These FitnessOnDemand™ Subscription Terms and Conditions and any future orders and any other exhibits or attachments hereto or thereto (collectively the “Agreement”) is entered into by and between Fitness On Demand, LLC dba FitnessOnDemand, and Customer. In the event of a conflict between page one of this Agreement (the “Order Form”) and the Master Terms and Conditions, the Master Terms and Conditions prevail. The Master Terms and Conditions apply to all future sales or orders by Fitness On Demand, LLC dba FitnessOnDemand to Customer unless otherwise agreed in writing by the parties.
- DEFINITIONS. “Company” means FitnessOn Demand, LLC dba FitnessOnDemand, a Minnesota limited liability company. “Customer” means the purchaser identified on the Order Form. “FitnessOnDemand Platform” means the FitnessOnDemand system through which automated group fitness classes can be offered and includes the Videos and operating software. “FitnessOnDemand System” means the onsite use of Equipment to access the FitnessOnDemand Platform. “Equipment” means the touchscreen tablet, in-wall tablet, mount and media streaming device or other peripherals provided by Company. “Order Form” means the document describing the details of Customer’s subscription terms of the FitnessOnDemand Platform, Equipment, Elective Content Packages, or any add-ons. “Monthly Fee” means the monthly fee listed on the first page of the Order Form, that includes access and use the FitnessOnDemand Platform, FitnessOnDemand System, Core Content Package, any Equipment or Elective Content Package selected, or future add-ons as available ordered by Customer. “Initial Term” means the initial term identified on the Order Form and, together with any Renewal Terms, is the term of the license for each FitnessOnDemand System or FitnessOnDemand Platform (See Section 4.1). “Core Content Package” means the base-level video content package included with the Monthly Fee. “Elective Content Package” means any optional video content package selected in addition to the Core Content Package. “Videos” means the video content provided through the FitnessOnDemand System or FitnessOnDemand Platform and includes the Core Content Package and Elective Content Package.
- ORDER AND PAYMENT.
2.1 Orders. All orders are subject to acceptance by the Company. All monthly fees are non-refundable, including any prepaid fees.
2.2 Installation. Customer is solely responsible for providing at its cost, Equipment if ordered on the Order Form, hardware such as video display and audio equipment, third party software and hardware peripherals, internet connection and other computer equipment required to run the FitnessOnDemand System and completing the necessary electrical work for and installation of the FitnessOnDemand System. Customer also is responsible for obtaining and paying for all permits, licenses, fees and certificates of inspection necessary for installation of the FitnessOnDemand System.
2.3 Monthly Fee. The Monthly Fee is due for each fee described on an Order Form, plus applicable fees for access to the FitnessOnDemand Platform and tax if applicable and will be prorated for months of partial service. Billing of the Monthly Fee will commence upon the earlier of the activation date on the Order Form, or if applicable activation of any Equipment.
2.4 Payment Terms. If Customer fails to make any payment when due or any electronic payment is declined, a service charge of $20 will apply. In addition, late payments will bear interest at a rate of 18% per annum (1.5% per month) of the total amount due or the maximum legal interest rate, whichever is less. If any amounts are 30 days or more overdue, then, without limitation of any of Company’s rights at law, in equity, under this Agreement or otherwise, Company may suspend access to the FitnessOnDemand Platform until all Monthly Fees paid in full. Customer is responsible for ensuring that the billing information is accurate and current and signing a debit or credit authorization form. All payments are listed in and must be paid in United States dollars. Unless otherwise noted, all prices are exclusive of any applicable shipping costs or taxes.
2.5 Data Charges. Company is not responsible for any internet access charges or data charges used to access the FitnessOnDemand System or the FitnessOnDemand Mobile Application.
2.6 Conversion of Product Types. A Customer that has ordered a FitnessOnDemand System with Equipment that during the Initial or Renewal Term wants to convert to the FitnessOnDemand Platform may do so by contacting FitnessOnDemand customer support and returning the Equipment as provided in Section 6.2. There will be no refund on any Equipment charges paid. If Customer is in the Initial Term of this Subscription, the Initial Term shall continue uninterrupted, and the Renewal Term and other provisions of Section 4 shall apply.
