National Accounts Program Agreement
This National Accounts Program Agreement (the “Agreement”) is made and entered into as of [Date] (the “Effective Date”), by and between Stretch Zone Franchising LLC, a Florida limited liability company, with its principal place of business at 6700 North Andrews Avenue, Suite 210, Fort Lauderdale, Florida 22209 (“Company”), and [Full Legal Name of Corporate Client], a [State of Incorporation/Organization] [corporation/limited liability company/other entity], with its principal place of business at [Address] (“Client”). Company and Client may hereinafter be referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Company is the nation-wide franchisor of a system providing assisted stretching services through both Company-owned and franchised locations across the United States, utilizing proprietary patented stretching tables and a proprietary stretching method (the “System”);
WHEREAS, Company, directly and through its independent franchisees, offers assisted stretching sessions to individual consumers, typically purchased for use at a designated location, subject to certain transferability conditions;
WHEREAS, Client desires to offer assisted stretching services as a wellness benefit to its employees on a national basis, and Company desires to establish a national account arrangement whereby Client may purchase packages of sessions for use by Client’s eligible employees at participating Company-owned and franchised locations;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows:
Section 1. Definitions
For purposes of this Agreement, the following terms shall have the meanings set forth below:
1.1 “Agreement” means this National Accounts Program Agreement, together with all exhibits, schedules, and attachments hereto, as amended from time to time by written agreement of the Parties.
1.2 “Authorized Users” means the employees, staff, or other individuals designated by Client, and accepted by Company, who are eligible to receive Sessions under the National Account Program.
1.3 “Client” means the corporate entity entering into this Agreement with Company, including its affiliates and subsidiaries, to the extent authorized by Company in writing.
1.4 “Company” means Stretch Zone Franchising, LLC, together with its affiliates, subsidiaries, and any Company-owned locations operating within the System.
1.5 “Confidential Information” means any and all non-public, proprietary, or confidential information disclosed by one Party to the other Party in connection with this Agreement, whether in written, electronic, oral, or other form, including without limitation, business plans, financial data, employee information, and proprietary methods, except to the extent such information is (a) already known by the receiving Party without obligation of confidentiality, (b) publicly available through no fault of the receiving Party, or (c) independently developed by the receiving Party without reference to the disclosing Party’s information.
1.6 “Franchisee” means an independently owned and operated business entity that has been granted the right to operate under the Company’s trademarks and System pursuant to a franchise agreement with Company.
1.7 “National Account Program” means the program established by Company under this Agreement to provide Client with access to packaged Sessions for use by Client’s Authorized Users across Participating Locations, irrespective of whether such locations are Company-owned or franchised.
1.8 “Package” means a bundle of Sessions purchased by Client under this Agreement, which may be subject to additional terms regarding price, duration, redemption, and usage, as set forth in this Agreement or in any applicable Schedule.
1.9 “Participating Locations” means those Company-owned and franchised locations within the System that are authorized by Company to honor Sessions purchased by Client under this Agreement.
1.10 “Party” or “Parties” means Company and Client, individually or collectively, as the context requires.
1.11 “Sessions” means assisted stretching services delivered through the System, whether at Company-owned or franchised locations, and whether purchased individually or as part of a Package.
1.12 “Services” means the assisted stretching Sessions and related offerings made available by Company through the National Account Program pursuant to this Agreement.
1.13 “System” means the network of Company-owned and franchised locations throughout the United States operating under the Company’s trademarks, utilizing Company’s proprietary patented stretching tables, proprietary stretching methods, and related standards, policies, and procedures established by Company.
1.14 “Term” means the period during which this Agreement remains in effect, as defined in Section [X].
1.15 “Territory” means the United States of America, or such other geographic areas as may be designated in writing by Company.
1.16 “Usage Rules” means the operational, procedural, and policy guidelines issued by Company from time to time governing the redemption and use of Sessions, including without limitation rules concerning scheduling, cancellation, transferability, expiration, and employee eligibility.
1.17 “Fees” means all amounts payable by Client to Company under this Agreement for the purchase of Packages, Sessions, or related Services, as further detailed in Section [X] or any applicable Schedule.
Section 2. Scope of Program
2.1 Purpose. The purpose of this Agreement is to establish the terms and conditions under which Company will make available to Client, through the National Account Program, Packages of Sessions redeemable by Authorized Users at Participating Locations within the System. The Program is intended to provide Client with a uniform and centralized mechanism for purchasing and distributing assisted stretching services as an employee benefit across Company-owned and franchised locations.
