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Commerical Services Agreement

1. Definitions

Capitalized terms shall have the meaning set forth below or as otherwise defined in this Agreement.

"Ad Content" means advertising materials generated using Customer Content placed in standard templates for publication on the FitnessPlans.

"Administrator" means the individual designated as an administrator for Customer's account on the FitnessPlans.

"Agreement" means the FitnessPlans Commercial Services Agreement between Customer and FitnessPlans, including these Terms and Conditions.

"Analytics" means data analytics regarding engagement with Customer Content and Ad Content on the FitnessPlans Platform, including analytics about clicks and impressions. Analytics are accessible through a dashboard on the FitnessPlans.

"Authorized User" means an individual provided with access and use of Customer’s account on the FitnessPlans Platform by an Administrator.

"Brand" has the meaning set forth in Exhibit A, Section 3(a).

"Client Seats" means free user accounts invited by Customer to Customer.

"Customer" or "you" means the business that is purchasing the Services from FitnessPlans.

"Customer Business Data" means the information associated with your business and Pro Profile.

"Customer Content" means all information, content and materials made available or submitted by Customer to FitnessPlans or through the FitnessPlans Platform for use on the FitnessPlans Platform, including all content and materials for use in connection with Ad Content, or a Site Designer Website.

"Effective Date" means the date this Agreement is accepted by Customer. With respect to a Service, the first day on which such Service is first provided or otherwise made available to Customer.

"Email Services" means FitnessPlans providing Customer with a third party email service such as GSuite (including any ancillary services included as part of that third party email service).

"FitnessPlans" or "we" or "our" means FitnessPlans..

"FitnessPlans Content" has the definition set forth in Section 6(b).

"FitnessPlans Platform" has the definition set forth in EXHIBIT B below.

"FitnessPlans Privacy Policy" means the Privacy Policy for the FitnessPlans Platform, which is available for review as described in EXHIBIT B below.

"FitnessPlans Terms of Use" means the Terms of Use for the FitnessPlans Platform, which is available for review as described in EXHIBIT B below.

"Initial Term" has the meaning set forth in Section 5(a).

"Marketing Services" means any advertising and marketing services provided by FitnessPlans or through the FitnessPlans.

"Minimum Standards" means the minimum amount of quality content that is needed in order for FitnessPlans to deliver Ad Content.

"Personal Data" means any data relating to an identified or identifiable natural person or is deemed personal data or personally identifiable information under applicable laws.

"Plan" means a fitness program organized with a sequence of days containing activities, for example, but not limited to exercise or nutrition recommendations.

"Renewal Term" has the meaning set forth in Section 5(a).

"Service Content" means the content created by or on behalf of FitnessPlans in connection with providing Customer a Service.  Service Content includes Ad Content.

"Service Term" means, with respect to a Service, 1 month after the Effective Date.

"Services" means the services provided by FitnessPlans to Customer under this Agreement or ordered by Customer under this Agreement as further described in Exhibit A.

"Site Designer Website" means a website displaying content from Customer's Pro Profile and any other Customer Content included by or on behalf of Customer into standard FitnessPlans web templates with hosting managed by FitnessPlans.

"Technology Services" means the tools that allow Customer to distribute content beyond FitnessPlans.

"Term" has the meaning set forth in Section 5(a).

"Third Party Services" has the meaning set forth in Section 2(d).

"User Data" has the meaning set forth in Section 3(d).

"Website Services" means FitnessPlans providing Customer a Site Designer Website or FitnessPlans providing Customer with tools to build a Site Designer Website and which may include Email Services.

 

