Master Subscription Agreement

Master Subscription Agreement

If You are a new Subscriber, then this Master Subscription Agreement will be effective as of November 1, 2021. If You are an existing Subscriber, We are providing You with prior notice of these changes which will be effective as of December 1, 2021. For the previous version of Our Subscription Agreement, please click https://www.lifefitness.com.hk/en-hk/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

1. Definitions
2. General Conditions; Access To and Use of the Services
3. Confidentiality; Data Security, Privacy and Sharing
4. Intellectual Property Rights
5. Third Party Services
6. Billing, Plan Modifications and Payments
7. Promotional Credits Policy
8. Cancellation, Termination and Renewal
9. Representations, Warranties and Disclaimers
10. Limitation of Liability
11. Indemnification
12. Assignment, Entire Agreement and Amendment
13. Severability
14. Export Compliance and Use Restrictions
15. Relationship of the Parties
16. Notice
17. Governing Law
18. Federal Government End Use Provisions
19. Anti-Corruption
20. 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.com.hk/en-hk/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:

1. 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.
2. 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.
3. 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.