FITCLOUDCONNECT TERMS OF SERVICE
FITCLOUDCONNECT PURCHASE AGREEMENT
This FitCloudConnect Purchase Agreement (“Agreement”) is entered into and effective as of the date it is agreed to by Customer (defined below) by executing a purchase order or quote (the “Effective Date”). This is an agreement by and between FitCloudConnect Inc., a Canadian corporation ("FitCloudConnect") and you, an owner or provider of a fitness center company (“Customer”). By executing an Order (defined below) Customer is hereby agreeing to be bound by the terms of this Agreement.
A. FitCloudConnect is a provider of integrated software solutions and tools for health clubs, fitness centres and gyms.
B. Customer is an owner or operator of healthclubs, fitness centres or gyms and wishes to purchase certain hardware and receive access to the FitCloudConnect subscription services for use by its members and employees and FitCloudConnect is prepared to provide such rights on the terms of this Agreement.
Now therefore for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
In this Agreement the following terms have the following meanings:
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Platform;
“Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes if any that is made available with the Solution;
“Fitness Club” means the Customer’s health and fitness club located at the address set forth on an Order;
“Hardware” means the hardware and equipment portion of the Solution listed in and Order attached hereto, including, but not limited to, cameras, microphones, audio equipment, media controllers, together with any and all replacement parts, additions, repairs, and accessories incorporated therein, and/or affixed thereto and which hardware is purchased by Customer;
“Order” or “Order Form” means an order form or quotation for the Solution that is executed by the parties.
“Platform” means FitCloudConnect’s online web-based application that provides Users with access to the fitness videos streamed and stored fitness videos, and through which Users can communicate with fitness instructors in real-time.
“Professional Services” means certain professional services to be provided by FitCloudConnet for Customer, including optional white-labelling of the Solution, all as further described in a SOW.
“Purchase Price” means the total price for the purchase of one Solution, as set forth in an Order Form, which is exclusive of any User Subscription Fees (as defined in Section 3.3) and any applicable taxes;
“Software” means the Platform and the software portion of the Solution that controls the Hardware in order to facilitate streaming of and on-demand access to fitness class videos, which are viewable on a User’s mobile device and/or SmartTV , together with any Updates;
“Solution” means the combination of the Hardware and the Software to record fitness classes at Customer’s Fitness Club, as further described in the Documentation and Order Form;
“SOW” means a statement of work setting out the details of any Professional Services to be provided by FitCloudConnect for Customer, the form of which is attached hereto as Schedule A;
“Updates” has the meaning given in Section 3.1; and
“User” means any individuals that uses the Solution at Customer’s Fitness Club and who registers for an account with FitCloudConnect.
2 PURCHASE OF HARDWARE.
2.1 Purchase of Hardware. FitCloudConnect hereby sells to Customer, and Customer hereby purchases from FitCloudConnect, the Hardware ordered by Customer under this Agreement in the quantity set forth on Schedule A. Customer may also order and remove User subscriptions for the number of Users it deems appropriate, with the changes effective from the next calendar month. Customer shall pay to FitCloudConnect the Purchase Price as provided on the Order Form. Title to purchased Hardware units shall pass to Customer upon payment in full of the Purchase Price. FitCloudConnect retains full risk of loss, theft, damage or destruction to the Hardware until Customer pays in full the Purchase Price.
2.2 Delivery. FitCloudConnect shall use commercially reasonable efforts to deliver the Solution to Customer on the delivery date specified in the Order Form (the “Delivery Date”). If FitCloudConnect does not deliver the Solution within one (1) month of the Delivery Date, Customer may terminate this Agreement and FitCloudConnect will refund all amounts paid by Customer under this Agreement. FitCloudConnect will select the carrier in its own discretion. Customer shall be responsible for all freight, packing, insurance and other shipping-related expenses, if any.
