Your Provider Agreement with Switch Lifestyle ME FZ LLC

1.  ACCEPTANCE OF THIS AGREEMENT; KEY TERMS   

1.1  The Platform (as defined below) is provided to you on the terms and subject to the conditions set out in this Agreement. By accessing the Platform, you accept that you have read, understood and agree to be bound by this Agreement. For the purpose of this Agreement, and wherever the context so requires, the terms "you" and "your" shall mean or refer to any person who is using the Platform as a Service Provider, or is otherwise exercising rights under this Agreement.

1.2  The following definitions apply throughout this Agreement, unless the contrary intention appears:

Business Day

means a day (except Fridays, Saturdays and public holidays) on which banks in the UAE are open for normal banking business;

Booking Statement

has the meaning given in clause ‎2.5.1(a) and "Booking Statements" shall be construed accordingly;

Commencement Date

has the meaning given in clause ‎11.1;

Commission

has the meaning given in clause ‎2.4.1;

Commission Percentage

means 15% (or such other percentage as may be agreed between Switch and a Service Provider from time to time);

Confidential Information

has the meaning given in clause ‎14.1;

Conversion

has the meaning given in clause ‎5.1.1;

DIFC

means the Dubai International Financial Centre;

End User

means a customer or attendee of one or more Experiences and/or Events;

End User Booking

has the meaning given in clause ‎2.7.2;

End User Data

has the meaning given in clause ‎2.7.1;

Event

means any interactive health, fitness or wellness event to be hosted by a Service Provider at a Facility or any other location and "Events" shall be construed accordingly;

Experience

means any interactive, single or multi-day health, fitness or wellness activity or other related consultation session or service to be hosted by a Service Provider at a Facility or any other location and "Experiences" shall be construed accordingly;

Extenuating Circumstances

means:

-       the unexpected death or serious illness of key personnel employed or otherwise mandated by a Service Provider to host the relevant Experience(s) and/or Event(s) booked by an End User;

-       serious injury of key personnel employed or otherwise mandated by a Service Provider to host the relevant Experience(s) and/or Event(s) booked by an End User; or

-       the loss of any Facility to be used by a Service Provider in order to host the relevant Experience(s) and/or Event(s) booked by an End User.

Facility

means the physical location or premises made available by Switch at which the relevant Experience(s) and/or Event(s) shall take place;

Force Majeure

means, in relation to either party, any total or partial failure of performance by it of all or some of its duties and obligations under this Agreement to the extent such failure is occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo or prevention from or hindrance in obtaining any energy or other similar supplies;

Indemnified Party

has the meaning given in clause ‎8.1;

Indemnifying Party

has the meaning given in clause ‎8.1;

Information

has the meaning given in clause ‎2.2.1;

Intellectual Property Rights

means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name (under whatever extension, e.g. .com, .nl, .fr, .eu, etc.) or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world;

Net Amount

has the meaning given in clause ‎2.5.1(c);

Offering

means the offering of Experiences and/or Events by a Service Provider and "Offerings" shall be construed accordingly;

Permitted Persons

has the meaning given in clause ‎14.2.2;

Platform

means the website(s), mobile applications, tools, platforms or other devices of Switch on which the System is made available;

Platform Proceeds

has the meaning given in clause ‎2.5.1(b);

Product

means any health, fitness or wellness related merchandise (or any part of such merchandise), which is supplied by a Service Provider and made available for purchase by End Users at a Facility or any other location in conjunction with any Experiences and/or Events taking place there and hosted by that Service Provider and "Products" shall be construed accordingly;

Ranking

has the meaning given in clause ‎5.1.1;

Rate Parity

means the same or better rates for the same Event, Experience and/or Product as are available on the websites, applications, platform, tools or other devices owned or operated by or on behalf of the Service Provider or directly from the Service Provider, with any competitor of Switch (which includes any online or offline reservation or booking system or intermediary) and/or with any other (online or offline) third party that is a business partner of or in any other way related with or connected to the Service Provider;

Representative

has the meaning given in clause ‎10.1;

Rules

has the meaning given in clause ‎15.8;

Service Provider

means a person who creates an Offering via the Platform and "Service Providers" shall be construed accordingly;

System

means the online booking system of Switch through which:

-       Service Providers can make their Offerings available and list any of their Products available for purchase by End Users at any Experiences and/or Events; and

-       End Users can make bookings of Experiences and/or Events comprised in such Offerings.

