NETGYM SUBSCRIPTION

Congratulations on your decision to sign up for NetGym’s scheduling application, designed especially for gyms and fitness instructors! We are excited to work with you and help take away the headaches of scheduling classes and instructors. To simplify using NetGym’s scheduling application for your team, gym and studio owners purchase a subscription and then give accounts to their team members. Once you create their accounts, team members can sign up for free and the schedule swapping begins!

If you have any questions, don’t hesitate to reach out to us at info@netgym.com. Once you are ready to sign up, please review the below terms that will apply to your paid subscription to NetGym.

Note: This subscription is for gym and studio owners who then create individual accounts for their staff members. If you are a staff member, ask your gym or studio to send you your NetGym login information.

The NetGym Terms of Use located at www.netgym.com/terms along with these Subscription Terms (“Subscription Terms”) (collectively, the “Agreement”) contain the legal terms and conditions that govern your use of and access to a paid subscription of NetGym Corp.’s (“the Company,” “we,” “our”) scheduling application, NetGym (“Application”). By signing up for a paid subscription for the Application, you represent that (1) you have read, understand, and agree to be bound by these Terms of Use, (2) you are of legal age to form a binding contract with the Company, and (3) you have the authority to enter into the Agreement personally or on behalf of the company or other organization you have named as the customer, and to bind that entity to the Agreement. In the event you are agreeing to the Agreement on behalf of a company or organization, “customer, “you,” and “your” will refer to the entity you are representing.

1. SUBSCRIPTION

1.1 Owner and User Accounts. By subscribing to the Application and making the necessary payments under these Subscription Terms, the Company will grant you access to an Owner Account on the Application and a sub-domain from the Company’s website will be created for Customer (i.e. www.gymname.netgym.com). This sub domain will be sent via email to Customer, along with any required login information for the Owner Account. Within the Owner Account, you will be able to create and grant access to User Accounts for your trainers, instructors, and other staff members (“Users”) using each User’s name and email address, and set permissions for each User Account. The number of User Accounts that you may create will depend on your subscription details and will be specified on your Order Form, as defined below.

1.2 Locations. By subscribing to the Application you may add Users from any location that your company or organization owns or is affiliated with. You are not permitted to share your Owner Account with any unaffiliated companies, organizations, or locations. Sharing your account will result in immediate termination of your subscription without refund.

1.3 Additional Features. The Company may offer new or additional features for the Application during your subscription term, and it will notify Customer of any new available features as they become available. Some new features may be subject to additional fees, which Customer will not be obligated to pay but may add at its option. All new features and fees shall be subject to these Subscription Terms.

1.4 Updates. The Company will endeavor to provide the Application to you in a functional manner. However, the Company has no obligation to develop or provide any updates or revisions to the Application, and the Company reserves the right to alter or adjust performance specifications for the Application as it deems necessary or desirable.

1.5 Text and Email Notifications. By subscribing to the Application and providing Customer’s phone number and/or email address, Customer agrees that the Company may contact you via SMS (text messaging) and email notifications. SMS and email notifications are optional components of the Application that are reliant on third party providers for full effectiveness, delivery, and receipt. The Company shall not be responsible or liable for any SMS or email errors or delays, or any damages or issues that result from such errors or delays. Furthermore, the Company shall not be responsible for any additional charges or fees assessed by a third party provider as a result of Customer’s use of these optional components.

2. FEES & PAYMENTS

2.1 Fees. Customer will pay all fees specified in your subscription documents, which may include, but are not limited to, a paper order form, email authorization, or an order submitted via our website (“Order Forms”), and authorizes the Company to charge Customer for all applicable fees using Customer’s selected payment method. Except as otherwise specified on the Order Form: (i) fees are quoted and payable in United States dollars; and (ii) fees are non-cancellable and non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to the Company. The Company may suspend or terminate access to the Application, in addition to other rights and remedies, if fees are past due.

2.2 Invoicing. The Company will invoice Customer in advance and otherwise in accordance with the Order Form(s). Unless otherwise stated in the Order Form, invoiced charges are due upon receipt.

2.3 Disputes. The Company must receive written notice of any disputed charges or invoices from Customer within ten (10) business days of the invoice date. The dispute notice must provide the information concerning the disputed charges or invoices in reasonable detail.