2.3 Solution Installation and Configuration. FitCloudConnect shall retain subcontractors to install and test the Solution at the Fitness Club during normal business hours, at Customer’s sole cost and expense. FitCloudConnect shall demonstrate to the reasonable satisfaction of Customer that the Solution has been successfully installed and tested and is ready for use by Users.
2.4 No Warranties. Customer understands and acknowledges that FitCloudConnect is not the manufacturer of the Hardware. FitCloudConnect does not make any representations or warranties in respect of the Hardware and other goods and services not manufactured or developed by FitCloudConnect. To the extent contractually and legally permitted, FitCloudConnect shall pass through to Customer any transferrable warranties, indemnitees and remedies in respect of the Hardware components of the Solution.
2.5 Customer Obligations. Customer shall keep the Hardware at the Fitness Club unless otherwise agreed with FitCloudConnect. Customer shall notify FitCloudConnect as soon as reasonably practicable if Customer wishes to physically move the Hardware to another Customer location. Customer shall not attempt to service the Solution, or otherwise take any other action that may damage the Solution.
2.6 Assignment/Sale of Hardware. Customer may sell the Hardware to another party without the written consent of FitCloudConnect. User subscriptions, the Software License and Documentation however, may not be transferred or assigned without the prior written consent of FitCloudConnect.
3 SOFTWARE AND DOCUMENTATION LICENCE; SERVICES
3.1 License to Software and Documentation. Subject to the terms and conditions of this Agreement, including the timely payment of all applicable fees, for each Solution Package that Customer purchases for the Fitness Club, FitCloudConnect hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-assignable, royalty-free, license to use the Software and Documentation with such Hardware unit, and to sublicense the Platform to Users. The Software and Documentation is licensed not Sold and FitCloudConnect and its licensors retain full title, rights and interest to the Software and Documentation at all times. FitCloudConnect shall provide reasonable bug fixes, patches, upgrades, enhancements and other updates (“Updates”) to the Software and Documentation as FitCloudConnect generally makes available to its other customers.
3.3 Provision of Platform. FitCloudConnect shall: (i) in addition to its confidentiality obligations hereunder, not use or modify any Customer Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Customer Data to anyone other than Customer and its applicable Users (except that FitCloudConnect may use and disclose anonymized and aggregate data that has been combined with data from FitCloudConnect’s other customers and subscribers); (ii) use commercially reasonable efforts to maintain the security and integrity of the Platform and the Customer Data; (iii) provide basic support to Customer and its Users as set forth on Schedule C attached hereto, at no additional charge; and (iv) use commercially reasonable efforts ensure the software has an uptime of 99%, except for: (a) planned downtime for maintenance and updates; or (b) any unavailability caused by circumstances beyond FitCloudConnect’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than in respect of FitCloudConnect employees), computer, telecommunications, Internet service provider or cloud service provider or other hosting facility failures, or delays involving hardware, software or power systems not within FitCloudConnect’s possession or reasonable control, and denial of service attacks.
3.4 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for its employees’, contractors’, customers’ and agents’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and notify FitCloudConnect promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Platform.
3.5 Professional Services. If Customer wishes to order Professional Services, Customer shall notify FitCloudConnect and the parties will negotiate in good faith an applicable SOW, including any fees applicable to the performance of such Professional Services. FitCloudConnect will provide custom Professional Services in accordance with Schedule B and the applicable SOW executed by the parties for such custom Professional Services. For greater certainty, FitCloudConnect shall have no obligation to provide any custom Professional Services unless it has executed an SOW for such custom Professional Services.