2.2 Services Provided. Under the National Account Program, Company shall: (a) make available to Client the ability to purchase Packages of Sessions in such quantities and at such pricing as may be agreed in writing from time to time; (b) permit Authorized Users to redeem such Sessions at Participating Locations, subject to applicable Usage Rules;(c) administer and coordinate the Program across Company-owned and franchised Participating Locations; and (d) provide reasonable reporting to Client regarding redemption activity, usage rates, and other program metrics, as further described in Section [X].
2.3 Franchisee Participation. Client acknowledges and agrees that many Participating Locations are independently owned and operated Franchisees. While Company shall use commercially reasonable efforts to cause Franchisees to honor Sessions purchased under this Agreement, Franchisees are not parties to this Agreement, and Company shall not be liable for the acts or omissions of Franchisees, except to the extent expressly provided herein. Company shall remain responsible for administering the Program, coordinating with Franchisees, and ensuring that Sessions purchased by Client are redeemable by Authorized Users at Participating Locations.
2.4 Employee Eligibility. (a) Client shall be responsible for designating its Authorized Users and for providing Company with the information reasonably necessary to verify eligibility; (b) Company reserves the right to approve or reject Authorized Users in its discretion, consistent with Company’s standard policies; and (c) Client shall notify Company promptly of any changes in Authorized Users’ eligibility, including but not limited to the termination of employment.
2.5 Redemption of Sessions. Authorized Users shall redeem Sessions in accordance with Company’s standard scheduling and check-in procedures. Sessions shall be subject to availability at each Participating Location and shall require advance booking in accordance with Company’s scheduling policies. Sessions may be subject to cancellation and rescheduling rules, including fees for late cancellations or no-shows, as set forth in the applicable Usage Rules.
2.6 Transferability. Unless otherwise agreed in writing, Packages purchased by Client shall be transferable across Participating Locations, provided that Authorized Users comply with applicable Usage Rules. The Company reserves the right to restrict or limit transferability of Sessions in order to ensure operational efficiency and to maintain consistency of service across Participating Locations.
2.7 Territory. The National Account Program shall be made available to Client and its Authorized Users throughout the Territory, subject to the availability of Participating Locations. Company makes no representation or warranty regarding the number, distribution, or continuity of Participating Locations within the Territory.
2.8 Program Administration. Company shall serve as the central administrator of the Program, including processing payments, allocating Packages, maintaining redemption records, and coordinating with Participating Locations. Company shall make available to Client periodic reports, no less than [quarterly], summarizing redemption activity, Authorized User participation, and related data. Client shall designate a primary administrator or contact person to coordinate with Company regarding program implementation, Authorized User eligibility, and other administrative matters.
2.9 Limitations. Nothing in this Agreement shall obligate Company to: (a) open, operate, or maintain any minimum number of Participating Locations; (b) guarantee availability of Sessions at any particular time or location; (c) provide services beyond those expressly included in the Packages purchased by Client; or (d) extend credit to Client or to any Authorized User except as specifically provided herein.
Section 3. Program Rules and Usage Policies
3.1 Compliance with Rules. Authorized Users shall be required to comply with all Usage Rules and policies established by Company and applicable to Participating Locations, as amended from time to time. Such Usage Rules may include, without limitation, requirements relating to scheduling, check-in, cancellation, rescheduling, attire, health and safety protocols, and conduct.
3.2 Scheduling and Availability. Sessions are subject to advance scheduling and availability at Participating Locations. Company does not guarantee that Sessions will be available at any particular Participating Location or at any particular time. Participating Locations may establish reasonable operating hours, holiday schedules, and blackout dates.
3.3 Cancellations and No-Shows. Authorized Users must comply with the cancellation and rescheduling rules established by Company and Participating Locations. Company may charge, and Client shall be responsible for paying, any fees associated with late cancellations or no-shows, as set forth in the applicable Usage Rules.
3.4 Transferability. Sessions purchased by Client may generally be redeemed at any Participating Location within the Territory, subject to Company’s standard transferability policies. Company reserves the right to restrict transferability to ensure consistent service standards and operational efficiency across Participating Locations.
3.5 Expiration. Sessions included in a Package shall expire on the earlier of (i) the expiration date specified in the applicable Package terms, or (ii) the termination or expiration of this Agreement, unless otherwise agreed in writing. Expired Sessions shall not be refundable or redeemable.
3.6 Health and Safety. Participation in Sessions may be subject to health and safety requirements, including submission of waivers, health questionnaires, or physician clearances, as determined by Company or Participating Locations. Company reserves the right to deny access to Sessions where, in its reasonable judgment, participation may present a health or safety risk.
3.7 Misuse of Program. Company reserves the right to suspend or revoke an Authorized User’s eligibility in the event of misuse of the Program, violation of Usage Rules, fraudulent conduct, or abuse of privileges. Client shall cooperate with Company in addressing any misuse by its Authorized Users, including taking corrective action as reasonably requested by Company.