2. Services
Scope of Services. Subject to the provisions of this Agreement, FitnessPlans will provide the Services ordered by Customer under this Agreement. During the Term of this Agreement, Customer may access and use the Services. FitnessPlans may establish general practices and limits concerning use of the Services, including the maximum period of time that data or other content will be retained by the FitnessPlans Platform and the maximum storage space that will be allotted to Customer. If Customer is purchasing the Services for use by an entity or another business, Customer agrees that Customer has the authority to bind such entity or business to this Agreement and both Customer and such entity or business are jointly and severally liable for Customer's obligations under this Agreement.
Customer Data. Personal Data collected with respect to Customer will be handled by FitnessPlans in accordance with the FitnessPlans Privacy Policy, which is incorporated into this Agreement by reference. Customer agrees that FitnessPlans may access Customer's Pro Profile and Site Designer Website on behalf of Customer in order to provide feedback to Customer, to improve your Pro Profile and Site Designer Website based on FitnessPlans's reasonable discretion or experience and at Customer's direction or with Customer's approval, to assist Customer with the Pro Profile and Site Designer Website. FitnessPlans may also access other information and content related to Customer in order to provide the Services, understand Customer's experience with the Services and FitnessPlans Platform, to provide feedback and assistance to Customer, and to improve and customize the Services and FitnessPlans Platform. Such information and content accessed by FitnessPlans may include Analytics, Customer Content, and communications sent to and from Customer using the FitnessPlans Platform. FitnessPlans limits the access to Customer Business Data on a need-to-know basis (by policy or technical controls) for the uses identified in the FitnessPlans Privacy Policy.
Changes. The FitnessPlans Platform and the content therein are subject to change at FitnessPlans's discretion. The FitnessPlans Platform and Services are dynamic in nature and FitnessPlans may, in its discretion, change certain aspects of the Services, including categories for Marketing Services, format, content, placement, design, timing, related features, and methodologies. FitnessPlans also may provide you certain features as part of your Services for a limited promotional or beta test period.
Promotions and Incentives. FitnessPlans may, from time to time, in it’s sole discretion, offer trials, incentives, or other such promotions designed to attract more users to the platform. Such offers will not be subject to fees unless agreed to in writing in advance.
Third Party Integrations. Certain aspects of the Services may integrate with third party applications or services ("Third Party Services"). FitnessPlans does not operate, control, approve nor endorse any of the Third Party Services, including their availability or accuracy. Your use of Third-Party Services is subject to the terms and policies established by third parties governing their use. FitnessPlans is not responsible for any Third Party Services.

 

3. Customer Responsibilities
Cooperation. Customer will cooperate promptly and reasonably with requests by FitnessPlans representatives related to the provision of the Services (e.g., for your Site Designer Website to be hosted on a third party domain.
Pro Profile. Customer agrees to follow the FitnessPlans Professional Profile Policy, available as described in Exhibit B. Customer will provide to FitnessPlans all Customer Content necessary for FitnessPlans to provide the Services in accordance with this Agreement. Customer Content must conform to FitnessPlans's Acceptable Use Policy and Prohibited Products Policy, available as described in Exhibit B. Customer agrees that Customer Content should complement and enhance the FitnessPlans Platform experience for FitnessPlans Platform users generally. Accordingly, FitnessPlans will have the right to provide feedback to Customer for this purpose, as well as the right to refuse to accept any Customer Content or remove from the FitnessPlans Platform any Customer Content that does not in its judgment complement and enhance the FitnessPlans Platform user experience. In the event of FitnessPlans's refusal to accept any Customer Content provided by Customer as set forth in this Section 3, Customer promptly will substitute other Customer Content reasonably acceptable to FitnessPlans.
Notwithstanding any feedback, acceptance or refusal of Customer Content, Customer shall remain responsible for all Customer Content and all Service Content approved by Customer.
Authorized Users. Customer shall be responsible for the acts or omissions of any person who accesses Customer’s account on its behalf, including its Administrators and Authorized Users. Customer shall be responsible for all activities that occur under Customer’s account including by Customer, Customers Administrators or Customer’s Authorized Users.
Personal Data. To the extent that Customer receives Personal Data through the FitnessPlans Platform ("User Data"), Customer may use the User Data only for the intended purpose for which it was provided, i.e. to respond to the applicable person in a timely manner or as otherwise authorized by the User. Customer shall protect the confidentiality of User Data and use appropriate security safeguards to protect User Data against unauthorized or unlawful processing and against accidental loss, destruction, alteration, disclosure of or access to User Data. Customer may share such User Data only to the extent authorized by the person to which such Personal Data relates or to Customer's sub-contractors, provided that Customer is responsible for ensuring the subcontractors' compliance with this provision. Without limiting the foregoing, Customer shall not sell User Data. Customer will ensure that its use of Personal Data is at all times compliant with all applicable laws (including with respect to the period with which it retains Personal Data) and that it honors requests by individuals exercising their rights under applicable law (e.g. with respect to not contacting the individual further, data deletion or data access). If Customer receives any privacy inquiry or complaint from an individual, regulator or other party related to the use of Personal Data, it will promptly inform FitnessPlans of such inquiry or complaint and will cooperate reasonably and in good faith to respond to such inquiry or complaint.
User Disputes. You agree that you are solely responsible for your agreements or interactions with any other user of the FitnessPlans Platform, and we will have no liability or responsibility in connection with such agreements or interactions. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of the FitnessPlans Platform.

