TERMS AND CONDITIONS
PLEASE READ THE ENTIRE FACILITY TERMS & CONDITIONS (THE “AGREEMENT”). YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND KYROHS VENTURES INC.; OWNER AND OPERATOR OF VARYACTIVE (www.varyactive.com)) (“VARYACTIVE”). BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
1.1 This Agreement contains the complete terms and conditions that apply to you becoming a “Facility” in VaryActive’s Facility Program (the “Program”). The purpose of this Agreement is to allow VaryActive to advertise and sell your Facility’s available fitness class seats to VaryActive’s users via its mobile application ( the “App”), as well as provide links to your website and/or contact information and/or contact page. Please note that throughout this Agreement, “we,” “us,” and “our” refer to VaryActive, and “you,” “your,” and “yours” refer to the Facility.
1.2 VaryActive will collect from the User the full price for the fitness class seat (the “Class Price”) as posted by the Facility through the VaryActive Club Portal (the “Site”). The Class Price consists of two parts; taxes and fees and class revenue. Class revenue consists of two parts; VaryActive revenue and Facility revenue. At the end of each month VaryActive will remit to the Facility the sum of Facility revenue collected for that month subject to net 30 terms. Along with the payment to the Facility VaryActive will submit a register for each seat booked through VaryActive to allow the Facility to verify the remitted payment. The financial arrangement between VaryActive and Facility is attached hereto as the Partner Facility Agreement.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the Partner Facility Agreement. After submitting the Partner Facility Agreement you must complete the online application form at the Site. The application may be evaluated at the time of submittal or at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your Facility is unsuitable for our Program, including if your physical facility or website or any online material:
- 2.1.1. Promotes sexually explicit materials;
- 2.1.2. Promotes violence;
- 2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- 2.1.4. Promotes illegal activities;
- 2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
- 2.1.6. Includes “VaryActive” or variations or misspellings thereof in its domain name;
- 2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion;
- 2.1.8. Contains software downloads that potentially enable diversions of from other facilities in the Program.
- 2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our Site nor design your website in a manner which leads customers to believe you are VaryActive or any other affiliated business.
2.2. As a facility in VaryActive’s Facility Program, you may also have access to “MINDBODY Connect” and/or other scheduling software. VaryActive may offer easy integration with such fitness center management software, but is not required to do so. You are encouraged to use VaryActive’s portal, which allows fitness facilities to input available inventory (open seats in classes) and prices for such inventory. VaryActive is not responsible for any loss that results from the use of any third party software. Additionally, you agree that any delay caused by VaryActive’s software or Site shall not be the cause of any damages, as the demand for such inventory on the Site fluctuates and is not predictable.
2.3. The maintenance and the updating of your Site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.4. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
3.VaryActive Rights and Obligations
3.1. We have the right to monitor your site and visit your physical facility at any time to determine if you are following the terms and conditions of this Agreement.
3.2. VaryActive reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you, with our without cause. If any fraud or abuse is detected, VaryActive shall not be liable to you in any manner whatsoever and you hereby indemnify VaryActive as described under Section 13 herein.
3.3. This Agreement will begin upon our acceptance of your application, and will continue unless terminated hereunder.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail or email, as described below in Section 15.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and VaryActive’s Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in the Program following the posting of the change notice or new Agreement on our Site will indicate your consent to the changes.
VaryActive uses a third party to process all payments. You agree that VaryActive shall not be liable for any loss due to action, inaction, errors, or omissions by such third party payment processor.
7. Promotion Restrictions
7.1. You are free to promote your own facility and business, but naturally any promotion that mentions VaryActive could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising must be approved by VaryActive’s written consent. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Also, you may post to newsgroups to promote VaryActive so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from VaryActive. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
7.2. Facilities that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as varyactive.com, VaryActive, www.varyactive, www.varyactive.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to VaryActive’s Site, will be considered trademark violators, and will be banned from the Program. We will do everything possible to contact the Facility prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
8. Grant of Licenses
8.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a Facility in good standing of the Program. You agree that all uses of the Licensed Materials will be on behalf of VaryActive and the good will associated therewith will inure to the sole benefit of VaryActive.