3.8 Updates to Rules. Company may update the Usage Rules from time to time upon notice to Client. Such updates shall apply prospectively to all Sessions scheduled or redeemed after the effective date of the update.
Section 4. Fees and Payment
4.1 Fees. Client shall pay to Company the fees for Packages of Sessions, subscriptions, or other Services under the National Account Program (collectively, the “Fees”), as set forth in this Agreement or in any applicable Schedule. The Parties may agree in writing from time to time to modify the Fees or add additional pricing models.
4.2 Pricing Models. Fees may be structured under one or more of the following models, as specified in the applicable Schedule:(a) Prepaid Packages. Client may purchase in advance a designated number of Sessions for use by its Authorized Users. Prepaid Sessions shall be subject to expiration terms as set forth in Section 3.5.; (b) Subscription. Client may pay a recurring monthly or annual fee entitling Authorized Users to redeem a specified number of Sessions during the applicable subscription period. Unused Sessions may expire at the end of each subscription period unless otherwise agreed in writing; (c) Volume Discounts. Company may offer discounted pricing based on the volume of Sessions or Packages purchased by Client, as set forth in the applicable Schedule; and d) Hybrid Arrangements. The Parties may agree to combinations of prepaid, subscription, or discounted pricing structures, as mutually determined in writing.
4.3 Payment Terms. Unless otherwise agreed in writing, all Fees shall be due and payable within thirty (30) days of Client’s receipt of invoice. Invoices shall be issued by Company on a monthly basis, or as otherwise provided in the applicable Schedule. All payments shall be made in U.S. dollars by wire transfer, ACH, or other method approved by Company.
4.4 Taxes. All Fees are exclusive of applicable federal, state, and local taxes, levies, and assessments. Client shall be responsible for all such amounts, other than taxes imposed on Company’s net income.
4.5 Late Payments. Any Fees not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, from the due date until paid in full. In addition, Company may suspend Client’s participation in the Program or Authorized Users’ ability to redeem Sessions until all overdue amounts are paid.
4.6 No Set-Off. Client shall not withhold or set off any amounts due under this Agreement for any reason, unless expressly agreed in writing by Company.
4.7 Franchisee Payments. Client acknowledges that all payments under this Agreement shall be made solely to Company. Company shall be solely responsible for distributing any applicable compensation to Franchisees or other Participating Locations.
4.8 Adjustments. Company reserves the right to adjust pricing from time to time upon [sixty (60)] days’ prior written notice to Client. Any such adjustment shall not affect Sessions already purchased and paid for by Client prior to the effective date of the adjustment.
Section 5. Reporting and Invoicing
5.1 Reporting by Company. Company shall provide Client with periodic reports summarizing Program activity, including, at a minimum: (i) number of Sessions purchased by Client during the reporting period; (ii) number of Sessions redeemed by Authorized Users during the reporting period; (iii) breakdown of redemption by Participating Location; and (iv) any expired, cancelled, or forfeited Sessions. Reports shall be delivered no less frequently than [quarterly], unless otherwise specified in the applicable Schedule. Reports shall be in a format reasonably determined by Company, provided that Company will use commercially reasonable efforts to accommodate Client’s reasonable requests for customized reporting.
5.2 Client Reporting Obligations. Client shall provide Company with updated information regarding its Authorized Users and any changes to eligibility on a timely basis. Client shall also promptly notify Company of any errors, discrepancies, or suspected misuse of the Program identified through the reports.
5.3 Invoicing. Company shall issue invoices to Client for Fees in accordance with Section 4.3. Each invoice shall include sufficient detail to permit Client to reconcile the Fees with the corresponding Program activity, including the type of pricing model applied (prepaid, subscription, volume discount, or hybrid). Unless otherwise agreed in writing, invoices shall be delivered electronically to the billing contact designated by Client.
5.4 Disputed Charges. Client must notify Company in writing of any disputed amounts within thirty (30) days of receipt of the applicable invoice. The Parties shall work in good faith to resolve any such disputes promptly. Undisputed amounts shall remain payable in accordance with Section 4.3, and Client’s obligation to pay such amounts shall not be suspended or delayed by the existence of a disputed amount.
5.5 Recordkeeping and Audit. Company shall maintain accurate books and records relating to the Program and the calculation of Fees for a period of not less than [two (2)] years following the applicable reporting period. Upon not less than thirty (30) days’ prior written notice, Client may, at its expense and no more than once per calendar year, audit Company’s records relating to the Program, provided that such audit is conducted during regular business hours and does not unreasonably interfere with Company’s operations. Any information reviewed in connection with such audit shall be treated as Confidential Information under this Agreement.
