If You are a new Subscriber, then this Master Subscription Agreement will
be effective as of October 14, 2021. If You are an existing Subscriber, We
are providing You with prior notice of these changes which will be
effective as of November 14, 2021. For the previous version of Our
Subscription Agreement, please click
https://www.lifefitness.nl/en-nl/legal/subscriptions
. If You are acquiring a subscription to a Service operated by Life Fitness
from a third party authorized to sell such subscriptions (“Reseller”) under
a separate agreement with Life Fitness, in addition to any terms and
conditions related to Your use of the Service pursuant to any agreement
between You and the Reseller, this Agreement, including the Supplemental
Terms, contains the terms and conditions that govern Your access to and use
of the Service.
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT AND GOVERNS YOUR PURCHASE,
USE OF AND ACCESS TO THE SERVICES BY YOU, YOUR AGENTS AND YOUR END-USERS,
WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE
SERVICES.
By accepting this Agreement, either through purchase or activation of a
Service, by accessing or using a Service, or authorizing or permitting any
Agent or End-User to access or use a Service, You agree to be bound by the
terms of this Agreement. If You are entering into this Agreement on behalf
of a company, organization or another legal entity (an “Entity”), You are
agreeing to this Agreement for that Entity and representing to Life Fitness
that You have the authority to bind such Entity and its Affiliates to this
Agreement, in which case the terms “Subscriber,” “You,” “Your” shall refer
to such Entity and its Affiliates. If You do not have such authority, or if
You do not agree with this Agreement, You must not accept this Agreement
and may not use or authorize any use of the Services.
In the event of any inconsistency or conflict between the terms of the
Agreement and the terms of any Quotation Order Form or Statement of Work,
the terms of the Quotation Order Form or Statement of Work shall control.
Non-English translations of this Agreement are provided for convenience
only. In the event of any ambiguity or conflict between translations, the
English version is authoritative and shall control.
Table of Contents
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Definitions
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General Conditions; Access To and Use of the Services
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Confidentiality; Data Security, Privacy and Sharing
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Intellectual Property Rights
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Third Party Services
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Billing, Plan Modifications and Payments
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Promotional Credits Policy
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Cancellation, Termination and Renewal
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Representations, Warranties and Disclaimers
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Limitation of Liability
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Indemnification
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Assignment, Entire Agreement and Amendment
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Severability
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Export Compliance and Use Restrictions
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Relationship of the Parties
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Notice
-
Governing Law
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Federal Government End Use Provisions
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Anti-Corruption
-
Survival
Appendix A – Supplemental Terms: Region Specific Terms
Appendix B – Supplemental Terms: Reseller Terms
1. DEFINITIONS
When used in this Agreement with the initial letters capitalized, in
addition to the terms defined elsewhere in this Agreement, the following
terms have the following meanings:
Account: means any accounts or instances created by or on behalf of
Subscriber or Your Agents in regard to the Services.
Affiliate: means, with respect to a Party, any entity that directly or
indirectly controls, is controlled by, or is under common control with such
Party.
Agent: means an individual authorized to use the Service(s) through Your
Account as an agent and/or administrator as identified through a unique
Login.
Agreement: means the Master Subscription Agreement with all Supplemental
Terms, Quotation Order Forms, and other documents (each, where applicable)
along with the Life Fitness Privacy Policy and Life Fitness Terms of Use
located on Our Site.
API: means the application programming interfaces developed and enabled by
Life Fitness that permit Subscribers to access certain functionality
provided by the Services.
Applicable Data Protection Law: means all laws concerning data protection
and data privacy that are applicable to the Parties, including but not
limited to the EU General Data Protection Regulation 2016/679 (“GDPR”),
California Consumer Privacy Act of 2018 (codified at Cal. Civ. Code Section
1798.100, et seq.) (CCPA) and its implementing regulations, as
amended from time-to-time.
Associated Services: means products, services, features and functionality
designed to be used in conjunction with the Services but not included in
the Service Plan to which You subscribe, including, without limitation,
integrations and applications created or developed by Life Fitness or its
Affiliates, including Halo Fitness Cloud, and made available in the
marketplace (available at https://www.halo.fitness), which will be governed
by this Agreement unless Life Fitness otherwise communicates a different
agreement to You at the time of Your deployment of or access to the
integration or application. For avoidance of doubt, none of the Services or
any other product, service, feature or functionality that is expressly
stated to be governed by any alternative license, agreement or terms shall
be deemed an Associated Service.
Beta Services: means a product, service or functionality provided by Life
Fitness that may be made available to You to try at Your option at no
additional charge which is clearly designated as beta, pilot, limited
release, non-production, early access, evaluation or by a similar
description.
Confidential Information: means all information disclosed by You to Life
Fitness or by Life Fitness to You which is in tangible form and labeled
“confidential” (or with a similar legend) or which a reasonable person
would understand to be confidential given the nature of the information and
circumstances of disclosure, including, but not limited to, information
relating to Life Fitness’s security policies and procedures. For purposes
of this Agreement, this Agreement as well as Service Data shall be deemed
Confidential Information. Notwithstanding the foregoing, Confidential
Information shall not include information that (a) was already known to the
receiving Party at the time of disclosure by the disclosing Party; (b) was
or is obtained by the receiving Party by a third party not known by the
receiving Party to be under an obligation of confidentiality with respect
to such information; (c) is or becomes generally available to the public
other than by violation of this Agreement or another valid agreement
between the Parties; or (d) was or is independently developed by the
receiving Party without use of the disclosing Party’s Confidential
Information.
Consulting Services: means consulting and professional services (including
any training, success or implementation services) provided by Life Fitness
or its authorized subcontractors as indicated on a Quotation Order Form or
other written document such as a statement of work (“SOW”).
Documentation: means any written or electronic documentation, images,
video, text or sounds specifying the functionalities of the Services or
describing Service Plans, as applicable, provided or made available by Life
Fitness to You in the applicable Life Fitness help center(s), Site or Life
Fitness developer website (https://developers.halo.fitness/); provided,
however, that Documentation shall specifically exclude any “community
moderated” forums as provided or accessible through such knowledge base(s).
EEA: means the European Economic Area, Switzerland and United Kingdom.
End-User: means any person or entity other than Subscriber or Agents with
whom Subscriber or its Agents interact using a Service.
End-User Data: the Personal Data, including Sensitive Personal Data,
Processed by You in respect of End-Users as specified in the Data Transfer
Agreement.
GDPR: means EU General Data Protection Regulation 2016/679.
Login: means a unique username and associated password provisioned to an
identifiable individual to permit them to access the Services.
Quotation Order Form: means Our generated service order form(s) or online
ordering document executed or approved by You or Reseller with respect to
Your subscription to a Service, or the Reseller’s generated service order
form(s), which form may detail, among other things, the Service Plan
applicable to Your subscription to a Service.
Payment Agent: means Life Fitness, LLC or a payment agent designated by
Life Fitness.
Personal Data: means any information relating to an identified or
identifiable natural person where an identifiable person is one who can be
identified, directly or indirectly, in particular by reference to an
identifier such as name, identification number, location data, online
identifier or to one or more factors specific to their physical,
physiological, mental, economic, cultural or social identity of that
natural person.
Personnel: means employees, service providers and/or contractors of Life
Fitness engaged by Life Fitness in connection with performance hereunder.
Privacy Policy: means Life Fitness’ privacy policy located at
https://www.lifefitness.nl/en-nl/legal/privacy-policy
or its websites globally.
