This Master Services Agreement (collectively with all Statements of Work or Order Forms, the “Agreement”) is entered into by and between the entity or person executing a Statement of Work “SOW” (“Customer”, “you” or “your”) and FitOn. “FitOn” means the FitOn Inc., a Delaware corporation (“FitOn”) identified on the Statement of Work referencing this Agreement. This Agreement is effective as of the effective date of the first Statement of Work (“Effective Date”). Customer and FitOn are referred to individually as a “Party” and collectively as the “Parties.”
1. FITON SERVICES
1.1. Eligibility. Unless provided otherwise in a SOW or an Order, Customer will either provide FitOn with a specified email domain to validate users who are eligible OR provide FitOn a company email domain with identifying information (such as first name, email address, employee region, employee ID number, or other identifying information designated by Customer) (“Customer Data”) for each individual who is eligible to access each of the applicable Services (“Individual”) by either (a) providing a monthly report identifying such Customer Data; (b) uploading the Customer Data directly via the Admin Console; or, (c) such other methods established by FitOn from time to time, in each case, in accordance with the then current FitOn procedures.
2. CUSTOMER’S OBLIGATIONS
2.1. Assistance. Customer will, subject to Applicable Law, assist FitOn in marketing the use of the applicable Services to the Individuals with the goal of increasing use of the Services by such Individuals. Customer will not make any representations or warranties concerning the Services or its potential benefits or value except as set forth in program or marketing materials provided by FitOn to Customer.
2.2. Access Restrictions; Admin Console. Customer will only permit the maximum number of Individuals identified on the applicable SOW or Order to access or utilize the applicable Services. Customer may use the Admin Console to specify one or more Administrators who will have the right to access the Admin Console and to manage the Services. Customer will protect its Admin Console usernames and passwords (“Account Information”) from unauthorized access or use and is responsible for all activities performed on the Platform using its Account Information. FitOn’s responsibilities do not extend to the internal management or administration of the Services for Customer.
3. COMPENSATION & PAYMENT
3.1. Fees. Customer will pay FitOn all costs, fees, expenses and other charges specified in each SOW or Order(s) (collectively, “Fees”) within thirty (30) days of the date of the invoice issued by FitOn, unless a different period is specified in the applicable SOW or Order. Payment obligations are non-cancelable, and Fees paid to FitOn are non-refundable. The Fees do not include taxes. Customer will pay all taxes, levies and duties associated with this Agreement, other than taxes based on FitOn’s income.
3.2. Late Payment. Any amount due under this Agreement that remains unpaid after its due date will bear interest from the date that such payment became delinquent until the date such amount is paid in full at the lower of 1.5% per month or the maximum rate permitted by law, calculated from the date such amount was due until the date that payment is received. Customer will pay FitOn such interest and all costs and expenses of collection (including attorneys’ fees) incurred by FitOn for collecting any such past due amounts. FitOn may suspend access to the Services, with thirty (30) days’ written notice, if Customer fails to make any payments when due; and, Fees will continue to accrue during any such suspension.
4. INTELLECTUAL PROPERTY; FEEDBACK
4.1. FitOn IP. As between FitOn and Customer, FitOn owns all right, title and interest, including all intellectual property rights, in and to the Services, Reports, and any other information, program or marketing materials provided by FitOn to Customer, including via the Platform (collectively, “FitOn IP”). All rights in the FitOn IP not expressly granted to Customer in this Agreement are reserved by FitOn.
4.2. Feedback. Customer hereby grants to FitOn a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and otherwise practice any suggestions, ideas, enhancement requests, feedback, or recommendations that Customer provides to FitOn.
