.4 where this applies.
When you close your Profile Page:
we agree to ensure that all payments we determine to be owing to you have been paid before closing your Profile Page;
you agree to ensure that negative balances are paid to us in full prior to closing your Profile Page and agree to remain liable to pay any valid requests for refunds and associated Refund Fees which are received following such closure.
If your Profile Page goes into a negative balance, you agree:
to pay the outstanding balance to us within 7 (seven) days of going into the negative balance. If the debt is not settled within 7 (seven) days of going into negative balance, we may terminate our Agreement with you and we may instruct a third party to collect the debt;
that we may withhold future payments to offset against the outstanding debt or pay at a later date once the debt has been settled, whichever arises first;
that, we retain the right to suspend your Profile Page immediately if your account goes into a negative balance. Your Profile Page will not be reactivated until your negative balance has been paid, or we have reached an agreement with you in writing for its repayment.
Profile Page content and presentation
You agree to:
ensure that your Profile Page maintains a high standard of presentation and at all times accords with any applicable guidelines notified to you from time to time by us, including in relation to the form and content of copy and product imagery;
comply with reasonable instructions from us concerning your Profile Page.
Any failure to maintain suitably high standards of page presentation may result in the de-activation of the relevant Service Page(s) in the first instance. We reserve the right to deactivate your Profile Page until standards have been improved.
Practitioner and Service Information
You agree to ensure that all Practitioner Information provided about you and the Practitioner Services on your Profile Page is and remains true, accurate, current, and complete.
Without undermining your obligation to comply with any Policies, you commit to ensure that none of your Practitioner Information nor any of your activities or use of the Website (including your use of your Profile Page), will:
be false, inaccurate or misleading;
be offensive, indecent, obscene, pornographic, menacing, abusive or defamatory;
be in breach of any applicable law or regulation;
adversely affect our reputation or the Wowness Club brand;
create, or be likely to create, liability for us or cause us to lose (in whole or in part) the services of our internet service or other suppliers;
contain any Virus; and
cause the Website or the Dashboard or their functionality to be interrupted, damaged or impaired in any way.
You agree:
to state clearly on the relevant Service Page the termination provisions applicable to the Service, which must comply with Applicable Laws including the Consumer Rights Act 2015 and the Customer Terms CUSTOMER TERMS; and
to display the availability of the Practitioner Service over a period of not less than 30 days;
not to include within your Profile Page, on a Service Page, on the DashBoard, in any other place on the Website or in any other means of communication with the Customer:
- any direct or indirect link to other websites including your own website;
- your email address; or
- any other means by which a Customer could communicate directly with you, other than through the Dashboard.
In the event that a Customer contacts you directly, you agree to direct the Customer to the Website and that we may invoice you for the applicable Commission Fee.
You may amend and update information about your Practitioner Services displayed on the Website and you are responsible for designing, creating, managing and amending any bespoke graphics or product images in accordance with the applicable Policies.
Services Information
You agree to accurately display availability for all Practitioner Services and to update such availability regularly using the applicable options on the Dashboard.
You agree to remove Practitioner Services from your Profile Page that are unavailable for prolonged periods (four weeks or more) until they become available again.
If a Customer places an order for a Practitioner Service which is in fact unavailable and has not been displayed as such and the Customer consequently requires a refund, then we may charge you the Commission Fee on that order.
Pricing and VAT
Your prices must be fully inclusive of all taxes and additional charges.
If you are VAT registered, you agree to set the VAT rate at the appropriate level which is currently applicable with respect to your Practitioner Services.
You are solely responsible for ensuring that you fully comply with your current VAT registrations and accounting for VAT correctly.
You have complete discretion over how you wish to price your Practitioner Services.
Service listing and categorisation
You agree to upload your Practitioner Services range and work cooperatively with our team so that we are able to set your Profile Page live on the Website within three (3) months of our accepting your application in writing.