Post/Posted: means displayed, submitted, posted, uploaded, transmitted,
linked to or stored.
Processing/To Process/Processed: means any operation or set of operations
which is performed upon Personal Data, whether or not by automatic means,
such as collection, recording, organization, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination,
blocking, erasure or destruction.
Sensitive Personal Data: means information that reveals racial or ethnic
origin, political opinions, religious or philosophical beliefs, trade union
membership, genetic data, biometric data, data concerning health and data
concerning a natural person’s sex life or sexual orientation.
Service(s): means the products and services that are ordered by You online
through a link or via a Quotation Order Form, whether on a trial or paid
basis, and made available online by Us, via the applicable subscriber login
link and other web pages designated by Us, including, individually and
collectively, the applicable Software, updates, API, Documentation, and all
applicable Associated Services that You have purchased or deployed or to
which You have subscribed (“Deployed Associated Services”) that are
provided under this Agreement. From time to time, the names and
descriptions of the Services or any individual Service may be changed. To
the extent Subscriber is given access to such Service as so described by
virtue of a prior Quotation Order Form or other prior acceptance of this
Agreement, this Agreement shall be deemed to apply to such Service as newly
named or described.
Service Data: means electronic data, text, messages, communications,
graphics, photos, sound recordings (and the musical works embodied
therein), video, or other materials Posted within a Service by You, Agents
and End-Users in connection with Your use of such Service, which may
include, without limitation, Personal Data and End-User Data.
Service Plan(s): means the packaged service plan(s) and the functionality
and services associated therewith (as detailed on the Site applicable to
the Service) for the Services to which You subscribe.
Site: means a website operated by Life Fitness, including
www.LifeFitness.com, as well as all other websites that Life Fitness
operates.
Software: means software provided by Life Fitness (either by download or
access through the Internet) that allows Agents or End-Users to use any
functionality in connection with the applicable Service.
Sub-processor: means any third-party data engaged by Life Fitness,
including its Affiliates, that receives Service Data from Life Fitness for
Processing on behalf of Life Fitness.
Subscription Term: means the period during which You have agreed to
subscribe to a Service.
Supplemental Terms: means the additional terms and conditions that are (a)
set forth below in this Agreement in the sections entitled, “Supplemental
Terms”; and/or (b) included or incorporated on a Quotation Order Form via
hyperlink or other reference (e.g. when a Deployed Associated Service is
purchased).
Third Party Services: means third party products, applications, services,
software, networks, systems, directories, websites, databases and
information obtained separately by You which a Service links to, or which
You may connect to or enable in conjunction with a Service, including,
without limitation, Third Party Services which may be integrated directly
into Your Account by You or at Your direction.
“We,” “Us” or “Our”: means Life Fitness as defined below.
Life Fitness: means the Life Fitness entity set forth in Appendix A –
Supplemental Terms, together with all of its Affiliates and any of their
respective successors or assignees.
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES
2.1 Service. During the Subscription Term and subject to compliance by You,
Agents and End-Users with this Agreement, You have the limited license to
the Service, i.e., limited right to access and use a Service (“Service
License”), consistent with the Service Plan(s) that You subscribe to,
together with all applicable Deployed Associated Services. An Affiliate may
receive Services under this Agreement provided that such Affiliate directly
or indirectly purchases a Service License. By accepting and using the
Services, and operating under the terms of the Service License, an
Affiliate agrees to be bound by the terms of this Agreement as if it were
an original party hereto. Subscriber will be responsible for its
Affiliates’ compliance with this Agreement. We will (a) make the Services
and Service Data available to You pursuant to this Agreement and the
applicable Quotation Order Forms and Documentation in accordance with Your
Service Plan; (b) provide applicable standard customer support for the
Services to You at no additional charge as detailed on the applicable Site
and Documentation and/or upgraded support if purchased; (c) use
commercially reasonable efforts to make the Services available 24 hours a
day, 7 days a week, except (i) during planned downtime for upgrades and
maintenance to the Services (“Planned Downtime”); and (ii) for any
unavailability caused by circumstances beyond Our reasonable control,
including, for example, an act of God, act of government, flood, fire,
earthquake, civil unrest, act of terror, strike or other labor problem
(other than one involving Our employees), pandemic or epidemic, diseases,
quarantines, unavoidable casualties, acts of any civil or military
authority; riot, insurrections, and civil disturbances; war, invasion, act
of foreign enemies, hostilities (regardless of whether or not war is
declared), rebellion, revolution, terrorist activities; government
sanction; fire, laws, statutes, regulations, and other legal requirements,
orders or judgments; acts or order of any government or agency or official
thereof, other catastrophes or any other similar occurrences, Internet
service provider failure or delay, Third Party Services, or acts undertaken
by third parties, including without limitation, denial of service attack
(“Force Majeure Event”).
2.2 Internal Business Purposes Only. You may not use the Services to
provide customer service, support or other outsourced business process
services on behalf of more than one third party (other than Affiliates)
through a single Account. Without limiting the foregoing, Your right to
access and use the API is also subject to the restrictions and policies
implemented by Life Fitness from time to time with respect to the API as
set forth in the Documentation or otherwise communicated to You in writing.
2.3 System Requirements. A high speed Internet connection is required for
proper transmission of the Services. You are responsible for procuring and
maintaining the network connections that connect Your network to the
Services. You are responsible for procuring and maintaining the network
connections that connect Your network to the Services including, but not
limited to, browser software that supports protocols used by Life Fitness
and to follow procedures for accessing services that support such
protocols. We are not responsible for notifying You, Agents or End-Users of
any upgrades, fixes or enhancements to any such software or for any
compromise of data, including Service Data, transmitted across computer
networks or telecommunications facilities (including but not limited to the
Internet) which are not owned, operated or controlled by Life Fitness. We
assume no responsibility for the reliability or performance of any
connections as described in this section.
2.4 Restrictions. In addition to complying with the other terms, conditions
and restrictions set forth in this Agreement, You agree not to (a) license,
sublicense, sell, resell, rent, lease, transfer, assign, distribute, time
share or otherwise commercially exploit or make the Services available to
any third party, other than authorized Agents and End-Users in furtherance
of Your internal business purposes as expressly permitted by this
Agreement; (b) use the Services to Process data on behalf of any third
party other than Agents or End-Users; (c) modify, adapt, or hack the
Services or otherwise attempt to gain unauthorized access to the Services
or related systems or networks; (d) falsely imply any sponsorship or
association with Life Fitness, (e) use the Services in any unlawful manner,
including, but not limited to, violation of any person’s privacy rights;
(f) use the Services to send unsolicited or unauthorized bulk mail, junk
mail, spam, pyramid schemes or other forms of duplicative or unsolicited
messages; (g) use the Services to Post files, materials, data, text, audio,
video, images, music or other content that infringes on any third party’s
intellectual property rights; (h) use the Services in any manner that
interferes with or disrupts the integrity, security, availability,
stability or performance of the Services and its components; (i) attempt to
decipher, decompile, reverse engineer or otherwise discover the source code
of any Software making up the Services; (j) use the Services to knowingly
Post Service Data or any content that is unlawful, racist, hateful,
abusive, bullying, harassing, libelous, defamatory, obscene, offensive,
harmful, shocking, threatening, violent, or discriminatory; (k) use the
Services to Post any “protected health information” as that term is defined
in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by
Life Fitness; (l) use the Services to knowingly Post any viruses, malware,
Trojan horses, time bombs, or any other similar harmful software
(“Malicious Software”); (m) use or launch any automated system that
accesses a Service (i.e., bot) in a manner that sends more request messages
to a Service server in a given period of time than a human can reasonably
produce in the same period by using a conventional on-line web browser; or
(n) attempt to use, or use the Services in violation of this Agreement.
