Master Terms and Conditions - Retro Fitness Only

Club OS Master Terms and Conditions

Version: September 19, 2017. Modified for Retro Fitness, LLC Franchisees

THESE CLUB OS MASTER TERMS AND CONDITIONS (THIS “AGREEMENT”) CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND TECHNIQUE FITNESS, INC. (DBA CLUB OS, “TFI”), AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU AND YOUR END-USERS, WHETHER OR NOT IN CONNECTION WITH AN ACTIVE SUBSCRIPTION TO THE SERVICES.

Capitalized terms used in this Agreement are defined below in Section 1 and/or in the context in which they are used.

This Agreement applies to any use of, and access to the Services by You and Your End Users.

This Agreement is effective on the earlier of (a) the date You execute an Order Form, or (b) the date You first access or use any Services (“Effective Date”). By either accessing or using a Service, or authorizing or permitting an End-User to access or use a Service, You accept and agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company or another legal entity (an “Entity”), You are agreeing to this Agreement for and on behalf of that that Entity and representing to TFI that You have the authority to bind such Entity to this Agreement. You may not access the Services or accept this Agreement if You are not at least 18 years old, You do not have authority to bind the Entity on behalf of which you purport to act, or You do not agree with any part of this Agreement. If You do not agree with all of the provisions of this Agreement, you may not access and/or use the Services.

SUBJECT TO THE PROCEDURES SET FORTH IN THE AGREEMENT ENTERED INTO BY AND BETWEEN RETRO FITNESS, LLC OR ITS DESIGNATED AFFILIATE, ON THE ONE HAND, AND TFI ON THE OTHER HAND (THE “MASTER RETRO AGREEMENT”) TFI RESERVES THE RIGHT AT ANY TIME TO MODIFY, ADD, OR DELETE (“CHANGE”) PORTIONS OF THESE TERMS AND CONDITIONS WITHOUT NOTICE TO YOU. TFI WILL, HOWEVER, MAKE COMMERCIALLY REASONABLE EFFORTS TO NOTIFY YOU PRIOR TO MAKING SUCH CHANGES, IF PRACTICABLE TO DO SO, AND WILL POST THE CHANGES TO THE SERVICE. IT IS YOUR RESPONSIBILITY TO CHECK PERIODICALLY FOR SUCH CHANGES. YOUR CONTINUED USE OF THE SERVICES AFTER ANY CHANGES ARE POSTED (OR, IF APPLICABLE, AFTER TFI HAS INDICATED TO YOU IN WRITING THAT SUCH CHANGES WILL BECOME EFFECTIVE), CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AS SO CHANGED.

You and TFI are sometimes referred to in this Agreement each individually as a “Party,” and collectively as the “Parties.”

• DEFINITIONS

• “Affiliate” means any person or entity that directly or indirectly controls, is controlled by, or is under common control with, the indicated person or Entity.

• “Authorized Party” means Your employees and third-party providers whom You have authorized to access and/or to receive Your Data, whether (i) in writing, (ii) through the Service’s security designations, or (iii) by system integration or other data exchange process.

• “Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of TFI and that does not reveal any personally identifying information.

• “Agreement” means these ‘Club OS Master Terms and Conditions’ governing the terms and conditions of use of the Services between and binding upon TFI and a Customer.

• “Cardholder Data” means credit card numbers (including CVV and security codes), expiration dates, billing addresses, and cardholder names as entered by You and Your End Users, and is a sub-set of Customer Data.

• “Club” means the individual club location(s) set forth in the Order Form for which You are accepting this Agreement.

• “Confidential Information” shall mean all written or oral information, disclosed by any Party to the other, related to the operations of any Party or a third party that has been identified as confidential, or that by the nature of the information or the circumstances surrounding disclosure, ought reasonably to be treated as confidential.

• “Customer,” “You,” (and “Your,” as applicable) means and refers to a person who, or an Entity that by or through such person, has executed an Order Form or has commenced using the Services, and includes all of Your Clubs.

• “Customer Data” means all data, information or other material about an End User that You and Your End Users provide or submit to the Services, and includes Cardholder Data and such portions of Your Data that relates to specific End Users.

• “End Users” means any and all users of the Services, including, without limitation, Your employees, members, consultants, contractors and agents, and third parties with whom You transact business.

• “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship,  including but not limited to copyrights and moral rights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature however designated)  (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

• “Malicious Code” means viruses, worms, time bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents or programs now existing or hereinafter devised.

• “Non-TFI Application” means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and that interoperates with the Service, including, for example, an application that is developed by or for You, by a third party other than by TFI.