 

4. Billing and Payment
Cooperation. Customer agrees to pay for the Services ordered as set forth in this Agreement, plus any applicable fees or surcharges, including any automatically recurring fees, usage-based fees, transaction fees deducted automatically from payments made to you through the FitnessPlans Platform, one-time fees that you may incur, and surcharges for using a payment card. Fees or surcharges for using a payment card will be identified in the Agreement. For clarity, unless otherwise expressly provided in this Agreement, any promotion or discount will apply only during the Initial Term, and any free Services will be provided only so long as Customer is current on payment for all other Services. All sums payable to FitnessPlans under this Agreement are non-refundable unless expressly provided otherwise in this Agreement. FitnessPlans may set off amounts payable by FitnessPlans to Customer against amounts payable by Customer to FitnessPlans.
Recurring Billing. Starting on the Effective Date and unless and until this Agreement terminates FitnessPlans has the right to automatically charge your stored payment method for the Services in accordance with the agreed payment schedule as specified in this Agreement. The agreed payment schedule may be for the full amount at the beginning of the applicable Term (as is typically, but not always, the case for the Initial Term) or on a monthly pro rata basis (as is typically, but not always, the case for each Renewal Term). For clarity, if charges precede the Effective Date for certain Service Content, the billing period may span different dates than the period during which the Services are provided for such Service Content.
Pricing Tier Changes. If you order a Service that includes a specific number of Client Seats and you exceed the number of Client Seats for your pricing tier, your account will automatically be changed to the plan at the next higher pricing tier, and starting with your next billing period, you will be charged the fees for the next higher pricing tier. The agreed upon fees for each pricing tier may be accessed through at least one of the following ways: (i) this Agreement, (ii) your account page in the FitnessPlans Platform, or (iii) advance notice (by email or in product).
Payment Method. FitnessPlans has the right to store Customer's payment method. You must promptly update your payment method and related information (for example, a change in your billing address or credit card expiration date) to maintain its accuracy and completeness. We do not have access to information about your payment method, other than your name, the last 4 digits of your payment method or similar abbreviated information and your contact information as required for customer service, but our payment processor may store and update your payment method. We may continue billing your payment method (e.g. credit card) even after it has expired or been updated, to avoid interruptions in your use of the FitnessPlans Platform and for other transactions you authorize through the FitnessPlans Platform.
Late Fees. If we are unable to collect any fees from you, we may limit your ability to use the FitnessPlans Platform, and we may collect fees owed using any legal manner without prejudice to any other right or remedy we may be entitled to under these Terms of Use or by law. In the event that FitnessPlans brings any action or suit to collect any fees owed under this Agreement, FitnessPlans will be entitled to recover its costs, including reasonable attorneys' fees, incurred in such collection. Any amounts past due will be subject to a late fee of the lesser of 1.5% per month or the maximum amount permitted by law.
Taxes. All consideration to be paid or made under or in connection with this Agreement is exclusive of taxes, duties and levies, including state sales taxes, VAT or GST (collectively, "Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on FitnessPlans's net income. If FitnessPlans has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer based on the Customer's address on file, unless Customer provides FitnessPlans with a valid tax exemption certificate authorized by the appropriate taxing authority. FitnessPlans may begin invoicing and charging such Taxes to Customer at any time, which amount may vary based on changes to the Tax rate or applicability. Any Tax listed on this Agreement is only an estimate and is calculated on the net price. Your invoice will reflect the final total taxes in effect at the time of invoicing and may differ from the amount listed on this Agreement.

 