2.5 Compliance. As between You and Life Fitness, You are responsible for
compliance with the provisions of this Agreement by Agents and End-Users
and for any and all activities that occur under Your Account. Without
limiting the foregoing, You are solely responsible for ensuring that use of
the Services to Post Service Data is compliant with all applicable laws and
regulations as well as any and all privacy policies, agreements or other
obligations You may maintain or enter into with Agents or End-Users. You
also maintain all responsibility for determining whether the Services or
the information generated thereby is accurate or sufficient for Your
purposes. Subject to any limitation on the number of individual Agents
available under the applicable Service Plan(s) to which You subscribed or
applicable Deployed Associated Service, access to and use of the Services
is restricted to the specified location designated and permitted under Your
subscription to the applicable Service. You and Your Agents are responsible
for maintaining the confidentiality of all Login information for Your
Account. Life Fitness reserves the right to monitor and periodically audit
Your use of the Services to ensure that Your use complies with this
Agreement and the Service Plan restrictions on Our Site. Should Life
Fitness discover that Your use of a Service is not in compliance with this
Agreement or the Service Plan, Life Fitness reserves the right to charge
You, and You hereby agree to pay for, said usage in addition to other
remedies available to Us.
2.6 Modification. You acknowledge that Life Fitness may modify the features
and functionality of the Services during the Subscription Term.
2.7 No Competitive Access. You may not access the Services if You are a
direct competitor of Life Fitness, except with Life Fitness’s prior written
consent. You may not access the Services for the purposes of monitoring
performance, availability, functionality, or for any benchmarking or
competitive purposes.
2.8 Free Trial. If You register for a free trial for any of the Services,
We will make such Services available to You on a trial basis free of charge
until the earlier of (a) the end of the free trial period for which You
registered to use the applicable Service(s); (b) the start date of any
subscription to such Service purchased by You for such Service(s); or (c)
termination of the trial by Us in Our sole discretion. Additional trial
terms and conditions may appear on the trial registration web page. Any
such additional terms and conditions are incorporated into this Agreement
by reference and are legally binding. Please review the applicable
Documentation during the trial period so that You become familiar with the
features and functions of the Services under applicable Service Plans
before You make Your purchase. ANY SERVICE DATA YOU ENTER INTO A SERVICE,
AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU,
DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A
SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE
APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE
TRIAL PERIOD.
2.9 Beta Services. From time to time, We may make Beta Services available
to You at no charge. You may choose to try such Beta Services in Your sole
discretion. Beta Services are intended for evaluation purposes and not for
production use, are not supported, and may be subject to additional terms
that will be presented to You. Beta Services are not considered “Services”
under this Agreement; however, all restrictions, Our reservation of rights
and Your obligations concerning the Service, and use of any Third-Party
Services shall apply equally to Your use of Beta Services. Unless otherwise
stated, any Beta Services trial period will expire upon the earlier of one
year from the trial start date or the date that a version of the Beta
Services becomes generally available without the applicable Beta Services
designation. We may discontinue Beta Services at any time in Our sole
discretion and may never make them generally available. We will have no
liability for any harm or damage arising out of or in connection with a
Beta Service.
2.10 Service Data. We offer You the ability to Post Service Data to the
Service. We do not pre-screen any Service Data, but reserve the right to
remove, disallow, block, or delete any Service Data in Our sole discretion
that violates this Agreement. We do not guarantee the accuracy, integrity,
appropriateness, availability, or quality of any Service Data. You
represent and warrant that: (i) You own the Service Data Posted by You to
the Service or otherwise have the right to grant the license set forth in
this Agreement; (ii) the Posting and use of Your Service Data to the
Service does not violate the privacy rights, publicity rights, copyrights,
contract rights, intellectual property rights, or any other rights of any
person; (iii) the Posting of Your Service Data to the Service will not
require Us to obtain any further licenses from or pay any royalties, fees,
compensation, or other amounts or provide any attribution to any third
parties; and (iv) the Posting of Your Service Data to the Service does not
result in a breach of contract between You and an End-User or third party.
While You retain ownership of any rights You may have in Your Service Data,
You grant Us an unrestricted, assignable, sublicensable, revocable,
royalty-free license to use all or any part of the Service Data by any
means and through any media and formats now known or hereafter developed,
for the purposes of displaying and sharing the Service Data to Your End
Users and providing the Services.
2.11 Our Content. Except for Service Data, the content that Life Fitness
provides to You on or through the Service, including without limitation,
any classes, text, graphics, photos, software, sound recordings (and the
musical works embodied therein), and interactive features, may be protected
by copyright or other intellectual property rights and owned by Life
Fitness or its third party licensors (collectively, the “Life Fitness
Content”). You may not copy, reproduce, upload, republish, broadcast,
transmit, retransmit, post to social media, modify, create derivative works
of, publicly perform, publicly display, use for commercial purpose or
distribute any Life Fitness Content or third party materials from the
Service without prior express written permission of the owner of such
material or as permitted by the Service’s intended functionalities. Your
use of Life Fitness Content must be in compliance with applicable law. Life
Fitness reserves all rights on the part of its licensors. You, Your Agents
and End-Users are not permitted to infringe the rights of the copyright
owners of any sound recordings included on the Service or any musical works
embodied therein (collectively “Music”). You are not granted any
commercial, sale, resale, reproduction, distribution or promotional use
rights for the Music used with any Service(s). The unauthorized
reproduction or distribution of the Music is expressly prohibited and may
violate applicable law and subject You to liability for copyright
infringement.
3. CONFIDENTIALITY; DATA SECURITY, PRIVACY AND SHARING
3.1 Confidential Information. Subject to the express permissions of this
Agreement, each Party will protect the other’s Confidential Information
from unauthorized use, access or disclosure in the same manner as each
protects its own Confidential Information, but with no less than reasonable
care. Except as otherwise expressly permitted pursuant to this Agreement,
each Party may use the other’s Confidential Information solely to exercise
Our respective rights and perform Our respective obligations under this
Agreement and shall disclose such Confidential Information (a) solely to
the employees and/or non-employee service providers and contractors who
have a need to know such Confidential Information for such purposes and who
are bound to maintain the confidentiality of, and not misuse, such
Confidential Information; (b) as necessary to comply with an order or
subpoena of any administrative agency or court of competent jurisdiction;
or (c) as reasonably necessary to comply with any applicable law or
regulation. The provisions of this Section 3.1 shall supersede any
non-disclosure agreement between the Parties and such agreement shall have
no further force or effect.
3.2 Sharing & Purposes. You agree to share with Life Fitness the
End-User Data and to transfer the End-User Data to Life Fitness. If You
have international operations, You also agree to transfer the End-User Data
in accordance with the terms of the Data Transfer Agreement made between
You and Life Fitness (“Data Transfer Agreement”). Life Fitness will Process
the End-User Data for the following purposes: (i) providing the Services
and Associated Services to You, (ii) any of the purposes specified in
Section 3.10 below, provided that data are Processed in aggregated, encoded
or anonymized form for such purposes, (iii) marketing and advertising of
products and services of Life Fitness and fitness related products and
services by third parties, including but not limited to behavioural
advertising and direct marketing communication by e-mail or other
electronic means, and (iv) any other purpose You and Life Fitness may
expressly agree on from time to time. For marketing and advertising
purposes Life Fitness may build customer profiles of the End-User based on
End-User Data and other End-User information, including Personal Data,
collected from other legitimate sources and may use automated individual
decision making.