• “Order Form” means the documents for purchasing Services hereunder, including all addenda, supplements and attachments thereto, that are entered into between You and TFI from time to time. All Order Forms are deemed to be incorporated into this Agreement by reference. This Agreement shall rule in the event of any conflicts between this Agreement and any such Order Form to the extent of such conflict unless the Order Form specifically references such conflict and provides that the conflict should be governed by the Order Form to the extent of the conflict.

• “PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/,  as may be updated from time to time.

• “Personally Identifiable information” (or “PII”) means information, including Customer Data, that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.

• “Privacy Policy” means a written policy stating TFI’s practices in the collection and disclosure of information, including PII, from You and End Users of the Services, including TFI’s privacy policy posted on TFI’s website (https://app.club-os.com/action/Legal/privacy), as amended from time to time.

• “Service(s)” means (i) the Website owned and operated by TFI through which TFI offers the Club OS web application and other TFI products and services, including https://app.club-os.com/ , (ii) those products and services themselves, (iii) any other features, products and services generally marketed by TFI, whether or not through the Website, under the name “Club OS,” and (iv) all products and services You order and/or purchase from time to time from TFI under an Order Form or otherwise.

• “Technical Support” means TFI’s Services which provide End-User support, technical support, fixes, patches and occasional updates to the Services.

• “TFI” (and “Club OS”) means Technique Fitness, Inc. and its Affiliates.

• “Usage Data” means all non-Personally Identifiable Information data regarding the use of the Services by End-Users.

• “Website” means club-os.com and app.club-os.com and any other website or URL through which TFI offers the Services.

• “Your Data” means any data, information or material provided or submitted by You and Your End Users to and/or through the Services. Your Data includes Customer Data and Cardholder Data, but excludes Usage Data and Aggregated Data.

• LICENSE

• Grant of License to You. Subject to the provisions of this Agreement, including your timely payment of all Fees for the Services, TFI grants You a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license and right to use the Services selected by You in an Order Form, during the Service Term set forth therein solely for Your internal business operations purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Your End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by TFI in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations,  interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

• SERVICES

• Usage Limitations. Use of the Services is subject to such limitations as are set forth in the Order Form and as are otherwise set forth herein.

• Use Disclaimer. Except as set forth in in Section 7.1, Your use of and access to the Services and all contents associated therewith are at Your sole risk. To the extent TFI requires Your Clubs to each individually accept this Agreement, and any such Club does not so agree in the manner prescribed by TFI, then TFI may immediately suspend use of the Services for any Club unless and until such acceptance is obtained to TFI’s satisfaction. For avoidance of doubt, failure of a Club to so agree shall not limit or reduce Your financial liability to TFI for the Fees set forth in the applicable Order Form, which shall not be reduced.

• Provision of Services. TFI shall make the Services available to You in accordance with (i) the ‘Service Levels and Support Terms’ set forth in Exhibit “A” and Exhibit “B,” respectively, (ii) this Agreement and (iii) the relevant Order Forms, during the Service Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by TFI regarding potential future functionality or features. The Service is provided in U.S. English only.

• Club Subscriptions. Unless otherwise specified in the applicable Order Form, (i) the Services are purchased as per Club subscriptions and may be accessed by no more than the specified number of Clubs in the Order Form, (ii) additional Club subscriptions may be added during the applicable Service Term by executing a new Order Form for such purpose as prescribed by TFI. Club subscriptions are for designated Clubs only and cannot be shared or used by more than one Club, unless otherwise specifically permitted in writing by TFI.

• Service Availability. The Service Level Terms set forth in Exhibit “A” are hereby incorporated into this Agreement by reference as if fully set forth at length herein. While TFI intends that the Services should be available in accordance with the Service Level Terms set forth in Exhibit “A,” it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place. In such an event, TFI will use reasonable efforts to provide advance written notice to You.

• Help Desk. In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting TFI. If You still need technical help after making such reasonable effort, you may consult the trouble-shooting and support materials provided online by TFI on the Website, or email TFI at support@club-os.com.

• No Development. EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY UNDER THIS AGREEMENT AND NONE OF THE SERVICES SHALL BE DEEMED “WORK MADE FOR HIRE.” Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between TFI and You prior to the commencement of any such activities.

• PROPRIETARY RIGHTS

• Reservation of Rights by TFI. Subject to the limited rights expressly granted hereunder, TFI and its licensors and third-party providers each reserve all of TFI’s and TFI’s licensors’ right, title and interest in and to the Services and Implementation Services and related products, including all of TFI’s and TFI’s licensors’ related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein and any rights not so expressly granted are hereby reserved.