5.2. Customer Data. Customer owns all Customer Data. Customer hereby grants FitOn a non-exclusive royalty-free license to: (a) use the Customer Data to perform FitOn’s obligations to Customer under this Agreement, and (b) aggregate and de-identify the Customer Data (the resulting data, “Aggregated Data”) solely for the purpose of providing, developing, improving, and/or reporting on the Platform. Customer hereby further grants FitOn a non-exclusive, royalty-free, perpetual, irrevocable, transferable license to use, reproduce, distribute, publicly display, publicly perform and create derivative works of the Aggregated Data for FitOn’s business and other purposes, in such a manner that neither Customer nor any Individual can be identified from such data.
5.3. Data Security. FitOn will maintain reasonable administrative, physical and technical safeguards as determined within FitOn’s discretion that are designed to prevent unauthorized access, use or disclosure of Customer Data and Service Data.
6. TERM AND TERMINATION
6.1. Term. Unless terminated earlier as provided in the Agreement, this Agreement commences on the Effective Date and continues as long as one or more SOWs or Orders remain in effect.
6.2. SOW or Order Term. Unless provided otherwise in an SOW or Order, each SOW or Order will remain in effect for the initial term specified in such SOW or Order (or, if no such initial term is specified, for one year) and will automatically renew for consecutive one year terms unless a Party provides written notice of non-renewal at least thirty (30) days prior to any renewal of each such SOW or Order.
6.3. Termination for Cause. A Party may terminate this Agreement (including any SOWs or Orders) if the other Party materially breaches this Agreement and such breach continues for a period of thirty (30) days after the non-breaching Party has provided the breaching Party written notice thereof.
6.4. Effects of Termination. In the event of any termination or expiration of this Agreement, the Services and all of Customer’s rights under this Agreement (including all SOWs or Orders) will immediately terminate. FitOn will destroy all Customer Data, other than Aggregated Data, in the manner and on the schedule as required by Applicable Law, as determined by FitOn within its discretion. Termination or expiration will not relieve either Party of obligations incurred prior to the effective date of the termination. The following Sections survive the expiration or termination of this Agreement: 3 (with respects to amounts accrued prior to expiration or termination); 4, 5.2, 6.4, 7, 8.3, 8.4, 9, 10, 11 and 12.
7. CONFIDENTIAL INFORMATION
7.1. Non-Use and Non-Disclosure. Recipient will use Discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement. Recipient will use reasonable care to protect the Discloser’s Confidential Information from being disclosed to Persons other than the Recipient’s employees, Affiliates, contractors, agents, or professional advisors who need to know it and who have a legal obligation to keep it confidential. Recipient’s disclosure of Confidential Information pursuant to law or a judicial or administrative order will not be deemed to be a breach of this Agreement, if Recipient (i) provides timely written notice of such disclosure requirement to the Discloser (if permitted to do so under Applicable Law), and (ii) reasonably cooperates, at Discloser’s expense, with the Discloser’s efforts to limit the scope of such disclosure.
8. WARRANTY; DISCLAIMER
8.1. Warranty. Each Party represents and warrants that (a) it has full power and authority to enter into this Agreement; and, (b) the person signing this Agreement on its behalf has the authority to do so.
8.2. Compliance. In the performance of this Agreement, each Party will comply with all laws and
regulations including state and federal laws and regulations, orders, and ordinances, applicable to such Party, including privacy laws and regulations governing such Party and its data privacy practices (“Applicable Law”). Customer represents, warrants and covenants that Customer has complied with Applicable Law in connection with its processing of the Customer Data and has provided all notices, and obtained all rights and permissions required under Applicable Law as may be necessary for each Party to process the Customer Data and provide the Services as contemplated by this Agreement.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND ANY OTHER INFORMATION (INCLUDING THE REPORTS) ARE PROVIDED BY FITON “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND; AND, FITON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER (INCLUDING WITH RESPECT TO THE USE OF, OR THE RESULTS FROM THE USE OF, THE SERVICES), INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE, OR THAT THE SERVICES AND ANY OTHER INFORMATION PROVIDED BY FITON ARE OR WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF FITON TO ANY PERSON.