3.3 [Applies to Subscribers with operations in the EEA] The Data Transfer
Agreement is based on, and incorporates the unamended standard contractual
clauses for the transfer of personal data from the EEA to third countries
(controller to controller transfers), set II, adopted by the European
Commission (“Standard Contractual Clauses”). Nothing in this Agreement,
including but not limited the provisions in this Section 3, shall limit,
change or amend the terms of the Data Transfer Agreement. In the event that
the European Commission or another competent authority adopts successor
clauses which replace or amend the Standard Contractual Clauses, You and
Life Fitness agree to novate the Data Transfer Agreement and incorporate
such successor standard contractual clauses.
3.4 Consent. Life Fitness uses the End-User Data only if and insofar as the
End-User has consented to the use and the transmission and Processing of
the End-User Data for the named purposes. YOU SHALL GIVE THE END-USER ALL
THE NECESSARY INFORMATION AND OBTAIN THE REQUIRED CONSENT IN THE
APPROPRIATE FORM, SPECIFICALLY ALSO INCLUDING CONSENT TO SEND DIRECT
MARKETING COMMUNICATION THROUGH E-MAIL AND OTHER ELECTRONIC MEDIA AND,
WHERE NECESSARY, THE CONSENT TO AUTOMATED INDIVIDUAL DECISION MAKING
INCLUDING PROFILING, AND YOU MUST NOTIFY LIFE FITNESS PROMPTLY OF ANY
REVOCATION OR WITHDRAWAL OF SUCH CONSENT, WHERE REVOCATION IS NOT DIRECTED
TO LIFE FITNESS DIRECTLY. You represent and warrant that the End-User Data
originate in a legitimate data application and that only data of End-Users
who have given required consent, and have not revoked it, is transmitted to
Life Fitness.
3.5 Subscriber as Controller. Without limiting the generality of Section
2.5, You and Life Fitness are each independently and solely responsible for
compliance with Applicable Data Protection Law for their own use of the
End-User Data. Each is a “Controller” in this respect.
3.6 Security. Life Fitness will maintain reasonable administrative,
physical, and technical safeguards for protection of the security,
confidentiality and integrity of Personal Data, as described in this
Agreement, and the Privacy Policy located on Our Site, as applicable. Those
safeguards will include, but will not be limited to, measures for
preventing access, use, modification or disclosure of Personal Data by
Personnel except (a) to provide the Services and prevent or address
service, support or technical problems; (b) as compelled by law in
accordance with Sections 3.1(b) or 3.1(c); (c) in accordance with the
provisions of Section 3.7; or (d) as You expressly permit in writing. Life
Fitness’ compliance with the provisions of Sections 3.6 through 3.8 and the
security measures set forth in the Privacy Policy (“How We Protect Personal
Information”) shall be deemed compliance with Life Fitness’s obligations to
protect Personal Data as set forth in this Agreement.
3.7 If Personal Data originates from an Agent or End-User in the EEA, We
will ensure, pursuant to Applicable Data Protection Law that, if Personal
Data is transferred to a country or territory outside of the EEA (a
“non-EEA country”), that such transfer will only take place if: (a) the
non-EEA country in question is approved by the European Commission as
providing adequate protection pursuant to Article 45 of the GDPR; (b) there
are appropriate safeguards in place pursuant to Article 46 GDPR; or (c) one
of the conditions listed in Article 49 of the GDPR (or its equivalent under
any successor legislation) is satisfied. This Section 3.7 shall not limit,
change or amend the obligation to enter into the Data Transfer Agreement
pursuant to Sections 3.2. and 3.3.
3.8 Access. You agree that Life Fitness and the third-party service
providers that are utilized by Life Fitness to assist in providing the
Services to You shall have the right to access Your Account and to use,
modify, reproduce, distribute, display and disclose Service Data to the
extent necessary to provide the Services, including, without limitation, in
response to Your support requests. Any third-party service providers
utilized by Life Fitness will only be given access to Your Account and
Service Data as is reasonably necessary to provide the Services and will be
subject to (a) confidentiality obligations which are commercially
reasonable and substantially consistent with the standards described in
Section 3.2; and (b) their agreement to comply with the data transfer
restrictions applicable to Personal Data as set forth in Section 3.4.
3.9 Processing. We may Process Personal Data in the following ways:
(a) Personal Data may be hosted by Life Fitness, or its authorized
third-party service providers, in the United States, the EEA or other
locations around the world. Subject to the confidentiality terms set forth
herein, You acknowledge and agree that Life Fitness may collect and Process
Personal Data of Your Agents or End-Users, including in Our capacity as
Controller, based on Our legitimate interest under Applicable Data
Protection Law to provide, secure and improve the Services. In providing
the Services, Life Fitness will engage entities within Life Fitness and
authorized third-party service providers to Process Personal Data pursuant
to this Agreement within the EEA, the United States and in other countries
and territories. Where We rely on Our legitimate interest, Your Agents or
End-Users may have certain rights relating to their Personal Data. These
rights and how they can be exercised are explained in Our Privacy Policy.
You are responsible for informing Your Agents and End-Users of their rights
set forth in Our Privacy Policy.
(b) Life Fitness may also obtain other information, including Personal
Data, from third parties and combine that with information We collect
through Our Services such as in the case where You use a Third-Party
Service or where We may have access to certain information from a
third-party social media or authentication service if You log into Our
Services through such service or otherwise provide Us with access to
information from such service. Any access that We may have to such
information from a third-party social media or authentication service is in
accordance with the authorization procedures determined by that service. By
authorizing Us to connect with a Third-Party Service, You authorize Us to
access and store Your name, email address(es), current city, profile
picture URL, and other Personal Data that the Third-Party Service makes
available to Us, and to use and disclose it in accordance with this
Agreement and Our Privacy Policy as in effect from time to time and
available here.
(c) We receive and store any information that You knowingly provide to Us.
For example, through the registration process for Our Services and/or
through Your Account settings, We may collect Personal Data such as Your
name, email address, phone number, credit card information and third-party
account credentials (for example, Your log-in credentials for third party
sites that integrate with the Services) of You and Your Agents.
(d) You acknowledge and agree that Life Fitness may use Sub-processors, who
may access Service Data, to provide, secure and improve the Services.
3.10 Sharing With Third Parties. We may share Your Personal Data with third
parties in the following ways:
a. Collecting Usage Data. For the purposes of this section, “Usage Data”
means aggregated, encoded or anonymized data that Life Fitness may collect
about a group or category of services, features or users while You, Your
Agents or End-Users use a Service for certain purposes, including
analytics, which is used to help understand trends in usage of the
Services. In addition to collecting and using Usage Data ourselves, Life
Fitness may share the Usage Data with third parties, including Our
subscribers, business partners and service providers, for various purposes,
including to help Us better understand Our subscribers’ needs, to assist
You with targeted marketing to Agents and End-Users, and improve Our
Services. We may also publish Usage Data to provide relevant information
about the Services and for purposes of marketing.
b. Aggregated Personal Data that is not personally identifiable. We may
anonymize the Personal Data of Your Agents or End-Users so that they cannot
be individually identified, and publish this anonymized information, as
segmented by industry, geography and other metrics to provide qualitative
insight on customer support metrics and other relevant insights.
c. Aggregated Personal Data that is not personally identifiable. We may
anonymize the Personal Data of Your Agents or End-Users so that they cannot
be individually identified and provide that information to Our partners. We
may also provide aggregate usage information to Our partners for analytics
purposes, who may use such information to help Us understand how often and
in what ways people use Our Services.
