This Master Subscription Agreement (“MSA” or “Agreement”) constitutes a binding agreement by and between you, whether personally or on behalf of an entity (“you”, “your” or “Customer”) and ABC Fitness Solutions, LLC (“ABC”) concerning your access to and use of, and ABC’s provision of, Services (as defined below). If you are organized in Canada, then this MSA is between you and 3287646 Nova Scotia Company (the “Nova Scotia Company”) and all references herein to ABC shall mean the Nova Scotia Company, and: (a) the Canada Addendum will be deemed incorporated by reference into this MSA, and (b) the Parties will be bound by the terms and conditions of the Canada Addendum in addition to the terms and conditions of this MSA and/or in lieu of the terms and conditions of this MSA if there is a conflict between the terms and conditions of this MSA and the Canada Addendum.
You agree that by accessing the Services, you have read, understood, and agree to be bound by this MSA. If you do not agree with all of the terms of this MSA, you are expressly prohibited from using the Services and must discontinue use immediately. ABC reserves the right, in its sole discretion, to make changes or modifications to this MSA at any time and for any reason.
We will alert you to changes to the MSA by updating the “Last Updated” date of the MSA, and you waive any right to receive specific notice of each such change.
It is your responsibility to periodically review this MSA to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes to the MSA by your continued use of the Services.
The Agreement (defined below), including this MSA, establish the business relationship and allocation of responsibilities regarding the Services, and the Parties therefore agree as follows:
- Definitions. In addition to terms defined elsewhere in the Agreement, Customer and ABC ascribe the following meanings to the terms hereof:
“ABC Marks” means i) trademarks, service marks, trade dress, trade names, corporate names, logos and slogans (and all translations, transliterations, and combinations of the foregoing), together with all goodwill associated with each of the foregoing and ii) all registrations and applications for any of the foregoing that correspond to and/or that are associated with the Services, the Software, or both.
“ABC Systems” means the information technology infrastructure used by or on behalf of ABC in performing the Services, including all computers, hardware, databases, electronic systems (including database management systems), websites, and networks, whether operated directly by ABC or through the use of Affiliates or third-parties.
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Software.
“ABC Affiliate” means, with respect to ABC, any other entity or member of a group of entities acting together that, now or in the future, directly or indirectly, through one or more intermediaries, controls, or is controlled by or is under common control with, the specified entity, including, but not necessarily limited to, 3287646 Nova Scotia Company, TSR Gym Technik Ltd., and Gymsales Software Pty. Ltd.
“Aggregated Data” means data related to Customer’s use of Services, the data used by ABC in an aggregate and/or anonymized manner, including, but not limited to, to compile statistical and performance information related to the provision and operation of the Services, or to otherwise provide certain Services to customers. Aggregated Data does not include any personally identifiable information (PII) or other information that could identify Customer or any particular individual.
“Agreement” or “MSA” means this Master Subscription Agreement, any addenda, exhibits or attachments hereto, and any fully executed Order Form(s).
“Authorized Users” means, subject to any limit specified in an Order Form, any person, including Customer’s employees, contractors, agents, representatives, Members, or any combination thereof whom Customer, ABC, or both authorize to access and use the Software subject to the terms and conditions of this Agreement and for the purpose of facilitate provision of the Services to Customer.
“Available Collected Funds” mean the amount of funds actually collected and received by ABC from Members on behalf of Customer pursuant to Membership Agreements, or any other agreement serviced by ABC under this Agreement, net of ABC’s projected billing fees and applicable administrative fees for such early deposit and net of projected charge backs, returns, holdbacks, and refunds.
“ABC IGNITE Core Services” mean those in the ABC IGNITE Core bundle in an Order Form, including billing and club management services identified as IGNITE Commerce Optimize, IGNITE Commerce Transact, and Business Services and any related optional IGNITE Core services elected by Customer in an Order Form.
“Biometric Data” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual and in which a biometric identifier includes a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.
“Confidential Information” means information that one Party provides to the other Party under this Agreement about its business affairs, products, systems, software, source code, services, pricing, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”; provided, however, that notwithstanding anything to the contrary in the foregoing:
(i) the following are deemed to be the Confidential Information of ABC: the Documentation, the Services, the Software, and the pricing corresponding to the Services as set forth in an Order Form (hereinafter “ABC Confidential Information”); and
(ii) at least the following are deemed to be the Confidential Information of Customer: the Customer Data.