5. Term and Termination
Term. The term of this Agreement will start on the Effective Date and will continue for one month (“Initial Term”) unless otherwise specified on an Order Form. Thereafter, all Services initially ordered by Customer shall renew automatically without notice for successive one-month terms (each, a "Renewal Term") unless either party delivers to the other party written notice of non-renewal before the expiration of the then-current Initial Term or Renewal Term (the Initial Term, together with any Renewal Terms, the "Term"). Customer must email FitnessPlans at legal@fitnessplans.io and follow the instructions provided by FitnessPlans in order for FitnessPlans to process the non-renewal notice correctly.
Termination by FitnessPlans. In the event of Customer's material breach of this Agreement, FitnessPlans may terminate this Agreement by providing written notice to Customer. For example, one of the reasons FitnessPlans may terminate this Agreement for Customer’s material breach is if Customer violates the FitnessPlans Professional Profile Policy. In such case, FitnessPlans has no obligation to refund any amounts to Customer, and Customer immediately shall pay any additional amounts due to FitnessPlans. This Agreement also may be terminated by FitnessPlans for any other reason by providing Customer 30 days prior written notice. In such case, FitnessPlans will promptly refund Customer any prepaid amounts, on a pro rata basis, for any Services not delivered.
Termination by Customer. Customer may terminate this Agreement (a) by electing not to renew in accordance with Section 5(a), or (b) upon 60 days notice to FitnessPlans in the event of FitnessPlans's material breach of this Agreement, provided that FitnessPlans has not cured such material breach within such 60 day period. For clarity, to be effective, all notices under this Section 5(c) must be provided in accordance with Section 10(a).
Effect of Termination. In the event of any termination, Customer will immediately cease all access and use of the Services, and FitnessPlans will immediately cease providing the Services. Sections 2(a)(iii), 2(d), 3(d), 3(e), 4, 5(d), 6 through 12 and Exhibit A Sections 1(d)(iii), 1(f)(iii), 2(c), 2(d) and 3(a) will survive expiration or termination of this Agreement. In FitnessPlans's discretion, the Service Content may continue to be published on the FitnessPlans Platform; provided, however, upon Customer's written request, FitnessPlans will not attribute the Service Content to the Customer's name and contact information. FitnessPlans will maintain a copy of the Customer Business Data for 90 days after the expiration or termination of this Agreement. Unless permanent deletion of such data is requested by Customer, FitnessPlans may retain the Customer Business Data for a longer period of time at its discretion. To the extent FitnessPlans has a copy of the Customer Business Data, Customer may request a copy of the Customer Business Data and FitnessPlans will provide a copy of that data to the Administrator for Customer’s account in excel format. If Customer requires a copy of the Business Contact Data in its original format, FitnessPlans reserves the right to charge a fee for such request.

 

6. Proprietary Rights
Customer Content. Customer owns and retains all right, title and interest to Customer Content, subject to the following license granted to FitnessPlans. Customer hereby grants FitnessPlans and its affiliates, licensees and sublicensees a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license and right to use, reproduce, process, distribute, transmit, modify, publish, adapt, create derivative works of, publicly display and publicly perform Customer Content (or any portion thereof) in any format, media or distribution method (whether now known or hereafter created) on the FitnessPlans Platform in any manner FitnessPlans deems appropriate or necessary (including for the purpose of providing the Services and to promote the FitnessPlans Platform, FitnessPlans or the Services). Such permission will be perpetual and may not be revoked for any reason, to the maximum extent permitted by law. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in Customer Content. This Section, including the rights granted by you, does not impact the ownership of your Customer Content. You can find more information about this Section here.
FitnessPlans Content and FitnessPlans Materials. FitnessPlans retains all right, title and interest in and to the FitnessPlans Platform, FitnessPlans technology, and any content and information created or made available by FitnessPlans ("FitnessPlans Content"). Except for original Customer Content that may be incorporated into the Service Content, Service Content is considered FitnessPlans Content. FitnessPlans Content may only be used as authorized under this Agreement.
Customer Restrictions. Customer may not use FitnessPlans Content outside of the FitnessPlans Platform. Customer will not decompile, reverse engineer, disassemble or otherwise attempt to derive the source code for the FitnessPlans Platform or Services and will not use the FitnessPlans Platform in a manner that is not expressly allowed under this Agreement or the FitnessPlans Terms of Use.

 
7. Representations and Warranties
Customer represents and warrants to FitnessPlans that: (a) Service Content approved by Customer and Customer Content, and FitnessPlans's use of such Service Content and Customer Content under Section 6(a), does not violate or infringe any intellectual property right, right of privacy, right of publicity, or any other proprietary or personal right of a third party, or constitute false advertising, fraud or misrepresentation, (b) Customer has all necessary rights and authority to grant FitnessPlans the rights granted under this Agreement with respect to Customer Content, (c) Customer Content does not contain content that is obscene, defamatory, libelous, or slanderous, or otherwise harmful to, any person, corporation or other entity, (d) Customer's use of the Services, FitnessPlans Platform, and User Data, Customer's offer and provision of services and products in connection with the FitnessPlans Platform, Service Content approved by Customer and Customer Content do not violate any applicable laws, ordinances, rules or regulations, (e) to the knowledge of Customer, Customer Content does not contain viruses, Trojan horses, worms, time bombs or other similar harmful or deleterious programming routines, and (f) Customer will comply at all times with the restrictions set forth in Section 6(c).