3.11 Communication. We may communicate with You and Your Agents. For
example, We may send You and Your Agents product announcements and
promotional offers or contact You and Your Agents about Your use of the
Services. If You or an Agent does not want to receive communications from
Us, please indicate this preference by sending an email to privacy@lifefitness.com and
provide Us with the name and email address of each Agent that no longer
wishes to receive these communications.
4. INTELLECTUAL PROPERTY RIGHTS
Each Party shall retain all rights, title and interest in and to all its
respective patents, inventions, copyrights, trademarks, domain names, trade
secrets, know-how and any other intellectual property and/or proprietary
rights (collectively, “Intellectual Property Rights”). The rights granted
to You, Agents and End-Users to use the Service(s) under this Agreement do
not convey any additional rights in the Service(s) or in any Intellectual
Property Rights associated therewith. Subject only to limited rights to
access and use the Service(s) as expressly stated herein, all rights, title
and interest in and to the Services and all hardware, Software and other
components of or used to provide the Services, including all related
Intellectual Property Rights, will remain with Life Fitness and belong
exclusively to Life Fitness. Life Fitness shall have a fully paid-up,
royalty-free, worldwide, transferable, sub-licensable (through multiple
layers), assignable, irrevocable and perpetual license to implement, use,
modify, commercially exploit, and/or incorporate into the Services or
otherwise use any suggestions, enhancement requests, recommendations or
other feedback We receive from You, Agents, End-Users, or other third
parties acting on Your behalf. Life Fitness reserves the right to seek
intellectual property protection for any features, functionality or
components that may be based on or that were initiated by suggestions,
enhancement requests, recommendations or other feedback We receive from
You, Agents, End-Users, or other third parties acting on Your behalf. Life
Fitness’s other product and service names and logos used or displayed in or
on the Services are registered or unregistered trademarks of one or more
members of Life Fitness (collectively, “Marks”), and You may only use
applicable Marks in a manner permitted by Our Trademark Usage Guidelines to
identify You as a Subscriber; provided You do not attempt, now or in the
future, to claim any rights in the Marks, degrade the distinctiveness of
the Marks, or use the Marks to disparage or misrepresent Us, Our services
or products.
5. THIRD PARTY SERVICES
If You decide to enable, access or use Third Party Services, be advised
that Your access and use of such Third Party Services are governed solely
by the terms and conditions of such Third Party Services, and We do not
endorse, are not responsible or liable for, and make no representations as
to any aspect of such Third Party Services, including, without limitation,
their content or the manner in which they handle, protect, manage or
Process data (including Service Data) or any interaction between You and
the provider of such Third-Party Services. We cannot guarantee the
continued availability of such Third-Party Service features, and may cease
enabling access to them without entitling You to any refund, credit, or
Third-Party compensation, if, for example and without limitation, the
provider of an Third-Party Service ceases to make the Third-Party Service
available for interoperation with the corresponding Service in a manner
acceptable to Us. You irrevocably waive any claim against Life Fitness with
respect to such Third-Party Services. We are not liable for any damage or
loss caused or alleged to be caused by or in connection with Your
enablement, access or use of any such Third-Party Services, or Your
reliance on the privacy practices, data security processes or other
policies of such Third-Party Services. You may be required to register for
or log into such Third-Party Services on their respective websites. By
enabling any Third-Party Services, You are expressly permitting Life
Fitness to disclose Your Login, as well as Service Data as necessary to
facilitate the use or enablement of such Third-Party Services.
6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 Payment and Billing. Unless otherwise indicated in writing by the
parties, all charges associated with Your access to and use of a Service
(“Subscription Charges”) are due in full upon commencement of Your
Subscription Term. If You fail to pay Your Subscription Charges or other
charges indicated on any Quotation Order Form within five (5) business days
of Our notice to You that payment is due or delinquent, or if You do not
update payment information upon Our request, in addition to Our other
remedies, We may suspend or terminate access to and use of such Service by
You, Agents and End-Users.
6.2 Upgrades. If You choose to upgrade Your Service Plan or increase the
number of Agents authorized to access and use a Service during Your
Subscription Term (a “Subscription Upgrade”), any incremental Subscription
Charges associated with such Subscription Upgrade will be prorated over the
remaining period of Your then current Subscription Term, charged to Your
Account and due and payable upon implementation of such Subscription
Upgrade. In any future Subscription Term, Your Subscription Charges will
reflect any such Subscription Upgrades.
6.3 Downgrades. No refunds or credits for Subscription Charges or other
fees or payments will be provided to You if You elect to downgrade Your
Service Plan. Downgrading Your Service Plan may cause loss of content,
features, or capacity of the Service as available to You under Your
Account, and Life Fitness does not accept any liability for such loss.
6.4 Taxes. Unless otherwise stated, Our charges do not include any taxes,
levies, duties or similar governmental assessments, including value-added,
sales, use or withholding taxes assessable by any local, state, provincial
or foreign jurisdiction (collectively “Taxes”). You are responsible for
paying Taxes, except those assessable against Life Fitness measured by its
net income. We will invoice You for such Taxes if We believe We have a
legal obligation to do so and You agree to pay such Taxes if so invoiced.
6.5 Payment Agent. If You pay by credit card or certain other payment
instruments, the Services provide an interface for the Account owner to
change credit card information (e.g. upon card renewal). Payments made by
credit card, debit card or certain other payment instruments for the
Services are billed and processed by Life Fitness’ Payment Agent. You
hereby authorize the Payment Agent to bill Your credit card or other
payment instrument in advance on a periodic basis in accordance with the
terms of the Service Plan for the Services and for periodic Subscription
Charges applicable to Deployed Associated Services to which You subscribe
until Your subscription to the Services terminates, and You further agree
to pay any Subscription Charges so incurred. If applicable, You hereby
authorize Life Fitness and the Payment Agent to charge Your credit card or
other payment instrument to establish such prepaid credit. The Account
owner will receive a receipt upon each receipt of payment by the Payment
Agent, or they may obtain a receipt from within the Services to track
subscription status. You agree to promptly update Your Account information
with any changes (for example, a change in Your billing address or credit
card expiration date) that may occur. To the extent the Payment Agent is
not Life Fitness, the Payment Agent is acting solely as a billing and
processing agent for and on behalf of Life Fitness and shall not be
construed to be providing the applicable Service. The Payment Agent uses a
third-party intermediary to manage credit card processing and this
intermediary is not permitted to store, retain or use Your billing
information except to process Your credit card information for the Payment
Agent.
6.6 Payment Portals. Any Subscriber that mandates Life Fitness to use a
vendor payment portal or compliance portal which charges Life Fitness a
subscription fee or a percentage of any uploaded invoice as a required cost
of doing business, shall be invoiced by Life Fitness for the cost of this
fee.
7. PROMOTIONAL CREDITS POLICY
We may, at Our sole discretion, choose to offer credits for the Services in
various ways, including but not limited to, coupons, promotional campaigns
and referrals for Life Fitness services such as training. Life Fitness
reserves the right to award credits at its sole discretion. Credits have no
monetary or cash value and can only be used by You to offset Your
subsequent payments of Subscription Charges for the applicable Service.
Credits may only be applied to Subscription Charges due for the Service
specifically identified by Life Fitness when issuing the credit. Credits
can only be used by You and are non-transferable. To the extent that You
have been awarded credits, unless the instrument (including any coupon)
states an earlier expiration date, credits shall expire and no longer be
redeemable twelve (12) months from the date the credit was issued.
