SIZZR APP | PRO USER AGREEMENT
Welcome to Sizzr, the free on-demand App that connects independent mobile hair and beauty professionals like you to customers and clients who are looking for a first-class service. The App is operated by Sizzr Ltd.
The Sizzr App allows you to advertise and manage bookings for services that you offer to end users, and enables end users to make such bookings via the App.
This Agreement is made between:
(1). Sizzr Ltd, a company registered in England & Wales at Companies House under Company Registration Number 12017867 of registered office address Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX, its agents, staff and contractors; and,
(2). You – any person signing up to create an account, referred to as the “Professional User” in this Agreement.
By using this App, you, the Professional User, acknowledge that you have read this Agreement, as this will apply to the relationship between Parties. If you do not agree to the terms of this Agreement, you should not use this App.
1. Definitions and Interpretation
1.1. In this Agreement, the following words shall have the following meanings:
‘Appointment’ means an appointment booked by an End User with a Professional User;
‘Booking’ means any booking by an End User for any services offered by a Professional User through the Sizzr App;
‘Business Day’ a day (other than a Saturday, Sunday or public holiday) when banks in the City of London are open for business;
‘Commission’ means the commission payable by Professional Users to Sizzr in respect of each individual booking made by an End User via the Sizzr App;
‘Default’ an event, occurrence or incident in which our performance of any of our obligations under this Agreement is prevented or delayed by any act or omission by you, or there is failure by you to perform any of your relevant obligations, including, but not limited to, full and timely payment for the Services used;
‘Device’ a mobile electronic device using either Android or iOS operating systems;
‘Effective Date’ means the date at which the Professional User agrees to receive the Services provided by Sizzr by joining the Sizzr App;
‘End User’ means an individual seeking services offered by Sizzr Professional Users via the Sizzr App, or someone authorised to act on their behalf;
‘End User Payments’ means payments received by Sizzr from End Users;
‘Fees’ means the fees payable by Sizzr Professional Users for the supply of Sizzr Services, as set out in the current Sizzr Table of Fees;
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
‘Professional User’, ‘you’ means a hairdresser, barber, stylist or beautician or similar who provides their services at the home or premises of clients and customers or at some other non-permanent location;
‘Sizzr’, ‘we’, ‘us’, ‘our’ refers to Sizzr Ltd, a company registered in England & Wales at Companies House under Company Registration Number 12017867 of registered office address Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX, its agents, staff and contractors;
‘Sizzr App’ or ‘App’ means the Sizzr app that can be downloaded from the App store or Google Play;
‘Sizzr Services’ or ‘Services’ means services a Professional User receives from Sizzr, including but not limited to, the booking management services through the Sizzr App, Sizzr;
‘User’ means either or both the Professional User and the End User, depending on context;
‘Website’ means Sizzr’s website at http://www.sizzr.app or any other domain under our control;
1.2. In this Agreement, the following rules of construction will apply:
1.2.1. clause and Schedule headings will not affect the interpretation of this agreement;
1.2.2. the Schedules forms part of this agreement and will have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules. References to clauses and the Schedules are to the clauses and the Schedules of this agreement;
1.2.3. unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular;
1.2.4. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.5. a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.6. unless the context otherwise requires, a reference to one gender will include a reference to the other genders;
1.2.7. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.8. any obligation on a party not to do something includes an obligation not to allow that thing to be done;
1.2.9. any phrase introduced by the terms including, include, in particular or any similar expression, will be construed as illustrative and will not limit the sense of the words preceding those terms; and.
1.2.10. a reference to writing or written includes faxes but not e-mail.
The Parties have agreed to enter into this Agreement to regulate the Sizzr Services provided by Sizzr to its Professional Users and agree as follows:
2. Commencement and Duration
2.1. The relationship between Sizzr and Professional Users is governed by this Agreement, effective from the Effective Date.
2.2. We will provide the Services to you on the terms of this Agreement. If you do not agree with this Agreement, you should not use Sizzr Services.
2.3. The Services supplied under this Agreement will be supplied for an initial six (6) month period and, after that, will continue to be supplied unless this Agreement is terminated or the user account is cancelled by one of the Parties in accordance with clause 18 or 19 below.
