Terms of Service: Fitness Partners

  1. DEFINITION OF TERMS

The following terms have the following meanings:

    1. Authorized User” means any employees, agents or representatives of Partner, subject to any limitations or restrictions set forth on an Order.
    2. Partner Content” means any information, data, text, logos, pictures, or other promotional or advertising materials or content provided by Partner in connection with Partner’s use of the Platform.
    3. Confidential Information” means all confidential or proprietary information disclosed by one Party to the other in connection with this Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully developed or obtained by the other Party from independent sources free from any duty of confidentiality. Confidential Information shall include the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the identity of the services.  Confidential Information shall not include Partner Content, unless expressly agreed otherwise in writing.
    4. Documentation” means Hello Workout’s standard user guides and manuals relating to the Services and Platform, including on-line help, as updated and amended from time to time.
    5. Feedback” means feedback, suggestions, improvements, and recommendations regarding the Services and Platform.
    6. Order” means Hello Workout’s standard order form executed by both Parties, substantially in the applicable form attached to this Agreement, or an order in another form that is executed by both Parties and references this Agreement. Schedule A sets forth a form for the initial subscription Order.
    7. Platform” means Hello Workout’s proprietary web-site platform and/or such other platform described in an order.
    8. Proprietary Items” means, collectively, the Services, Platform, and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Platform, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, Platform, or Documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the Services, Platform, or Documentation, all derivative works (as such term is used in U.S. copyright laws) based upon any of the foregoing, and all copies of the foregoing.
    9. Services” means the services that are ordered by Partner under a subscription Order, including limited access and use rights to the Platform in accordance with the Documentation and this Agreement.
    10. Subscription Term” means the duration of Partner’s right to receive, access, and use the Services and Platform, as set forth on an Order (the “Initial Subscription Term”) and any subsequent Renewal Subscription Terms. In the event that such duration is not specified on the applicable Order, the Initial Subscription Term shall be twelve (12) months. The Subscription Term shall automatically renew for a term that is equal to twelve (12) months, unless one Party provides the other Party at least thirty (30) days written notice of its intent to not renew the Subscription Term or enter into an alternative Order that replaces and supersedes the existing Order (a “Renewal Subscription Term”).
  1. SUBSCRIPTION RIGHTS AND OBLIGATIONS
    1. Subscription Rights; Hello Workout Obligations. Subject to the terms and conditions of this Agreement, Hello Workout shall make available to Partner and its Authorized Users on a non-exclusive and non-transferable basis during the Subscription Term the Services in accordance with the Documentation, applicable Order(s), and the following: 
      1. Hello Workout shall host, operate, maintain, and support the Platform, including any Partner Content posted or published on the Platform by Partner or its Authorized Users;
      2. Hello Workout shall make Partner Content posted or published on the Platform by Partner available to actual or potential consumers in designated communities in accordance with Hello Workout’s marketing and community related policies and procedures;
      3. Hello Workout shall provide to Partner standard support for the Services and Platform at no additional charge; and
      4. From time to time in accordance with Hello Workout’s generally applicable procedures, Hello Workout shall make available and implement upgrades, enhancements, and error corrections at no additional charge when such upgrades, enhancements and error corrections are generally made available to its other partners at no additional charge.