• Your Data. TFI respects respect Your rights in and to all content created and/or stored by You and/or Your End Users. As between You and TFI, You own Your Data. You hereby authorize TFI the right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing You the Services (including improving and developing the Services during the Service Term), and for no other purpose. You represent, warrant and covenant to TFI that You have all rights necessary to grant the licenses in this Section 4.2, and that the provision of Your Data through and in connection with the Services does not and will not violate any applicable laws or rights of any third party. All right, title and interest in any data or information collected by TFI independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information TFI obtains about End Users through the Website and/or any marketing landing pages (whether the same as Your Data or otherwise), will be solely owned by TFI (collectively, “TFI Data”).  TFI will retain Your Data in accordance with TFI’s public-facing privacy disclosures (including TFI’s Privacy Policy, as amended from time to time), or as otherwise agreed upon in writing.

• User Content. You and Your End Users may transmit or publish content created by You and/or Your End-users, using any of the Services or otherwise. However, You shall be solely Responsible to TFI for such content and the consequences of its transmission or publication. You agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose other than in connection with the performance of Your obligations hereunder in accordance with this Agreement, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if You come across any content with copyright notice(s) or any copy protection feature(s), You agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services, You affirm that You have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, You expressly agree that TFI will have the right to block access to, or remove such content made available by You, if TFI receives complaints concerning any illegality or infringement of third-party rights in such content. By using any of the Services and transmitting or publishing any content using the Services, You expressly consent to determination of questions of illegality or infringement of third-party rights in such content by the agent designated by TFI for this purpose. Notwithstanding anything to the contrary, TFI shall have the right to collect and analyze data and other information relating to the provision, use and performance of  various aspects of the Services and related systems and technologies (specifically excluding information concerning Your Data and data derived therefrom) by You and Your End Users, and TFI will be free (during and after the Service Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and TFI’s other offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with TFI’s business.

• Third-party Applications / Third-party Links and Your Data. TFI shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any use of the Services by a Non-TFI Application or by a third-party application provider not engaged by TFI. The Services may contain external links to other web sites. These links are provided for information purposes only. TFI does not endorse any advice, goods, or services offered by third parties. TFI has no control over the content of third-party sites and is not responsible for any information or content contained on these sites, nor is TFI responsible for the privacy policy of those sites and the information they may gather expressly or automatically. Accordingly, TFI expressly disclaims any responsibility for the content, the accuracy of the information, the quality of products or services provided by or advertised on and/or software downloaded from these third-party websites.

• Usage Data Information. Notwithstanding the foregoing, TFI maintains exclusive ownership of Usage Data and hereby grants You access to the Usage Data during the Service Term, to utilize data capture, syndication, and analysis tools, and other similar tools, to track, extract, compile, synthesize, aggregate, and analyze any Usage Data. You may not, however, sell or license access to the Usage Data to a third-party. Furthermore, TFI shall have the right during the Service Term and any renewal or extension thereof to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (excluding information concerning Your Data and data derived therefrom), and TFI will be free (during and after the Service Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other TFI offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

• License to Use Feedback. You grant to TFI a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into TFI’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Your End Users relating to the Services.

• License to Customer Marks. You hereby grant TFI a license to use any and all of Your names and trademarks (“Customer Marks”) to (i) perform the Services hereunder; (ii) to promote TFI’s services to third parties and to the public; and (iii) to develop and host the Services for You. TFI acknowledges and agrees that all use of the Customer Marks by TFI shall accrue to the benefit of the Customer.

• Cardholder Data. You are solely responsible for any liability resulting from Your transmission, handling, and/or storage of Cardholder Data. You agree that You will comply with all applicable laws and regulations relating to the handling and protection of Cardholder Data, including PCI DSS, anytime the Services are used to process credit cards.

• Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party, providing such details concerning the disclosure as the Party who did not cause or allow the disclosure may request, and shall cooperate with non-disclosing Party, its regulators and law enforcement to assist in regaining possession of Your Data and prevent its further unauthorized use, and take all commercially reasonable remedial actions as may be requested or required by the non-disclosing Party to prevent other or further incidents. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure and if a disclosure under this Section arises from one Party’s breach of its obligations under this Agreement, such breaching Party shall bear the reasonable cost, if any, of providing such notification to the affected individuals.

• Personally Identifiable Information. TFI’s Privacy Policy governs how TFI collects and uses PII that is submitted through the Services. If You access or use the Services, You represent that You have read and accept the terms of TFI’s Privacy Policy, as amended from time to time.

• Data Disputes. Disputes between You and Your End Users are Your responsibility. You are solely responsible for resolving disputes regarding ownership of or access to Your Data, including those involving any current or former owners, co-owners, employees or contractors of Your business. You acknowledge and agree that TFI has no obligation whatsoever to resolve or intervene in such disputes.