Term

has the meaning given in clause ‎11.1;

Top-Up

has the meaning given in clause ‎2.5.1(e);

Third Party Platforms

has the meaning given in clause ‎3.2;

UAE

means the United Arab Emirates;

VAT

means value added tax and any similar sales or turnover tax applicable in the UAE; and

Working Hours

means 9:00am to 5:00pm on a Business Day.

2.   YOUR OBLIGATIONS

2.1  Performance Standards

2.1.1 You shall:

(a)   using all reasonable skill and care, provide the Experiences and/or Events booked by End Users from the Commencement Date for the Term; and

(b)    use reasonable endeavours to ensure that such provision is:

(i)    in compliance with any performance standards or principles issued by Switch, from time to time;

(ii) in compliance with the performance standards and/or qualifications criteria issued by any external, regulatory or other certifying body applicable to you; and  

(iii)to a scope and standard (in terms of specification and service level) at least equivalent to the scope and standard to which such Offering would be provided by a reasonably experienced Service Provider.

2.2 Information

2.2.1 Information provided by you for inclusion on the Platform (the "Information") shall comprise (without limitation) images, photos, videos and business listings/information, and will include:

(a) information about your Offering (for instance, a service description, booking rates (including all applicable taxes, levies, surcharges and fees), the identity of the Facility or other location and calendar availability);

(b)  any deficiencies, restrictions and requirements that apply (for instance, any minimum age, proficiency or fitness requirements relevant for attendance of an Experience or Event);

(c)  listings of any Products to be made available by you for purchase by End Users at a Facility or any other location in conjunction with any Experiences and/or Events taking place there and hosted by you (for instance, a product specification, price (including all applicable taxes, levies, surcharges and fees), materials, workmanship and design description); an

(d) other pertinent details requested by Switch, from time to time.  

2.2.2 Switch reserves the right to edit or exclude any Information on becoming aware that it is incorrect, incomplete or in violation of the terms and conditions of this Agreement.

2.2.3 You represent and covenant that the Information shall, at all times, be true, accurate and not misleading. You are, at all times, responsible for a correct and up-to-date statement of the Information, including additional availability for certain periods or extraordinary (materially adverse) events or situations. You shall update the Information in a timely manner and may, at any time, change via the Platform: 

(a)  the booking rate per available Experience or Event;

(b) the number of available Experiences or Events that can be booked by End Users and the allocated time slots for each such Experience or Event; and

(c) the availability or price of any Product that can be purchased by End Users at a Facility or any other location in conjunction with any Experiences and/or Events taking place there.

2.2.4 The information provided by you for the Platform shall remain your exclusive property. Information, which is:

(a) provided by Switch (including, without limitation, all and any existing files, images, photos, videos, sounds, business listings/information and directory information or any other material made available by Switch on or external to the Platform); or

(b) provided by you and subsequently edited or modified by Switch (and approved by you); o

(c) developed in collaboration by you and Switch,

shall remain the exclusive property of Switch and shall not be used (in any way or form) by you for any other purposes (distribution, sales channel or otherwise), without the prior written consent of Switch.

2.2.5 Unless Switch otherwise agrees, all updates of, changes and/or amendments to the Information (including booking rates, prices and availability of Experiences, Events and/or Products) shall be made by you directly either online through the Platform, or via any mobile application, or by such other means as Switch may reasonably indicate.

2.3 Rate Parity

2.3.1 You shall, for the Term of this Agreement, give Switch Rate Parity and the restrictions and conditions (including the booking rate per Experience and/or Event or price per Product) for Experiences, Events and Products made available by you via the Platform shall, at all times, be in accordance with this clause 2.3 and make sense for all parties involved (including End Users).

2.3.2 Within the spirit of this Agreement and subject, at all times, to Rate Parity, you are encouraged to provide Switch with fair access to all Experience, Event and Product types (including various associated policies and restrictions) comprised in your Offering and the rates and prices available during the Term of this Agreement (during periods of low and high demand). 