8.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
VARYACTIVE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING VARYACTIVE SERVICES AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF VARYACTIVE ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
10. Representations and Warranties
You represent and warrant that:
10.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
10.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
10.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
11. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL VARYACTIVE’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL VARYACTIVE REVENUE OBTAINED THROUGH THE SALE OF FACILITY SEATS UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless VaryActive, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the trademark(s) infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, (iii) any claim related to your site, including, without limitation, content therein not attributable to us, or (iv) any claim that may ever be asserted against VaryActive, in any way, directly or indirectly, constituting, relating to, resulting from or arising out of your breach of this Agreement
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
14. BREACH OF THIS AGREEMENT
14.1 Events: An event of default exists if any of the following occurs and is continuing beyond any period of time provided for cure:
14.1.1 Payments. A party fails to pay any sum when due under this Agreement.
14.1.2 Unauthorized disclosure. A Party has disclosed Confidential information other than as permitted herein.
14.1.3 Breach of Agreement. A Party breaches or fails to comply in any material respect with any provision of this Agreement.
14.2 Remedies: Upon the occurrence of an event of default, the Party claiming injury may exercise any right, power, or remedy permitted to it by law or at equity, including the remedy of specific performance. The Party claiming injury shall give written notice specifying the claimed particulars of such default or breach. If such default is not remedied within forty-eight (48) hours after submission of such notice, the Party may: (i) assess interest of eight percent (8%) per annum until paid in full; and (ii) enforce the defaulted obligation by any available lawful means. The prevailing Party in any action to enforce this Agreement, or any part hereof, shall be entitled to all reasonable costs and expenses of such action, including attorney’s fees. Any indulgence shall not be construed as a waiver of rights under this paragraph either with respect to such default or to similar subsequent defaults.
14.3 Injunctions. Each party admits and agrees that the other Party would be irreparably damaged if any provision of this Agreement is not fulfilled strictly in accordance with its terms and, accordingly, such Party shall be entitled to a restraint, injunction or injunctions to prevent any material breach of this Agreement. Each Party shall indemnify and save harmless the other from and against any and all losses, costs, expenses, damages, and claims as a result of its breach of this Agreement. The remedies in this Section shall be in addition to, and not in limitation of, any other remedy available at law or in equity. The rights and remedies provided by this Agreement are cumulative and the use of one right or remedy by any Party shall not preclude or waive its right to use any or all other remedies.
15. Additional Terms
15.1 Notices. All notices pursuant to this Agreement to either Party shall be in writing and shall be personally delivered or mailed by U.S. mail; postage prepaid, or transmitted electronically, fees prepaid. Notice shall be deemed given and effective on receipt by the Party to whom such notice is directed.
17515 Spring Cypress Rd Ste. C#220
Cypress, TX, 77429
Attn: VaryActive Legal Dept.
Information provided in Partner Facility Agreement.
15.2 Headings. The titles and articles or paragraph headings of this Agreement are only inserted for convenience, are in no way to be construed as a part of this Agreement and do not in any way limit, amplify or otherwise affect the warranties, representations and covenants contained in this Agreement.
15.3 Governing Law. THIS AGREEMENT, AND THE APPLICATION OR INTERPRETATION THEREOF, SHALL BE GOVERNED EXCLUSIVELY BY ITS TERMS AND BY THE LOCAL, INTERNAL LAW OF THE STATE OF TEXAS, U.S.A., EXCEPT TO THE EXTENT THE CONFLICTS OF LAWS RULES OF THE STATE OF TEXAS WOULD REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION IN WHICH CASE THE LAWS OF THE STATE OF TEXAS SHALL NONETHELESS APPLY. THE PARTIES CONSENT TO JURISDICTION IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF HARRIS, STATE OF TEXAS, U.S.A.
15.4 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an original, but all of which shall constitute one and the same agreement.
15.5 Invalidity of Particular Provisions. If any provision of this Agreement or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable, then the remainder of this Agreement shall be null and void, it being the intent of the Parties hereto that the covenants and considerations herein set forth be conditioned one upon the other and that no provision of this Agreement is segregable.
15.6 Binding Effect of Agreement. This Agreement and the covenants, warranties and obligations contained herein shall be binding upon the Parties hereto and upon their respective legal representatives, successors and assigns.
15.7 No Inducements. This Agreement represents the entire agreement between the parties with regard to the consideration and compensation for all matters covered by this Agreement. There has been no, and does not now exist any offer, payment, promise to pay, gift, promise to give, or authorization of the giving of anything of value to any officer, director, stockholder employee or agent of any party to this Agreement, or to the Parties to this Agreement other than as set out herein.
15.8 Entire Agreement. This Agreement supersedes any previous agreements between the parties regarding the subject matter of this Agreement and no prior stipulation or agreements, verbal or written, by the parties shall be valid or enforceable unless embodied in the provisions of this Agreement. This Agreement contains the entire understanding of the Parties hereto and no modification shall be effective unless evidenced by a subsequent written agreement executed by the Parties hereto.