Section 6. Responsibilities of the Parties
6.1 Responsibilities of Company. The Company shall: (a) administer the National Account Program, including coordinating with Participating Locations and ensuring that Sessions purchased under this Agreement are redeemable by Authorized Users; (b) maintain the integrity of the System, including ensuring that Participating Locations deliver Sessions in accordance with Company’s proprietary standards, methods, and protocols; (c) provide Client with periodic reports and invoices in accordance with Section 5; (d) make commercially reasonable efforts to ensure that Participating Locations honor valid Sessions redeemed by Authorized Users; (e) provide Client with updated Usage Rules and policies applicable to Sessions and Participating Locations; and (f) designate a program administrator or representative to serve as Client’s primary point of contact regarding administration of the Program.
6.2 Responsibilities of Client. Client shall: (a) timely pay all Fees and other amounts due under this Agreement in accordance with Section 4; (b) designate and maintain a primary program administrator to coordinate with Company regarding implementation of the Program, including enrollment, eligibility, and reporting matters; (c) provide Company with accurate and up-to-date information regarding its Authorized Users, and promptly notify Company of any changes in employment status or eligibility of such individuals; (d) require its Authorized Users to comply with all Usage Rules and policies established by Company or Participating Locations; (e) cooperate with Company in addressing any misuse of the Program by its Authorized Users, including taking corrective action reasonably requested by Company; (f) not resell, sublicense, or otherwise commercialize the Sessions, Packages, or Program without Company’s prior written consent; and (g) ensure that its participation in the Program complies with all applicable laws, including employment, benefits, tax, and healthcare regulations.
6.3 Mutual Responsibilities. The Parties shall: (a) cooperate in good faith to implement the Program efficiently and in a manner consistent with its purpose; (b) promptly notify each other of any material issues affecting the Program, including disputes, complaints, or misuse; and (c) comply with all applicable laws and regulations in connection with their respective performance under this Agreement.
6.4 Independent Contractors. The Parties acknowledge and agree that they are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between them. Neither Party shall have the authority to bind the other Party except as expressly set forth in this Agreement.
Section 7. Representations and Warranties
7.1 Mutual Representations. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; (c) the execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate or organizational action; (d) this Agreement constitutes a valid and binding obligation of such Party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting creditors’ rights generally; and (e) its performance of this Agreement does not violate any agreement to which it is a party or by which it is bound.
7.2 Representations of Company. Company further represents and warrants that: (a) it owns or otherwise has the right to license or permit use of its proprietary stretching methods, patents, trademarks, and other intellectual property used in connection with the System; (b) it will use commercially reasonable efforts to ensure that Participating Locations provide Sessions in accordance with Company’s standards and protocols; (c) it will administer the Program in a manner consistent with this Agreement; and (d) it will comply with all applicable laws and regulations in connection with its obligations hereunder.
7.3 Representations of Client. Client further represents and warrants that: (a) it has the authority to offer the Program to its Authorized Users as an employee benefit or wellness program; (b) it shall provide Company with accurate and complete information regarding Authorized Users, and shall not knowingly permit ineligible persons to participate in the Program; (c) it shall comply with all applicable laws, rules, and regulations in connection with its participation in the Program, including without limitation those relating to employment, tax, data protection, and employee benefits; (d) it is not relying upon any representation or warranty of Company other than those expressly set forth in this Agreement; and (e) it shall not make any representations or warranties to its Authorized Users regarding the Program or the Sessions other than as authorized in writing by Company.
7.4 Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT SESSIONS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Section 8. Term and Termination
8.1 Term. This Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, shall remain in effect for an initial term of [one (1)] year(s) (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Term.
8.2 Termination for Cause. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice if the other Party materially breaches this Agreement and fails to cure such breach within the thirty (30)-day notice period.
8.3 Termination for Convenience. Company may terminate this Agreement, in whole or in part, for any reason upon ninety (90) days’ prior written notice to Client. Client may not terminate this Agreement for convenience during the Initial Term but may do so during any Renewal Term upon not less than one hundred twenty (120) days’ prior written notice.
8.4 Termination for Insolvency. Either Party may terminate this Agreement immediately upon written notice if the other Party (a) becomes insolvent, (b) makes a general assignment for the benefit of creditors, (c) files a voluntary petition in bankruptcy, or (d) has a petition in bankruptcy filed against it that is not dismissed within sixty (60) days.