2.4. Any illustrations, descriptive matter or advertising issued by us, and any descriptions or graphics contained in Sizzr promotional material (including, among others things, any Website), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They will not form part of this Agreement or have any contractual force.
2.5. The terms of this Agreement apply to the exclusion of any other terms that the Professional User seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Joining Sizzr and Building Your Profile
3.1. You will need to download and then install the Sizzr Pro App on your Device. This is done entirely at your risk.
3.2. Registration with Sizzr is free, subject to satisfactory verification of your email account. We will not carry out any background or identity checks on you. You will only be required to pay our Fees when you agree a Booking and complete an Appointment with an End User.
3.3. Your interactive dashboard within the App will allow you to create or modify your profile and payment information and will display (among other things) your earnings history and job scheduling and task monitoring facilities, as well as customer reviews of your services. You will be able to change and update your password. There will be access to an online support in whatever form we decide in our discretion.
3.4. The current Fees are set out in current Sizzr Table of Fees, which is provided for information purposes only and will be subject to periodic review and change as per clause 4.9 below.
3.5. In your profile, you should indicate the type of services you offer, your highest qualification level in a trade relevant to the services you will offer on the App, your availability and geographic scope, your Prices, and other relevant details. You will not be permitted to include a link to your own website. To assist you, we will provide a pre-set menu of service types, but you can also add your own customised service offerings.
3.6. Once completed, your profile should contain the following information (this list is non-exhaustive):
3.7. Prices are set entirely at your discretion, though we reserve the right to require a review of pricing or suspend, deactivate or terminate an account, or some combination thereof, where we believe a Professional User is advertising at a non-commercial rate.
4. Booking and Payment
4.1. End Users can view your profile and service information, and to request an Appointment, an End User will contact you via the App, using the chat facility. You can opt to receive notifications of customer messages, but you should check your inbox on the App regularly. The End User may request immediate or future Appointments.
4.2. There is no obligation on you to accept a request for an Appointment, but if you do accept such a request, then the End User is prompted to pay a fee to us corresponding to your Price.
4.3. Once the End User Payment is received by us, the Booking is confirmed and the Appointment is added to your schedule.
4.4. End User Payments will be held in escrow by Sizzr acting as a collection agent for the Professional User. Sizzr reserves the right to engage a commercial payment processor for the purpose of receiving and processing payments from Professional Users, End Users and others, and for holding funds in escrow, where appropriate.
4.5. Within forty-eight (48) hours of an Appointment, and subject to clause 4.8 below, Sizzr will deduct and retain its Fees from the corresponding End User Payment and remit the balance to you by electronic bank transfer. In the event you require a faster means of payment, such as telegraphic transfer, Sizzr may agree to process payment using this method in its absolute discretion and on the condition that Sizzr shall deduct an additional fee for this service.
4.6. All sums payable to Sizzr under this agreement are exclusive of amounts in respect of value added tax (VAT) chargeable for the time being at the current rate from time-to-time in force.
4.7. You will pay all amounts due to Sizzr under this Agreement in full without any deduction or withholding and you will not be entitled to assert any credit, set-off or counterclaim against Sizzr in order to justify withholding payment of any such amount in whole or in part. Sizzr will set off any amount owing to it by you, including for the Fees or otherwise, from any monies that it accepts from End Users.
4.8. Payments by End Users are routinely checked by Sizzr for fraud prevention purposes, before any payments are released to the Professional User. Sizzr aims to process these payments and credit funds to the Professional User as soon as reasonably possible and within a maximum of thirty (30) days of the Appointment.
4.9. The Parties agree that Sizzr may review and increase its Fees and Commissions from time to time, in its sole discretion by updating the current Table of Fees. So far is as possible, Sizzr will endeavour to give you thirty (30) days’ prior notice of any such change by e-mail.
4.10. In the event that you cancel or suspend your services or provide incorrect information to Sizzr or End Users via the App or any other means, Sizzr may, at its entire discretion, offer to refund End User Payments to End Users without having to seek your prior consent or authority.