• USE OF SERVICES.

• Customer Representations and Covenants. As a condition of these Terms, when accessing and using the Services, You must (i) not transmit, or input into the Services (including into the Website), any files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material  that violates privacy rights and/or intellectual property rights); (ii) not transmit or conduct business in a manner which violates any privacy rights (including, without limitation, the Telephone Consumer Protection Act of 1991 (the “TCPA”) adopted rules, including those set forth in 47 C.F.R. Sect. 64.1200, (together with the TCPA, the “TCPA Rules,” as the same may be amended from time to time), prohibiting the initiation of telephone calls (other than a call made for emergency purposes or made with the prior express consent of the called party) using automatic telephone dialing systems or an artificial or prerecorded voice to telephone numbers assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call (referred to herein as “TCPA Prohibited Conduct”)),  (ii) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation, (iii) only use the Services for Your own lawful internal business purposes, in accordance with this Agreement and any other TFI policies as may be adopted from time to time, (iv) ensure that all persons who access the Services comply with and accept all terms of this Agreement that apply to You, (v) ensure that You are authorized to act on behalf of Your Clubs in providing the Service to End-Users, (vi) not attempt to undermine the security or integrity of TFI’s computing systems or networks or, where the Services are hosted by a third-party, that third-party’s computing systems and networks, (vii) not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any  other user to use the Services, and (viii) not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access, or to the computer system on which the Services are hosted.

• General Customer Responsibilities.  You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  You are, and at all times shall remain, in full compliance with all regulations and applicable laws; including, without limitation, those concerning privacy, telemarketing and otherwise relating to Your use of the Services. You may enable access of the Service for use only by Authorized Parties solely for Your internal business purposes in accordance with this Agreement and not for the benefit of any third parties. You shall (a) have sole responsibility for the accuracy, quality, and legality of all Your Data; and (b) prevent unauthorized access to, or use of, the Service, and notify TFI promptly of any such unauthorized access or use.

• Federal Regulations. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in Federal Acquisition Regulation (“FAR”) section 2.101, the Services and documentation are “commercial items” and according to Defense Federal Acquisition Regulation (“DFAR”) section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

• TFI’s Obligations. TFI shall: (a) provide applicable basic support for the Services to You at no  additional charge as set forth in Exhibit “B,” and such additional support as You may purchase from TFI from time to time; (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which TFI will provide reasonable notice to You in advance through the Website or via e-mail, or (ii) any  unavailability caused by circumstances beyond TFI’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving TFI’s employees), internet service provider failures or delays, or denial of service attacks (collectively “Force Majeure”), and shall provide the Services only in accordance with applicable laws and government regulations.

• Non-TFI Providers. TFI or third-parties may make available third-party products or services, including, for example, Non-TFI Applications and implementation and other consulting services.  Any acquisition by You of such products or services, and any exchange of data between You and any Non-TFI provider, product or service is solely between You and the applicable Non-TFI provider. TFI does not warrant or support Non-TFI Applications or other Non-TFI products or services, whether or not they are designated by TFI as “certified” or otherwise, unless expressly provided otherwise in an Order Form.

• Non-TFI Applications and Your Data. If You choose to use a Non-TFI Application with  the Service, You grant TFI permission to allow the Non-TFI Application and its provider to access Your Data as required for the interoperation of that Non-TFI Application with the Service. TFI is not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-TFI Application or its provider.

• Integration with Non-TFI Applications.  The Services may contain features designed to interoperate with Non-TFI Applications.  To use such features, You may be required to obtain access to such Non-TFI Applications from their providers, and may be required to grant TFI access to Your account(s) on such Non-TFI Applications. TFI cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-TFI Application ceases to make the Non-TFI Application available for interoperation with the corresponding Service features in a manner acceptable to TFI.

• PAYMENT AND FEES.

• Generally. During the term of the Master Retro Agreement, Retro Fitness, LLC has undertaken an obligation to pay the Fees (as defined under the Master Retro Agreement) associated with the Services, and for so long as the Master Retro Agreement is in effect Retro Fitness, LLC shall be responsible for payment of Fees, pursuant to the terms of the Master Retro Agreement.  To the extent that (i) the Master Retro Agreement terminates, (ii) Retro Fitness, LLC consents in Your on-going use of the Services writing, and (iii) You continue use of the Services following the termination of the Master Retro Agreement, You shall be responsible for all Fees associated with Your and Your Clubs use of the Services and the following terms shall apply:

• In consideration for the licenses and rights granted under this Agreement, You shall pay all Fees specified in all Order Forms for Services and Implementation Services (together “Fees”) hereunder using a designated payment processor. Except as otherwise specified herein or in an Order Form or upgrade Order Form, (i) Payment obligations are non-cancellable and Fees paid are non-refundable and (ii) quantities purchased cannot be decreased during the relevant Service Term. By entering into this Agreement, You acknowledge that Your subscription to the Services has recurring payments and You accept responsibility for all recurring charges prior to cancellation or termination of this Agreement and authorize TFI to levy such charges. TFI reserves the right to modify Fees on the renewal date and to institute new charges and Fees at the end of the initial Service Term or any renewal or extension thereof, upon sixty (60) days prior written notice to Customer (which may be sent by e-mail). All Fees are set in U.S. Dollars.