8.5 Effect of Termination. Upon termination or expiration of this Agreement, all rights of Client and Authorized Users to purchase or redeem Sessions under the Program shall immediately cease. Any Sessions purchased by Client but not redeemed as of the termination date shall automatically expire, unless Company agrees in writing to permit redemption for a limited period thereafter. Client shall remain liable for all Fees accrued and unpaid as of the termination date, including Fees relating to Sessions scheduled but not yet redeemed. Sections of this Agreement which by their nature should survive (including but not limited to payment obligations, confidentiality, intellectual property, disclaimers, and indemnities) shall survive termination or expiration of this Agreement.
8.6 Transition Assistance. In the event of termination by Company for reasons other than Client’s breach, Company shall use commercially reasonable efforts to allow a reasonable transition period (not to exceed sixty (60) days) for Authorized Users to redeem any remaining valid Sessions.
Section 9. Intellectual Property and Use of Marks
9.1 Ownership of Intellectual Property. All rights, title, and interest in and to the proprietary stretching methods, patented stretching tables, trademarks, service marks, trade names, logos, copyrights, trade secrets, and other intellectual property used in connection with the System (collectively, the “Company IP”) are and shall remain the sole and exclusive property of Company or its licensors. Except as expressly provided in this Agreement, Client acquires no rights in or to the Company IP, whether by license, implication, estoppel, or otherwise.
9.2 Limited License to Client. Subject to the terms of this Agreement, Company hereby grants to Client a limited, non-exclusive, non-transferable, revocable license, during the Term, to use Company’s name and designated trademarks solely in connection with Client’s internal promotion of the Program to its Authorized Users, and strictly in the form and manner approved in writing by Company in advance.
9.3 Restrictions on Use. Client shall not, and shall not permit any third party to: (a) use the Company IP for any purpose other than as expressly authorized in this Agreement; (b) alter, modify, adapt, or otherwise change any Company IP; (c) register, apply for, or claim any right, title, or interest in any Company IP or any confusingly similar marks; (d) use any Company IP in a manner that could reasonably be expected to tarnish, dilute, or otherwise harm the reputation, goodwill, or distinctiveness of the Company IP; or (e) make any representations, warranties, or guarantees regarding the Company IP or the Program except as expressly authorized by Company in writing.
9.4 Quality Control. Any use of Company IP by Client shall be subject to Company’s ongoing right to monitor and control such use to protect the goodwill associated with the Company IP. Client shall immediately correct any use of the Company IP that Company determines, in its sole discretion, is inconsistent with Company’s quality standards or brand guidelines.
9.5 No Reverse Engineering. Client acknowledges that the proprietary stretching methods and patented stretching tables are valuable trade secrets and intellectual property of Company. Client shall not, and shall not permit any Authorized User or third party to, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source, composition, or underlying methodology of any Company IP.
9.6 Client Marks. Client grants Company a limited, non-exclusive, non-transferable license during the Term to use Client’s name and logo solely for the purpose of identifying Client as a participant in the Program, including in Company’s marketing materials, press releases, and case studies, provided that Company obtains Client’s prior written consent (not to be unreasonably withheld or delayed) for any public use.
9.7 Reservation of Rights. All rights not expressly granted herein are reserved by Company.
Section 10. Indemnification and Liability
10.1 Indemnification by Company. Company shall indemnify, defend, and hold harmless Client, its affiliates, and their respective officers, directors, employees, and agents from and against any and all third-party claims, demands, actions, damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) arising out of or relating to: (a) infringement or misappropriation by the Company IP of any intellectual property right of a third party; or (b) Company’s gross negligence or willful misconduct in connection with the administration of the Program.
10.2 Indemnification by Client. Client shall indemnify, defend, and hold harmless Company, its affiliates, Franchisees, and their respective officers, directors, employees, and agents from and against any and all Claims arising out of or relating to: (a) use of the Program or Sessions by Client or its Authorized Users; (b) breach by Client of any representation, warranty, or covenant under this Agreement; (c) any claim by an Authorized User or other employee of Client relating to the provision, denial, suspension, or termination of Sessions; or (d) Client’s negligence, willful misconduct, or violation of applicable law.
10.3 Indemnification Procedures. A Party seeking indemnification under this Section shall promptly notify the indemnifying Party in writing of any Claim, permit the indemnifying Party to control the defense and settlement of such Claim, and reasonably cooperate at the indemnifying Party’s expense. The indemnifying Party shall not settle any Claim without the indemnified Party’s prior written consent if such settlement imposes any liability or admission of fault on the indemnified Party.
10.4 Limitation of Liability.
(a) EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 10.1 OR 10.2, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR THE PARTY WAS ADVISED OF THE POSSIBILITY THEREOF.