3.6 White-Labelling. If requested by the Customer, FitCloudConnect shall white-label the Solution for Customer. The Solution shall in all cases retain any relevant patent, copyright and/or other intellectual property notices as may be determined appropriate by FitCloudConnect to protect the rights of FitCloudConnect, its partners and licensors. Customer shall provide, in softcopy/electronic format as reasonably specified by FitCloudConnect the Customer-specified branding to be used to white-label the Solution. FitCloudConnect shall provide Customer with access to the white-labeled version of the Solution for review prior to making any production versions of the white-labeled Solution generally available. Customer shall use commercially reasonable efforts to promptly review the white-labeled version of the Solution. Customer hereby grants to FitCloudConnect a non-exclusive, royalty-free, fully paid up, worldwide license to use, reproduce, copy, reformat, distribute and display any Customer-specified branding materials provided to FitCloudConnect for the purposes of creating the white-labelled version of the Solution as contemplated in this Section 3.2 and for the operation thereafter of the Solution, and not for any other purpose. Customer shall retain all right, title and interest in the Customer-specified branding provided to FitCloudConnect.
4 SOLUTION SUPPORT.
4.1 RMA Procedure. No Hardware may be returned to FitCloudConnect without a Return Merchandize Authorization (an “RMA”) number first being requested from FitCloudConnect. Customer shall advise FitCloudConnect of the quantity of units of affected Hardware, and shall provide a detailed reason for the return or request for repair or replacement. If applicable, Customer shall ship all authorized returns to FitCloudConnect or to a FitCloudConnect-designated location, freight prepaid by Customer. FitCloudConnect shall assess the non-conforming Hardware units and provide a timely response regarding its warranty (if any). If warranty claim is valid in the opinion of FitCloudConnect and its suppliers, FitCloudConnect shall, within a reasonable amount of time after a positive determination of the warranty coverage for the Hardware, furnish repaired or replacement Hardware. FitCloudConnect shall be responsible for all shipping and handling costs for any replacement Hardware units it ships to Customer.
4.2 Software Maintenance. During the term of this Agreement, any Software related defects, faults, or issues shall be notified by Customer to FitCloudConnect. FitCloudConnect will use its commercially reasonable endeavours to rectify such faults within fifteen (15) days of notification.
4.3 Support. FitCloudConnect will use its commercially reasonable efforts to respond to technical and related inquiries from Customer’s authorized support contacts and try to correct or fix problems which arise; provided the foregoing shall not limit or restrict FitCloudConnect’s obligations to provide Updates as provided under Section 3.2.
5 FEES AND PAYMENT TERMS.
5.1 Payment Terms. In consideration for the receipt of the Solution and support and other consideration granted hereunder, Customer shall pay FitCloudConnect: (i) the Base Software license fee; (ii) the monthly User subscription fees (the “User Subscription Fees”) upon invoice from FitCloudConnect for the number of Users active as of the last day of the immediately preceding month; (iii) the Purchase Price in respect of Hardware; (iv) any applicable Professional Services fees agreed to in a SOW; and (v) any applicable installation fees. Unless otherwise stated, all payments shall be made to FitCloudConnect within thirty (30) calendar days after receipt of the invoice. FitCloudConnect reserves the right in its sole discretion, to increase monthly service fees on an annual basis.
5.2 Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
5.3 Overdue Payments. Any payment not received from Customer by the due date will accrue late charges at the rate of one percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid.
5.4 Suspension of Service. If Customer account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, FitCloudConnect reserves the right to suspend the operation of the Software and access to the Platform provided to Customer and Users, until such amounts are paid in full or terminate the Service and this Agreement.
6 PROPRIETARY RIGHTS.
6.1 Reservation of Rights. Except as otherwise provided in this Agreement, FitCloudConnect and its licensors shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights), in and to the Solution including the Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
6.2 Restrictions. Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Solution and/or Documentation except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any User limits or other license timing or use restrictions that are built into the Solution; (c) sell, rent, lend, distribute, license, or grant any rights in the Software and/or Documentation in any form to any person without the written consent of FitCloudConnect; (d) remove any proprietary notices, labels, or marks from the Solution and/or Documentation; (e) unbundle any component of the Solution and/or Documentation; or (f) copy or use any features, functions or graphics of the Solution and/or Documentation to build a product or service that is similar to and/or competitive with the Solution(s) and/or Documentation.