“Content” means content generated through the use of, access to, and/or interaction with the Software including third-party content introduced into one or more of the Software platforms.
“Customer Affiliate” means, with respect to Customer, any other entity or member of a group of entities acting together that, now or in the future, directly or indirectly, through one or more intermediaries, controls, or is controlled by or is under common control with Customer.
“Customer Data” means, other than Aggregated Data, information, data, and other information, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Software.
“Data Security Guidelines” means all standards, guidelines, practices or procedures required by applicable law or by the Payment Networks and by a Party’s payment processor(s) with respect to data security or protection of Personal Data, as such may be amended from time to time, to the extent applicable to the obligations to be performed under this Agreement, including: (i) the Payment Card Industry Data Security Standards (“PCI-DSS”) and the PCI Cloud Computing Guidelines and (ii) all rules and operating guidelines concerning the disclosure, use and protection of personal and financial information adopted by the National Automated Clearing House Association (“NACHA”), including the ACH Security Framework.
“End Users” mean individuals and/or entities that actually use the Services, the Software, or both and that receive access to the same via Customer rather than via ABC and/or ABC Affiliates.
“Facilities” mean those physical facilities from which the Software is to be accessed as identified in an Order Form.
“Feedback” means any changes recommended by Customer to the Software, the Services, the Documentation, or any combination thereof.
“Fees” mean the fees specified in an Order Form, including any modifications to such payments as implemented in accordance with Section 9 (Payment) of this Agreement.
“Franchisee” means that Customer is a franchisee of a Franchisor who has an agreement or arrangement with ABC for ABC’s provision of services by ABC to Franchisee.
“Franchisor” means a franchisor having a franchisor-franchisee relationship with one or more other Customers of ABC that receive Services, at least in part, through a franchise agreement.
“Intellectual Property” means and includes means all rights to, title in, and interests in and to the following throughout the world: (i) issued patents and, patent applications (including divisionals, continuations, continuations-in-part, extensions, reexaminations and reissues thereof), patent disclosures, inventions and invention disclosures (whether or not patentable or reduced to practice); (ii) copyrights and copyrightable works, including all original works of authorship; (iii) trade secrets, data, reports, software development methodologies, technical information, proprietary business information, process technology, plans, drawings, blue prints, marketing forecasts, and know-how; (iv) all rights of publicity, including the right to use the name, voice, likeness, signature and biographies of real persons, together with all goodwill related thereto; (v) all other intellectual, proprietary or industrial rights; and (vi) all registrations and applications for any of the foregoing.
“Location(s)” means the number of Customer locations for which Customer orders Services pursuant to the Order Form.
“Member” or “Members” mean members of athletic facilities operated by Customer.
“Membership Agreement” or “Membership Agreements” mean an agreement or agreements entered into between Customer and one or more Members.
“Net Receipts” mean an amount equal to the total Membership Agreement payments less the sum of the following: (i) reversals, charge backs, refunds, returns or other credits against payments collected; (ii) the billing fee set forth in Section 9.10 (Payment for ABC Core Commerce Services); (iii) any credit for payments made directly to the Customer; (iv) any charge or amount due from Customer or any Customer Affiliates to ABC pursuant to this Agreement, or any other agreement between Customer or any Customer Affiliates and ABC or any ABC Affiliates or any policy established by ABC from time to time, and (v) as applicable, amounts owing to Franchisor (as Franchisor may aver to Franchisee).
“Order Form” means the separate ordering documents under which Customer subscribes to the ABC Services pursuant to this Agreement that have been fully executed by the Parties.
“Payment Information” means bank account, credit card and debit card information.
“Payment Networks” means Visa, MasterCard, and any credit or debit card network issuing credit or debit cards or their duly authorized entities, agents, or affiliates, together with the National Automated Clearing House Association.
“Payment Processor” means Vantiv, First Data, American Express, Centennial Bank or such other credit card, debit card and/or ACH processors as may be utilized by ABC.
“Parties” mean Customer and ABC.