• Overdue Charges. If any charges are not received from You by the due date, and You fail to pay such charges to TFI before the expiration of ten (10) business days following TFI’s issuance of written notice to You, then, in TFI’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) TFI may condition future subscription renewals and Order Forms on shorter payment terms.

• Upgrades. If You choose to upgrade Your Service or increase the number of Clubs authorized to access and use a Service during Your Service Term (an “Account Upgrade”), any incremental subscription Fees associated with such Account Upgrade will be prorated over the remaining period of Your then current Service Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Service Term, Your Fees will reflect any such Account Upgrades.

• Suspension of Services and Acceleration. If any amount owing by You under this Agreement is 30 or more days overdue, and You fail to pay such amounts before the expiration of five (5) business days following TFI’s issuance of written notice to You, TFI may, without limiting its  other rights and remedies, accelerate Your unpaid Fee obligations under such agreement (including any interest for late payments as specified above) so that all such obligations become immediately due and payable, and suspend Your access to the Services until such amounts are paid in full. TFI will give You at least five (5) business days prior written notice that Your account is overdue, in accordance with Section 11.2 (‘Notices’), before suspending Your access to the Services.

• Taxes. Unless otherwise stated, TFI’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If TFI has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You on demand, unless You provide TFI with a valid tax exemption certificate authorized by the appropriate taxing authority.

• Payment Disputes. TFI will not exercise its rights under Section 6.2 (‘Overdue Charges’) or 6.3 (Suspension of Services and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

• Refunds or Credits. For the avoidance of any doubt, no refunds or credits for 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 TFI does not accept any liability for such loss.

• For clarity, subparagraphs 6.2 through 6.8 of this Agreement shall not apply unless and until (i) the Master Retro Agreement terminates, (ii) Retro Fitness, LLC consents in Your on-going use of the Services writing, and (iii) You continue to use the Services following the termination of the Master Retro Agreement.

• WARRANTY & DISCLAIMERS.

• TFI Warranties. TFI warrants only that (i) TFI has validly entered into  this Agreement and has the legal power to do so and (ii) TFI will use commercially reasonable efforts consistent with industry standards to maintain the Services in a manner which minimizes errors and interruptions and shall perform the Implementation Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by TFI or by third-party providers, or because of other causes beyond TFI’s reasonable control, but TFI shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. TFI does not represent or endorse the accuracy or reliability of any opinion, advice or statement made through the Services, nor does TFI assume any liability for claims concerning unsolicited fax, e-mail, or voice messages sent by You or others under Your account or control through the Services (including those that violate the privacy rights of any person).

• WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 7.1 AND 7.5 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, TFI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR USE BY CUSTOMER; EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS.” TFI FURNISHES THE ABOVE LIMITED WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS SET FORTH IN SECTION 7.1 and 7.5, TFI WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY (i) A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, (ii) VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR COMPUTER PROGRAMS, OR (iii) YOUR DATA OR OTHER PROPRIETARY MATERIAL RESULTING FROM YOUR USE OF THE SERVICES.

• Mutual Representations. Each Party represents and warrants (i) that such Party is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that such Party has the legal right and authority to enter into and perform its obligations under this Agreement; (iii) that the execution and performance of this Agreement will not conflict with or violate any provision of any  law having applicability to such Party; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

• Customer’s Indemnity Obligations. You agree to indemnify, defend, and hold harmless  TFI from and against any and all third-party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs of investigations, experts and defense) arising from or relating to: (a) any actual or alleged breach by You of any provisions of this Agreement; (b) any access to or use of the Services by You; (c) any actual or alleged violation by You of the intellectual property, privacy or other rights of a third party; and (d) any dispute between You and another party regarding ownership of or access to Your Data; (e) Your violation of privacy rights and regulations including, without limitation, the TSR and TCPA, respectively, and (f) the infringement of any intellectual property rights of a third-party by You.