2.4  Commission

2.4.1 For all:

(a) Experiences and/or Events hosted by you at Switch Spaces (e.g. partner hotels) and booked by End Users on the Platform; 

(b) other Experiences and/or Events hosted by your location, or at locations other than Switch Spaces and booked or attended by End Users coming through the Switch app; an

(c) Products purchased by End Users at a Facility or any other location in conjunction with any Experiences and/or Events booked through the Switch app, 

Switch shall charge you a service fee, calculated in accordance with clauses 2.4.2 or 2.4.3 (15%) (the "Commission"). 

2.4.2 Unless agreed otherwise between you and Switch, the aggregate Commission for Experiences, and/or Events hosted by you and booked or attended by the End User booked on the Platform, is equal to the multiple of:

(a) the number of Experiences, and/or Events hosted by you and booked or attended by the End User booked on the Platform; 

(b)  the booked rate per Experience or Event (as at the time the booking was made by the End User); and

(c)  the Commission Percentage (15%).

2.4.3 Unless agreed otherwise between you and Switch, the aggregate Commission for Products purchased by the End User at a Facility or any other location in conjunction with any Experiences and/or Events booked on the Platform is equal to the multiple of:

(a) the number of Products purchased by End Users at a Facility or any other location in conjunction with any Experiences and/or Events booked on the Platform; 

(b)  the price per Product (as at the time the purchase was made by the End User); and

(c)  the Commission Percentage (15%).

2.5  Payment of Commission

2.5.1  Subject to clause 2.8, the Commission for bookings and purchases made through the platform in any one calendar month (the (scheduled) attendance date of the End Users of such bookings being within that same month) will be remitted in accordance with the following terms:

(a)  a statement of Experiences and/or Events hosted by you and booked by End Users on the Platform, in addition to any Products purchased and the corresponding Commission will be issued to you electronically by Switch on a bi-weekly basis (the "Booking Statement");

(b) Switch will deduct the Commission from the total monies received from End Users that have booked one or more Experience(s) and/or Event(s) with you via the Platform ("Platform Proceeds");

(c) if the Commission is less than the Platform Proceeds, the remaining balance after deduction of the Commission ("Net Amount") will be paid out to you in United Arab Emirates dirhams, on the 5th and 20th day of each calendar month following the issuance of each Booking Statement, provided always that Switch has received remittance of the Platform Proceeds from the payment gateway provider;

(d) payment of the Net Amount shall be made by Switch directly to you by wire transfer (to such bank account as identified by you) and you shall bear all costs as charged by the banks for the transfer of the Net Amount;

(e) if the Commission is greater than the Platform Proceeds, Switch will issue you with an invoice (which shall be sent by mail or email), and you will be required to remit to Switch, in accordance with the terms of this Agreement and each such invoice, any additional Commission payable by you by way of a top-up payment (the "Top-Up") in United Arab Emirates dirhams, within 14 days of the invoice date; and

(f)  payment of the Top-Up shall be made by you directly to Switch by wire transfer (to such bank account as identified by Switch) and you shall bear any costs as charged by the banks (where applicable) for the transfer of the Top-Up.

2.6 Taxes

2.6.1 Any sum payable under this Agreement shall be deemed to be exclusive of any VAT which is chargeable on the supply for which that sum is consideration for VAT purposes. The person receiving the supply shall pay any amounts of VAT in addition to any amounts payable under this Agreement upon the delivery of a VAT invoice  

2.6.2 Without prejudice to clause 2.6.1, any amounts of VAT that are chargeable in respect of the sale of the Products (and any interest, penalties, fines or surcharges imposed in connection therewith) shall be borne by you. To the extent that Switch becomes liable to account for such VAT, you shall pay to Switch an amount equal to 100 per cent of the VAT so chargeable (together with an amount equal to 100 per cent of any interest, penalties, fines or surcharges imposed in connection therewith), on demand, as soon as reasonably practicable after being notified of the related liability by Switch and shall fully indemnify Switch for any interest, penalties, fines or surcharges imposed in connection therewith. To the extent that you become liable to account for such VAT, you shall pay such amounts directly to the relevant taxing or other authority by no later than five Business Days prior to the latest date on which such VAT can be paid to the relevant taxing or other authority in order to avoid a liability to interest or penalties accruing. To the extent that Switch becomes liable for and pays any amounts of VAT that are chargeable in respect of the sale of the Products and for which you are liable to account to the relevant taxing or other authority, you shall fully indemnify Switch for the amount of such VAT and for any interest, penalties, fines or surcharges imposed in connection therewith.

