FITMETRIX TERMS OF SERVICE
“Agreement” means the Order Form and these Terms and Conditions.
“Apps” means any mobile applications through which We make the Services available, including the branded mobile app however, “Apps” excludes any third-party application(s) through which the Service is provided.
“Hardware” means the sensors, monitors, receivers and/or other equipment provided by Us to You as detailed in the Order Form.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means a separate ordering document, invoice or other documentation that specifies the Services purchased hereunder, the applicable fees, and other terms as agreed to between the Parties. If an Order Form indicates that any affiliates or franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
“Services” means the online, Web-based application services and Apps we offer that You hereby agree to purchase under this Agreement.
“UserGuide” means the online user and support information for the Services, currently available at https://mindbody-online-support.force.com/fmsupport/s/ , as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide.
“Users” means individuals who are authorized by You to use the Services and for whom subscriptions to a Service have been purchased. “Admin Users” are a particular type of User, with administrative rights to use the Services.
“We,” “Us” or “Our” means FitMetrix, Inc., a corporation organized and existing under the laws of the State of Georgia, USA.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement and affiliates of that company or entity.
“Your Data” means all personally identifiable electronic data or information submitted by You or Your Users to the Services.
2.1 Provision of Services. Subject to Your compliance with this Agreement and timely payment of all applicable fees. We shall make the Services available to You pursuant to this Agreement during each Subscription Term. Certain additional terms apply if you are entering information that originates in the European Economic Area. To the extent that We act as a processor to You as a controller in relation to Your Data originating from the European Economic Area, the terms of the Privacy Annex apply between the Parties. In the event the terms of the Privacy Annex and the terms of this Agreement conflict, the terms of the Privacy Annex will prevail.
2.2 User Subscriptions. Services are purchased based on the number of Your locations, and may not be accessed by Users other than Users at locations identified in the Estimate. Additional subscriptions based on an increase in the number of Your locations may be purchased by mutual execution of a revised Estimate or otherwise by written agreement between You and Us.
2.3 Branded Mobile App Terms. Additional terms specific to the procurement of the Branded Mobile App apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.4 Hardware Terms Additional terms specific to the procurement and use of Hardware apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
3. USE OF THE SERVICES
3.1 Our Responsibilities.
3.1.1. We shall: (i) provide to You support for the Services as defined below in Section 3.1.2 (“Support”), and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 hours’ notice, and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
3.1.2 We shall provide Support to Your Admin Users via telephone and email. Support hours shall be no less than Monday through Friday during the hours of 8:00 a.m. Eastern time to 6:00 p.m. Eastern time, except for federal holidays. Response time shall be no less than twenty-four (24) hours, excepting weekends and federal holidays.
4. FEES AND PAYMENT FOR SERVICES
4.1. User Fees. There is no charge for the first thirty (30) days of the Subscription Term to allow for delivery of Hardware and for set-up. You shall pay all fees for Services, and, as applicable, the Hardware, specified in the Estimate after the initial thirty (30) day period. Subscription fees are based on calendar months, with pro-rated charges for partial months. You will provide Us with valid and updated credit card information, and You authorize Us to charge such credit card for all Services and Hardware listed in the Estimate on a monthly basis for the initial Subscription Term and any renewal Subscription Term(s). You are responsible for maintaining complete and accurate billing and contact information in the Services, as well as for payment of any fees or charges associated with Your payment other than those charged by Our bank.
4.2. Overdue Charges; Suspension of Service. If any charges are not received by Us by the due date, then at Our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any amount owing by You under this Agreement is 30 or more days overdue, We may, without limiting Our other rights and remedies, suspend the Services until such amounts are paid in full.
4.3. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If FitMetrix is legally required to pay or collect any Taxes on your behalf, Fitmterix will invoice you and you will pay the invoiced amount. For clarity, FitMetrix will be solely responsible for taxes assessed on FitMetrix based on its income.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights; Restrictions. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You shall not (i) permit any third party to access the Services; (ii) create derivate works based on the Services, (iii) reverse engineer the Services, or (iv) access the Services in order to copy any features, functions or graphics of the Services.
5.2. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. You grant Us and our subcontractors a nonexclusive, worldwide, assignable, sublicensable, fully paid up and royalty-free license to use Your Data for the purposes of providing, improving and developing FitMetrix’s products and services and related functions, such as billing and customer or User support, as well as to send direct marketing communications to Users, data science and product or service improvement and reporting.