“Party” means Customer or ABC.
“Personal Data” means information, data, and materials relating to identified or identifiable individuals, including enrollment records, billing and payment records, physical addresses, email addresses, and other personal information, data, and materials relating to a Party or its customers including “Cardholder Data” (as such term is defined in PCI-DDS guidelines as set forth on the Effective Date or subsequently updated),“Protected Information” (as defined in the NACHA ACH Security Framework rules as set forth on the Effective Date or subsequently updated), and “Biometric Data,” as defined elsewhere in this Agreement.
“Services” mean the Services and/or Software that Customer orders or receives pursuant to an Order Form.
“Service Suspension” means any suspension described in subclause (i), (ii), or (iii) of Section 2.6 (“Service Suspension”) of this MSA.
“Software” means computer-executable instructions that: (i) ABC owns or licenses from a third-party, and (ii) makes accessible, has made accessible, or both to Customer in accordance with the terms and conditions of this Agreement for the provision of Services to the extent that the Services include such Customer access as specified in an Order Form.
“Website” means any website that ABC, an ABC Affiliate, or a combination thereof operate, as of the Effective Date, or afterwards.
- Software and Documentation.
2.1. Licenses to Software and to Documentation. ABC grants to Customer for the Term and Customer accepts:
(a) a non-exclusive, non-transferable, non-sublicenseable, and revocable license and right to access and use, and to permit the number of Authorized Users specified in an Order Form to access and to use the Software for the purpose of receiving the Services in connection with the Facilities, and in accordance with: (i) the terms and conditions of this Agreement, (ii) ABC’s policies posted on the Website, as such policies may be updated from time to time; and (iii) the Documentation.
(b) a non-exclusive, non-transferable, non-sublicenseable, and revocable license to use any Documentation solely for Customer’s internal purposes to facilitate Customer’s use of and access to the Software and receipt of the Services.
2.2 Software Access. With regard to access to the Software:
2.2.1 Access Commencement. ABC will provide Customer with access to the Software on the later of (i) the Effective Date, (ii) the date specified in an Order Form, or (iii) within a reasonable time after (ii) or (iii).
2.2.2 Internet Access. Customer is responsible, at Customer’s own expense, to access the Internet, either directly or through devices that access Web-based content and pay any service fees associated with such access. In addition, Customer must provide all equipment necessary to make such connection to the Internet. Customer will not attempt to access any other ABC Systems, programs or data that are not made available for Customer use except as expressly set forth in an Order Form or this MSA. Customer understands and agrees that the operation and availability of the Software is dependent on Customer’s Internet and network availability, which is inherently unpredictable and may, from time to time, interfere with or prevent Customer’s access to and/or use of the Software. ABC does not guarantee the security of any information transmitted to or from Customer or any user over the Internet, including through the use of email. Access to the Internet is Customer’s and each Authorized User’s sole responsibility and the responsibility of Internet provider(s) Customer selects. ABC does not accept any responsibility for failure of any Software due to Internet facilities, including related telecommunications or equipment.
2.2.3 Software Availability. Unless otherwise specifically provided for in an Order Form, ABC will use commercially reasonable efforts to reduce downtime and interruptions to Customer’s access to the Software. Customer acknowledges and agrees that ABC has no control over downtime or interruptions arising out of or resulting from: (i) act or omission by Customer or any Authorized User, or any other access to or use of Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement; (ii) Customer’s Internet connectivity; (iii) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by ABC pursuant to this or another written agreement with Customer; (iv) scheduled downtime or maintenance; or (v) disabling, suspension, or termination of the access to the Software pursuant to this Agreement.
2.2.4 Features and Modifications. The inclusion, exclusion, and continued support for, any feature, functionality, module in, or release of any Software is within the sole and absolute discretion of ABC. ABC retains the absolute right to modify, discontinue, delete, or restrict any aspect or feature of the Software without any liability or obligation to the Customer, provided that ABC will endeavor to provide Customer with prior notice of any material changes to the Software and that ABC will not materially degrade the functionality of the Software.