2.7                  Bookings and Complaints

2.7.1 When a booking is made by an End User on the Platform, you will receive a confirmation, which shall include the date and number of Experiences and/or Events booked, the Experience/Event type and booking rate, the End User’s contact details (collectively the "End User Data") and such other specific requests made by the End User. Switch is not responsible for the correctness and completeness of the End User Data.

2.7.2 By making a booking through the Platform, a direct contract and legal relationship is created between you and the End User (the "End User Booking").

2.7.3 You are bound to accept the End User as your contracting counterpart and to handle the End User Booking in compliance with the Information (including the booking rate) contained on the Platform at the time the booking was made and the booking confirmation, including any supplementary information and/or requests made known by the End User. 

2.7.4  To the extent possible, all correspondence and communications between you and the End User shall be made through the Platform and within the context of this Agreement.

2.7.5 Other than the fees, extras and (sur-)charges set out in the confirmed booking or price (as displayed on the Platform), you shall not charge the End User any transaction or administration fee or charge for the use of any payment method.

2.7.6  Complaints or claims in respect of your Offering, your supply of Products or specific requests made by End Users are to be dealt with by you, without mediation by or the interference of Switch. Switch is not responsible for and disclaims any liability in respect of such claims from the End Users. 

2.8 Booking Modifications, Cancellations and Refunds

2.8.1  You shall provide the Experiences and/or Events booked by End Users and in the event that you are unable to meet your obligations under this Agreement, for any reason whatsoever, you shall promptly notify Switch and, to the extent affected, the End User.

2.8.2 You are responsible for any modifications to a booking that are made via the Platform and agree to liaise directly with the End Users in respect of any additional fees, extras and (sur-)charges, which Switch has prescribed, in any modification, cancellation or refund policy issued by Switch, from time to time, as being applicable thereto.

2.8.3  In the event that no Experience and/or Event is available to an End User due to an overbooking, you shall:

(a)   find a suitable alternative Experience and/or Event of an equal or superior standard to the Experience(s) and/or Event(s) holding the End User’s guaranteed booking; and

(b) reimburse and compensate Switch and/or the End User for all reasonable costs and expenses made, suffered, paid or incurred by Switch and/or the End User due to or caused by the overbooking. Any amount charged by Switch in this respect shall be paid within 14 days after receipt of the relevant invoice. 

2.8.4 In the event that you are unable to meet your obligations under clause ‎2.8.3(a), the End User will receive a full refund from Switch and you will reimburse and compensate Switch and/or the End User for all reasonable costs and expenses made, suffered, paid or incurred by Switch and/or the End User due to or caused by the overbooking. Any amount charged by Switch in this respect shall be paid within 14 days after receipt of the relevant invoice.

2.8.5 You are not permitted to cancel any booking made by an End User on the Platform, unless:

(a) both Switch and the End User have been notified of such cancellation at least 24 hours before the End User’s scheduled attendance date of the Experience and/or Event; or

(b)  cancellation is made for one or more Extenuating Circumstances.

2.8.6  Any booking made by an End User on the Platform that is cancelled by you pursuant to clauses ‎2.8.5(a) or ‎2.8.5(b) will not attract Commission and the End User will receive a full refund from Switch.

2.8.7 Any booking made by an End User on the Platform that is cancelled by you and not in compliance with clauses ‎2.8.5(a) or ‎2.8.5(b) will attract Commission (which shall be payable by you in accordance with the terms and subject to the conditions of this Agreement) and the End User will receive a full refund from Switch.

2.8.8 Any booking made by an End User on the Platform that is cancelled by such End User at least 24 hours before that End User’s scheduled attendance date of the Experience and/or Event, will not attract Commission and the End User will receive a full refund from Switch.