• TFI’s Indemnity Obligations. TFI will indemnify and hold You harmless, from and against any claim against You: (A)  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”); (b) TFI’s violation of any law, rule or regulation in connection with ITS provision of Services; or (c) by reason of any act of willful misconduct or gross negligence by TFI, its employees or representatives in connection with the performance of the Services, to the extent not attributable to You, your Affiliates and the Club (collectively, the “Indemnified Claims” and each an “Indemnified Claim”). TFI shall at its own expense, defend such Indemnified Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by TFI for such defense, provided that (a) You promptly notify TFI of the threat or notice of such IP Claim; (b) TFI 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 TFI in connection therewith. If use of a Service by You or Your End-Users has become, or, in TFI’s sole discretion, is likely to become, the subject of any such IP Claim, TFI may, at TFI’s option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by TFI, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Fees previously paid to TFI for the corresponding unused portion of Your Service Term for such Service(s). TFI will have no liability or obligation under this Section 7.5 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than TFI; or (z) 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 7.5 state the sole, exclusive and entire liability of TFI to You and constitute Your sole remedy with respect to an Indemnified Claim brought by reason of access to or use of a Service by You and Your End-Users.

• Exclusive Remedy.  This Section 7 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any types of claims described in this Section 7.

• CONFIDENTIALITY OBLIGATIONS.

• Generally. A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without  breach of any obligation owed to the other Party; (c) was independently developed by a Party without reliance on Confidential Information or as a result of a breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed by such third party to the other Party. For clarity, nothing in this Section 8.1 will restrict TFI with respect to TFI Data or Aggregated Data, which is not deemed to constitute Confidential Information hereunder.

• TERM AND TERMINATION.

• The Service Term shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, provision of the Services hereunder will automatically renew for additional periods equal to the expiring Service Term, or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant Service Term.  Notwithstanding the foregoing, this Agreement shall terminate with immediate effect upon the termination, expiration, or non-renewal of the Retro Master Agreement, unless otherwise agreed to in writing by TFI, You, and RetroFitness, LLC.

• Termination.

• Termination Only for Breach. A Party may terminate this Agreement upon 30 days written notice to the other Party of a material breach of such Party if the breach remains uncured at the expiration of the prescribed cure period, or (ii) if the other Party becomes the subject of  a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. You shall have the right to immediately terminate this Agreement if the Master Retro Agreement is terminated or expires and is not renewed.  For avoidance of doubt, Your termination other than for a material breach (i.e., for ‘convenience’) is not permitted hereunder.

• Effect of Termination. Upon request by You within thirty (30) days following termination or expiration of this Agreement, and provided that You have paid TFI all amounts owed under this Agreement, TFI will make all Customer Data available to You for electronic retrieval for a period of thirty (30) days. After such thirty (30) day period, TFI will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Service Term You require TFI’s assistance in retrieving Your Data, additional charges may apply. UPON CANCELLATION OR TERMINATION, YOU AGREE THAT YOU WILL NOT BE ENTITLED TO A REFUND FOR ANY PROPORTIONAL UNUSED PORTION OF THE APPLICABLE SERVICE TERM.

• Payment upon Termination. If  (i) the Master Retro Agreement terminates, (ii) Retro Fitness, LLC consents in Your on-going use of the Services writing, and (iii) You continue to use the Services following the termination of the Master Retro Agreement, the following shall apply: In the event, You continue to use the Services following the termination of the Master Retro Agreement under the consent of Retro Fitness, LLC, and this Agreement is thereafter terminated by TFI in accordance with Section 9.2, you shall be responsible for all unpaid Fees covering the remainder of the term of all Order Forms and Upgrade Order Forms.

• Surviving Provisions. All provisions in this Agreement that should be deemed to survive termination in order to effectuate the intent of the Parties shall be deemed to so survive. Without limitation, the sections titled “Fees and Payment,” “Confidentiality,” “Warranty’s/Disclaimers,” “Indemnification,” “Limitation of Liability,” “Payment upon Termination,” “Removal of Content and Non-TFI Applications,” “Surviving Provisions” and “Miscellaneous” will survive any termination or expiration of this Agreement.

• LIMITATION OF LIABILITY

• Generally. EXCEPT IN CONNECTION WITH CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 7.4 OF THIS AGREEMENT, AND ANY IP CLAIM MADE BY A THIRD PARTY AGAINST CUSTOMER PURSUANT TO SECTION 7.5;  UNDER NO OTHER 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, 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 SUCH PARTY OR 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.