6.3 Ownership and Proprietary Rights in Data. FitCloudConnect will own all right, title and interest in and to any data collected using the Solution (excluding any personal information about Users and any information which identifies the Fitness Club or Customer which shall belong to Customer) including any analytics and metadata derived therefrom (“Data”). Data shall be made available to Customer as part of the Solution on a royalty-free perpetual license basis and not for resale by Customer. FitCloudConnect may use Data for any purposes without restriction, subject to Section 5 and any applicable laws or regulations. FitCloudConnect shall use commercially appropriate technical and organizational safeguards to protect any personal information collected about Users through the Solution.
6.4 Suggestions. FitCloudConnect shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Solution and Documentation any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Solution(s) and Documentation.
7.1 Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Solution(s) and Documentation, Data, business and marketing plans, technology and technical information, Solution designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. .
7.2 Confidentiality. Except for disclosures to advisors and prospective investors under a written obligation of non-disclosure, the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than for the activities contemplated by this Agreement, except with the Disclosing Party's prior written permission. For greater certainty, Customer shall not disclose any performance, functionality, benchmarking, or feature-related information about the Solution that is not publicly ascertainable through use of the Solution, review of FitCloudConnect’s website located at (the “Website”), its promotional materials, and the like.
7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
8 INDEMNITY; WARRANTIES DISCLAIMER; LIABILITY.
8.1 FitCloudConnect Indemnification. FitCloudConnect shall, at its own expense, defend Customer, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the Customer Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Customer Indemnitees alleging that the Solution (excluding the Customer Data and customer and User content, including video content) infringes any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the Customer Indemnitees harmless from and against any settlement amounts agreed by FitCloudConnect in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Customer Indemnitees by a court of competent jurisdiction in any IP Claim. As conditions for the defense and indemnification to be provided by FitCloudConnect pursuant to this Section 8, Customer shall: (i) provide FitCloudConnect with prompt written notice of any IP Claims and copies of relevant documentation regarding any IP Claims for which indemnification may be sought; (ii) give FitCloudConnect sole control of the defense and settlement of such IP Claims; (iii) cooperate fully with FitCloudConnect, at FitCloudConnect’s expense, in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims. This Section 8 sets forth the entire liability of FitCloudConnect and the exclusive remedy of Customer for patent, copyright or other proprietary or intellectual property right infringement or misappropriation.
8.2 Customer Indemnification. Customer shall, at its own expense, defend FitCloudConnect, its Affiliates and its and their respective officers, directors, employees, consultants and agents (collectively, the FitCloudConnect Indemnitees”) in any action, suit or proceeding brought by a third party against any of the FitCloudConnect Indemnitees arising from or relating to: (i) the Customer Data or Customer’s use and/or treatment of the Customer Data; (ii) claims that any Customer provided branding or logos infringe third party rights; (iii) any content transmitted, posted or uploaded to the Platform, including exercise videos, including any claims of intellectual property infringement and any claims relating personal injury as a result of a User’s use of the videos (collectively, (i) and (ii) hereinafter referred to as a “Customer-related Claim”) and shall indemnify and hold the FitCloudConnect Indemnitees harmless from and against any settlement amounts agreed by Customer in writing and/or any losses, damages, expenses, or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the FitCloudConnect Indemnitees by a court of competent jurisdiction in any Customer-related Claim. As conditions for the defense and indemnification to be provided by Customer, FitCloudConnect shall: (i) provide Customer with prompt written notice of any Customer-related Claim and copies of relevant documentation regarding any Customer-related Claim for which indemnification may be sought; (ii) give Customer sole control of the defense and settlement of such Customer-related Claim; (iii) cooperate fully with Customer, at Customer’s expense, in the defense or settlement of such Customer-related Claim; and (iv) not settle any Customer-related Claims or admit liability in respect to any Customer-related Claims.
