Master Service and Software as a Service Agreement

General Terms and Conditions

Customer Name: [provided in the payment form]

Applicable Premises: [provided in the payment form or in the payment follow-up email]

Initial Term: This Agreement shall commence on the Effective Date and shall continue for a period of 1 month (the “Initial Term”). Thereafter, this Agreement shall automatically renew for additional successive one (1) month terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other of its intent not to renew no less than fifteen (15) days prior to the end of the Initial Term or then-current Renewal Term.

This Master Sale and Software as a Service Agreement (the “Agreement”) is dated as of the Effective Date between Grou.ps, Inc., a Delaware corporation (“GymGroups”), and the customer identified in the Cover Page (the “Customer”) (each a “party,” and collectively the “parties”).

1. DEFINITIONS

1.1 Authorized User” means each of Customer’s employees, agents, independent contractors and Clients who are provided user names and passwords for the purpose of accessing the Service Interface.

1.2 Beacon” means GymGroups’ proprietary fitness trackers that may be installed on certain Equipment at the Premises.

1.3 Client” means a client of Customer for whom GymGroups has agreed in writing that: (a) the Customer may use the Services for such client’s benefit and/or (b) the client may access, use, and receive the Services directly or through Customer.  Clients are most commonly members of the Premises.

1.4 Confidential Information” means all written or oral information, disclosed by either party to the other that has been identified as confidential or that by its nature ought reasonably to be considered confidential.  Information relating to the Service and GymGroups’ documentation, including information collected from the Beacons and Mobile Applications, is the Confidential Information of GymGroups.

1.5 Customer Content” means any and all audio, visual or audiovisual data or content (including any registered or unregistered trade marks) made available by Customer for use with or in, or uploaded to, the Services or the Solution.

1.6 Equipment” means all equipment on Customer’s premises that may be used in connection with GymGroups providing the Services, including, but not limited to, the fitness equipment on Customer’s premises

1.7 Mobile Application” means the downloadable mobile application available through the Apple App store, Google Play or other third party platforms that allows Customer and Clients to view certain information regarding Clients’ fitness activities and interact with other Clients through the application.

1.8  “Order Form” means a document signed by an authorized representative of each party identifying the specific Service(s) to be made available, the fees to be paid and other relevant customized terms and conditions, if any.  In the event that the Cover Page contains an order for Services, the Cover Page will be considered an Order Form.

1.9  “Premises” means the location(s) identified in any Order Form as the Premises.

1.10 Service” or “Services” means any services provided by GymGroups to Customer as identified in any purchase orders, including access to the Solution.

1.11 Service Interface” means the user interface that allows Authorized Users to view certain information collected by the Solution regarding Clients’ fitness activities and to interact with other Clients.

1.12 Solution” means the technology underlying GymGroups’ solution that allows Customers or Clients to view certain information regarding fitness activities and interact with other Clients within a social networking platform and that may use the Beacons to track Clients’ fitness activities, including the Beacons (if applicable), the Mobile Application, the Platform, the Service Interface, internet gateway, and related software.

2. SALE AND SERVICES

2.1 Performance.  GymGroups will deliver the Solution (including delivery of the Beacons, if applicable) and provide the Services to Customer in a manner consistent with any Order Form and in substantial conformance with GymGroups’ documentation.  If Customer issues a purchase order, it is for administrative purposes only and no term or condition contained in any purchase order will be enforceable.

2.2 License.  Each Authorized User will be assigned or will choose a unique user identification name and password for access to and use of the Solution. Subject to the terms and conditions of this Agreement, GymGroups hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive license for Authorized Users to access and use the Solution solely for Customer’s internal business purposes and not for resale or to provide services to third parties. Access to the Solution cannot be shared with anyone other than an Authorized User.

2.3 Access and Security Guidelines.  Customer will safeguard, and ensure that all Authorized Users safeguard, the applicable user names and passwords.  Customer will be responsible for all acts and omissions of Authorized Users.  Customer will notify GymGroups immediately if it learns of any unauthorized use of any user name or password or any other known or suspected breach of security relating to the Solution.

2.4 Reservation of RightsGymGroups reserves all right, title and interest (including all intellectual property rights) in the Solution and the Services.  Except as expressly set out in this Agreement, this Agreement does not confer on the Customer (or its Client(s)) any right, title or interest in the Solution or any Service.

3. CUSTOMER RESPONSIBILITIES

3.1 Access and Availability.  During Customer’s normal business hours and upon two (2) business days’ notice, Customer will (i) provide GymGroups with access to the Premises as necessary for GymGroups to provide the Services and install the Beacons (to the extent applicable applicable); and (ii) make available all Equipment necessary or desired for GymGroups to provide the Services, provided, however, that in the event of an urgent need for maintenance, Customer will provide such access or make available such Equipment promptly upon notice by GymGroups.