• TFI Limitation Amounts. WITH THE EXCEPTION OF LIABILITY ARISING OUT OF OR RESULTING FROM CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 7.4 OF THIS AGREEMENT AND ANY IP CLAIM MADE BY A THIRD PARTY AGAINST CUSTOMER PURSUANT TO SECTION 7.5, IN NO EVENT SHALL THE AGGREGATE LIABILITY  OF TFI TOGETHER WITH ALL OF ITS AFFILIATES ARISING  OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (A) THE FEES, INCLUDING SUBSCRIPTION  CHARGES, PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE MULTIPLIED BY TWO; OR (B) THE AMOUNT OF INSURANCE PROCEEDS TFI WOULD BE ENTITLED TO RECEIVE UNDER THE INSURANCE POLICIES TFI IS REQUIRED TO OBTAIN AND MAINTAIN UNDER THIS AGREEMENT.   .  THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. 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 TFI WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. YOU ACKNOWLEDGE THAT TFI HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.

• Exceptions. 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, TFI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

• Rights only against TFI. Any claims or damages that You may have against TFI shall only be enforceable against TFI and not against any other entity or against TFI’s or such other entity’s officers, directors, representatives or agents.

• MISCELLANEOUS

• Entire Agreement. This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between You and TFI with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between TFI and You.

• Notices. Any notices provided by TFI under this Agreement may be delivered to You within the Services platform or to the email address(es) TFI has on file for Your account. You hereby consent to receive notice from TFI through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.  Except as otherwise specified in the Agreement, any notices to TFI under this Agreement must be delivered via first class registered U.S. mail, or reputable national overnight courier (e.g., Fed/Ex UPS, etc.), to Technique Fitness, Inc., Attn: Technique Fitness, Inc. Customer Support, 1735 Market Street, A477, Philadelphia, PA 19103, with a copy to Technique Fitness, Inc., Attn: Technique Legal Department, 1735 Market Street, A477, Philadelphia, PA 19103.

• Force Majeure. Except for Customer’s obligations to pay money under this Agreement, neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the control of such Party, such as a war, act of terrorism, riot, natural disaster, or  failure or diminishment of power or telecommunications or data networks or services, provided that such failure or diminishment is not caused by TFI, its Affiliates, employees, contractors or representatives; provided, that the Party whose performance or obligation is affected by any such event gives the other Party written notice thereof as soon as possible following the occurrence of such event.

• No Third-party Beneficiaries. Nothing in this Agreement, whether express or implied, will confer upon any person or entity, other than the Parties and their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

• Independent Contractors. The Parties are independent contractors. Except as otherwise expressly provided herein, nothing herein creates any joint venture, partnership, agency, employment, fiduciary or other relationship among the Parties, and no Party is authorized to make contracts or commitments in the name of or on behalf of any other without such Party’s prior written approval.

• Amendments; Modifications. Subject to and conditioned upon TFI’s compliance with the requirements set forth in the Master Retro Agreement, TFI may, in its sole discretion, make changes to this Agreement from time to time. Any changes TFI makes will become effective when a modified version of the Agreement is posted to the Website or Club OS platform, and TFI agrees the changes will not be retroactive. If TFI makes any material changes to the Agreement, TFI will make commercially reasonable efforts to notify You within the Club OS platform or by sending You an email. If You continue using the Services after any changes, it shall mean that You have accepted them. If You do not agree to any changes, you must stop using the Services immediately, and You can terminate your account by emailing support@club-os.com. It is Your obligation to ensure that You read, understand and agree to the latest version of this Agreement that has been posted on our Website and/or within the Club OS platform. The legend at the top of the Agreement indicates when it was last changed and the current version.

• Assignment; Delegation. No Party may assign any of its rights hereunder, nor delegate any of its duties hereunder, without the prior written consent of the other Party, except that: (a) any Party shall be entitled to transfer its interests to a third-party with which such Party is merged or which acquires all or substantially all of the assets or capital stock of such Party; and (b) You may assign Your rights and obligations under this Agreement to an Affiliate that TFI has approved in advance in writing. For avoidance of doubt, all uses of the word “You” and “Your” in this Agreement shall include your TFI-approved Affiliate, as applicable.

• Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

• Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by any Party in exercising any right hereunder shall not be deemed a waiver of that right.

• Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA, WITHOUT REGARD TO ITS PRINCIPLES REGARDING CONFLICTS OF LAW, AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO, AND WAIVES ANY OBJECTION TO, THE EXCLUSIVE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF PENNSYLVANIA. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Philadelphia County, Pennsylvania and both Parties hereby submit to the personal jurisdiction of such courts.

• Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which, when taken together shall constitute one Agreement.

• Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.

• Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination or expiration of this Agreement.

• 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 TFI 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 promptly notify TFI’s Legal Department at legal@club-os.com.