8.4. No Medical Use. THE SERVICES DO NOT MAKE A MEDICAL DIAGNOSIS, PROVIDE MEDICAL CARE OR CLINICAL TREATMENT, OR PRESCRIBE MEDICATIONS AND SHOULD IN NO WAY BE CONSIDERED A REPLACEMENT FOR MEDICAL ADVICE OR ACTION IN ORDER TO CURE, TREAT, OR PREVENT DISEASES OF ANY NATURE. CUSTOMER WILL NOT USE ANY SERVICES IN THE TREATMENT OR MANAGEMENT OF ANY DISEASES OR CONDITIONS.
9. LIMITATION OF LIABILITY; INDEMNIFICATION
9.1. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, PAYMENT OBLIGATIONS, DAMAGES ARISING FROM THE UNAUTHORIZED USE OF THE OTHER’S INTELLECTUAL PROPERTY, A BREACH OF
CONFIDENTIALITY UNDER SECTION 7, OR GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY OR OTHERWISE, IN NO EVENT WILL: (A) EITHER PARTY BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES; AND, (B) EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS
AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.
9.2. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE AGREED UPON COMPENSATION AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10.1. FitOn Indemnification. FitOn will defend Customer and its directors, officers and employees against any Third Party claim, action, proceeding or suit (each a “Claim”), and will pay for the resulting costs and damages finally awarded against Customer to such Third Party by a court of competent jurisdiction or agreed to in settlement by FitOn (such agreement not to be unreasonably, withheld, conditioned or delayed), to the extent arising from the actual or alleged infringement of such Third Party’s intellectual property rights by the Services. FitOn will have no indemnification obligations arising from this Section 10.1, to the extent such Claim arises from (collectively, the “Excluded Claims”): (a) the use or combination of the Services with any hardware, software, products, processes, data, or other materials not provided by FitOn, including Customer’s own systems and data; (b) modification or alteration of the Services by anyone other than FitOn; or, (c) Customer’s or any Individual’s misuse of the Services or use of the Service in excess of the rights granted in the Agreement.
10.2. Customer Indemnification. Customer will defend FitOn and its directors, officers and employees against any Claim, and will pay for the resulting costs and damages finally awarded against FitOn to such Third Party by a court of competent jurisdiction or agreed to in settlement by Customer (such agreement not to be unreasonably, withheld, conditioned or delayed), arising from: (a) the Excluded Claims; (b) Customer’s breach of this Agreement or any breach of the Terms by any Individual; and, (c) any allegation that the Customer Data or other content or information provided by Customer infringes, misappropriates or violates the rights of a Third Party or violates Applicable Law.
10.3. Indemnity Obligations. The indemnifying Party’s (the “Indemnitor”) obligations under this Section 10 are conditioned upon the Person(s) seeking indemnification under this Section 10 (the “Indemnitee(s)”): (a) promptly notifying the Indemnitor in writing of the Claim (so as to avoid prejudicing the Indemnitor); (b) granting the Indemnitor sole control of the defense and settlement of the Claim provided that any such settlement does not bind any Indemnitee to pay any monetary amounts or admit to any wrongdoing; and, (c) providing the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Claim.
11.1. Independent Contractors. The Parties are independent contractors; and, nothing contained in this Agreement gives either Party the power to act as an agent of the other or to direct or control the day-to-day activities of the other.
11.2. Assignment. Neither Party may assign its rights or obligations under this Agreement without the written consent of the other Party, except that a Party may, without the consent of the other Party, assign this Agreement to an Affiliate or a successor to all or substantially all of its business that pertains to this Agreement, whether by merger, acquisition, operation of law, sale, or otherwise. Non-permitted assignments are void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. Notwithstanding the foregoing, FitOn may fulfill some of its duties under this Agreement through Affiliates or other Persons that provide services, supplies, equipment, or staffing at the request of, under the supervision, or at the place of business of FitOn (collectively “Subcontractors”). FitOn will be liable to Customer for the acts and omissions of its Subcontractors to the same extent FitOn would be liable to Customer had FitOn committed such acts or omissions.