- INTELLECTUAL PROPERTY
3.1 License. Subject to all the terms of this Agreement and Customer’s payment of the Monthly Fee, Company grants Customer a non-exclusive, personal, revocable, non-assignable, non-sublicensable right to use the FitnessOnDemand Platform as provided on the Order Form(s) under this Agreement. Other than the license granted, no right, title or interest in all or any portion of the FitnessOnDemand System is conveyed or assigned to Customer, either expressly or by implication, including any patents, copyrights, trade secrets, trademarks, trade names, or other intellectual property rights associated with the FitnessOnDemand System.
3.2 Updates. From time to time, Company will provide updates, modifications or new releases of the software and Videos for the FitnessOnDemand Platform with or without notice. Customer may use only the Videos approved by Company and must discontinue use of any Videos upon notice by Company. Any update, modification, or new release of the FitnessOnDemand Platform is subject to all the terms of this Agreement.
3.3 Restrictions. Customer may not (and may not permit its employees or any third parties to): (i) decompile, disassemble or otherwise reverse engineer or attempt to reconstruct the FitnessOnDemand Platform, (ii) alter or modify the FitnessOnDemand Platform, (iii) use any expired Videos or any third-party content; (iv) use the FitnessOnDemand Platform in any manner that violates any local, state, provincial, federal, or international law, rule, regulation or ordinance; (v) contest Company’s rights to the FitnessOnDemand Platform or trademarks; or (vi) remove, obscure or alter any product identification, copyright or other notices.
3.4 Trademarks. Company hereby grants Customer a license to use the FitnessOnDemand™ trademarks and trade names (the “Trademarks”) solely in connection with the FitnessOnDemand System as provided in this Agreement. Customer agrees to comply with Company’s trademark usage: Customer is not allowed to use any part of Company’s Trademark combined with any other words or marks, or the logo to be altered in any manner; Company’s logo must be used in its entirety; do not stretch, condense, augment or distort its form; and use accurate color and font reproduction.
3.5 Copyright. Customer is solely responsible for obtaining any necessary licenses or permission to publicly perform, broadcast, transmit, or display any copyrighted works (including without limitation, music, audio, or video recordings, art, etc.) to use the FitnessOnDemand Platform.
3.6 Confidentiality. Customer acknowledges that the FitnessOnDemand System is proprietary to the Company and agrees that it will not disclose or permit any of its employees, agents or representatives to disclose to any party any data or information with respect to the FitnessOnDemand System (including any passwords and the terms of this Agreement) without Company’s prior written consent. This obligation shall continue during the terms of this Agreement and for a period of three (3) years thereafter, except with respect to trade secrets in which case such obligation will not expire. Any information received by Company of Customer, will be treated by Company in full confidence and will not be revealed to any other persons, firms, organizations or government agencies unless specifically authorized in writing by Customer.”
- TERM AND TERMINATION
4.1 Term. The Agreement is effective upon Company’s acceptance of the Order Form and continues for the Initial Term. Following the Initial Term, the Agreement is month-to-month (each month a “Renewal Term”), and will automatically renew for successive month terms unless either party gives 30 days’ written notice prior to the end of the then-applicable term or the Agreement is otherwise terminated pursuant to this Section.
4.2 Term for Elective Content Packages. The term for any Elective Content Package is month-to-month and will automatically renew for successive month terms unless either party gives 30 days’ written notice prior to the end of the then applicable term. A change to any Elective Content Package, will not, of itself, terminate this Agreement.
4.3 Termination. Either party may terminate this Agreement during the Initial Term or any Renewal Term if the other party breaches any of its material terms or conditions and fails to cure each breach within 30 calendar days of written notice thereof, or, in the case of payment defaults, within 10 calendar days of written notice thereof.
4.4 Consequences of Termination. Upon termination or expiration of this Agreement, Customer shall cease use of the FitnessOnDemand Platform, FitnessOnDemand System and any Trademarks, return to Company or destroy (at Company’s option) any manuals or confidential materials, pay any amounts due in accordance with Section 4.5, and return the Equipment in accordance with Section 6.2.
4.5 Payments upon Termination. If Customer terminates the Agreement before the end of the Initial Term, or the Company terminates the Agreement due to Customer’s default during the Initial Term, the value of the Initial Term as shown on the Order Form is due and payable immediately. In no event will any prepaid Monthly Fees be refunded. Customer will make all payments without deduction for any claim Customer may have against Company. Company reserves the right to charge these fees to the credit or debit card Customer has on file. If Company uses an attorney or a collection agency to collect any money owed by Customer, or to assert any other right Company may have against Customer, Customer agrees to pay the reasonable costs of collection or other action, including but not limited to the costs of a collection agency, reasonable attorneys’ fees and court costs.