    2. Partner Responsibilities. Partner shall (a) as between the Parties, be responsible for Authorized Users’ acts and omissions, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services or Platform, and notify Hello Workout promptly of any such unauthorized access or use, (c) use the Services and Platform only in accordance with this Agreement, the Documentation and applicable laws and regulations, (d) reasonably cooperate with Hello Workout as necessary for Hello Workout to perform its obligations under this Agreement, and (e) be responsible for all Partner Content, including without limitation the accuracy thereof and all rights necessary to use, distribute, and other disseminate such Partner Content for the purposes contemplated under this Agreement.
    3. Restrictions. Partner shall not (and shall not permit any Authorized User to) (a) make the Services or Platform available to any third party other than Authorized Users, (b) resell, lease, distribute, transfer or otherwise make available the Services or Platform on a time-sharing or service bureau basis, (c) provide Partner Content that is inaccurate, infringing, libelous, disparaging, or otherwise unlawful or tortious material, or to store or transmit material in violation of any  third-party’s proprietary or privacy rights, (d) use the Services or Platform to promote any unlicensed, unfair, or illegal classes or activities or for deceptive or illegal purposes, (e) use the Services or Platform to store or transmit malicious code, (f) use or access the Services or Platform in any way that potentially harms, harms or otherwise threatens the reputation, integrity, performance, or availability of Hello Workout, any Hello Workout partner, the Services or Platform or any data therein, (g) attempt to gain unauthorized access to the Services, Platform, other partner content or data  stored or processed therein, (h) decompile, disassemble, or reverse engineer the Services or Platform, in whole or in part, or (i) use or access the Services or Platform to create (or have created) a competing or similar service or platform. Hello Workout may restrict or prohibit use or access to the Services and Platform or delete or not use specific Partner Content if Hello Workout suspects such use or access is a breach of this Agreement, does not comply with the Documentation, or is otherwise objectionable or threatens the reputation of Hello Workout, any Hello Workout partner, the Services, Platform, or data therein.
  2. PAYMENTS
    1. Fees and Expenses. In consideration for the subscriptions granted to Partner and the performance of Hello Workout’s other obligations under this Agreement, Partner shall pay to Hello Workout, without offset or deduction, the fees and expenses as determined under the Orders and this Agreement. Hello Workout reserves the right to increase the fees each year, but must provide notification of such increases at least thirty (30) days in advance. All such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Hello Workout.
    2. Taxes. The fees and other amounts payable by Partner to Hello Workout do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, Platform, Documentation, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon Hello Workout’s net income. Partner shall directly pay any such taxes assessed. Partner shall promptly reimburse Hello Workout for any taxes payable or collectable by Hello Workout (other than taxes based upon Hello Workout’s net income). If Partner has provided Hello Workout with proof of its tax exempt status, then, in the event that Partner’s tax exempt status should become altered, Partner shall be obligated to notify Hello Workout immediately of any such modification and Partner shall become liable for all taxes as set forth above. In the event Partner fails to notify Hello Workout of any such change, Partner shall be liable for payment of any tax related penalties or interest assessed against Hello Workout or Partner as a result of such Partner failure.