5.3 Data Aggregation; Suggestions. We shall have the right to aggregate and analyze Your Data, and We shall have full right and title to such aggregated data and/or analysis, provided that such aggregated data and/or analysis does not include any personally identifiable information. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services and/or the Hardware any suggestions, enhancement requests, recommendations, or other feedback provided by You, including Users, relating to the operation of the Services.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by You to Us, whether electronically, orally, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to You, (ii) was known to Us prior to its disclosure by You without breach of any obligation owed to You, (iii) is received from a third party without breach of any obligation owed to You, or (iv) was independently developed by Us without reference to Your Confidential Information.
6.2. Protection of Confidential Information. We: (i) shall use the same degree of care that we use to protect the confidentiality of Our own confidential information (but in no event less than reasonable care) not to disclose or use any of Your Confidential Information for any purpose outside the scope of this Agreement; and (ii) shall limit access to Your Confidential Information to those of Our employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Us containing protections no less stringent than those herein.
6.3. Compelled Disclosure. We may disclose Your Confidential Information if we are compelled by law to do so, provided that We give You prior notice of such compelled disclosure and reasonable assistance, at Your cost, if You wish to contest the disclosure.
7. WARRANTIES AND DISCLAIMERS
7.1. Our Warranties. We warrant that the Services shall perform materially in accordance with the User Guide and the functionality of the Services will not be materially decreased during a Subscription Term. For any breach of the foregoing warranties, your exclusive remedy shall be as provided in Section 10.2 (Termination for Cause)
7.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party); and (iii) at all times during the term of this Agreement it shall comply with all applicable laws, including all federal, state, and local laws, regulations, restrictions, orders, ordinances, codes, injunctions, and decrees of any governmental authority.
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY, AND ANY IMPLIED WARRANTIES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4. Intellectual Property Policy. FitMetrix respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property Policy accessible at https://www.mindbodyonline.com/terms-of-service/intellectual-property (or such other URL as specified by FitMetrix), as may be updated by FitMetrix from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy.
8.1. Indemnification. You shall defend Us against any claim, demand, suit, or proceeding made or brought against Us by a third party alleging (i) that Your Data, or Your use of the Services or Hardware in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or (ii) a claim arising from the breach by You, or Users of this Agreement, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such claim that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such Claim.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8 HEREOF, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WITH RESPECT TO ANY SINGLE INCIDENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY YOU TO US HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
9.2. Exclusion of Consequential Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, DATA, USE OR OTHER ECONOMIC ADVANTAGE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SAME OR FOR ANY CONTENT, OR ANY INTERRUPTION IN SERVICE, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION
10.1. Term of Services. Unless otherwise specified in an Order Form, the term of this Agreement will be month to month (“Subscription Term”). The Subscription Term commences on the earlier of (a) the date you accept this Agreement by clicking “I Agree” button or otherwise indicate that you accept this Agreement (including through an Order Form), or (b) the date you (or an affiliate or franchisee) first access or use the Services (“Effective Date”) and will automatically renew on a monthly basis until either Party terminates in accordance with this Agreement. Either Party may terminate the Agreement at any time, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the relevant Subscription Term. Unless otherwise specified in an Order Form, Subscription Fees during any automatic renewal term will revert to the current pricing in effect at the time such renewal term commences.
10.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3. Right to Terminate or Suspend Services. We may suspend or terminate the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Us or any third party, (b) that We are required to do so by law, or (c) where the Parties do not agree on the use of a sub-processor.
11. GENERAL PROVISIONS
11.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
11.2. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.4. Attorney Fees. You shall pay on demand all of Our reasonable attorney’s fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.1 (User Fees).
11.5. Relationship of the Parties; Assignment. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party; provided, however, either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, or sale of all or substantially all of its assets.
11.6. Notices. All notices or communications under this Agreement to Us shall be sent by email to firstname.lastname@example.org except that in the case of notice by You of non-renewal pursuant to Section 10.1, such notice shall be sent by email to email@example.com . All notices or communications under this Agreement to You shall be sent by email to the email address provided by You during the registration process.
11.7. Governing Law; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of California without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply.
11.8. Mandatory Informal Dispute Resolution. If you have any dispute with FitMetrix arising out of or relating to this Agreement, you agree to notify FitMetrix in writing with a brief, written description of the dispute and your contact information, and FitMetrix will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either party may pursue resolution of the dispute in accordance with the arbitration agreement below.
11.9. Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND FITMETRIX, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 14.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND FITMETRIX AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130) as amended by this Agreement. Any arbitration hearing will be held in San Luis Obispo County, California. The applicable governing law will be as set forth in Section 11.7 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.11.8. Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our website, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Services or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing firstname.lastname@example.org. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on our website. The legend at the top of the Agreement indicates when it was last changed.
11.10. Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.