11.3. Notices. Any notice must be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, or overnight delivery service to the address specified in an SOW or Order; or (ii) when sent via email to the email address specified in an SOW or Order or otherwise on record for Customer; and (b) if to FitOn, when sent via email to firstname.lastname@example.org, with a duplicate copy sent via registered mail, return receipt requested, to the following address FitOn Inc., Attn: Legal, 8605 Santa Monica Blvd #16613, West Hollywood, CA 90069. Either Party may change its address for receipt of notices by providing notice to the other Party in accordance with this Section.
11.4. Force Majeure. Neither Party will be liable, nor be deemed to have breached this Agreement for any failure or delay in fulfilling or performing any obligation of this Agreement (excluding any delay in the payment of any Fees that are due and payable) to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such Party including, without limitation, any act of God, flood, fire, storm, earthquake, explosion, governmental action, war, invasion or hostilities (whether war is declared or not), sabotage, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, quarantine, lock-out, accident, explosion, strike or other labor disputes (whether or not relating to either Party’s workforce), failure or delay of AWS, Oracle Cloud, Google Cloud, or Microsoft Azure, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
11.5. Governing Law. This Agreement and all proceedings arising hereunder will be governed by and construed in accordance with the laws of the state of California without reference to its principles of conflicts of law.
11.6. Dispute Resolution. Any dispute arising under or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration in Los Angeles County, California before one arbitrator in English pursuant to JAMS Comprehensive Arbitration Rules and Procedures, except that either Party may bring a claim related to its intellectual property rights or enforce the confidentiality obligations of this Agreement, or seek temporary and preliminary specific performance or injunctive relief, in a court of competent jurisdiction in Los Angeles County, California, without the posting of bond or other security. The non-prevailing Party in any arbitration action or lawsuit arising from or relating to this Agreement will pay the prevailing Party’s reasonable attorneys’ fees, court costs and expenses. In the event of a dispute related to the accuracy of an invoice (“Billing Dispute”), Customer will promptly, but in no event later than thirty (30) days following the date of such invoice, notify FitOn in writing of the nature of the Billing Dispute. If no such notice is timely received the invoice is deemed accepted by the Customer. While the Parties work to resolve the Billing Dispute, all terms and conditions of this Agreement will remain in full force and effect, unless otherwise terminated pursuant to this Agreement.
11.7. Remedies Cumulative. Except as explicitly provided, the remedies provided to the Parties under this Agreement are cumulative and will not exclude any other remedies to which a Party may be lawfully entitled.
11.8. Severability. Each provision of this Agreement is separate and distinct and severable from all other provisions. If any provision (or any part thereof) is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and, all remaining provisions of this Agreement will remain unimpaired.
11.9. No Third-Party Beneficiaries. Nothing set forth in this Agreement is intended to or will be construed to confer any rights or remedies upon any Person that is not a Party to this Agreement.
11.10. Publicity. Neither Party will issue any press releases or make any social media posts referencing the other Party except with the prior written permission of the other Party or as required by Applicable Law. Without limiting the foregoing, FitOn may use Customer’s name, logo, or marks for the purpose of marketing the Services without prior approval.
11.11. Export. Customer represents and covenants that Customer is not named on any U.S. government agency’s sanctioned or denied-party list. Customer will not, and will not permit any Person to, access or use the Services in violation of any applicable export law or regulation. Notwithstanding any other provision of this Agreement, FitOn reserves the right to limit or deny access to the Services to any User who is named on or subject to any U.S. government agency’s sanctioned or denied-party list.