- NO WARRANTY; LIABILITY; INDEMNIFICATION AND INSURANCE
5.1 NO WARRANTY. EXCEPT AS PROVIDED HEREIN, THE FITNESSONDEMAND SYSTEM IS LICENSED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Company does not represent or warrant that the Equipment or FitnessOnDemand System will operate uninterrupted or error free. To the extent the Equipment needs to be replaced during the term of this Agreement and such replacement is not covered by the Limited Warranty provided herein, and the Equipment is not lost or otherwise not on the premises, or abused, or needs to be replaced due to normal wear and tear, the Company shall replace the Equipment at no additional charge. To the extent the Equipment needs to be replaced during the term of this Agreement as a result of the Equipment being lost or otherwise not on the premises, or abused, or as a result of damage beyond normal wear and tear, the cost of replacement shall not exceed $1,000.00.
5.2 Medical Disclaimer. The FitnessOnDemand System may include features that promote physical activity, nutrition or general wellness. The features are not intended as medical advice or for diagnostic or treatment purposes or to prevent any medical condition, including mental health conditions or for any therapeutic purposes. Customer should not rely any information provided and carefully evaluate the accuracy and relevance of the information. Never disregard medical advice or delay in seeking medical advice because of content viewed on the FitnessOnDemand Platform. Customer will post, display, and obtain disclaimers in any facilities or electronic access to the FitnessOnDemand Platform it may make available to any individual. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY INJURIES INCLUDING DISABILITY OR DEATH OR DAMAGES SUSTAINED FROM THE USE OF, OR INABILITY TO USE, THE FEATURES OF THE FITNESSONDEMAND PLATFORM.
5.3 LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S OBLIGATIONS UNDER SECTIONS 3 (INTELLECTUAL PROPERTY) AND 5.4 (INDEMNIFICATION), TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED OR COULD HAVE REASONABLY BEEN FORESEEN. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH COMPANY MAY INCUR IN ANY ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED $3,500.
5.4 Indemnification. Customer must indemnify, defend, and hold Company and its officers, directors, employees, affiliates, agents, and assigns harmless from and against any claims, demand, action, cause of action, suit or proceeding (including reasonable attorneys’ fees and costs) relating to or arising from Customer’s use of the FitnessOnDemand System and trademarks, including but not limited to liabilities arising from bodily injury, including death, or property damage to any person.
Company must indemnify, defend, and hold Customer and its officers, directors, employees, affiliates, agents, and assigns harmless from and against any claims, demand, action, cause of action, suit or proceeding (including reasonable attorneys’ fees and costs) relating to or arising from the infringement, alleged infringement, or any violation or alleged violation by Company or its agents or employees of any copyright owned or controlled by a third party.
5.5 Insurance. During the term of this Agreement and any License Term, Customer must maintain and keep in force at its own expense, commercial general liability insurance calculated to protect itself and FitnessOnDemand from any and all claims of any kind or nature for damage to property or personal injury including death, made by anyone, that may arise from access of the FitnessOnDemand Platform or activities performed or facilitated by Customer’s Membership under an Order Form.
The following terms apply to any Equipment provided under an Order Form (except “FitnessOnDemand Platform” only memberships:
6.1 Equipment Ownership. Customer agrees that the Equipment will at all times remain the sole and exclusive property of Company. Customer agrees that Company may make such filings and recordings as it determines are necessary to evidence Company’s ownership rights in the Equipment and to execute any and all documents Company considers necessary for Company to make such fillings. Customer has no right at any time to pledge, sell, mortgage, otherwise encumber, give away, remove, relocate, alter or tamper with the Equipment. Customer is responsible for preventing the loss or destruction of the Equipment, and Company recommends that Customer keep the Equipment fully insured against loss in an amount not less than the replacement cost of the Equipment until this Agreement is terminated and any such Equipment is returned to Company.
6.2 Return of Equipment. Customer must return the Equipment in good working order, normal wear and tear excepted, at Customer’s expense within thirty (30) days following cancellation, termination or expiration of the Agreement for any reason. If Customer does not return the Equipment undamaged and in working order, normal wear and tear excepted, Customer is responsible for, and must pay Company, the replacement cost of the Equipment. Company reserves the right to charge this fee to the credit or debit card Customer has on file.