If you fail to comply with clause 4.9.1, we may suspend your membership and you may have to pay a further Subscription Fee, if applicable and as detailed in clause 13.4 of these Conditions, or such other amount as may be notified to you from time to time. We will retain sole discretion as to whether to accept your request for re-activation.
The Service allows you to offer your Practitioner Services on the Website as part of a detailed electronic online catalogue containing categories and sub-categories, so that you may display each Practitioner Service in the single most appropriate category, and with Practitioner Service information, pictures and promotions uploaded by you.
You may apply for a Practitioner Service to be featured in one or more online catalogue categories, and we will retain absolute discretion as to which category is the most appropriate for a given Practitioner Service.
You will ensure that each of your Practitioner Services listings contains all the information required by a Customer to make a purchase, and that such information is wholly accurate.
You will not use keyword spamming (the use or placement of inappropriate keywords in a title or description to gain attention or divert users to another page) or similar techniques in Practitioner Service listings.
Compliance with our instructions and applicable laws
You agree to comply at all times with our reasonable instructions and all applicable laws and regulations including:
all laws, regulations and professional standards applicable to the Practitioner Services;
Trading Standards requirements in respect of the Practitioner Services you sell;
all applicable modern slavery legislation;
UK and EU competition laws; and
all applicable bribery legislation.
Where required by applicable laws and regulations, appropriate instructions will be included with on the relevant Service Page to ensure the safe enjoyment of the Practitioner Service by the Customer.
You agree to inform us as soon as possible upon becoming aware of any claim against us or you arising out of or in connection with any defect in your Practitioner Services, or any failure by you to ensure that the Practitioner Services are appropriately provided in accordance with applicable laws or regulations or professional standards.
You will compensate us in full for any and all liabilities, costs, expenses, fines, damages and losses (including any losses that are foreseeable) we incur in connection with any claim envisaged under clause 4.10.3 or paid or agreed to be paid by us in settlement of the claim and all legal or other expenses incurred by us in or about the defence or settlement of the claim. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Agreement was entered into, both parties knew it might happen, for example, if you discussed it with us beforehand. We will notify you in writing as soon as possible after becoming aware of the claim.
You agree to comply with our reasonable instructions and provide us with reasonable information and assistance in connection with any claim envisaged under clause 4.10.3.
You will maintain appropriate, up to date and accurate records in connection with any Practitioner Services provided during the Term.
Suspension of Wowness Club Service
We may immediately suspend or terminate your subscription and use of the Wowness Club Service in the event we reasonably believe or suspect that any Practitioner Information does not comply with the provisions of this clause 4.
Orders and your relationship with the Customer
Contract formation
You acknowledge and agree that following acceptance of an order through the Dashboard, such an acceptance is also deemed to be an irreversible instruction to us to conclude a contract of sale between the Practitioner and the Customer. Once given, this instruction cannot be reversed. The contract of sale between you and us is concluded when we (acting as your commercial agent) send an order confirmation email to the Customer, and we have no responsibility for the performance of any such contract.
You acknowledge and agree that the terms and conditions relating to any such contract will comprise the Customer Terms, the email confirmation relating to the Customer's order and the applicable details on the relevant Practitioner Service page. You agree to be bound by all such provisions.
Notification of Customer Orders
We will notify you by email of any order awaiting your acceptance. You acknowledge that we do not promise the reliability of email communications and you must check the Dashboard daily for alerts of new orders.
You will use your best efforts to accept and fulfil every order.
Following notification of an order through the Dashboard, you agree to:
fulfil the Customer order in accordance with its terms, including but not limited to in respect of the date, time and location for the provision of the Practitioner Service; and
comply with the Customer Terms in connection with the relevant order.
Communication with Customers
You agree to ensure that any and all correspondence with any Customer will:
be solely for the purposes of managing and fulfilling a Customer order;
be via the Dashboard or, if that is not possible, then at all times include a reference to us;
not include any reference to your own website, email address, other correspondence address or any other promotion of services outside those offered through or by us; and
be undertaken in accordance with the Privacy Policy.