 

8. Indemnification and Defense
Customer hereby agrees to defend FitnessPlans and its officers, directors, employees, agents, affiliates, distributors, service providers and content providers (collectively, "FitnessPlans Indemnified Parties") from and against all third-party claims, actions, and proceedings ("Claims") arising from Customer's breach of any of its representations and warranties in Section 7 and to indemnify the FitnessPlans Indemnified Parties for all liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys' fees) resulting from such Claims. FitnessPlans will notify Customer of any Claim. Customer's counsel defending such Claim will be subject to FitnessPlans's prior written approval, not to be unreasonably withheld. FitnessPlans reserves the right to participate fully in and assume joint control of the defense of any Claim. Settlement of any Claim will be subject to FitnessPlans's prior written approval. FitnessPlans's acceptance or approval of any Customer Content or development of Service Content approved by Customer will not affect Customer's obligations of defense and indemnification.

 

9. Limitation of Liability
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF THIS AGREEMENT, INCLUDING LOSS OF PROFITS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITNESSPLANS'S AGGREGATE LIABILITY WILL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO FITNESSPLANS DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. NOTHING IN THIS SECTION 9 WILL BE DEEMED TO LIMIT CUSTOMER'S OBLIGATIONS IN SECTION 8.
Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITNESSPLANS SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FITNESSPLANS SPECIFICALLY DISCLAIMS ANY WARRANTY OR LIABILITY REGARDING THE FOLLOWING: (i) THE NUMBER OF PERSONS OR PERCENTAGE OF A USER POPULATION WHO WILL ACCESS, VIEW OR INTERACT WITH CUSTOMER CONTENT, FITNESSPLANS CONTENT, THE SERVICES OR THE FITNESSPLANS PLATFORM, (ii) SPECIFIC RESULTS OR PERFORMANCE (INCLUDING LEADS, IMPRESSIONS, CLICKS OR REVENUE) CUSTOMER MIGHT OBTAIN FROM THE SERVICES, (iii) THE FITNESSPLANS CONTENT OR THE FITNESSPLANS PLATFORM OR THIRD PARTY SERVICES, AND (iv) THAT THE FITNESSPLANS PLATFORM OR SERVICES PROVIDED UNDER THIS AGREEMENT OR THIRD PARTY SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES ARE PROVIDED "AS IS." FITNESSPLANS DISCLAIMS ALL WARRANTY AND LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IF FITNESSPLANS FAILS TO PROVIDE THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT, THE SOLE LIABILITY OF FITNESSPLANS TO CUSTOMER, AND CUSTOMER'S SOLE REMEDY, WILL BE LIMITED TO, AT FITNESSPLANS'S DISCRETION: (i) A PRO RATA REFUND OF ANY APPLICABLE FEES PAID FOR SUCH SERVICES NOT PERFORMED, OR (ii) RE-PERFORMANCE OF SUCH SERVICES.

 

10. Communications
Notices. Notices to Customer and FitnessPlans will be provided as follows:
If to FitnessPlans, to: both pronotices@Fitnessplans.io and legal@Fitnessplans.io
If to Customer, to: the address or email provided in this AgreementAll notices of termination or non-renewal by Customer to FitnessPlans must be provided in the manner described in Section 5(c).
Consent to Communications. You agree to receive promotional text messages, calls and pre-recorded messages, any of which may be generated by automatic telephone dialing systems. You are not required to agree to receive these communications as a condition of purchasing the Services. However, as part of the Services, you agree that FitnessPlans and its affiliates may communicate with you for operational purposes via text messages, calls and pre-recorded messages and for operational and promotional purposes via emails and push notifications. Standard text message charges applied by your telephone carrier may apply to SMS we send. If you wish to stop receiving promotional emails or promotional text messages, we provide the following methods for you to opt-out or unsubscribe: (i) follow the instructions we provide in the email or initial text message for that category of promotional emails or text messages, or (ii) opt-out or unsubscribe using your settings.
User Communications. If a person with whom you have no business relationship does not affirmatively respond to or is not otherwise receptive to your communications, you agree that you will cease communicating to such person through the FitnessPlans Platform after a reasonable number of outreaches. You understand and agree that you are the sender of, and responsible for, any of your communications through the FitnessPlans Platform, and FitnessPlans is not the sender.