    3. Payment Terms. Hello Workout may accept and process payment (including renewals) from Partner by either credit card (e.g., Visa, MasterCard, or any other issuer accepted by Hello Workout) or check, as mutually agreed. If payment will be made by credit card, Hello Workout will process payment (including renewals) from Partner based on any credit card information Hello Workout is provided by Partner. Partner’s credit card agreement governs its use of the designated credit card or account. By providing Hello Workout with credit card information, Partner agrees that Hello Workout is authorized to invoice and charge Partner’s account for all fees and charges due and payable to Hello Workout and that no additional notice or consent is required. If Partner’s credit card issuer rejects any amount charged on Partner’s credit card, then Hello Workout will notify Partner thereof and Partner will timely pay the fees and expenses by check or wire transfer.  If payment will be made by check or if Partner’s credit card issuer rejects any amount charged on Partner’s credit card, amounts owed to Hello Workout will be invoiced to Partner’s address for invoices as designated by Partner or, if not designated, then the address printed on this Agreement. If any Partner payment is more than thirty (30) days past due, interest at the rate of twelve percent (12%) per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue, unless the non-payment is subject to a Good Faith Dispute. All fees and other amounts paid by Partner under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States Dollars. “Good Faith Dispute” means a good faith dispute by Partner of certain amounts invoiced under this Agreement. A Good Faith Dispute will be deemed to exist only if (a) Partner has given written notice of the dispute to Hello Workout promptly after receiving the invoice and (b) the notice explains Partner’s position in reasonable detail. A Good Faith Dispute will not exist as to an invoice in its entirety merely because certain amounts on the invoice have been disputed.
    4. Suspension. In the event that Partner’s account is more than thirty (30) days overdue on any payment for any reason, Hello Workout shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Partner’s use of the Services and Platform, without further notice to Partner, until Partner has paid the full balance owed, plus any interest due.
  3. WARRANTY DISCLAIMER AND LIMITATIONS
    1. Warranty Disclaimer. the Services, Platform, and Documentation are provided “as is” and Hello Workout makes no representations or warranties, oral or written, express or implied, arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, non-interference, or non-infringement. Without limiting the generality of the foregoing, Hello Workout does not represent or warrant that: (a) the Service or Platform will meet any forecasts, expectations or specifications of Partner; (b) Services, Platform, or Partner Content will result in any interest, awareness, or attendance of Partner related workout courses or other activities, (c) the operation of the Services and Platform will be uninterrupted or error-free; (d) the use of the Services and Platform will not result in a loss of Partner Content or other Partner’s data; or (e) the use of the Services and Platform will not expose the Partner’s hardware or networks to additional security risk. Partner IS SOLELY RESPONSIBLE FOR ARCHIVING AND RETAINING ANY AND ALL Partner CONTENT OR DATA UPLOADED TO, DOWNLOADED FROM, OR PROCESSED IN OR THROUGH, THE SERVICES.
    2. Damage Limitation. IN NO EVENT WILL HELLO WORKOUT BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, LOST REVENUE, OR  INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDERS OR THE USE OF THE SERVICES, PLATFORM, OR DOCUMENTATION BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Hello Workout’s total liability under this Agreement, including all Orders, shall under no circumstances exceed the fees actually paid by the Partner to Hello Workout in the twelve (12) months preceding the event giving rise to the claim of liability.
    3. Other Limitations. The warranties made by Hello Workout in this Agreement, and the obligations of Hello Workout under this Agreement, run only to Partner and not to any Authorized User or other third party. Under no circumstances shall any Partner affiliate, Partner customer, contractor, or any other third party be considered a third party beneficiary of this Agreement. No action or claim of any type relating to this Agreement may be brought or made by Partner more than twelve (12) months after Partner first has knowledge of the basis for the action or claim. The Partner and Hello Workout have freely and openly negotiated this Agreement, including the pricing, with the knowledge that the liability is to be limited in accordance with the provisions of this Agreement.
  4. CONFIDENTIALITY