8. CANCELLATION, TERMINATION AND RENEWAL
8.1 Cancellation and Renewal. Either Party may elect to terminate Your
Account and subscription to a Service as of the end of Your then current
Subscription Term by providing notice, in accordance with this Agreement,
on or prior to the date thirty (30) days preceding the end of such
Subscription Term. Unless Your Account and subscription to a Service is so
terminated, Your subscription to a Service (including any and all Deployed
Associated Services) will automatically renew for a Subscription Term
equivalent in length to the then expiring Subscription Term. Unless
otherwise provided for in a Quotation Order Form, the Subscription Charges
applicable to Your subscription to a Service for any such subsequent
Subscription Term shall be Our standard Subscription Charges for the
Service Plan and Deployed Associated Services to which You have subscribed
or which You have deployed, as applicable, as of the time such subsequent
Subscription Term commences.
8.2 No Refunds. No refunds or credits for Subscription Charges or other
fees or payments will be provided to You if You elect to terminate Your
subscription to the Service or cancel Your Account prior to the end of Your
then effective Subscription Term, unless You make such refund request in
writing within fifteen (15) days of subscribing to the Service.
8.3 Payment Upon Termination. Except for Your termination under Section
8.5, if You terminate Your subscription to a Service or cancel Your Account
prior to the end of Your then effective Subscription Term or We effect such
termination or cancellation pursuant to Sections 2, 8.4 and 8.5, in
addition to other amounts You may owe Life Fitness, You must immediately
pay any then unpaid Subscription Charges associated with the remainder of
such Subscription Term. This amount will not be payable by You in the event
You terminate Your subscription to a Service or cancel Your Account as a
result of a material breach of this Agreement by Life Fitness, provided
that You provide advance notice of such breach to Life Fitness and afford
Life Fitness not less than thirty (30) days to reasonably cure such breach
as provided for in Section 8.6 herein.
8.4 Suspension or Termination. We reserve the right to modify, suspend or
terminate the Services (or any part thereof), Your Account or Your Agents’
or End-Users’ rights to access and use the Services, and remove, disable
and discard any Service Data or other content Posted by You if We believe
that You, Agents or End-Users have violated this Agreement or We suspect or
detect any Malicious Software connected to Your Account. Unless legally
prohibited from doing so, We will use commercially reasonable efforts to
contact You directly via email to notify You when taking any of the
foregoing actions. We shall not be liable to You, Agents, End-Users or any
other third party for any such modification, suspension or discontinuation
of Your rights to access and use the Services. Any suspected fraudulent,
abusive, or illegal activity by You, Agents or End-Users may be referred to
law enforcement authorities at Our sole discretion.
8.5 Termination for Cause. A Party may terminate this Agreement for cause
(a) 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
(b) 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. If You purchased Services directly
(and not through a Reseller), then: (i) if this Agreement is terminated by
You in accordance with this section, We will, to the extent permitted by
applicable law, refund You any prepaid fees covering the remainder of the
Subscription Term after the effective date of termination; or (ii) if this
Agreement is terminated by Us in accordance with this section, You will pay
any unpaid fees covering the remainder of the Subscription Term pursuant to
all applicable Quotation Order Forms. In no event will termination relieve
You of Your obligation to pay any fees payable to Us for the period prior
to the effective date of termination.
8.6 Export of Service Data. Upon request by You made within thirty (30)
days after the effective date of termination or expiration of this
Agreement, We will make Service Data available to You for export or
download as provided in the Documentation. After such 30-day period, We
will have no obligation to maintain or provide any Service Data, and, as
provided in the Documentation, will have the right to delete or destroy all
copies of Service Data in Our systems or otherwise in Our possession or
control, unless prohibited by law.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1 Each Party represents that it has validly entered into this Agreement
and has the legal power to do so.
9.2 We warrant that during an applicable Subscription Term: (a) this
Agreement and the Documentation will accurately describe the applicable
administrative, physical, and technical safeguards for protection of the
security, confidentiality and integrity of Personal Data; and (b) the
Services will perform materially in accordance with the applicable
Documentation. For any breach of a warranty above, Your exclusive remedies
are those described in Section 8.5 herein.
9.3 We and Our affiliates, officers, directors, employees, agents, service
providers, suppliers and licensors disclaim any liability to You, Agent,
End-User or any third party for any configurations or customizations made
to a Service by or for You (unless made by Us) or any Service Data You
enter into a Service.
9.4 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9.2, THE SITES AND THE
SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN
“AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE
FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT
THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM
VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED
BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT
EXPRESSLY STATED IN THIS AGREEMENT.
9.5 YOU, AGENT AND END-USER ASSUME ALL RISK AND LIABILITY FOR THE RESULTS
OBTAINED BY THE USE OF THE SERVICES, WHETHER IN TERMS OF GENERAL
EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN
STATEMENTS MADE BY US, BY WAY OF ADVICE OR OTHERWISE, RELATED TO THE USE OF
THE SERVICES.
10. LIMITATION OF LIABILITY
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT,
TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR
THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE
PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD
PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA
LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET
THROUGH NO FAULT OF LIFE FITNESS), BUSINESS INTERRUPTION, LOSS OF GOODWILL,
OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL
OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE
OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE
SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LIFE
FITNESS’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS
AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED
THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU (OR YOUR
RESELLER TO LIFE FITNESS WITH RESPECT TO YOUR SUBSCRIPTION TO SUCH SERVICE)
DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING
RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL
PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT
BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION
CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME
ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON
THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO
ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or
limitation of liability for incidental or consequential damages, which
means that some of the above limitations may not apply to You. IN THESE
JURISDICTIONS, LIFE FITNESS’S LIABILITY WILL BE LIMITED TO THE GREATEST
EXTENT PERMITTED BY LAW.
10.4 Any claims or damages that You may have against Life Fitness shall
only be enforceable against Life Fitness and not any other entity or its
officers, directors, representatives or agents of Life Fitness.
11. INDEMNIFICATION
11.1 We will indemnify and hold You harmless, from and against any claim
against You by reason of Your use of a Service as permitted hereunder,
brought by a third party alleging that such Service infringes or
misappropriates a third party’s valid patent, copyright, trademark or trade
secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and
pay damages finally awarded against You in connection therewith, including
the reasonable fees and expenses of the attorneys engaged by Life Fitness
for such defense, provided that (a) You promptly notify Life Fitness of the
threat or notice of such IP Claim; (b) We will have the sole and exclusive
control and authority to select defense attorneys, and defend and/or settle
any such IP Claim; and (c) You fully cooperate with Life Fitness in
connection therewith. If use of a Service by You, Agents or End-Users has
become, or, in Our opinion, is likely to become, the subject of any such IP
Claim, We may, at Our option and expense, (a) procure for You the right to
continue using the Service(s) as set forth hereunder; (b) replace or modify
a Service to make it non-infringing; or (c) if options (a) or (b) are not
commercially reasonable or practicable as determined by Life Fitness,
terminate Your subscription to the Service(s) and repay You, on a pro-rata
basis, any Subscription Charges previously paid to Life Fitness for the
corresponding unused portion of Your Subscription Term for such Service(s).
We will have no liability or obligation under this Section 11.1 with
respect to any IP Claim if such claim is caused in whole or in part by (i)
compliance with designs, data, instructions or specifications provided by
You; (ii) modification of the Service(s) by anyone other than Life Fitness;
or (iii) the combination, operation or use of the Service(s) with other
hardware or software where a Service would not by itself be infringing.