8.3 EXCEPT FOR THE LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT, THE SOLUTION (INCLUDING THE HARDWARE AND SOFTWARE) AND DOCUMENTATION PROVIDED BY FITCLOUDCONNECT UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS AND FITCLOUDCONNECT MAKES NO OTHER REPRESENTATIONS AND PROVIDES NO OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.4 Limitation of liability. IN NO EVENT SHALL FITCLOUDCONNECT HAVE ANY LIABILITY UNDER THIS AGREEMENT TO SUBSCRIBER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, COST TO PROCURE REPLACEMENT GOODS, DATA CHARGES, COSTS TO PROCURE HARDWARE NECESSARY FOR USE OF THE SOLUTION, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), DAMAGE TO YOUR MOBILE DEVICE OR COMPUTER, ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE WEBSITE OR APP, ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE ANY PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE ARISING IN CONNECTION WITH USE OF ANY CONTENT PROVIDED BY CUSTOMER OR USERS VIA THE PLATFORM, INCLUDING ANY EXERCISE VIDEOS, OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE SOLUTION, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT THAT FITCLOUDCONNECT IS FOUND LIABLE FOR DAMAGES UNDER ANY THEORY OF LIABILITY, FITCLOUDCONNECT’S TOTAL AGGREGATE LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE TOTAL AMOUNT OF MONIES PAID BY CUSTOMER TO FITCLOUDCONNECT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THIS CLAIM.
9 TERM AND TERMINATION
9.1 Term. This Agreement is effective as of the Effective Date and continues for a period of one (1) year (the “Initial Term”), and thereafter shall automatically renew for additional successive one (1) year renewal terms (each a “Renewal Term”), unless either party provides notice of its intention not to renew this Agreement, by providing thirty (30) days’ notice to the other party prior to the expiration of any then current term. Collectively the Initial Term and the Renewal Terms are the “Term.”
10 GENERAL PROVISIONS.
10.1 Survival. Any provision which by its nature requires performance after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
10.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the fifth business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to FitCloudConnect shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
10.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.5 Non-Disparagement. Each party agrees that it will not disparage the other party’s business, products or services or take any action which could reasonably be expected to adversely affect the other party’s reputation.
10.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.7 Assignment. This Agreement shall not be assigned by either party, whether voluntarily or involuntarily or by operation of law, in whole or in part, to any other entity without the prior written consent of the other party, which consent shall not unreasonably be withheld, conditioned or delayed. Notwithstanding the foregoing, FitCloudConnect may freely assign this Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment shall not require the consent of the Customer. Any assignment in violation of this Section 9.7 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
10.8 Governing Law. This Agreement and any disputes arising under it shall be governed by the laws of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
10.9 Amendments. FitCloudConnect reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website. The revised Agreement shall become effective within ten (10) days of such publication or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or Your continued use of the Services after expiry of the notice period of ten (10) days shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement on the Website. We recommend that you print a copy of these terms for your records, and check the Website regularly for any updates to this Agreement.
10.10 Entire Agreement. This Agreement, together with the Order Form and all schedules, exhibits and addenda hereto, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto, the terms of such schedule, exhibit, or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
LAST UPDATED: October 17, 2016
FORM OF STATEMENT OF WORK
The following is a Statement of Work and Price Estimate for .
WORK PLAN SUMMARY
Scope of Work and deliverables
Project Management Contact
PRICE AND PAYMENT
FitCloudConnect Inc. [Customer]
Authorized Signature Authorized Signature
Printed Name Printed Name
PROFESSIONAL SERVICE TERMS AND CONDITIONS
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.
FitCloudConnect is willing to provide Professional Services (including the development of deliverables) on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule B. Such Professional Services may include: instruction and training on the use of FitCloudConnect products and services; evaluation, design and implementation of system architectures; custom development; and Service deployment consultations.
1. General. All Professional Services to be performed and deliverables to be developed by FitCloudConnect at Customer’s request shall be described in a Statement of Work, in such form as may be mutually agreed by the parties. Upon execution by authorized representatives of each party, each Statement of Work shall become a part of the Agreement. Each Statement of Work will incorporate the terms and conditions of the Agreement and this Schedule B. In the event of a conflict between the Statement of Work and this Schedule B or the Agreement, this Schedule B or the Agreement, as the case may be, shall prevail.