11.12. Amendment and Waiver. No modification, amendment, or waiver of any provision of this Agreement will be effective unless it exists in writing and is signed by the Party against whom the
modification, amendment, or waiver is to be asserted. The delay or failure of a Party at any time to require performance of any obligations of the other Party will not be deemed to be a waiver and will not affect its right to enforce any provision of this Agreement at a subsequent time. One waiver will not imply or be construed to be a waiver of any future breach.
11.13. Entire Agreement. This Agreement along with the Terms and each applicable SOW or Order constitutes the complete and exclusive statement of all mutual understandings between FitOn and Customer with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Nothing contained in any purchase order, acknowledgment or invoice will in any way modify or add to the terms or conditions of this Agreement.
11.14. Interpretation. In this Agreement: (a) the headings are for convenience only and will not affect the meaning or interpretation of this Agreement; (b) the words “herein,” “hereunder,” “hereby” and similar words refer to this Agreement as a whole (and not to the particular sentence, paragraph, or Section where they appear); (c) terms used in the plural include the singular, and vice versa, unless the context clearly requires otherwise; and (d) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”. If an ambiguity or question of intent or interpretation arises, then this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the terms hereof or thereof.
11.15. Counterparts. This Agreement (including any SOW or Order) may be executed in two or more counterparts, each of which will be deemed an original, but which together constitute one and the same instrument. The execution of this Agreement may be evidenced by way of a facsimile, portable document format (.pdf) transmission or electronic production or reproduction, photostatic or otherwise, of such Party’s or Person’s signature, and such portable document format (.pdf), or electronic production or reproduction signature is deemed to constitute the original signature of such Party or Person.
12. CERTAIN DEFINITIONS
12.1. “Admin Console” means the online console(s) and tool(s) provided by FitOn to Customer for administering the Services, if and when FitOn creates and makes available such console(s) and tool(s).
12.2. “Administrators” mean the Customer-designated technical personnel who administer the Services on Customer’s behalf.
12.3. “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under
common control or ownership with a Party, where control is defined as the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
12.4. “Confidential Information” means any non-public or proprietary information disclosed by a Party (“Discloser”) to the other Party (“Recipient”) that is in written, graphic, machine readable, oral, or other form and that (a) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature or (b) based upon the facts and circumstances of the disclosure, information that a reasonable person would consider confidential. For clarity, the terms of this Agreement and all pricing information under this Agreement is the Confidential Information of FitOn. Confidential Information does not include any information that (i) was publicly available prior to the time of disclosure by the Discloser, (ii) becomes publicly available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient, (iii) is already in the lawful possession of the Recipient at the time of disclosure, (iv) is obtained by the Recipient from a Third Party without a breach of such Third Party’s obligations of confidentiality, or (v) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
12.5. “Statement of Work” or “Order” means any ordering document that references this Agreement and is signed by the Parties, and/or any credit card transaction initiated by Customer pursuant to this Agreement, either as a first Statement of work or order or a renewal.
12.6. “Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, business, association or other entity.
12.7. “Platform” means collectively (a) access to the FitOn mobile application and related website that provides a variety of content; and, (b) content accessed from such application or website.
12.9. “Professional Services” means installation, implementation, customization, coaching (including fitness or wellness coaching), consulting and other professional services described as such in an SOW or Order (including any work product or other deliverables provided therewith).
12.10. “Report” means any analysis or report is provided to or accessed by customer through the Services.
12.11. “Services” means, collectively, the Platform and the Professional Services.
12.12. “Service(s) Data” means all data entered into or collected through an Individual’s engagement with and access to the Services, excluding any Customer Data provided by Customer.
12.13. “Terms” means, collectively, the “Terms of Service” for the Platform found within the FitOn mobile application and on the FitOn website at fitonapp.com, and any additional terms that may apply to any new applications, features or functionality for the Services FitOn makes available from time to time, each as updated from time to time by FitOn in its sole discretion.
12.14. “Third Party” means any Person other than Company, Customer or any of their respective Affiliates.