3.2 Management of Client Relations.  Customer is solely responsible for soliciting, servicing and managing all Clients in connection with such Clients’ use of the Solution and the Services.

3.3 Availability of Customer Content. Customer will make available all Customer Content necessary or desired for GymGroups to provide the Services or make available the Solution. Customer will obtain all third party licenses, consents and permissions needed for GymGroups to use the Customer Content to provide the Services or make available the Solution.

3.4 Placement of Marketing Materials. Customer will ensure all equipment with Beacons installed have GymGroups signage in a clearly Client visible area of each piece of equipment. Customer is responsible of providing photos as proof of signage installation before the delivery of the Beacons.

3.5 Restrictions.  Customer will not (and will ensure that its Client(s) do not): (a) use the Solution to harvest, collect, gather or assemble information or data regarding other GymGroups users without their consent; (b) access or copy any data or information of other GymGroups users without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Solution or the data contained therein; (d) harass or interfere with another GymGroups customer’s use and enjoyment of the Solution; (f) reverse engineer, disassemble or decompile any component of the Solution or attempt to obtain any source code to the Solution; (g) interfere in any manner with the operation of the Solution or the hardware and network used to operate the Solution; (h) sublicense any of Customer’s rights under this Agreement, or otherwise use the Solution for the benefit of a third party or to operate a service bureau; (i) modify, copy, translate or make derivative works of any Service or the Solution; (j) provide any third party with access to any Service or use any Service for any third party (other than Client(s)); (k) use any Service or the Solution to build a similar or competitive product or service; or (l) otherwise use any Service or the Solution in a manner inconsistent with applicable law, GymGroups’ documentation, or this Agreement.

4. Maintenance and support.  In the event that any Beacon is determined by Customer to be defective, Customer may contact GymGroups at: [INSERT] and request a replacement Beacon.  Customer will return the defective Beacon to GymGroups in accordance with GymGroups’ instructions and upon receipt of the defective Beacon, GymGroups will ship a replacement Beacon to Customer at such address provided by Customer at no cost to Customer, provided, however, that if GymGroups performs the installation of the replacement Beacon, additional, Customer shall pay for such installation at GymGroups’ then-current installation rates.

5. Ownership

5.1 Solution and Technology.  Customer acknowledges that GymGroups retains all right, title and interest in and to the Platform and all software and all GymGroups proprietary information and technology used by GymGroups or provided to Customer in connection with the Services or the Solution (the “Technology”), and that the Technology is protected by intellectual property rights owned by or licensed to GymGroups. Other than as expressly set forth in this Agreement, this Agreement does not confer on the Customerany right, title or interest in the Solution or any Service and GymGroups reserves all right, title and interest (including all intellectual property rights) in the Platform and the Solution.

5.2 FeedbackCustomer hereby grants GymGroups a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services or the Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services or the Platform.

5.3 Customer ContentCustomer retains all right, title and interest in and to the Customer Content.  Customer grants to GymGroups a nonexclusive license to use the Customer Content (including Customer trademarks) in connection with the Platform, including for the purpose of performing or improving the Services and/or making available the Platform and as otherwise contemplated by this Agreement.  Customer will not provide, post or transmit any Customer Content that:  (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (c) is deceptive, defamatory, obscene, pornographic or unlawful. As between Customer and GymGroups, Customer reserves all right title and interest in the Customer Content.

6. Service interface; Data Processing and Disclosure

6.1 Service Interface.  Customer acknowledges that Customer and Clients may be able to download the Mobile Application and access the Service Interface.  Customer’s and Client’s use of the Service Interface will be governed by the GymGroups terms of use located at: http://www.gymgroups.com/terms-of-service/ and any third party platform terms of use (e.g., the terms and conditions of the Apple App Store) – and not this Agreement.

6.2 Collection and Use.  In order to provide the Services, GymGroups may collect and use data in connection with Customer’s (or Clients’) use of the Services and the Solution, including the Mobile Application.  GymGroups will collect, use and distribute all such data in accordance with applicable law.  Customer acknowledges that such data collected by GymGroups will be governed by the privacy policy located at: http://www.gymgroups.com/privacy-policy/.