Any breach of clause 5.3.1 will constitute a significant breach of these Conditions for the purposes of clause 2.3.1 and, further, may constitute a breach of Data Protection Laws.
You agree to respond to any Customer enquiries or Customer complaints promptly and courteously in the first instance within one Working Day and to advise us of any escalated unresolved Customer enquiries as soon as possible.
Changes to orders, cancellations and refunds
Following receipt of a request for cancellation of an ordered Practitioner Service (directly or via the Cancellation Form), you agree to deal with the cancellation in accordance with the Customer Terms.
Your behaviour and conduct
You agree to conduct yourself at all times in your relations with us and our staff, Customers and other Practitioners strictly in accordance with a guiding principle of respect and mutual cooperation. In no circumstances will any impolite or abusive communications via any public or private channel be tolerated and we reserve the right to immediately suspend your Profile Page and/or terminate the Agreement in the event of any breach by you of this clause.
Your use of the Dashboard
You agree not to:
use the Dashboard or Website beyond the scope of use set out in these Conditions and the Policies;
access the Dashboard unlawfully, modify or make derivative works based on the Dashboard nor attempt to reverse engineer or access the Dashboard with the intention of creating a competitive product or service nor to copy or build any concepts, features, functions or graphics based on the Dashboard. You acknowledge that damages may not provide an adequate remedy for a breach of this clause and that we will be entitled to seek other legal remedies to prevent the occurrence or continuance of any alleged breach of this clause.
You agree that the Intellectual Property Rights in the Dashboard are owned exclusively by us and nothing in the Conditions will be deemed to confer any rights in the Dashboard to you.
Intellectual property rights
Our Intellectual Property Rights
You recognise that the Intellectual Property Rights in the Wowness Club name, logo or branding are owned entirely by us, and agrees that you may only use the Wowness Club name, logo or branding on any promotional material, packaging or elsewhere, whether in hard or electronic format, in accordance with these Conditions or with our prior written consent.
All Intellectual Property Rights in the Wowness Club Service and in any Software and/or Documentation are and will remain our absolute property, or the property of our licensors as appropriate.
Any Intellectual Property Rights created by us in the course of the performance of these Conditions or otherwise in the provision of the Wowness Club Service will remain our property. For the avoidance of doubt, you will retain all Intellectual Property Rights in the content you create and upload to your Profile Page in connection with your Practitioner Services.
We grant you permission for the duration of the Term only to use any Software or Documentation for the sole purpose of accessing and using the Wowness Club Service. This permission doesn't prevent us or any other third parties we chose to grant permission to from using the Software or Documentation. You cannot transfer this permission to anyone else and we can terminate our permission at any time. Nothing in these Conditions will be deemed to have given you permission or any other right to use any of our other Intellectual Property Rights.
Where photographs or images of your Practitioner Services are produced by us or our agents, any such images may not be used by you for any purpose other than for display on the Website or in printed material produced by us. We reserve the right to charge you a licence fee in respect of any use of such photographs or images in contravention of this clause.
Intellectual Property Rights in and relating to Practitioner Services
You promise that:
you are the legal owner of all of the Intellectual Property Rights in and relating to the Practitioner Services (which includes the data and information, including Practitioner Information, relating to such Practitioner Services), photographs, logos, images, and copy that you provide or upload to the Website, and/or that you possess a valid permission to use any and all such Intellectual Property Rights;
the making of Practitioner Services available for sale on the Website, and consequent use of your Intellectual Property Rights by us as referred to in clause 9.2.2 will not infringe any Intellectual Property Rights owned by any third party, and there is and will be no claim against us by any third party arising in relation to the use of such Intellectual Property Rights.
You permit us to access and use any content, including photos, that appear on your Profile Page or in any other promotional material in our own editorial content or promotional activity relating to us, you, your business and Practitioner Services.