The provisions of this Section 11.1 are the sole, exclusive and entire
liability of Life Fitness to You and constitute Your sole remedy with
respect to an IP Claim brought by reason of access to or use of a Service
by You, Agents or End-Users.
11.2 You will indemnify and hold Life Fitness harmless against any claim
brought by a third party against Life Fitness arising from or related to
(a) use of a Service by You, Agents or End-Users in breach of this
Agreement or matters for which You have expressly agreed to be responsible
pursuant to this Agreement, including but not limited Your obligations
pursuant to Section 3; or (b) any allegation that Your use of the Service
or Your Service Data infringes or misappropriates a third party’s patent,
copyright, trademark or trade secret; provided (i) We shall promptly notify
You of the threat or notice of such claim; (ii) You will have the sole and
exclusive control and authority to select defense attorneys, and defend
and/or settle any such claim (however, You shall not settle or compromise
any claim that results in liability or admission of any liability by Us
without Our prior written consent); and (iii) We fully cooperate with You
in connection therewith.
12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
12.1 Assignment. You may not, directly or indirectly, by operation of law
or otherwise, assign all or any part of this Agreement or Your rights under
this Agreement or delegate performance of Your duties under this Agreement
without Our prior consent, which consent will not be unreasonably withheld.
We may, without Your consent, assign this Agreement to any member of Life
Fitness or in connection with any merger, acquisition or change of control
of Life Fitness or Life Fitness or the sale of all or substantially all of
Our assets provided that any such successor agrees to fulfill its
obligations pursuant to this Agreement. Subject to the foregoing
restrictions, this Agreement will be fully binding upon, inure to the
benefit of and be enforceable by the Parties and their respective
successors and assigns.
12.2 Entire Agreement. This Agreement, together with any Quotation Order
Form(s) constitute the entire agreement, and supersede any and all prior
agreements between You and Life Fitness with regard to the subject matter
hereof. This Agreement shall apply in lieu of the terms or conditions in
any purchase order or other order documentation You or any Entity which You
represent provides (all such terms or conditions being null and void), and,
except as expressly stated herein, there are no other agreements,
representations, warranties, or commitments which may be relied upon by
either Party with respect to the subject matter hereof. There are no oral
promises, conditions, representations, understandings, interpretations, or
terms of any kind between the Parties, except as may otherwise be expressly
provided herein.
Notwithstanding the foregoing, You may be presented with additional
features, functionality, or services as detailed in a supplement hereto or
that We offer as part of or distinct from the Services (the “Additional
Features”). In those instances, We will notify You or Reseller prior to
activation of the Additional Features and the activation of these features,
functionality, or services in Your Account by You or any Agent authorized
as an administrator in Your Account or by Reseller will be considered
acceptance of the Additional Features and incorporated into this Agreement.
12.3 Amendment. We may amend this Agreement from time to time, in which
case the new Agreement will supersede prior versions. We will notify You
not less than ten (10) days prior to the effective date of any such
amendment and Your continued use of the Services following the effective
date of any such amendment may be relied upon by Life Fitness as Your
consent to any such amendment. Our failure to enforce at any time any
provision of this Agreement does not constitute a waiver of that provision
or of any other provision of this Agreement.
13. SEVERABILITY
If any provision in this Agreement is held by a court of competent
jurisdiction to be unenforceable, such provision shall be modified by the
court and interpreted so as to best accomplish the original provision to
the fullest extent permitted by law, and the remaining provisions of this
Agreement shall remain in effect.
14. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Services and other Software or components of the Services that We may
provide or make available to You, Agents or End-Users may be subject to
U.S. export control and economic sanctions laws. You agree to comply with
all such laws and regulations as they relate to access to and use of the
Services, Software and such other components by You, Agents and End-Users.
You shall not access or use the Services if You are located in any
jurisdiction in which the provision of the Services, Software or other
components is prohibited under U.S. or other applicable laws or regulations
(a “Prohibited Jurisdiction”) and You shall not provide access to the
Services to any government, entity or individual located in any Prohibited
Jurisdiction. You represent, warrant and covenant that (a) You are not
named on any U.S. government list of persons or entities prohibited from
receiving U.S. exports, or transacting with any U.S. person; (b) You are
not a national of, or a company registered in, any Prohibited Jurisdiction;
(c) You shall not permit Agents or End-Users to access or use the Services
in violation of any U.S. or other applicable export embargoes, prohibitions
or restrictions; and (d) You shall comply with all applicable laws
regarding the transmission of technical data exported from the United
States and the country in which You, Agents and End-Users are located.
15. RELATIONSHIP OF THE PARTIES
The Parties are independent contractors. This Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary or employment
relationship among the Parties.
16. NOTICE
All notices to be provided by Life Fitness to You under this Agreement may
be delivered in writing (a) by nationally recognized overnight delivery
service (“Courier”) or U.S. mail to the contact mailing address provided by
You on any Quotation Order Form; or (b) electronic mail to the electronic
mail address provided for Your Account. You must give notice to Life
Fitness in writing by Courier or U.S. mail to 10601 Belmont Avenue,
Franklin Park, IL 60131 U.S.A. Attn: Law Department. All notices shall be
deemed to have been given immediately upon delivery by electronic mail; or,
if otherwise delivered upon the earlier of receipt or two (2) business days
after being deposited in the mail or with a Courier as permitted above.
17. GOVERNING LAW
This Agreement shall be governed by the laws set forth in Appendix A –
Supplemental Terms. You hereby expressly agree to submit to the exclusive
personal jurisdiction of this jurisdiction for the purpose of resolving any
dispute relating to this Agreement or access to or use of the Services by
You, Agents or End Users.
18. FEDERAL GOVERNMENT END USE PROVISIONS
If You are a U.S. federal government department or agency or contracting on
behalf of such department or agency, each of the Services is a “Commercial
Item” as that term is defined at 48 C.F.R. §2.101, consisting of
“Commercial Computer Software” and “Commercial Computer Software
Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R.
§227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1
through 227.7202-4, as applicable, the Services are licensed to You with
only those rights as provided under the terms and conditions of this
Agreement.
19. ANTI-CORRUPTION
You agree that You have not received or been offered any illegal or
improper bribe, kickback, payment, gift, or thing of value from any of Our
employees or agents in connection with this Agreement. Reasonable gifts and
entertainment provided in the ordinary course of business do not violate
the above restriction. If You learn of any violation of the above
restriction, You will use reasonable efforts to promptly notify Our Law
Department at ethics.advisory@lifefitness.com.
20. SURVIVAL
Sections 1, 3.1, 4 and 9-20 shall survive any termination of Our agreement
with respect to use of the Services by You, Agents or End Users.
Termination of such agreement shall not limit a Party’s liability for
obligations accrued as of or prior to such termination or for any breach of
this Agreement.
APPENDIX A
SUPPLEMENTAL TERMS: REGION-SPECIFIC TERMS
The following country-specific terms may be applicable to Your use of the
Service. For Subscribers who are a resident or citizen of the following
countries:
Asia, Asia Pacific, Australia (excluding Japan)
Life Fitness: means Life Fitness Asia Pacific Limited, Registration Number
555493, a company organized under the laws of Hong Kong with its business
address at 32/F, Global Trade Square, 21 Wong Chuk Hang Road, Hong Kong.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of Hong Kong, without reference to conflict of
laws principles. Any disputes under this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by
a single arbitrator appointed in accordance with said Rules. The
arbitration shall take place in Hong Kong.