7. CONFIDENTIAL INFORMATION.  During this Agreement, each party will have access to certain Confidential Information of the other. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. Each party agrees: (a) not to disclose the Confidential Information of the other to anyone except its employees, contractors and advisors (“Representatives”) on a strict need to know basis and subject to a written duty of confidence, (b) to use the Confidential Information strictly for the performance or receipt of this Agreement, and (c) to use commercially reasonable efforts to protect the confidentiality of the other party's Confidential Information.  This Section will not apply to Confidential Information that (i) is or becomes publicly available through no fault of the recipient, (ii) is already in the recipient’s possession at the time of its disclosure without any duty of confidence, or (iii) is independently developed by the recipient without use of the disclosing party’s Confidential Information.  Each party may disclose Confidential Information to the extent required to comply with a court or governmental order, or to comply with applicable law.  Each party will be responsible for the acts and omissions of its Representatives related to any breach of this Section. Each party agrees that any actual or threatened breach of this Section will constitute immediate, irreparable harm to the innocent party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

8. MARKETING. GymGroups may refer to Customer as a GymGroups customer on GymGroups’ website and in GymGroups’ marketing materials sales presentations, and may use Customer’s trademarks for such purposes. Neither party will issue a press release announcing its relationship with the other party without the other party's prior approval, not to be unreasonably withheld or delayed.

9. FEES

9.1 Payment of Fees.  Except as stated in any Order Form (including the Cover Page), Customer will pay GymGroups  the Fees indicated on the Cover Page and in any subsequent Order Forms within fifteen (15) days of the execution of such Order Form / Cover Page.  All Fees are non-refundable.

9.2 Taxes. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on GymGroups’ net income.

9.3 Payment Terms.  Interest will accrue on late payments at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. GymGroups reserves the right (in addition to any other rights or remedies GymGroups may have) to discontinue the Solution and suspend all Authorized Users’ and Customer’s access to the Solution if any Fees are more than thirty (30) days overdue until such amounts are paid in full.

10. Warranty disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.  GYMGROUPS DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES OR THE SOLUTION WILL BE ACCURATE, WITHOUT INTERRUPTION OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, GYMGROUPS PROVIDES THE SERVICES AND THE SOLUTION “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS.

11. Limitation of Liability

11.1 Disclaimer of Indirect Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

11.2 Limitations on Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GYMGROUPS’ MAXIMUM AGGREGATE LIABILITY UNDER ANY ORDER FORM WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY GYMGROUPS UNDER SUCH ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE.

12. TERM AND TERMINATION

12.1 Termination.  Either party may terminate this Agreement at any time immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not remedy the breach within fifteen (15) days after receiving written notice of the breach requiring its remedy.

12.2 Effects of Termination.  Upon any termination or non-renewal of this Agreement for any reason (a) any amounts owed to GymGroups before or at such termination will become immediately due, (b) each party will promptly destroy or return any Confidential Information of the other party that remains in its possession or control, and (c) Customer will provide to GymGroups within two (2) business days of any such request the proof of shipment back of any GymGroups equipment, including, but not limited to, the Beacons, if applicable, contained on the Premises.

12.3 Survival.  Sections 1, 3.2, 3.5, 5, 6, 7, 9, 10, 11, 12.3 and 13 will survive any termination or non-renewal of this Agreement.

13. GENERAL

13.1 Entire Agreement.  This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.  Any waiver of any provision of this Agreement must be in writing and will not be deemed a waiver of any other provision.  If any portion of this Agreement is determined to be or becomes unenforceable or illegal, then such portion will be reformed or eliminated to the minimum extent necessary for this Agreement to be enforceable and legal, and this Agreement will remain in effect in accordance with its provisions as modified by such reformation or elimination. This Agreement may be executed in counterparts, which taken together will form one legal instrument.

13.2 Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to its conflict of law principles.  For any disputes arising out of this Agreement, the parties consent to personal and exclusive jurisdiction of and venue in the state or federal courts within San Francisco, California.

13.3 Force Majeure.  A delay by GymGroups in performing its obligations will not be a breach of this Agreement if caused by force majeure, including fire, earthquake, flood, change in applicable law or other event beyond the reasonable control of GymGroups.  GymGroups will notify Customer of such event and resume performance as soon as possible

13.4 Assignment.  Neither party may assign or transfer any rights or delegate any duties under this Agreement without the other party’s prior written consent, except that GymGroups may assign or transfer this Agreement in connection with a sale or transfer of all or substantially all of GymGroups’ assets, stock or business by sale, merger, consolidation, or similar transaction.  Any purported assignment or transfer in violation of this Section will be void.  Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns. Customer agrees that GymGroups may subcontract certain aspects of the Solution and the Services to qualified third parties, provided, however, that any such subcontracting arrangement will not relieve GymGroups of any of its obligations hereunder.

13.5 Independent Contractor.  Each party is an independent contractor with respect to the other party hereunder.  This Agreement will not be construed to (i) create any employment, partnership, joint venture, or agency relationship between the parties, or (ii) authorize any party to enter into any commitment or agreement binding on the other party.

13.6 Notices.  All notices pursuant to this Agreement will be in writing and delivered by certified mail and sent to the addresses set forth on the Cover Page or to such other address as a party may later specify in writing, and will be effective upon receipt.