5. Cancellations and Refunds
5.1. An End User may cancel an Appointment by selecting this option in the App scheduler.
5.2. Provided cancellation is requested at least one (1) hour prior to the agreed Appointment time, the End User will be entitled to a full refund of the End User Payment. Where cancellation is requested less than one (1) hour prior to the Appointment time, the End User will not be entitled to a refund without your prior agreement.
5.3. An End User may request to vary the time of an Appointment by messaging you via the App, and:
5.3.1. if the variation is agreed, your scheduler should be updated from the Dashboard to reflect the new arrangements; or,
5.3.2. if the variation is not agreed and the Parties cannot otherwise agree on a new Appointment, then the End User’s request shall be treated as a cancellation request and clauses 5.1 and 5.2 above shall apply.
6. User Reviews
6.1. When an Appointment is completed and the Professional User has been paid by the End User, the End User is asked to provide both qualitative feedback and a rating from 1-5 for the Service.
6.2. The review is published on the Professional User’s profile page and should be completed honestly. Users must not falsify feedback, manipulate or coerce another User by threatening negative feedback or offer incentives in exchange for feedback. Any attempts of this nature should be reported immediately to Sizzr.
6.3. Feedback comments that are reported to us as defamatory, abusive or offensive will be reviewed and may be removed at our discretion.
6.4. We may anonymise or pseudonyms reviews on request by an End User, or otherwise for the purposes of data protection where an End User’s account has been closed or terminated.
7. Your Warranties and Obligations
7.1. You warrant that:
7.1.1. you are 18 years of age or older;
7.1.2. you are a human, and not a computer service or automated “bot”;
7.1.3. you have provided accurate and valid information requested during the registration process;
7.1.4. you are a mobile hairdresser, barber, stylist or beautician or similar and will provide your service to End Users with reasonable skill and care, and in a prompt and punctual fashion, adhering to any and all contractual and tortious obligations you may have to End Users and relevant third parties. We may, at our discretion, also allow you to offer salon-based services, in which case this will be indicated on registration or later;
7.1.4. you will use the Service only for lawful purposes;
7.1.5. during your use of the Service you will not create, transmit, distribute, or store material that violates a trademark, copyright, trade secret, or other intellectual property rights of others; violates the privacy, publicity, or other personal rights of others; impair the privacy of communications; generate obscene, offensive, or inappropriate content; causes technical disturbances to the Service, including, but not limited to, introduction of viruses, worms, or other destructive mechanisms; create or send verbal, physical, written or other abuse (including threats of abuse or retribution) to any Sizzr customer, employee, member, or officer.
7.2. All communications and payments between Professional User and End User must be through Sizzr, both for work referred on Sizzr and for any follow on work between the Professional User and End User, either for the same Appointment or another Appointment. Where additional or top-up payments are agreed between the Users for the same Appointment, the Users shall immediately notify Sizzr and the Professional User be invoiced for our Fee accordingly. A Professional User may seek express written permission from Sizzr to allow communication or payment by alternative means for a specific invoice or payment, if the Professional User intends to issue proceedings or pursue legal action against the End User.
7.3. Communication or payment (or attempt of) outside of Sizzr is a breach of this Agreement unless the prior express written consent of Sizzr has been obtained. Such communication or payment (or attempt of) and will lead to temporary and/ or permanent suspension of the End User and/ or Professional User's account. The Professional User will be liable for any loss of business and legal expenses that Sizzr may incur in recovering any such payment. Without prejudice to any other rights we may have, Sizzr reserve the right to access and deduct from funds held in the Professional User’s Account in order to recover lost fees. Moreover, Sizzr will not mediate any disputes between the Professional User and the End User or be liable to either User’s loss of business as a result of breach(es) of this clause. Users must report attempts or offers to make payment outside of Sizzr by other Users to Sizzr immediately.
7.4. You must not breach any laws in your jurisdiction, including but not limited to any copyright laws.
7.5. You are prohibited from violating, or attempting to violate, the security of the Service.
7.6. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission of Sizzr.
7.7. You understand that Sizzr uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and other technology required to run the Service. If your bandwidth usage on the Service significantly exceeds the average bandwidth usage of the Service, as determined by Sizzr, we reserve the right to limit your bandwidth to the Service.
7.8. You will co-operate in a commercially reasonable manner with Sizzr in all matters relating to the Services and must provide us with such information and materials as we may reasonably require in order to supply the Services.