2. FitCloudConnect’s Obligations. FitCloudConnect shall perform Professional Services and develop deliverables for Customer as described in any Statements of Work agreed to in writing by the parties. FitCloudConnect shall perform such Professional Services and develop deliverables in a reasonable and workmanlike manner in keeping with industry standards and practices. Any claim for any alleged failure to perform Professional Services and develop deliverables in a reasonable and workmanlike manner must be made within ninety (90) days of the date of such alleged failure. FitCloudConnect shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing the deliverables. Customer acknowledges and agrees that FitCloudConnect may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist FitCloudConnect in performing, Professional Services and developing deliverables under this Schedule B or a Statement of Work. FitCloudConnect personnel and/or Subcontractors shall remain under the direction and control of FitCloudConnect. FitCloudConnect shall in the performance of any Professional Services and development of any deliverables use reasonable efforts to comply with all Customer policies, procedures and rules that have been communicated to FitCloudConnect in writing.
3. Customer Obligations. Customer acknowledges and agrees that the performance of Professional Services and development of deliverables is heavily dependent on cooperation from Customer. Accordingly, in addition to any specific responsibilities set out in the SOW, Customer shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by FitCloudConnect, to allow FitCloudConnect to perform Professional Services and develop deliverables; (ii) carry out reviews and respond to requests for approval and information on a timely basis; and (iii) ensure that FitCloudConnect has available to them personnel familiar with Customer’s requirements and with the expertise necessary to permit FitCloudConnect to undertake and complete the Professional Services and deliverables development. Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on FitCloudConnect’s performance of its activities under this Agreement or under any Statement of Work and FitCloudConnect shall not be liable for any delay to the extent caused by Customer’s failure to fulfill any of its obligations or requirements under the Agreement, this Schedule B and/or any SOW. If Professional Services are performed on Customer’s premises or if FitCloudConnect needs to attend at Customer’s premises for the development of the deliverables, Customer shall provide to FitCloudConnect such workspace, computers, equipment and software as is reasonably required by FitCloudConnect for the performance of the Professional Services and the development of the deliverables. Customer shall designate a project management contact for the purposes of communication with FitCloudConnect. The project management contact shall be the primary point of contact for Customer with FitCloudConnect for matters relating to the provision of Professional Services and development of deliverables.
4. Price and Payment. Customer shall pay FitCloudConnect the fees set forth in each Statement of Work either on a time and materials basis at FitCloudConnect’s then-current price, or on a fixed price per project basis to be negotiated between the parties. Customer shall reimburse FitCloudConnect for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by FitCloudConnect in the performance of any Professional Services or development of any deliverables, provided that such expenses are approved in advance in writing by Customer. The fees for Professional Services and development of deliverables shall exclude all applicable Taxes, which shall be invoiced separately and paid by Customer.
Unless otherwise specified in the Statement of Work, FitCloudConnect shall invoice Customer for fees for Professional Services and development of deliverables provided pursuant to this Agreement or a Statement of Work on a monthly basis. All such fees shall be paid within thirty (30) days of the date of the invoice.
5. Term and Termination. This Schedule B shall remain in effect only during the Term of the Agreement. Customer may terminate a Statement of Work without cause upon thirty (30) days prior written notice to FitCloudConnect. If Customer terminates a Statement of Work for convenience, Customer shall pay FitCloudConnect the full fee for any Professional Services performed or deliverables developed (including all other costs for which FitCloudConnect has the right to reimbursement) up to the effective date of termination of such Statement of Work and the pro-rated fee for the any uncompleted milestones with such pro-rated fee to be determined based on the percentage of time between the commencement of work on such milestones and the effective date of termination. For greater certainty, if the time from the commencement of work on a milestone to the scheduled achievement date for that milestone is three (3) months, and if the effective date of termination occurs at the two (2) month point in such timeframe, then Customer shall pay FitCloudConnect two-thirds of the fee for such milestone.