You agree to compensate us in full for any and all damages, liabilities, costs, expenses and/or losses resulting from any breach of clause 9.2.1 in respect of any claim that the normal operation, possession or use of those Intellectual Property Rights by us infringes a third party's rights ("Intellectual Property Rights Infringement Claim").
In the event of an Intellectual Property Rights Infringement Claim you will immediately make without any charge to us such alterations, modifications or adjustments to the Intellectual Property Rights as will be necessary to make them non-infringing.
We will notify you as soon as possible if we become aware of any Intellectual Property Rights Infringement Claim by a third party.
We will be entitled to take sole conduct of the defence to any claim or action in respect of any Intellectual Property Rights Infringement Claim and may settle or compromise such claim or action at our sole discretion. You agree to give us such assistance as we will reasonably require in respect of the conduct of such defence including with all court procedures and the provision of all relevant documents.
At our request, you agree to take the conduct of the defence to any claim or action in respect of any Intellectual Property Rights Infringement Claim. You agree not to, at any time, admit liability or otherwise settle or compromise, or attempt to settle or compromise, such claim or action except upon our express written instructions.
Use of your information
You grant to us permission to use, license, disclose and distribute any information (including Practitioner Information), data, comments or images provided by you to us for the purposes of providing the Wowness Club Service and related purposes (including disclosing information to third-party service providers so that they can contact you directly about their products and/or services). This permission is an ongoing permission that you cannot revoke or charge us money for during the term of this Agreement.
Survival on termination
This clause 9 will survive termination or expiry of the Agreement regardless of how it comes to an end.
Data Protection
We will both comply with all applicable requirements of the Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, your or our obligations under the Data Protection Laws.
We both acknowledge that for the purposes of the Data Protection Laws, and pursuant to the Privacy Policy we are both independent controllers (where "controller" has the meaning as defined in the Data Protection Laws). You are free therefore to process such Personal Data relating to a Customer as you may access via the Dashboard when such Customer purchases a Practitioner Service from you through the Website. You may carry out the processing of Personal Data of such Customer solely to the extent, and for such period, as is necessary for the purposes of fulfilling the relevant order of the Practitioner Service by the Customer.
Without affecting the general position set out in clause 10.1, we will ensure that we have all necessary rights and notices in place to enable the lawful transfer of the Personal Data to you for the duration and purposes of this Agreement.
Without affecting the general position set out in clause 10.1, you will, in relation to any Personal Data processed in connection with the performance by you of your obligations under this Agreement:
process that Personal Data only in accordance with the Data Protection Laws
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
at our written direction, delete or return Personal Data and any copies of the Personal Data to the Customer on termination of the Agreement unless required by applicable law to store the Personal Data; and
maintain complete and accurate records and information to demonstrate your compliance with this clause 10 and allow for audits by us or our designated auditor.
We consent to you appointing such third-party processors of Personal Data as are required by you to fulfil your obligations under this Agreement. You confirm that you have entered or (as the case may be) will enter into a written agreement with the third-party processor which include terms which are substantially similar to those set out in this clause 10. You agree to remain fully liable to us for all acts or omissions of any third-party processor you appoint in relation to this clause 10, and you will promptly give us a list of all such sub-processors if we ask.
You agree to compensate us in full for any and all liabilities, costs, expenses, fines, damages and losses (including any foreseeable losses, as explained at clause 4.10.4 above) we incur in connection with any claim arising out of any breach by you of this clause 10 including any legal or other expenses incurred by us in or about the defence or settlement of the claim. We will notify you in writing as soon as possible after becoming aware of the claim. This clause 10 will survive termination or expiry of the Agreement however it comes to an end.
Data access
In operating the Wowness Club Service, and providing services to Practitioners (including the services we provide to you), we collect and have access to the data that this generates. We collect and have access to data relating to orders, Practitioner personal data (including relating to you) as set out in the Privacy Policy and customer personal data as set out in the Privacy Policy.