7.9. You will be required to display a business profile on the Sizzr App and you will ensure that all information contained in your Sizzr profile is truthful and accurate in all material respects.
7.10. You will have an ongoing obligation to keep up-to-date all such information which you upload to the App, including but not limited to opening hours, available facilities, age
requirements and booking slots.
7.11. If the event of Default:
7.11.1. Sizzr will, without limiting its other rights or remedies, have the right to:
126.96.36.199. suspend performance of the Services until you remedy the Default to Sizzr’s satisfaction; and,
188.8.131.52. to rely on the Default to relieve it from the performance of any of its obligations to the extent the Default prevents or delays Sizzr’s performance of any of its obligations;
7.11.2. Sizzr will not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Sizzr’s failure to perform, or delay in performing, any obligation; and,
7.11.3. you will reimburse Sizzr on written demand for any costs or losses sustained or incurred by Sizzr arising directly or indirectly from the Default.
7.12. You agree to pay all Fees to Sizzr in consideration for all the Services and treat all Sizzr End Users to the highest industry standards and in line with the terms and conditions set out in this Agreement, PROVIDED that it is acknowledged by Sizzr that you are under no obligation to accept Bookings.
7.13. The Professional User agrees to always offer Partner services at prices which is the best available offer rate to the End User, as compared with any other booking channel, privately or publicly advertised by the Professional User.
7.14. The Professional User shall not solicit or motivate or influence the End User to make Bookings other than Sizzr Services.
8. Legal Status
8.1. As a Professional User, you are an independent service provider for End Users. You warrant and agree that:
8.1.1. your legal status is self-employed and you are not an employee or worker and hold no employment or worker rights or similar; and,
8.1.2. additionally, where your business is arranged as a corporate legal structure, such as a private company limited by shares, you are a self-employed company director and not an employee or worker in either your company or Sizzr and hold no employment or worker rights or similar rights whatsoever; and,
sub-clauses 8.1.1 and 8.1.2 reflect the intentions of the Parties.
8.2. You acknowledge that:
8.2.1. the Sizzr App is on-demand and Sizzr is not obliged to provide you with work or income and does not guarantee work or income from the App;
8.2.2. you may earn nothing from your use of the App;
8.2.3. you are not obliged to accept work, Appointments or Bookings from the App, which you may accept or decline at will, for any reason or no reason;
8.2.4. Sizzr exercises no supervision or control over your business whatsoever and you are not required to use the App at any time or at all, nor are you require to provide your services to End Users as a condition of using this App, nor are you required to provide any services to End Users or anyone else on any particular day or dates or at any particular time, or at all;
8.2.5. you are entirely independent of Sizzr and provide your own capital, equipment, materials and stock and are free to adopt your own business procedures, processes, accounting standards, branding, and so on, and there is no requirement that you should seek Sizzr’s approval of these (or procure from suppliers approved by Sizzr), nor will Sizzr approve or disapprove of such;
8.2.6. Sizzr will carry out no background checks on you or your business, these being entirely a matter between yourself and your customers, including End Users;
8.2.7. Sizzr is providing a third party referral service to you via the Sizzr App, and no partnership or joint venture or other relationship arises between you and Sizzr beyond the provision of services by Sizzr to you as set out in this Agreement;
8.2.8. the relationship between you and Sizzr is non-exclusive, meaning:
184.108.40.206. you are free to avail yourself of similar services and Apps provided by others, whether in addition to or instead of Sizzr, at any time, without any hindrance or objection from us;
220.127.116.11. when agreeing Appointments with End Users, Sizzr has no objection to you substituting your services for those of a different individual or corporate body entirely, as you see fit (assuming your contract with an End User allows for this).