 

11. Dispute Resolution
If you have a dispute with FitnessPlans, you agree to contact us through the contacts provided in Section 10(a) regarding your dispute to attempt to resolve the issue informally first by your FitnessPlans representative or as may be escalated to FitnessPlans legal and/or the FitnessPlans leadership team. If we are not able to resolve the dispute informally, then this section will govern any legal dispute that relates to the FitnessPlans Platform or involves our Services.
Binding Arbitration. You and FitnessPlans agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the FitnessPlans Platform (collectively "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and FitnessPlans both agree to waive the right to a trial by jury.
Class Action Waiver. You and FitnessPlans agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that, in connection with any Dispute, you and FitnessPlans both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and FitnessPlans agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person's claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules then in effect (the "AAA Rules"), except as modified by this "Dispute Resolution" section. (The AAA Rules are available at http://www.adr.org.)
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. The seat of the arbitration shall be in Las Vegas, Nevada unless you and FitnessPlans agree otherwise or the AAA Rules provide otherwise. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and FitnessPlans submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator's Decision and Governing Law. The arbitrator shall apply Nevada law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the "Limitation of Liability; Disclaimer" section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant's individual claim.
Fees. Each party's responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
 
12. General Provisions
Relationship of the Parties. The parties to this Agreement are independent contractors. Customer is not an agent, representative or partner of FitnessPlans and has no authority to enter into any agreement to bind FitnessPlans.
Controlling Law and Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of Nevada and the United States of America, without regard to their conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a federal or state court located in Las Vegas, Nevada for any actions for which the arbitration provision, as set forth in Section 11, does not apply.
Assignment. This Agreement is not assignable in whole or in part by Customer without the prior written consent of FitnessPlans. FitnessPlans may delegate any or all of its obligations under this Agreement. FitnessPlans may assign or transfer this Agreement to any of its affiliates or in connection with a sale of all or substantially all of its assets, restructuring, change of control, merger, acquisition of FitnessPlans, its affiliates or any of their respective businesses. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Waiver. Waiver of rights resulting from breach of any provision hereof will not be deemed to constitute a waiver of rights resulting from any previous or succeeding breach of the same or any other provision. FitnessPlans will not be deemed to waive any of its rights under this Agreement unless expressly waived in a signed writing by FitnessPlans.
Relationship to Other Agreements. Customer agrees to comply at all times with the FitnessPlans Terms of Use, which are hereby incorporated into this Agreement. Except for the FitnessPlans Terms of Use and FitnessPlans Privacy Policy, this Agreement constitutes the entire agreement between the parties and supersedes all other agreements, verbal or written, between the parties relating to the subject matter of this Agreement. In the event of a direct conflict between the FitnessPlans Terms of Use, FitnessPlans Privacy Policy and this Agreement, this Agreement controls with respect to the subject matter of this Agreement. In the event of a direct conflict between these Terms and Conditions and any special terms detailed under the heading ‘Special Terms & Notes’ at the beginning of this Agreement (“Special Terms”), the Special Terms will control with respect to the subject matter of such terms. Except for any representations and warranties specifically set forth in this Agreement, in executing this Agreement, neither party has relied on nor relies on any representation or statement made by the other party to this Agreement or any of their representatives or any third parties. Without limiting the foregoing, unless agreed in a writing signed by an authorized representative of FitnessPlans (i.e. Director or Vice President at FitnessPlans), any terms set forth in any purchase order, email, or other documents will be void and have no effect.
Modifications. FitnessPlans may modify this Agreement from time to time, with notice given to Customer as provided under Section 10 or published on the FitnessPlans Platform. If such modifications are material and Customer does not agree to such modifications, Customer's exclusive remedy shall be to provide notice to FitnessPlans within 10 days, and FitnessPlans may elect to either continue this Agreement under the unmodified Agreement or terminate this Agreement. This Agreement shall not be modified by Customer except by a written agreement signed by both parties.
Press Releases; Use of FitnessPlans Marks. Without FitnessPlans's prior written consent, Customer will not: (i) issue any press releases or public statements concerning FitnessPlans or the Services, including the terms of this Agreement, or (ii) use, display or modify FitnessPlans's trademarks.
Force Majeure. Except for payment obligations, neither party will be considered in default due to any delay or failure in performance based on any event or circumstances beyond its reasonable control, including, but not limited to failure of the Internet or related networks, fire, strike, embargo, requirement of governmental, civil or military authority, act of God, or failure of suppliers. When the delaying cause ceases, each party will resume performance, subject to an equitable schedule adjustment if necessary.
Electronic Signature. Electronic signature on this Agreement will be deemed valid.