(b) EXCEPT FOR CLIENT’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
10.5 Franchisee Disclaimer. Client acknowledges that Participating Locations operated by Franchisees are independent businesses, not agents of Company. Company shall not be liable for any acts, omissions, or liabilities of Franchisees, except to the extent Company has expressly assumed such liability in this Agreement.
Section 11. Confidentiality
11.1 Definition. For purposes of this Agreement, “Confidential Information” means any non-public, proprietary, or confidential information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, whether in written, oral, electronic, or other form, including without limitation: business plans, financial data, pricing, customer and employee information, trade secrets, technical information, and proprietary methodologies.
11.2 Exclusions. Confidential Information shall not include information that: (a) is or becomes generally available to the public other than through breach of this Agreement by the Receiving Party; (b) was lawfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (c) is rightfully disclosed to the Receiving Party by a third party without restriction; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
11.3 Obligations. The Receiving Party shall: (a) maintain the confidentiality of the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care; (b) not use the Confidential Information for any purpose other than the performance of this Agreement; and (c) not disclose the Confidential Information to any third party except to its affiliates, employees, contractors, or advisors who have a need to know such information for purposes of this Agreement and who are bound by confidentiality obligations no less restrictive than those set forth herein.
11.4 Compelled Disclosure. If the Receiving Party is required by law, regulation, or court order to disclose any Confidential Information, it shall provide the Disclosing Party with prompt written notice (to the extent legally permissible) so that the Disclosing Party may seek a protective order or other appropriate remedy. If disclosure is required, the Receiving Party shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
11.5 Return or Destruction. Upon termination or expiration of this Agreement, or upon written request by the Disclosing Party, the Receiving Party shall promptly return or destroy all copies of the Disclosing Party’s Confidential Information in its possession, except that the Receiving Party may retain copies solely for archival or compliance purposes.
11.6 Survival. The obligations of this Section shall survive termination or expiration of this Agreement for a period of [three (3)] years, except with respect to trade secrets, which shall be protected for so long as they remain trade secrets under applicable law.
Section 12. Data Protection and Privacy
12.1 Compliance with Laws. Each Party shall comply with all applicable federal, state, and local laws, regulations, and industry standards relating to the collection, use, storage, transfer, and protection of personal data of Authorized Users, including without limitation any applicable data protection, privacy, or consumer protection laws.
12.2 Client Data. Client may provide Company with certain personal data of its Authorized Users (such as names, contact information, and employment status) solely for the purpose of administering the Program. Client represents and warrants that it has obtained all necessary rights, consents, and authorizations from Authorized Users for the disclosure of such data to Company and for Company’s use of such data as contemplated under this Agreement. Client shall remain responsible for the accuracy, completeness, and legality of all data it provides to Company.
12.3 Company Data Use. Company shall use Authorized User data solely to provide Sessions, administer the Program, process payments, generate reports, and improve Program operations. Company may de-identify or aggregate Authorized User data and use such de-identified or aggregated data for statistical, analytical, and business purposes, provided that such data cannot reasonably be used to identify any individual Authorized User.
12.4 Security Measures. Company shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Authorized User data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access.
12.5 Data Sharing with Franchisees. Client acknowledges and agrees that Authorized User data may be disclosed to Franchisees operating Participating Locations solely as necessary to deliver Sessions and administer the Program. Franchisees shall be contractually bound to use such data only for Program purposes and to maintain commercially reasonable safeguards consistent with this Section.
12.6 Data Breach Notification. In the event of a confirmed unauthorized access, acquisition, or disclosure of Authorized User data within Company’s control that constitutes a breach under applicable law, Company shall notify Client without undue delay and cooperate with Client as reasonably necessary to comply with applicable legal obligations.
12.7 Survival. The obligations set forth in this Section shall survive termination or expiration of this Agreement for so long as either Party retains personal data of Authorized Users.
Section 13. Dispute Resolution
13.1 Parties to the Agreement. The Parties acknowledge and agree that Client, in its capacity as the contracting corporate entity, is the sole party to this Agreement with Company. Authorized Users are not third-party beneficiaries of this Agreement and shall have no rights or standing to enforce or seek recourse under this Agreement against Company, its affiliates, or any Participating Location. Any and all claims, demands, or disputes relating to or arising out of the Program shall be addressed exclusively between Client and Company.
13.2 Good Faith Negotiation. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement or the Program (a “Dispute”), the Parties shall first attempt in good faith to resolve such Dispute through informal discussions between their respective designated representatives.
13.3 Mediation. If the Parties are unable to resolve the Dispute within thirty (30) days of written notice by either Party, the Parties shall participate in non-binding mediation administered by [the American Arbitration Association (“AAA”)] in accordance with its Commercial Mediation Rules, to be conducted in Broward County, Florida.