We use this data in a variety of ways and for various reasons, including:
managing and supporting you as a Practitioner; for analytical purposes, including using aggregated data in marketing, communications, and some public materials (e.g. on our website); managing and supporting transactions; and
other operational purposes.
You have access to certain data relating to you and your orders via the Dashboard. However, you do not have access to any other data, and we do not share data relating to you or your orders with any other sellers.
Marketing and promotions
From time to time we may run promotions on all or part of the Website. Any such promotions will be separate, and in addition to, any promotions operated by you in your Profile Page, and may involve offering Customers discounted prices or other promotional activity relating to some or all Practitioner Services on the Website. We will, where relevant and applicable to you and/or your Practitioner Services, inform you of the nature and terms of any promotion and, at our sole discretion:
we will bear the costs of any such promotion; or
where we require you to bear the costs of any promotion, you will inform us in writing whether or not you wish to participate in the relevant promotion.
You will permit, comply and co-operate with all activities undertaken by us to promote, sell or market your Practitioner Services, in such form and manner as we in our sole discretion deem appropriate, whether directly through the Website or the Website, through any offline publications produced by us, or through websites or offline publications not produced, owned or operated by us.
Fees
General
You will pay any and all Fees in accordance with the Agreement. Fees will be deducted from
The relevant Fees will be as notified to you and updated by us from time to time in accordance with these Conditions.
Unless specified otherwise, all Fees exclude VAT or other similar taxes or levies, all of which amounts you will pay, if chargeable, at the rate prevailing at the relevant tax point, and in addition to the Fees themselves.
You will make all payments to us due under the Agreement without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement, or otherwise.
If any sum due from you to us under the Agreement is not paid on or before the due date for payment, then all sums then owing by you to us will become due and payable immediately and, without prejudice to any other right or remedy available to us, we will be entitled to:
cancel or suspend our performance of our obligations under the Agreement or any order, including suspending provision of the Wowness Club Service, until arrangements as to payment or credit have been established which are satisfactory to us; and
charge you the cost of obtaining judgment or payment, to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
Breakdown of the Fees
The Fees comprise, as relevant and applicable:
the Commission Fee;
the Subscription Fee; and
the Refund Fee.
Commission Fee
A Commission Fee is payable by you on the value of the total amount payable by a Customer in relation to a Practitioner Service sold through the Website by you. The Commission Fee is calculated as a percentage of the price payable for the Practitioner Service.
The Commission Fee payable by you will be as notified to you by us in writing at the time of inviting you to participate in the Website and in the absence of notification to the contrary shall be 15% of the price payable for the Practitioner Service.
We will refund monies received by us in respect of sold Practitioner Services that are subsequently cancelled by the Customer and authorised for refund by you using the designated Dashboard, subject to your payment of the Refund Fee, set out below.
Subscription Fees
We reserve the right to charge you a monthly or annual Subscription Fee upon providing you with 30 days’ written notice.
The Subscription Fee (if payable in accordance with this clause 13.4) is a non-refundable fee for receiving enhanced Wowness Club Services. The amount of the Subscription Fee will be as notified to you by us in writing from time to time.
Refund Fees
You will pay a Refund Fee to us where the price paid for a Practitioner Service sold through our Website is refunded to the Customer. The Refund Fee is not refundable under any circumstances.
The Refund Fee is 2.5% of the total amount refunded, or such other amount as we may notify to you from time to time.
How payment is made to you
As part of your appointing us as your commercial agent (as set out in these Conditions), you agree that we also act as your agent for the purpose of accepting, refunding and/or otherwise processing payment(s) related to the sale of Practitioner Services by you via the Website (or any other sales channel which we may offer to you from time to time). We do this via our Payment Provider.
Both you and we acknowledge and agree that except as otherwise provided in these Conditions (and in acknowledgement that both parties are businesses), that the duties of an agent implied under the common law are expressly excluded. For the avoidance of doubt, we, acting as your commercial agent, are neither the buyer nor the seller of the Practitioner Services and are not a party to the contract of sale of Practitioner Services between you and the Customer.