9.1. You acknowledge and agree that:
9.1.1. Sizzr is a third party referral platform and not a provider of professional hair or beauty services of any kind, and all contractual relations and arrangements concerning the provision of such services are entirely a matter between you and the End User, Sizzr is in no way responsible or liable for the provision of such services, and you indemnify Sizzr entirely in respect of the financial consequences of any breach of contract or breach of duty on your part in the provision of your services;
9.1.2. use of the App requires a Device and it is your responsibility to ensure that you use or have access to a Device;
9.1.3. notwithstanding the above, Sizzr offers no warranty or assurance that your particular Device will be compatible with the App and it remains at all times your responsibility to ensure compatibility and resolve any technical issues that may arise in this regard;
9.1.4. it is your responsibility to configure your Device so that you are able to receive push notifications from us on the App, including notification of messages from us and End Users; and,
9.1.5. your profile will be displayed publicly on the App and searchable by any registrant or user.
9.2. Sizzr reserves the right to:
9.2.1. make any changes to the Services which are necessary to comply with any applicable law or regulation, or which in their opinion do not materially affect the nature or quality of the Services; and,
9.2.2. modify or remove parts the Service at any time;
9.3. Sizzr shall not be liable to you or to any third party for the adverse financial consequences of any modification, price change, suspension or discontinuance of the Service.
10. Registration, Linking & Testing
10.1. Each registration for Sizzr Services is for a single user only. Sizzr does not permit you to share your username and password with any other person outside of the Sizzr App. Responsibility for the security of any passwords issued rests solely with you.
10.2. After registering for the Service, you should add to your profile on the App your name and address, your trading name or style (if different), locations you service, type of service offered, and any other relevant information you are prompted to provide. We will also require your bank details for payments.
10.3. If you would like to link to the Website or App, or both, you may only do so on the basis that it links to, but does not replicate, Website or App, as the case may be, and subject to the following conditions:
10.3.1. you do not remove, distort or otherwise alter the size or appearance of the Sizzr name or logo;
10.3.2. you do not create a frame or any other browser or border environment around the Website/App;
10.3.3. you do not in any way imply that Sizzr is endorsing any products or services other than our own;
10.3.4. you do not misrepresent your relationship with Sizzr nor present any other false information about Sizzr;
10.3.5. you do not otherwise use the name Sizzr or any trade marks displayed on our Website/App, or any other services we may provide, without the express written permission from Sizzr;
10.3.6. you do not link from a website that is not owned by you; and,
10.3.7. your website does not contain content that is distasteful, offensive or controversial, infringes any intellectual property rights or other rights of any other person or otherwise does not comply with all applicable laws and regulations.
10.4. Sizzr may from time-to-time ask you to carry out beta testing on certain new or updated features of the App. For the avoidance of doubt, any data or information obtained by you as a result of such testing will be the exclusive property of Sizzr and you hereby undertake to forward such data or information to us immediately upon you obtaining the same.
11. Intellectual Property Rights
11.1. As between Sizzr and the Professional User, all Intellectual Property Rights in or arising out of or in connection with the Services, including the App and Website, will be owned by Sizzr. Subject to clause 11.2 below, Sizzr licenses all such rights to the Professional User on a non-exclusive, worldwide basis to such extent as is necessary to enable the Professional User to make reasonable use of the Services. If this agreement is terminated, this licence will automatically terminate.
11.2. The Professional User acknowledges that, in respect of any third party Intellectual Property Rights, the Professional User’s use of any such Intellectual Property Rights is conditional on Sizzr obtaining a written licence from the relevant licensor on such terms as will entitle Sizzr to license such rights to the Professional User.
11.3. The Professional User hereby warrants that any data, information, images or other content which it uploads to the App will not infringe the Intellectual Property Rights of any third party or otherwise not comply with all applicable laws and regulations. The Professional User will indemnify Sizzr against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Sizzr arising out of or in connection with any breach by the Professional User of this clause 11.3, including but not limited to any claims made by End Users against Sizzr arising from the Professional User suspending, cancelling or
providing incorrect information in respect of any activities or facilities offered to End Users via the App.
12.1. Any material which the Professional User uploads, transmits or posts to the Sizzr App will be considered non-confidential and non-proprietary. Sizzr will have no obligations with respect to such material. Sizzr and its designees will be free to copy, disclose, distribute, incorporate and otherwise use such material and all data,
images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes.
12.2. The Professional User is prohibited from uploading, posting or transmitting to or from the App any material which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
13.1. A party (Receiving Party) will keep in strict confidence all technical or commercial know-how, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain.