13.4 Arbitration. Any Dispute not resolved through negotiation or mediation shall be finally settled by binding arbitration administered by the AAA in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted by a single arbitrator mutually agreed upon by the Parties, or, if the Parties cannot agree, appointed in accordance with the AAA Rules. The arbitration shall take place in Broward County, Florida, and the language of the arbitration shall be English. The award of the arbitrator shall be final and binding on the Parties, and judgment upon the award may be entered in any court of competent jurisdiction.
13.5 Injunctive Relief. Nothing in this Section shall prevent either Party from seeking temporary or preliminary injunctive relief in a court of competent jurisdiction where such relief is necessary to protect that Party’s rights pending completion of the arbitration.
13.6 Allocation of Costs. Each Party shall bear its own costs and expenses in connection with any negotiation, mediation, or arbitration under this Section, except that the costs of the mediator or arbitrator shall be shared equally unless otherwise determined by the arbitrator.
Section 14. Applicability of Consumer Terms
14.1 Incorporation of Consumer Terms. Client acknowledges and agrees that all terms, conditions, policies, and rules generally applicable to individual customers or consumers of the System, including without limitation those relating to scheduling, cancellations, rescheduling, conduct, health and safety requirements, and waivers of liability (collectively, the “Consumer Terms”), shall apply in conjunction with this Agreement.
14.2 Consistency with this Agreement. To the extent the Consumer Terms are consistent with the provisions of this Agreement, such Consumer Terms shall apply with full force and effect to Authorized Users. In the event of any direct conflict between this Agreement and the Consumer Terms, the provisions of this Agreement shall control as between Company and Client.
14.3 Application to Authorized Users. Authorized Users shall be required, as a condition of participation in the Program, to comply with all applicable Consumer Terms. Client acknowledges and agrees that Company and Participating Locations may condition the redemption of Sessions on Authorized Users’ acceptance of such Consumer Terms, including execution of any waivers or acknowledgments customarily required of individual customers.
14.4 No Expansion of Rights. Nothing in this Section shall be construed to grant Authorized Users any rights of enforcement under this Agreement. Authorized Users’ obligations under the Consumer Terms are independent of, and in addition to, Client’s obligations under this Agreement.
Section 15. Insurance
15.1 Client Insurance. Client shall, at its own expense, maintain during the Term (a) commercial general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, (b) workers’ compensation insurance as required by applicable law, and (c) such other insurance as is customary for employers of its size and nature.
15.2 Company Insurance. Company shall, at its own expense, maintain during the Term (a) commercial general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, and (b) such other insurance as is customary for operators of nationwide wellness and fitness programs.
15.3 Certificates of Insurance. Each Party shall, upon reasonable request, provide the other Party with certificates of insurance evidencing the required coverage.
Section 16. Non-Solicitation and Non-Disparagement
16.1 Non-Solicitation. During the Term and for twelve (12) months thereafter, Client shall not, directly or indirectly, solicit for employment or hire any employee, trainer, or contractor of Company or any Participating Location with whom Client or its Authorized Users had material contact through the Program, without Company’s prior written consent.
16.2 Non-Disparagement. Each Party agrees not to make any false, misleading, or disparaging statements, whether orally or in writing, about the other Party, its affiliates, Franchisees, employees, or services in connection with the Program.
Section 17. Health and Safety Acknowledgements
17.1 Waivers. Client acknowledges that Authorized Users may be required, as a condition of participating in Sessions, to execute waivers of liability, health questionnaires, or acknowledgments customarily required of individual consumers of the System.
17.2 No Medical Advice. Client acknowledges and agrees that Sessions and Services provided under the Program are not medical services and are not a substitute for medical advice, diagnosis, or treatment.
Section 18. Third-Party Beneficiaries
Except as expressly provided herein, nothing in this Agreement shall be deemed to create any rights or remedies in any third party, including but not limited to Authorized Users, and no third party shall be entitled to enforce any term of this Agreement.
Section 19. Compliance with Laws
Each Party shall comply with all applicable federal, state, and local laws, rules, and regulations in connection with its obligations under this Agreement, including without limitation those relating to employment, data protection, privacy, benefits, tax, and workplace health and safety.
Section 20. Survival
The following provisions shall survive termination or expiration of this Agreement: Sections 4 (Fees and Payment), 5 (Reporting and Invoicing), 7 (Representations and Warranties), 9 (Intellectual Property and Use of Marks), 10 (Indemnification and Liability), 11 (Confidentiality), 12 (Data Protection and Privacy), 13 (Dispute Resolution), 14 (Applicability of Consumer Terms), 15 (Insurance), 16 (Non-Solicitation and Non-Disparagement), 17 (Health and Safety Acknowledgements), 18 (Third-Party Beneficiaries), 19 (Compliance with Laws), and this Section 20 (Survival).