Payments for Practitioner Services will be made directly by a Customer to us (acting as your commercial agent and via our Payment Provider), following the relevant transaction being recorded on your designated Dashboard. You must check the Dashboard daily for alert of new orders. You agree that the Customer’s obligation to pay you for Practitioner Services is satisfied when the Customer validly pays us for the applicable Practitioner Services using our Payment Provider. You further agree that you will not seek recourse (legal or otherwise) against a Customer or any third party (including, but not limited to any payment service provider or gateway) for payment for a Practitioner Service if the Customer has validly paid us in the manner referred to in this clause.
Payment for Practitioner Services by Customers through the Website will be made through our Payment Provider. In order to receive payment for Practitioner Services, you will need to agree to our Payment Provider terms at STRIPE TERMS.
We agree to pay you for the relevant transaction less the Commission Fee within 5 days following completion of the relevant Practitioner Service. Unless we otherwise agree with you, any payments we make to you will be in pounds sterling.
From time to time we may retain a portion of the payment due to you in order to provide for refunds due or expected to be due to a Customer in the ensuing period. If refunds exceed your sales in a particular period, any future payments will be used to clear your negative balance and the difference leftover will be paid when the next payment is due.
You agree to provide such of your banking details as are required or requested by our Payment Provider, in order that payment may be processed to you in respect of any Practitioner Services sold.
Confidentiality
The parties agree that they will keep in confidence any Confidential Information and, except in accordance with these Conditions, will not disclose that Confidential Information to any person (other than their employees, professional advisers or suppliers who need to know the information) without the written consent of the other party. For the avoidance of doubt, you authorise us (including our employees, agents and contractors) to hold and process Practitioner Information.
The obligations of confidentiality under the Conditions will not extend to any matter which either party can show:
is in or has become part of the public domain, other than through a breach of the Conditions or other confidentiality obligations;
was lawfully in the possession of the recipient before the disclosure under the Conditions took place;
was independently disclosed to it by a third party entitled to disclose the same; or
is required to be disclosed under any applicable law, or by order of a court or governmental body, or by authority of competent jurisdiction.
The obligations of confidentiality under the Conditions will remain in effect for two (2) years after the termination or expiry of the Agreement, however it comes to an end.
Exclusions and limitation of liability (please read this section carefully)
Nothing in these Conditions excludes or limits our liability for death or personal injury caused by our negligence, for fraudulent misrepresentation, or any other liability that cannot be excluded by law.
Subject to clause 15.1, our total liability to you if we fail to comply with the Agreement will be limited in aggregate to a maximum of £10,000.
Subject to clause 15.1, we will not be liable to you for any loss of profit or other economic loss, foreseeable losses (as explained at clause 4.10.4 above), costs, expenses or other claims for foreseeable compensation or loss or damage that arise in connection with the Conditions, or for any liability incurred by you to a Customer, or to any other person, whether arising from the provision of the Wowness Club Service or otherwise.
General
You will not be entitled to charge, subcontract or transfer this Agreement or any part of it without our prior written consent. For example, and this does not in any way constitute an exhaustive list, if you wish to subcontract your obligations under this Agreement to a third-party service provider, or you wish to sell all or part of your assets to a third party, our prior written consent will be required in order to do so. You must also comply with the requirements set out at clause 4.4.5 with respect to changes of ownership of your Profile Page or business.
We may charge, subcontract or transfer this Agreement or any part of it to any person.
No term of these Conditions will be enforceable by any third party (which includes for these purposes any third party: employee, officer, agent, representative or sub-contractor of either party). Nothing in this clause excludes our rights when acting as your payment agent.