 

EXHIBIT A
Service Offerings

 

1. Marketing Services
General. If Customer orders or receives any Marketing Services during the applicable Service Term, Customer may access and use the FitnessPlans Content on the FitnessPlans Platform for the purpose of reviewing and managing Customer's Service Content. Subject to the provisions of this Agreement, Service Content will be published on the FitnessPlans Platform during the applicable Service Term. FitnessPlans will target Service Content to the users designated by Customer, for example, in categories. However, FitnessPlans cannot guarantee that Service Content will always reach the designated users, for example, because of categories changing from time-to-time or users changing preferences. Ad Content appearing outside of the Pro Profile will be identified by FitnessPlans as sponsored or promotional content where it is not reasonably clear from the context that such Ad Content is advertising. Unless otherwise specified in this Agreement, the placement and designation of Customer Content and Service Content will be determined by FitnessPlans and may change from time to time. FitnessPlans may provide you an estimate of how many impressions, clicks or contacts or how much market share you will receive but FitnessPlans cannot guarantee these numbers. You understand that users, automated computers, third parties and FitnessPlans personnel may generate impressions, clicks or leads, and FitnessPlans cannot guarantee that those impressions, clicks or leads reflect genuine interest. FitnessPlans also cannot guarantee that the impressions, clicks or contacts will be uniformly distributed.
Website Services. Subject to any applicable fees and the Site Designer Terms, available as described in Exhibit B (including your maintenance of a FitnessPlans account and Pro Profile in good standing), you may elect for FitnessPlans to host your Site Designer Website on the FitnessPlans Platform. If you have transferred your non-FitnessPlans website domain to FitnessPlans or requested FitnessPlans to purchase a non-FitnessPlans website domain ("Non-FitnessPlans URL"), FitnessPlans will also renew the registration for the Non-FitnessPlans URL as part of the Website Services. For clarity, FitnessPlans does not clear the website domain for trademark infringement, and FitnessPlans does not make any representations or warranties regarding whether the website domain infringes the trademark rights of third parties. If you would like FitnessPlans to transfer the Non-FitnessPlans URL to you, please send a written request to your Customer Success Manager or as provided under Section 10(a). Within 30 days after such request, FitnessPlans will initiate transfer of the Non-FitnessPlans URL with the third-party domain provider, provided that: (A) you have communicated to FitnessPlans all the information reasonably required by FitnessPlans to complete such transfer, and (B) you have no amounts past due to FitnessPlans or its affiliates. If you cease to order Website Services, have amounts past due to FitnessPlans or its affiliates or this Agreement is terminated, FitnessPlans may immediately cease hosting your Site Designer Website.
If you requested FitnessPlans to purchase a non-FitnessPlans domain as part of the Website Services, you may order or receive Email Services as part of the Website Services. In addition to the terms of this Agreement, your use of the Email Services is subject to the terms and policies established by the relevant third party email provider. FitnessPlans does not operate, control, approve nor endorse any of the services of the third party email provider, including their availability or accuracy. FitnessPlans is not responsible for the services provided by the third party email provider. If you cease to order Email Services and would like FitnessPlans to transfer the email account to you, please send a written request to your Customer Success Manager or as provided under Section 10(a). Within 30 days after such request, FitnessPlans will initiate transfer of the email account with the third-party email provider, provided that: (A) you have communicated to FitnessPlans all the information reasonably required by FitnessPlans to complete such transfer, and (B) you have no amounts past due to FitnessPlans or its affiliates.
Community Content. Hosting editorial content on the FitnessPlans Platform submitted by Customer will be at FitnessPlans sole discretion.

 

2. Technology Services
General. If Customer receives any Technology Services during the applicable Service Term, this Section 2 of Exhibit A applies to those Services.
Payment Processing Fees. Payment processing fees are deducted automatically from payments made to Customer through the FitnessPlans Platform.
Third Party Payment Processing. FitnessPlans may use Stripe, Apple, Adyen or other third parties to provide payment processing services on the FitnessPlans Platform. Third Party Payment Processing fees are deducted automatically from payments made to Customer through the FitnessPlans Platform. Such services provided by third parties are subject to the those third party’s terms of service (“Third Party Terms of Service”). You agree to be bound by the Third Party Terms of Service, as the same may be modified by third parties from time to time. As a condition of our enabling payment processing services, you agree to provide us with accurate and complete information about you, your business, and your transactions, and you authorize us to share such information with our third party payment processors.