Each party shall be entitled to immediately terminate a Statement of Work for cause in the event of: (i) the material breach by the other party of its obligations under this Schedule B or such Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign a Statement of Work to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate this Schedule B and any Statements of Work hereunder. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
6. Intellectual Property Rights. FitCloudConnect shall own all right, title and interest and all intellectual property rights to any deliverables created by FitCloudConnect pursuant to this Schedule B or any Statement of Work hereunder. FitCloudConnect shall retain all right, title and interest and all intellectual property rights to any and all FitCloudConnect proprietary information and FitCloudConnect software. Subject to payment of the fees set forth in the applicable Statement of Work, FitCloudConnect grants to Customer a non-exclusive, non-transferable (except as provided in Section 11.6 of the Agreement) license to use the deliverables solely in connection with Customer’s permitted use of the Solution as set forth in the Agreement.
7. Indemnification. Each party shall indemnify and defend the other party against any claims and costs awarded by a court of competent jurisdiction (including reasonable attorney’s fees) arising out of or relating to the other party’s negligence or intentional misconduct in connection with an SOW where such actions result in death or bodily injury to any person or damage to tangible or real property, provided that: (a) the indemnified party gives the indemnifying party prompt notice in writing of each claim received by the indemnified party, (b) the indemnified party gives the indemnifying party the right to control and direct the investigation, defense and settlement of each claim, and (c) indemnified party has not compromised or settled the claim.
8. Non-Solicitation. Customer shall not enter into a contract for or of service with an employee of FitCloudConnect who has been involved with, directly or indirectly, any of the Professional Services or development of any deliverables hereunder within twelve (12) months of such employee's last involvement with such Professional Services or deliverables. Customer shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches that are not focused on the employees of FitCloudConnect.
FitCloudConnect shall provide support to Customer for the Service pursuant to the terms and conditions set forth below.
1.1 Technical support
FitCloudConnect will, during its regular business hours, provide e-mail support in the form of a helpdesk application included in the Service. Response will be provided within two (2) business days of receipt by FitCloudConnect of a question or fault report.
1.2 Telephone support
FitCloudConnect will, during its regular business hours, provide telephone support as a backup measure, if the Service helpdesk application is unavailable.
1.3 Fault reports
FitCloudConnect will be considered to have been informed of a fault when FitCloudConnect has actually received a fault report by e-mail.
1.4 Remedy of Faults
If a serious fault is reported, FitCloudConnect will first provide advice about how to work around the fault. If there are no work arounds for a fault, then the fault will be corrected. Less serious faults will be corrected in a subsequent Service software release.
1.5 Updates and new releases
FitCloudConnect shall install updates and new releases of the Service software when such updates and new releases are ready for general availability.
FitCloudConnect shall supply documentation in electronic form in connection with the general availability of new versions of the Service software.
2. Responsibility and undertakings of Customer.
In order to enable FitCloudConnect to diagnose faults, Customer shall, as far as possible, supply documentation and other relevant information on faults being reported by Customer. Customer shall appoint a contact who shall be responsible for handling all interactions with FitCloudConnect.
3. Limitations on Support
3.1 Support Obligation for the Service
FitCloudConnect is only obliged to provide support to the latest version of the Service. The total support time covered by the FitCloudConnect Service Fees is limited to ten (10) hours per calendar year. Extra support time may be purchased on a current account basis according to the hourly rate set forth in Schedule A.
Support shall not include the diagnosis and rectification of any fault resulting from or in respect to:
a) The use of the Solution for a purpose for which it was not licensed;
b) Rectification of lost or corrupted data arising for any reason other than a Software fault;
c) Loss or damage caused directly or indirectly by Customer operator error or omission;
d) Network or other hardware infrastructure that may be used in or in connection with the provision of the Service;
e) Any faults or errors in the Permitted Customer Service; or
f) Any software that was not developed by FitCloudConnect.