We reserve the right to suspend or to cancel our obligations under these Conditions in whole or in part (without liability) if we are prevented from or delayed in the carrying on of our business and our obligations under the Conditions due to circumstances beyond our reasonable control, including acts of God, fire, flood, lightning, epidemic, pandemic, severe weather conditions, war, revolution, acts of terrorism, IT or internet outage, industrial disputes (whether of our own employees or others) or acts of local or central government (including the imposition of legal or regulatory restrictions). If any such event beyond our reasonable control continues for a continuous period of more than 30 days, we may give you notice in writing to terminate the Agreement.
If either party does not make a claim in respect of any breach of the Conditions, or delays in enforcing any breach, this will not prevent the subsequent enforcement of that breach and the relevant party will not be deemed to have given up the right to enforce any subsequent breach of that or any other provision.
If at any time any one or more of these Conditions (or any part of one or more of these Conditions) is held to be or becomes void or otherwise unenforceable, for any reason under any applicable law, the same will be deemed omitted from the Conditions and the validity and/or enforceability of the remaining provisions of the Conditions will not in any way be affected or impaired as a result of that omission.
Notices given under the Conditions must be in writing and may be delivered by hand or by courier, or sent by prepaid first class or registered mail to, in our case, our registered address, or any alternative address we notify to you in accordance with this provision; and, in your case, the address which you provide on the Dashboard, or any alternative address you notify to us in accordance with this provision.
Notices may be validly served by email provided that, to be effective, such email is sent to the email address most recently provided by the addressee to the sender of the relevant notice.
Except as set out in these Conditions, our relationship (including our employees) to you will be that of independent contractor and nothing in the Conditions will render us (nor our personnel) as an employee, worker, any other form of agent, or partner of yours or of any Customer's. Except where an express provision in these Conditions states to the contrary or at our reasonable discretion, neither party will have any right or authority to, and will not do or say anything on behalf of the other party or bind the party in any way.
The Agreement, and any documents referred to in it, constitute the entire agreement between us and supersede and extinguish all previous drafts, arrangements, understandings or agreements between us, whether written or oral, relating to the subject matter of the Agreement.
Each party acknowledges that in entering into the Agreement it does not rely on, and will have no remedies in respect of, any representation or promise (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that its only liability in respect of those representations and promises that are set out in the Agreement (whether made innocently or negligently) will be for breach of contract.
Nothing in this clause will limit or exclude any liability for fraud or fraudulent misrepresentation.
The Agreement and any non-contractual obligations relating to or arising under these Conditions will be governed by English law, and the parties irrevocably submit to the exclusive jurisdiction of the English courts in respect of any dispute relating to or arising under it.
Mediation
Mediation is a process where a neutral third party facilitates negotiations between the parties to a dispute to help them come to an outcome that they can all agree on. We work with the Centre for Effective Dispute Resolution ("CEDR"), who we are willing to engage with to attempt to reach an agreement with you on the settlement, out of court, of any disputes we may have with you arising out of the Agreement. Although mediation is a voluntary process, you and we both agree to engage in good faith throughout any mediation attempts, and to also do so in accordance with the CEDR Model Mediation Procedure.
You and we both agree to notify the other in writing if one of us wishes to submit a dispute to mediation. Unless you and we agree otherwise within 14 (fourteen) days of that notice, the mediator will be nominated by CEDR. We will bear a reasonable proportion of the total costs of mediation. Any attempt to reach an agreement through mediation on the settlement of a dispute will not affect your or our right to initiate court proceedings at any time before, during or after the mediation process. Let us know if you need any further information of the functioning and effectiveness of mediation.