• Attorney’s Fees and Costs. The prevailing Party on a net recovery basis in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

• Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

• Changes. TFI reserves the right at any time to modify, edit, adapt and update the Service or to discontinue any TFI products, including any part of the Services, with or without notice. You agree that TFI will not be liable to You or to any End User or third party for any such discontinuance, modification, editing, adaptation or updating of the Service, or of the Club OS platform. You are free in your discretion to download Your User Content at any time to provide backup. Your failure to do so will not create any liability for TFI hereunder. By continuing to access or use the Services after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, please stop using the Services.

11.18 Insurance.  TFI shall, at its sole cost and expense, procure and maintain in effect throughout the Term, the following policies of insurance covering claims and liabilities arising from this Agreement: (i) workers’ compensation and employer’s liability insurance all with statutory minimum limits; (ii) commercial general liability insurance with a limit of $2,000,000 per occurrence and $4,000,000 in aggregate; (iii) professional liability or technology errors and omissions insurance (which shall cover cyber liability) with limits of $5,000,000 per event  and in the aggregate of $5,000,000; (iv) automobile liability insurance with not less than a $1,000,000 limit covering the use of any auto in the rendering of Services to be provided under this Agreement; (v) Umbrella liability with a minimum limit of $4,000,000 in excess of insurance coverage described in 11.18(ii) and (iii) above; and (vi) commercial crime insurance (to include coverage of employee dishonesty) of not less than $4,000,000. The insurance required under this Section must be carried by companies rated “AX” or better by A.M. Best. TFI shall, upon execution of this Agreement, provide Customer with an industry standard certificate of insurance and endorsements evidencing these coverages and listing Customer as an additional insured (on a primary and non-contributory basis) and contain a waiver of subrogation in favor of the Customer and its owners, officers, managers and employees if such waiver shall not negatively affect the ability of TFI to obtain any coverage required hereunder. Customer shall be endorsed as an additional insured for vicarious liability on insurance policy described in 11.18(iii) above. The insurance requirements under this Agreement will not limit or relieve TFI of its duties, responsibilities or liabilities under this Agreement. TFI’s failure to obtain and maintain the insurance coverage required under this Agreement shall be deemed a material default of TFI’s obligations under this Agreement. TFI shall (a) provide Customer with certificates of insurance on an annual basis and (b) immediately notify Customer of any lapse, alteration or cancellation of any policy or coverage required under this Agreement.

© COPYRIGHT 2017 TECHNIQUE FITNESS, INC. ALL RIGHTS RESERVED.

EXHIBIT A Service Level Terms

Level Terms

The Services  shall be available  99.9%, measured monthly, excluding  scheduled maintenance or upgrade periods.      If Customer requests maintenance during these   hours, any uptime or downtime calculation will exclude  periods affected by such maintenance. Further, any downtime resulting   from outages of third-party connections or utilities or other reasons beyond TFI’s control  will also be excluded from any such calculation. Customer's sole and exclusive remedy, and TFI's entire liability, in connection with Service availability, shall be that for each period of downtime  lasting longer than one hour (each a “Qualifying Downtime Period”), TFI will credit Customer 5% of the monthly Service Fees for each period of 60 or more consecutive minutes of downtime; provided that  no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as that the Services are down, and continues until the availability of the Services is restored. Further, TFI agrees it will notify Customer and the Clubs when the Services are down for a period of sixty (60) or more consecutive minutes (the “Downtime Notification”). Qualifying Downtime Period does not include any downtime that results from (i) events of Force Majeure, (ii) Customer’s or any of its Clubs misuse of the Services; (iii) failure of Customer’s or its Clubs internet connectivity; (iv)  acts or omissions that are not attributable to Club OS, (iv) a regional internet connectivity failure or Amazon Web Services failure; (v) scheduled maintenance, upgrade periods, and (vi), Customer requested maintenance. Such credits may not be redeemed for cash, with the exception of credits that accrue during the final month of the Term, which credits shall be redeemable for cash and shall be paid to Customer within the fifteen (15) day following expiration or termination. In the event there are three or more Qualifying Downtime Periods on three or more occasions during any month during the Service Term, including any renewal term, Customer shall have the right to terminate this Agreement by providing written notice to TFI. If Customer fails to provide written notice to TFI within thirty (30) days following events giving rise to a right to terminate hereunder, Customer shall waive its right to terminate the Agreement for that period. TFI shall refund to Customer the pro-rated portion of the monthly Fees paid to TFI for the month during which any such termination occurs, calculated from the date of termination through the end of the month, solely.

Customer Support

EXHIBIT B Support Terms

TFI will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 8:00 am through 5:00 pm Central time and on weekends during the hours of 10:00 am through 12:00pm Central time, with the exclusion of Federal Holidays and Pennsylvania State Holidays (“Support Hours”).

Customer may initiate a Helpdesk ticket any time by emailing support@club-os.com or by calling (888) 619-0609.