13.2. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under this agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
13.3. This clause 13 will survive termination of this Agreement.
14.1. Sizzr is not responsible for any incorrect or inaccurate content posted on the App. The App may be temporarily unavailable from time-to-time for maintenance or other reasons. Sizzr assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Sizzr is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the App, including injury or damage to users or to any other person’s computer related to or resulting from use of the Service.
14.2. Sizzr does not warrant that (i). the Service will meet your specific requirements, (ii). the Service will be uninterrupted, timely, secure, or error-free, (iii). the results that may be obtained from the use of the service will be accurate or reliable, (iv). the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v). any errors in the Service will be corrected. The Service is provided “as-is” and Sizzr disclaims all warranties, whether expressed or implied, including without limitation implied warranties of title, merchantability, fitness for a particular purpose or non-infringement. Sizzr cannot guarantee and does not promise specific results from use of the Service. Except in jurisdictions where such provisions are restricted, in no event will Sizzr or any of Sizzr’s business associates (which for the purposes of these terms will include suppliers, advertisers, referrers, etc.) be liable to your or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including also
lost profits arising your use of the Service, even if Sizzr has been advised of the possibility of such damages.
15. Limitation of Liability
15.1. Nothing in this Agreement will limit or exclude Sizzr’s liability for:
15.1.1. death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; or,
15.1.2. fraud or fraudulent misrepresentation.
15.2. Subject to clause 15.1 above:
15.2.1. Sizzr will under no circumstances whatsoever be liable to the Professional User, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of or damage to goodwill, loss of use or corruption of software, data or information or any indirect or consequential loss arising under or in connection with this agreement;
15.2.2. Sizzr will under no circumstances be liable if for any reason the App is unavailable at any time or for any period. Access to the App may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Sizzr’s control; and,
15.2.3. Sizzr’s total liability to the Professional User in respect of all other losses arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the lower of ONE HUNDRED POUNDS (£100) or the Fees actually received by Sizzr from the Professional User for the Services.
15.3. Sizzr will use reasonable endeavours to ensure that the information or materials contained on the App are accurate and complete. Sizzr reserves the right to make such changes or updates to the material or processes on the App as it deems necessary from time to time. The App is provided "as is", without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, Sizzr provides the App on the basis that Sizzr excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which, but for this legal notice, might have effect in relation to the App.
15.4. This clause 15 will survive termination of this Agreement.
You agree to indemnify and hold Sizzr, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable legal fees, made by any third party due to or arising out of your use of the App in breach of this Agreement or your breach of any law or the rights of a third party.
17. Customer Data & Privacy
17.1. The Parties acknowledge that for the purposes of the App and with regards to their relationship and all the data, including but not limited to customer data, Sizzr is the Data Controller and Data Processor, such meaning been given to them under the Data Protection Act 1988.
17.2. The Professional User may collect customer information separately by itself and in such case Professional User will be the Data Controller. Although, for any customer information stored on or processed through any platform provided by Sizzr, Sizzr is the Data Controller and Data Processor.
17.3. The Professional User may not use any data collected through Sizzr Services for any purpose other than fulfilment of a Booking.
17.4. While processing any data, the Professional User shall comply with all data protection legislation and take all appropriate technical and organisational measures to protect the personal data against any unauthorised or unlawful processing of the data.
17.5. The Professional User must take all reasonable steps to ensure that no personal data is published, disclosed, divulged or transferred to any third party or the Professional User’s agents or contractors, without prior consent of Sizzr.
17.6. Sizzr will retain your data for as long as is necessary, and for a period of up to six (6) years following closure or termination of your account. We may:
17.6.1. share your customer data with third party service providers for the purpose of fulfilling its Services, including (among other things) account administration and informing you about Sizzr’s services in the future;
17.7. Any breach of this clause 17 will be considered a Default and clause 7.11 above will apply.
17.9. This clause 17 shall survive the termination or expiry of this Agreement.
18. Cancelling (Deactivating) Your Account
18.1. Accounts can be cancelled in the App by a Professional User at any time by completing the cancellation
process. This is known as account deactivation, and will mean:
18.1.1. your account will be deactivated and can no longer be accessed;
18.1.2. your account will no longer be charged;
18.1.3. all of your rights granted under this Agreement will immediately come to an end; and,
18.1.4. all of your data and content may be deleted from our systems (on request).