6.3 Service and Repair of Equipment; Loss, Destruction or Damage. Customer agrees to notify Company immediately if the Equipment is lost, destroyed, damaged, or in need of repair by contacting Company’s customer support department. During the Initial Term, Company will provide the necessary maintenance and repair of Equipment, and all such maintenance and repair must be performed by Company or its designee(s). Customer agrees that Company may charge Customer for replacement of the Equipment and for any repairs that are necessitated by any damage to, or misuse of, the Equipment. Company reserves right to charge these fees to the credit or debit card Customer has on file. Following the Initial Term, service or repair of the Equipment is not included, and Customer may be required to pay associated fees or enter into a new agreement with Company to obtain replacement or upgraded equipment.
- GENERAL PROVISIONS.
7.1 Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written. Any modification of this Agreement must be in writing signed by both parties. Nothing contained in any purchase order or Customer issued document will in any way serve to modify or add any terms or conditions to the sale, lease, finance or license of the FitnessOnDemand System pursuant to this Agreement.
7.2 Assignment. Customer is entitled to assign the Agreement, in whole or in part, to any affiliate or to any entity to which sells, transfers, conveys, assigns, or leases all or substantially all of its rights and assets and Company hereby consents to such assignment. Customer must provide advance, written notice, which will include the contact information of the assignee, to Company prior to the assignment of the Agreement. Company is entitled to assign the Agreement, in whole or in part, to any affiliate or to any entity to which it sells, transfers, conveys, assigns, or leases all or substantially all of its rights and assets and Customer hereby consents to such assignment. This Agreement will be binding upon and inure solely to the benefit of each party hereto and their respective heirs, legal representatives, successors and assigns, including the payment obligations.
7.3 Independent Contractors. Company and Customer are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
7.4 Force Majeure. Neither party shall be responsible for delays or failure in performance of this Agreement (other than failure to pay amounts due) to the extent that such party was hindered in its performance by any act of God, civil commotion, labor dispute, unavailability or shortages of materials or any other occurrence beyond its reasonable control.
7.5 Notices. Except where another method is specified in this Agreement, any notice, demand or other communication provided for in this Agreement must be in writing and (i) delivered personally, (ii) delivered by reputable overnight service (such as FedEx), or (iii) deposited in the mail, service or postage pre-paid, and addressed to the parties at the addresses on the Order Form. Customer must send a copy of the notice to [email protected]. Notices for the purpose of this Section will be deemed to have been received if mailed or delivered as provided in this Section.
7.6 Dispute Resolution. This Agreement is governed by the laws of the State of Minnesota without reference to its choice of laws rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods for the jurisdiction such would apply. The parties hereby consent and submit to the jurisdiction of the federal or state courts for the state of Minnesota. In the event of a dispute, the parties will first attempt to resolve the dispute through consultation and negotiation. If not resolved by negotiation, any dispute arising out of or in connection with this Agreement must be referred to and finally resolved by arbitration under the then- current rules and procedures of the American Arbitration Association (“AAA”). The seat or legal place of arbitration must be Minneapolis, Minnesota, U.S.A. Customer agrees that in the event of breach of this Agreement by Customer, Company shall be entitled to injunctive relief to enforce the terms of this Agreement in addition to any other remedy Company might have. In the event of litigation or other proceedings by Company to enforce or defend any term or provision of this Agreement, the prevailing party shall recover all costs and expenses, including but not limited to, reasonable attorneys’ fees. Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. THE PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
7.7 Miscellaneous. Failure by either party to enforce a provision of this Agreement shall not be deemed a waiver of any other provision. In the event any one or more of the provisions of this Agreement is deemed invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The representations and warranties of the parties and any term which expressly or by its nature survive termination of this Agreement shall remain in full force and effect after termination or expiration of this Agreement. No provision of this Agreement is intended to confer any benefit upon any third party and no third party shall have the right to enforce any provision of this Agreement. This Agreement prevails over any general terms or conditions of purchase that may be contained in a standard purchase order issued by Customer regardless if Customer has submitted its purchase order to Company or any terms to the contrary in such purchase order. This Agreement may be executed in counterparts and delivered by facsimile or electronic transmission, each of which will be deemed an original and all of which together constitute one instrument.