Brazil
Life Fitness: means Life Fitness Comercio de Equipamentos do Brasil Ltd.,
Registration Number 32.115.357 / 0001-01, a company organized under the
laws of Brazil with its business address at Avenida Rebouchas, Terreoparte,
Pinheiros, CEP 05401300, Sao Paulo, Sao Paulo.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of Brazil, without reference to conflict of laws
principles. Any disputes under this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by
a single arbitrator appointed in accordance with said Rules. The
arbitration shall take place in Sao Paolo, Brazil.
Personal Data. You agree that You are responsible for notifying End-Users
that Personal Data is collected, stored, used and/or processed by members
of Life Fitness, as described in this Agreement.
Canada, Latin America (excluding Brazil), United States
Life Fitness: means Life Fitness, LLC, Delaware Registration Number
7155426, a company organized under the laws of Delaware with its business
address at 10601 Belmont Avenue, Franklin Park, IL 60131, USA. If
Subscriber is a resident of Hawaii, then Life Fitness means Life Fitness
Sales, Inc., Delaware Registration Number 2760039.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of Illinois, without reference to
conflict of laws principles. Any disputes under this Agreement shall be
resolved in a court of general jurisdiction in Cook County, Illinois, or in
the federal court for the Northern District of Illinois.
California. You agree that You are responsible for (i) notifying End-Users
that Personal Data collected, stored, used and/or Processed by Life Fitness
or members of Life Fitness, as described in this Agreement, and is
collected, stored, used, and/or Processed in compliance with the California
Consumer Privacy Act of 2018 (CCPA), as amended, and any regulations made
under it; and (ii) obtaining consent from End-Users where it is required
under the foregoing. If You, Agent or End-Users are residents of
California, review the Notices and Rights of California Consumers that
supplements and forms a part of the Life Fitness Privacy Policy. The Notice
is available at
https://www.lifefitness.com/en-us/legal/notice-of-rights-for-california-residents.
Europe (excluding Austria, Germany, Hungary, Spain, Switzerland and United
Kingdom), Middle East & Africa
Life Fitness: means Life Fitness (Atlantic) B.V., Registration Number
24254910, a company organized under the laws of The Netherlands with its
business address at Bijdorpplein 25, 2992LB Barendrecht, Netherlands.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the Netherlands, without reference to conflict
of laws principles. Any disputes under this Agreement shall be finally
settled under the Rules of Arbitration of the International Chamber of
Commerce by a single arbitrator appointed in accordance with said Rules.
The arbitration shall take place in Rotterdam, The Netherlands.
Austria, Germany & Switzerland
Life Fitness: means Life Fitness Europe GmbH, Registration Number HRB97603,
a company organized under the laws of Germany with its business address at
Neuhofweg 9, 85716 Unterschleissheim, Deutschland.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of Germany, without reference to conflict of laws
principles. Any disputes under this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by
a single arbitrator appointed in accordance with said Rules. The
arbitration shall take place in Munich, Germany.
Hungary
Life Fitness: means Protokon Limited Liability Company, Registration Number
Cg. 03-09-100677, a company organized under the laws of Hungary with its
business address at 6200 Kiskőrös, Petőfi Sándor út 99, Hungary.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of Hungary, without reference to conflict of laws
principles. Any disputes under this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by
a single arbitrator appointed in accordance with said Rules. The
arbitration shall take place in Budapest, Hungary.
Japan
Life Fitness: means Life Fitness Japan Ltd., Registration Number 032519, a
company organized under the laws of Japan with its business address at
5-27-7 Shibuya-ku, Tokyo,151-0051, Japan.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of Japan, without reference to conflict of laws
principles. Any disputes under this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by
a single arbitrator appointed in accordance with said Rules. The
arbitration shall take place in Tokyo, Japan.
Spain
Life Fitness: means Life Fitness Iberia, S.A. (Sociedad Unipersonal),
Registration Number A-82496142, a company organized under the laws of Spain
with its business address at Calle Frederic Monpou, 5, Edificio Europa 3,
Sant Just Desvern, 08960, Barcelona, Spain.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of Spain, without reference to conflict of laws
principles. Any disputes under this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by
a single arbitrator appointed in accordance with said Rules. The
arbitration shall take place in Barcelona, Spain.
United Kingdom
Life Fitness: means Life Fitness UK Limited, Registration Number 02747223,
a company organized under the laws of the United Kingdom with its business
address at Queen Adelaide, Ely, Cambridgeshire C87 4UB, United Kingdom.
Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the United Kingdom, without reference to
conflict of laws principles. Any disputes under this Agreement shall be
finally settled under the Rules of Arbitration of the International Chamber
of Commerce by a single arbitrator appointed in accordance with said Rules.
The arbitration shall take place in London, England.
APPENDIX B
SUPPLEMENTAL TERMS: RESELLER TERMS
The following specific terms are applicable to Your use of the Service. For
Subscribers who purchase Life Fitness’ Services and/or Consulting Services
through a Reseller:
Life Fitness is an express beneficiary of this Agreement, and in acquiring
a subscription to the Service, You expressly acknowledge and agree that
Life Fitness shall have the right to enforce this Agreement against You and
that this Agreement constitutes the entire agreement and supersedes any and
all prior agreements between You and Life Fitness with regard to Your
subscription to the Service or Your access to or use thereof under this
Agreement and Your agreement between You and the Reseller.
Billing, Plan Modification and Payments (Clause 6): This clause is not
applicable.
Cancellation, Termination and Renewal (Clause 8): Replace clauses 8.1
through 8.3 with the following:
8.1 Under the terms and conditions of Our agreement with Reseller (the
“Reseller Agreement”), We are entitled to suspend or terminate Your
subscription to the Service, Your rights to access and use the Service or
Your Account, and remove and discard any Service Data if: (a) We are
notified by Reseller of Your failure to pay amounts due to Reseller with
respect to Your subscription to a Service; or (b) Reseller fails to pay any
amounts due to Us pursuant to the Reseller Agreement with respect to Your
subscription to a Service. Following any termination or expiration of the
Reseller Agreement, Your subscription to the Services outstanding at the
time of such termination or expiration (“Legacy Order”), shall remain in
effect until the end of its Subscription Term, and shall continue to be
governed by these terms, provided that You are not in breach of this
Agreement and We have received all payments due in connection with such
Legacy Orders. Except as provided herein, following a termination or
expiration of the Reseller Agreement, We are under no obligation to provide
the Services directly to You, or to assume a direct contractual
relationship with You. You consent to these suspension and termination
rights and acknowledge and agree that Life Fitness shall have no liability
to You of any kind with respect to any such suspension or termination. Your
sole recourse with respect to any such suspension or termination shall be
against Reseller.
8.2 Following the termination or cancellation of Your subscription to the
Service and/or Account, We reserve the right to delete all Service Data in
the normal course of operation. Service Data cannot be recovered once Your
Account is cancelled.
Assignment. Under the terms of the Reseller Agreement, Your agreement with
the Reseller with respect to Your subscription to the Service may be
assigned to Life Fitness. You agree that if Your agreement with Reseller is
assigned to Life Fitness, Your continued rights to access and use the
Service shall be subject to Life Fitness’ then standard Master Subscription
Agreement and You consent to the application of such terms and conditions,
including without limitation, the billing and payment provisions contained
therein. You agree that following any such assignment, You shall, upon
request by Life Fitness, provide such information as is required to secure
payment for any Subscription Term commencing after such assignment.