2.8.9  Any booking made by an End User on the Platform that is cancelled by such End User less than 24 hours before that End User’s scheduled attendance date of the Experience and/or Event, or cases of no-show, will attract Commission and the End User will not receive any refund from Switch.

2.8.10 The requirement to accept returns of and give refunds in relation to Products purchased by End Users shall be determined in accordance with any internal policies and/or procedures issued by you, from time to time, provided always that such internal policies and procedures reflect all rights and remedies implied by any applicable laws and consumer protection regulations. Commission received for Products purchased by End Users will not be affected by any return of or refund due to faults or defects with products and will remain payable by you in accordance with the terms and subject to the conditions of this Agreement, unless a refund is issued within 14 days or purchase to and End User who is returning a product in perfect resale-able conditio

2.9 Direct Marketing to End Users

You agree not to specifically target End Users that have been obtained via Switch in either online or offline marketing promotions or solicited or unsolicited mail (email campaigns without the user’s consent).

2.10  Platform

You will gain access to the Platform by way of a user ID and password, which shall be generated by you. You shall safeguard and keep the user ID and password confidential and safely stored and shall not disclose such information to any person other than those who need to have access to the Platform for the purpose of this Agreement. You shall immediately notify Switch of any (suspected) security breach or improper use.  

3.  LICENSE 

3.1  You hereby grant Switch a non-exclusive, royalty free and perpetual worldwide right and license:

3.1.1 to use, reproduce, have reproduced, distribute, communicate and make available in any method and display those agreed upon elements of your Intellectual Property Rights as provided to Switch by you pursuant to this Agreement and which are necessary for Switch to exercise its rights and perform its obligations under this Agreement;

3.1.2 to use, reproduce, have reproduced, process, distribute, display and utilise (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to the public in any manner whatsoever) the Information;

3.2   In the event that any use of the license does not comply with your brand guidelines or quality standards, you reserve the right to request that the necessary corrective measures be taken as soon as possible by Switch or for the item in question to be removed from public channels.

3.3  In no event shall Switch be liable to you for any acts or omissions on the part of any Third Party Platforms. The sole remedy for you in respect of such Third Party Platforms is:

3.3.1  to request Switch (which has the right and not the obligation) to disable and disconnect with such Third Party Platform; o 

3.3.2 termination of this Agreement, all in accordance with the terms and subject to the conditions of this Agreement.

 4. NO ENDORSEMENT

4.1   Switch does not endorse you and the Information is intended only to indicate a representation of your Offering or Products provided at the time the Information was published. The content available on the Platform is not therefore an endorsement by Switch of any Service Provider. 

4.2  By using the Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of any Facility, manufacturer, supplier or other third party will be limited to a claim against the particular Facility, manufacturer, supplier or other third party who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Switch with respect to such acts or omissions.

5. RANKING, REVIEWS AND MARKETING

5.1 Ranking

5.1.1  The order in which you are listed on the Platform (the "Ranking"), is determined automatically and unilaterally by Switch. Ranking is based on and influenced by various factors, including but not limited to, the minimum availability stated by you, the number of bookings related to the number of visits to the relevant services page on the Platform (the "Conversion"), the volume realised by you, the ratio of cancellations, End User review and overall satisfaction scores, End User geolocation, service history and previous bookings/purchases, End User popularity and preferences, the number and type of complaints received from End Users and your on-time payment record.

5.1.2 You have the possibility to influence your own ranking by changing the availability for certain periods, and continuously improving the other factors. You shall not make any claim against Switch regarding the Ranking of Service Providers; the Ranking system is automated. The automated Ranking (as defined hereafter) system uses on-time payment as a factor

5.2 End User Reviews

5.2.1  End Users, who have attended Experiences and/or Events hosted by you will be asked by Switch to comment on their experience with you and to provide a score for certain aspects of their experience.

5.2.2 Switch reserves the right to post these comments and scores on the Platform. You acknowledge that Switch is a distributor (without any obligation to verify) and not a publisher of these comments.

5.2.3  Switch undertakes to use its reasonable efforts to monitor and evaluate End User reviews in respect of obscenities, false information or the mention of an individual's name. Switch reserves the right to refuse, edit or remove unfavourable reviews in the event that such reviews include obscenities, inaccurate or false information or mention an individual's name.

5.2.4