2.4 Auto Renewal. IF CUSTOMER’S ACCOUNT IS SET TO AUTO RENEWAL, THE COMPANY MAY AUTOMATICALLY CHARGE CUSTOMER AT THE END OF THE TERM FOR THE RENEWAL FOR ADDITIONAL PERIODS EQUAL TO THE CURRENT SUBSCRIPTION TERM, UNLESS EITHER PARTY GIVES NOTICE OF NON-RENEWAL AT LEAST THIRTY (30) DAYS PRIOR TO EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION TERM. The fees for any such renewal term shall be the same as that during the prior term unless the Company has given the Customer notice of a fee increase, in which case the fee increase shall be effective upon renewal and thereafter.

2.5 Taxes. Customer is responsible for all taxes. The Company will charge tax when required to do so. If Customer is exempted from applicable taxes, Customer must provide the Company with an official exemption certificate or other appropriate documentation at the time of purchase.

3. TERM & TERMINATION

3.1 Term. The term of this Agreement shall remain in effect for the period specified in the Customer’s Order Form unless: (i) renewed in accordance with Section 2.4 above; or (ii) terminated earlier pursuant to this Section.

3.2 Termination for Breach. Either the Company or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice, or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.

3.3 Customer Termination. Customer can terminate your account by notifying the Company that you want to cancel your subscription for the Application. Your written termination notice should be sent to info@netgym.com. The termination notice will be deemed given when received by the Company.

3.4 Early Termination/Downgrade/Decrease. Unless Customer’s Order Form states otherwise, you will be charged for the Application at the rates effective until the end of the then-current subscription term.

3.5 Effects of Termination. Termination of your subscription includes removal of access to the Application and barring of further use of the Application by Customer and all Users accessing the Application through Customer’s subscription. Upon termination of Customer’s subscription, your right and the right of your Users to use the Application will terminate immediately. You understand that any termination of your subscription may involve deletion of your and your Users’ data submitted to the Application. The Company will not have any liability whatsoever to you or any of your Users for any suspension or termination, including for deletion of any data.

4. PROPRIETARY RIGHTS; LICENSES

4.1 Proprietary Rights. The Application provided by the Company, and all copies thereof, are proprietary to and the property of the Company. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents, and other intellectual property rights in or associated with the Application are and will remain in the Company, and Customer shall have no such intellectual property rights in the Application.

4.2 Analyzing Data. Notwithstanding anything to the contrary, the Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Application and related systems and technologies (including, without limitation, information concerning Users and data derived therefrom), and the Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Application and for other development, diagnostic, and corrective purposes in connection with the Application and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

4.3 Licenses. Upon completing the necessary registration and payments to subscribe to the Application pursuant to these Subscription Terms, NetGym shall grant Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Application during the term of your subscription in accordance with the Agreement. Customer hereby grants the Company a non-exclusive, non-transferable, non-sublicensable, royalty-free license to use Customer’s name and logo in press releases, marketing materials, and on www.netgym.com, subject to Customer’s prior approval of any such use.

4.4 Securing Rights. Customer agrees to secure and protect the Application and all copies thereof in a manner consistent with the maintenance of the Company’s rights therein, and to take appropriate actions by instruction or agreement with any of its employees, agents, or Users permitted access thereto to satisfy its obligations hereunder.

5. CUSTOMER’S OBLIGATIONS

5.1 Monitoring. Customer represents, covenants, and warrants that Customer will use the Application only in compliance with the Agreement and all applicable laws and regulations. Although the Company has no obligation to monitor Customer’s or Users’ use of the Application, the Company may do so at any time and without notification to Customer or Users, and may prohibit any use of the Application it believes may be (or alleged to be) in violation of the foregoing.

5.2 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Application, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Owner Account, Users Accounts, passwords (including but not limited to administrative and user passwords), and files, and for all uses of the Owner Account, Users Accounts, or the Equipment with or without Customer’s knowledge or consent.

6. WARRANTY AND DISCLAIMERS

The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Application in a manner which minimizes errors and interruptions in the Application. The Application may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APPLICATION. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE APPLICATION IS PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, THE COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THE COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO THE COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. CUSTOMER SUPPORT

The Company will provide customer service and support for the Application by email. The Company will make reasonable efforts to respond to all support inquiries within 48 hours of receipt of the email. For technical support, please contact help@netgym.com.