18.2. Sizzr May cancel a Professional User’s account at any time for any reason or no reason and with or without notice to the Professional User.
18.3. We provide no guarantee that your content can be recovered once your account is cancelled. We are not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is backed-up or replicated before cancellation.
19.1. Without limiting its other rights or remedies, each party may terminate this Agreement with immediate effect by giving written notice to the other party if:
19.1.1. the other party commits a material breach of this Agreement and (if such a breach is remediable) fails to remedy that breach within seven (7) days of that party being notified in writing of the breach;
19.1.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
19.1.3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
19.1.4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
19.1.5. the other party (being an individual) is the subject of a bankruptcy petition or order;
19.1.6. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days;
19.1.7. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
19.1.8. a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
19.1.9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
19.1.10. any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in sub-clauses 19.1.2 to 21.1.9 (inclusive);
19.1.11. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or,
19.1.12. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
19.2. Without limiting its other rights or remedies, Sizzr may terminate this Agreement with immediate effect by giving written notice to the Professional User if the Professional User fails to perform under its obligations under this Agreement on the due date for payment.
19.3. Without limiting its other rights or remedies, Sizzr will have the right to suspend provision of the Services under this Agreement or any other agreement between the Parties if the Professional User becomes subject to any of the events listed in sub-clauses 19.1.2) to 19.1.9 inclusive, or Sizzr reasonably believes that the Professional User is about to become subject to any of them, or if the Professional User fails to pay any amount due under this Agreement on the due date for payment.
20. Consequences of Termination
On termination of this Agreement for any reason:
20.1. the Professional User will immediately pay to Sizzr any of Sizzr’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Sizzr will submit an invoice, which will be payable by the Professional User immediately on receipt;
20.2. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination will not be affected, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination or expiry; and,
20.3. clauses which expressly or by implication have effect after termination will continue in full force and effect.
21. Force Majeure
21.1. For the purposes of this agreement, Force Majeure Event means an event beyond the reasonable control of Sizzr including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Sizzr or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Sizzr or subcontractors.
21.2. Sizzr will not be liable to the Professional User as a result of any delay or failure to perform its obligations under this agreement as a result of a Force Majeure Event.
21.3. If the Force Majeure Event prevents Sizzr from providing any of the Services for more than eight (8) weeks, Sizzr will, without limiting its other rights or remedies, have the right to terminate this agreement immediately by giving written notice to the Professional User.
22. General Provisions
22.1. Assignment and Subcontracting.
22.1.1. Sizzr may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the agreement and may subcontract or delegate in any manner any or all of its obligations under the agreement to any third party or agent.
22.1.2. The Professional User will not, without the prior written consent of Sizzr, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the agreement.
22.2.1. Any notice or other communication required to be given to a party under or in connection with this agreement will be in writing and will be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
22.2.2. Any notice or other communication will be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
22.2.3. This clause 22.2 will not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" will not include e-mails and for the avoidance of doubt notice given under this agreement will not be validly served if sent by e-mail.
A waiver of any right under this Agreement is only effective if it is in writing and will not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the agreement or by law will constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that or any other right or remedy.
22.4.1. If a court or any other competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this Agreement will not be affected.
22.4.2. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision will apply with the minimum modification necessary to make it legal, valid and enforceable.
22.5 Sizzr reserves the right to revise and amend this Agreement from time-to-time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in our Services offered, changes in relevant laws and regulatory requirements and changes in our system's capabilities, so please review our terms regularly.
22.6. No Partnership or Agency.
Nothing in this Agreement is intended to, or will be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party will have authority to act as agent for, or to bind, the other party in any way.
22.7. Entire Agreement: this Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
22.8. Third Parties.
A person who is not a party to this Agreement will not have any rights under or in connection with it.
22.9. Rights and Remedies.
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Except as set out in this Agreement, any variation, including the introduction of any additional terms and conditions to this Agreement, will only be binding when agreed in writing and signed by Sizzr.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered will constitute a duplicate original, but all the counterparts will together constitute the one agreement.
22.12. Governing Law and Jurisdiction.
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.