Section 21. General Provisions
21.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of laws principles.
21.2 Assignment. Client may not assign, delegate, or otherwise transfer this Agreement, in whole or in part, without the prior written consent of Company. Any attempted assignment in violation of this Section shall be null and void. Company may assign this Agreement to an affiliate or in connection with a merger, consolidation, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
21.3 Notices. All notices or other communications under this Agreement shall be in writing and shall be deemed duly given (a) when delivered personally, (b) when sent by confirmed electronic mail, (c) one (1) business day after being sent by nationally recognized overnight courier, or (d) three (3) business days after being mailed by certified or registered mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble of this Agreement (or at such other address as may be designated by a Party by notice to the other Party).
21.4 Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (other than payment obligations) to the extent caused by acts of God, natural disasters, pandemic, war, terrorism, labor disputes, governmental actions, power or internet failures, or other causes beyond such Party’s reasonable control, provided that the affected Party promptly notifies the other Party and uses commercially reasonable efforts to resume performance.
21.5 Independent Contractors. The Parties are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, agency, fiduciary, or employment relationship between them. Neither Party shall have authority to bind the other Party except as expressly set forth herein.
21.6 Entire Agreement. This Agreement, together with any Schedules, Exhibits, and the incorporated Consumer Terms referenced herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings, agreements, negotiations, or communications, whether written or oral.
21.7 Amendment. This Agreement may be amended or modified only by a written instrument executed by duly authorized representatives of both Parties.
21.8 Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof. Any waiver must be in writing and signed by the waiving Party.
21.9 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, the remaining provisions shall remain in full force and effect. The Parties shall negotiate in good faith to replace any invalid or unenforceable provision with a valid provision that most closely approximates the original intent and economic effect.
21.10 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by electronic signature or in PDF or other electronic format shall constitute a valid and binding execution and delivery of this Agreement.
21.11 Interpretation. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation.” Unless the context otherwise requires, the singular includes the plural and vice versa, and references to “days” mean calendar days. This Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of the authorship of any provision of this Agreement.
21.12 Schedules and Exhibits. Any schedules, exhibits, or attachments referenced in this Agreement shall form an integral part of this Agreement and are hereby incorporated by reference as if fully set forth herein. In the event of a conflict between the body of this Agreement and any schedule, exhibit, or attachment, the terms of the body of this Agreement shall control, unless expressly stated otherwise in the applicable schedule, exhibit, or attachment.
21.13 Publicity. Neither Party shall issue any press release or make any public announcement regarding this Agreement or the Program without the prior written consent of the other Party; provided, however, that Company may identify Client as a participant in the Program and use Client’s name and logo in its marketing and promotional materials in accordance with Section 9.6.
21.14 Remedies. Except as otherwise expressly provided herein, the rights and remedies provided under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights or remedies available at law or in equity.
21.15 Further Assurances. Each Party agrees to execute and deliver such further documents, and to take such further actions, as may be reasonably necessary to carry out the intent and purpose of this Agreement.
21.16 Choice of Forum. In addition to the arbitration provisions of Section 13, any action seeking to enforce an arbitral award, or for temporary or preliminary injunctive relief, shall be brought exclusively in the state or federal courts located in [County, State]. Each Party irrevocably submits to the personal jurisdiction of such courts for such purposes.
21.17 Attorneys’ Fees. In any dispute, arbitration, or action arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses from the non-prevailing Party, in addition to any other relief to which such prevailing Party may be entitled.
21.18 Equitable Relief for Intellectual Property. Client acknowledges that Company’s intellectual property, including its proprietary methods, patented stretching tables, and trademarks, is unique and valuable. In addition to any remedies available at law or in equity, Company shall be entitled to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent or curtail any threatened or actual misappropriation, infringement, or misuse of its intellectual property, without the necessity of posting bond or proving actual damages.
21.19 Customization by Schedule. The Parties acknowledge that certain terms of participation in the Program, such as pricing, reporting, or eligibility requirements, may be customized for Client and set forth in one or more schedules to this Agreement (each a “Schedule”). Any such Schedule shall be effective only if executed by authorized representatives of both Parties and shall be deemed incorporated into and governed by this Agreement.
21.20 Notice of Changes to Consumer Terms. Company may update its Consumer Terms from time to time. In the event of a material change, Company shall provide Client with reasonable advance notice, and continued use of the Program by Client or its Authorized Users after such notice shall constitute acceptance of the updated Consumer Terms.
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