 

3. Other Services
Co-Op. If Customer is part of a network of businesses related to another company (the "Brand"), whether that relationship is as an affiliate, franchisee, authorized representative or otherwise, and Customer participates in a co-operative or reimbursement program for the Services authorized by the Brand, Customer agrees that FitnessPlans may provide the Brand access to information about Customer's performance on FitnessPlans (including Analytics). You grant the Brand, without compensation to you or others, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute the FitnessPlans photos, or any portion thereof, throughout the world in any format, media or distribution method (whether now known or hereafter created) for the duration of any copyright or other rights in the FitnessPlans photos. Such permission will be perpetual and may not be revoked for any reason, to the maximum extent permitted by law. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in the FitnessPlans photos. If you identify yourself by name or provide a picture or audio or video recording of yourself, you further authorize us and our affiliates, licensees and sublicensees, without compensation to you or others, to reproduce, print, publish and disseminate in any format or media (whether now known or hereafter created) your name, voice and likeness throughout the world, and such permission will be perpetual and cannot be revoked for any reason, except as required by applicable law. You further agree that the Brand may use the FitnessPlans photos in any manner that they deem appropriate or necessary.

 

EXHIBIT A-1
Authorization

 

I irrevocably grant to FitnessPlans LLC., and its subsidiaries and affiliates, (collectively "FitnessPlans") the right and permission to photograph, film, or otherwise record my name, voice, and likeness, as well as any home, business, real estate or personal property that I make accessible to FitnessPlans, (collectively, such photographs, recordings and works, "Materials"). I acknowledge and agree that, as between FitnessPlans and me, FitnessPlans shall be the sole and exclusive owner of all rights in and to the Materials, including all copyrights. Further, to the extent permitted under applicable law, I waive, release, and covenant not to assert any moral rights that I may have in the Materials. I further authorize FitnessPlans, its licensees and sublicensees, without further compensation to myself or others, to reproduce, print, publish, and disseminate in connection with the Materials, in any format or media (whether now known or hereafter created), my name, voice, and likeness throughout the world, and such permission will be perpetual and cannot be revoked for any reason, except as required by applicable law. I acknowledge that FitnessPlans is not required to use the Materials in any manner. I waive any right of inspection or approval of the Materials or the uses to which such Materials may be put. I understand that I will not be entitled to receive any credit, fee or other compensation as a result of any use of the Materials. I have made this Authorization for good and valuable consideration, the receipt and sufficiency of which I acknowledge. I represent that: (i) I have all necessary right and authority to grant all of the foregoing rights to FitnessPlans; (ii) the consent of no other person or entity is required for the use of the Materials or to enable me to enter into or perform this Authorization; (iii) that use of the Materials will not violate or infringe upon the copyright, privacy rights, or other rights of any third parties; (iv) and that there are no payments of any kind required to be made to any third parties, or clearances of any kind required to be obtained, as a result of any use of the Materials. By way of example, I acknowledge that if I make accessible a pictorial, graphic, any other work that is protected by copyright, I have permission from the owner of the copyright in that work to grant the rights granted above, or I am otherwise authorized to grant such rights.
I release, discharge and promise not to sue FitnessPlans or its affiliates, successors, licensees, assigns, representatives, employees, and agents (collectively, "FitnessPlans-Related Parties") from any and all claims, demands, costs and/or causes of action arising out of or in connection with the exercise of any rights granted in this Authorization, including, without limitation, any claim for infringement, libel, slander, defamation, invasion of privacy, or violation of any moral, publicity or other rights. In this regard, I expressly waive any and all rights conferred upon me by the Nevada Civil Code (and similar provisions of other jurisdictions, to the extent applicable), which reads as follows:

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

I agree to indemnify and hold harmless FitnessPlans-Related Parties from and against any and all claims, demands, costs and/or causes of action arising out of or in connection with the exercise of any rights granted in this Authorization or any breach or alleged breach by me of this Authorization.

This Authorization shall be governed by the laws of the State of Nevada in the United States without regard to its conflict of laws provisions, and I hereby consent to the jurisdiction of such State. This Authorization contains my full and complete understanding regarding its subject matter, superseding all prior agreements and understandings, written or oral, about such subject matter, and cannot be modified except by a writing signed by each party. FitnessPlans may assign any or all of its rights or obligations under this Authorization at any time to a third-party. This Authorization shall be binding upon me and my heirs, successors and assigns.

I represent that I am at least 18 years of age, have read this Authorization, fully understand its meaning and effect, and have signed this Authorization intending to be legally bound.

EXHIBIT B
FitnessPlans Platform and Policies

 

1. FitnessPlans Platform
The FitnessPlans Platform is www.fitnessplans.io and related content distributed by FitnessPlans, including through FitnessPlans's mobile application(s), SDK’s, and emails.

 

2. Terms of Use and Privacy Policy
www.fitnessplans.io/tou

www.fitnessplans.io/pp