Definitions and Interpretation
In these Conditions, the following words will have the following meanings only and will not affect the interpretation or construction of the Conditions:
"Agreement" means the agreement formed between you and us in accordance with these Conditions;
"Application Form" means the online application form, which must be completed and agreed by you as a part of the application process;
"Commission Fee" has the meaning ascribed to it in clause 13 (Fees);
"Conditions" means these terms and conditions and any document referred to in them, or any amended version of them brought into effect from time to time in accordance with these Conditions;
"Confidential Information" means any information that would be regarded as confidential by a reasonable business person relating to the business, affairs, customers, clients, suppliers, plans, operations, processes, product information, know-how, designs, trade secrets or software of either party;
"Customer" means a person(s), firm or company who enters into or is invited to enter into any transaction to purchase Services from you through the Website;
"Customer Feedback" means any and all information provided to us by a Customer via our customer feedback service regarding any goods and/or services provided by you in respect of a particular transaction with that Customer (including in respect of any communications with you), which may include any opinions about you;
"Customer Terms" means the terms and conditions relating to a Customer set out on our Website at LINK;
"Dashboard" means the back-end content management system we provide to you for management of your Profile Page and associated transactions;
"Data Protection Laws" means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) EU Regulation 2016/679 ("GDPR"); (ii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR (including, in the UK, the Data Protection Act 2018 ("DPA") and the UK GDPR as defined in The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 ("UK GDPR")); (iii) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) (including, in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003); and (iv) any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with all of the legislation outlined above; in each case, as updated, amended or replaced from time to time.
"Documentation" means any user guide, information or other material we provide to you, in hard copy or electronic form, relating to the Wowness Club Service;
"Fees" means the fees detailed in clause 13 (Fees) of these Conditions and notified to you by us in writing;
"Intellectual Property Rights" means all the intellectual property rights conferred by the law of any country or jurisdiction in the world (including by statute) as amended or re-enacted (by common law, civil law, equity or otherwise) in relation to any invention, discovery, literary work, dramatic work, musical work, artistic work, copyright, database, trade mark, service mark, design (whether two dimensional or three dimensional), patents, semiconductor topography, confidential information, know-how, trade secret, and in each case whether or not it has been reduced to a material form, and howsoever it may be recorded, stored or embodied (including in an electronic or transient medium), including all applications for such rights as well as all extensions and renewals of such rights;
"Personal Data" has the meaning given to it in the Data Protection Laws;
"Personal Data Breach" means a breach of security (caused or contributed to by internal and/or external factors) leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data;
"Policies" means any policy (including any guides relating to content and style) which we may notify and make available to you through Dashboard from time to time;
"Practitioner" means a professional service provider whose application to the Website has been accepted by us, and who sells its Practitioner Services through the Website, including you;
"Practitioner Information" means information, data or content provided by you in any form or medium, whether or not such information is owned by you, contained in the Application Form, uploaded to your Profile Page or given by you to us for whatever purpose, whether directly or on your behalf;
"Practitioner Services" means the goods, services, digital content or information that you wish to promote and sell through the Website;
"Profile Page" means an area of the Website dedicated for use by you to promote yourself and your Practitioner Services;
"Refund Fee" has the meaning ascribed to it in clause 13 (Fees);
"Response" means a response by you to any Customer Feedback;
"Service Page" means the particular web page on your Profile Page on which an individual Service is displayed and the relevant information relating to that Service is provided;
"Software" means any software installed by or on our behalf that permits you to access and trade through the Website;
"Subscription Fee" has the meaning ascribed to it in clause 13 (Fees);
"Term" has the meaning set out in clause 2.1 (Term and Termination);
"VAT" means value added, sales or services tax, or any similar tax imposed in any jurisdiction;
"Virus" means any computer virus, macro virus, trojan horse, worm or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or network, or to intercept or access without authority or expropriate any system, information or data;
"Website" means the online marketplace we provide on any mobile application service and/or at www.wownessclub.com or such other worldwide web address that we in our sole discretion select as a replacement to facilitate the promotion and sale of your Practitioner Services;
"Working Day" means any day other than a Saturday or Sunday on which banks are open for business in London;
"Wowness Club", "our", "us", "we" means Wowness Club Limited (a company incorporated and registered in England and Wales with company number 14185864) whose registered office is at: 167-169 Great Portland Street, 5th Floor, London, England, W1W 5PF;
"Wowness Club Service" means the Website and other services we provide, as further described in these Conditions.