All Confidential Information of a Party (“Disclosing Party”) in the possession of the other (“Receiving Party”), whether or not authorized, shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to implement or perform this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access. The Receiving Party shall advise all such employees and representatives, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Section.

  1. Partner CONTENT AND PROPRIETARY ITEMS
    1. Partner Content.
      1. Partner acknowledges that all Partner Content is the sole responsibility of the Partner.  Partner, and not Hello Workout, is entirely responsible for all Partner Content that Partner uploads, posts, transmits or otherwise makes available through the Platform.
      2. When Partner posts or publishes Partner Content on the Platform, Partner represents that Partner owns and/or has a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Partner Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Partner Content.
      3. Hello Workout has no obligation to pre-screen Partner Content, although Hello Workout reserves the right in its sole discretion to pre-screen, refuse, or remove any Partner Content. Partner hereby provides its irrevocable consent to such monitoring.
      4. Partner grants Hello Workout a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Partner Content (in whole or in part) for the purposes of operating and providing the Services.
    2. Hello Workout’s Proprietary Items. All Proprietary Items provided to or accessed by Partner under this Agreement are being made available on a limited use basis in accordance with this Agreement and have great commercial value to Hello Workout. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Proprietary Items are transferred to Partner under this Agreement. Hello Workout reserves all rights not expressly granted by this Agreement.
    3. Title and Ownership. All right, title, and interest in and to the Partner Content (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Partner. All right, title, and interest in and to the Proprietary Items (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Hello Workout. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties) and any Feedback relating thereto will be solely and exclusively owned by Hello Workout. Partner hereby assigns to Hello Workout any rights, title and interest, including all intellectual property rights in any Feedback, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Partner or any of its Authorized Users or representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Services or Platform. Partner will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Hello Workout’s rights described above and the intent of this Section.
  2. Indemnification
    1. By Hello Workout. Hello Workout shall defend, indemnify, and hold Partner harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim that any use of, or access to, the Proprietary Items by Partner as expressly authorized under this Agreement infringes or misappropriates, as applicable, any intellectual property rights of a third party, provided that Partner gives Hello Workout (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Hello Workout may reasonably request, at Hello Workout’ expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Hello Workout shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) the combination, operation, or use of the Proprietary Items with products, services, deliverables, materials, technologies, business methods or processes not furnished by Hello Workout or Partner Content; (2) modifications which were not made by Hello Workout; or (3) Partner’s breach of this Agreement or use of the Proprietary Items other than in accordance with this Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that Hello Workout believes that such a claim is likely, Hello Workout may, at its option (i) modify the Proprietary Item so that it becomes non-infringing, or substitute functionally similar services, platforms, deliverables, or documentation; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate this Agreement (or the applicable Orders) on written notice to Partner and refund to Partner any pre-paid fees for Services not provided. The obligations set forth in this Section shall constitute Hello Workout’s entire liability and Partner’s sole remedy for any infringement or misappropriation.
    2. By Partner. Partner shall indemnify, hold harmless, and, at Hello Workout’s option, defend Hello Workout from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any (a) IP Exclusions, (b) Partner Content (including without limitation any third party claim that any Partner Content is false, misleading, disparaging, infringing or a misappropriation, as applicable, of any intellectual property rights of a third party), or (c) Partner’s business practices, relationships or courses, including without limitation any personal injury or death arising from Partner’s workout courses or materials. Hello Workout agrees to give Partner: (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Partner may reasonably request, at Partner’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Partner shall not settle any third-party claim, unless such settlement completely and forever releases Hello Workout with respect thereto or unless Hello Workout provides its prior written consent to such settlement. In any action for which Partner provides defense on behalf of Hello Workout, Hello Workout may participate in such defense at its own expense by counsel of its choice.
  3. TERMINATION
    1. Either Party may terminate this Agreement immediately on giving notice in writing to the other Party if the other Party:

(a) commits a material breach (including any non-payment of fees due other than fees subject to a Good Faith Dispute) and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach; or

(b) (i) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; or (iv) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations; provided, however, if the non-terminating party provides adequate assurances regarding its ability to continue performing the other Party may not terminate.

    1. Upon any termination or expiration of this Agreement, whether under this Section 8 or otherwise, (a) Partner shall discontinue all access and use of all Proprietary Items, and promptly return to Hello Workout any Confidential Information then in Partner’s possession or control and (b) Hello Workout may cease promoting Partner Content.
    2. Partner shall remain liable for all payments due to Hello Workout with respect to the period ending on the date of termination or expiration. For any termination other than a termination for good cause by Partner in accordance with Section 8.1, the balance of all remaining subscription fees relating to the then current Subscription Term will be due and payable. The provisions of Sections 1, 2.3, 4, 5, 6.2, 6.3, 7, 8.2, 8.3, and 9 shall survive any termination or expiration of this Agreement.
  1. OTHER PROVISIONS
    1. Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
    2. Assignment. Partner may not, without Hello Workout’s prior written consent, which may not be unreasonably withheld, assign, delegate, pledge, or otherwise transfer this Agreement, any Order, or any of its rights or obligations under this Agreement or any Order to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation.
    3. Export Laws and Use Outside of the United States. Partner shall comply with the export related laws and regulations. Partner shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. Partner will defend, indemnify and hold harmless Hello Workout from and against any violation of such laws or regulations by Partner or any of its agents, officers, directors, or employees.
    4. Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.
    5. Entire Understanding. This Agreement, which includes and incorporates Orders attached to it, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. Any terms in an Order or written purchase authorization that add to, or conflict with or contradict, any provisions in the Agreement will have no legal effect.
    6. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.
    7. Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
    8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
    9. Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of California excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply. Each Party irrevocably agrees that any legal action, suit or proceeding brought by it that in any way arises out of the Agreement must be litigated exclusively in state court in San Francisco County, California or in a federal court in the Northern District of California.
    10. Force Majeure. Except with respect to Partner’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.
    11. Use of Name. Partner authorizes Hello Workout to use Partner’s name in any routine list of Hello Workout partners and as a reference.