2.2.5 Beta Testing. Beta Software is a version of Software that has not yet been released to the general public. ABC, at its sole discretion, may offer beta testing to selected, interested customers. If Customer use a Software or Software Service during beta testing, Customer is asked to provide Feedback to ABC and assume all risks associated with the beta Software. ABC advises all beta users to use extreme care when beta testing Software since beta Software is subject to strict confidentiality and the quality of the Software is still under evaluation. BY DOWNLOADING OR USING ABC’S BETA SOFTWARE, CUSTOMER EXPRESSLY AGREES TO THE FOLLOWING TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE TO ANY PROVISIONS CONTAINED HEREIN, CUSTOMER MUST NOT DOWNLOAD OR IMMEDIATELY DISCONTINUE ANY USE OF THE BETA SOFTWARE: Customer acknowledges and agrees that ABC offers beta Software “AS IS” without warranty of any kind, express or implied, and subject to the terms contained this Agreement. ABC has and will have no obligation to maintain, correct, update, change, modify, or otherwise support the beta Software in beta testing. ABC may discontinue providing service to the beta Software at any time. ABC makes no guarantee or commitment as to the success of the beta Software. Customer acknowledges that the privacy and security terms set forth or referenced herein WILL NOT apply to beta testing and no privacy or security should be reasonably expected during beta testing. Beta testing is at the entire risk of Customer, not ABC. ABC is and will not be liable for any lost revenue, lost profits, or other incidental or consequential damages even if advised of the possibility of such damages by reason of any performance or non‐performance under this Agreement. Furthermore, ABC is and will not be liable for any delays, losses, or other damages which may result from the furnishing or canceling of any ABC Software, features, and/or modules, including, but not limited to, the beta testing Software.
2.3 Credentials. Customer must provide and administer Access Credentials for all Authorized Users. Each Authorized User must have a valid Access Credential for the purpose of accessing the Software and each Authorized User is limited to one Access Credential. Customer must keep and must obligate any Authorized Users to keep all Access Credentials strictly confidential and will maintain the confidentiality thereof. Access Credentials may only be used by the assigned Authorized User and may not be shared or transferred without ABC’s prior written consent. Customer will notify ABC immediately of any unauthorized use of any Authorized Users’ Access Credentials, accounts, or any other breach of security. ABC will not be liable for any loss that Customer or an Authorized User may incur as a result of someone else using Customer’s or its Authorized User’s Access Credentials.
2.4 Use Restrictions. Customer only will use and access the Software to receive the Services and for no other purpose. Customer will obligate its Authorized Users to use and access the Software to receive the Services and for no other purpose. Any use of or access to the Software not expressly permitted under this Agreement is prohibited.
2.5 Reservation of Rights. ABC reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted to Customer in Section 2.1 (Licenses to Software and to Documentation), nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third-party, any additional rights in the Software.
2.6 Service Suspension. Notwithstanding anything to the contrary in this Agreement, ABC may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Software:
(a) if ABC reasonably determines that:
(i) there is a threat or attack on any of the Software, the ABC Systems, or both;
(ii) Customer’s or any Authorized User’s use of the Software disrupts or poses a security risk to the Software, to any other Customer or supplier of ABC, to the ABC Systems, or any combination thereof;
(iii) Customer, or any Authorized User, is using the Software in breach of this Agreement or for fraudulent or illegal activities;
(iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, receivership, or similar proceeding; or
(v) ABC’s provision of the Software to Customer or any Authorized User is prohibited by applicable law;
(b) if any supplier of ABC has suspended or terminated ABC’s access to or use of any third-party services, products, and/or software required or reasonably necessary to enable Customer to access the Software; or
(c) if Customer fails to cure late payment(s) as further provided in this Agreement.
ABC will endeavor to provide notice of any Service Suspension to Customer, which may be via electronic means. ABC may, in its sole discretion, resume providing access to the Software after the event giving rise to the Service Suspension is cured. ABC will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.8 License to Authorized Users. If any of the Software and/or Services are to be provided to Authorized Users who are not employees of Customer (for example, a Member), Customer agrees that ABC may promulgate any terms and conditions that ABC, in its sole discretion, deems appropriate for such Authorized Users, and such Authorized Users must Accept such terms and conditions prior to receiving access to the Software and/or Services.
2.9 Legal Compliance. ABC shall provide the Website, Software, and Services in accordance with laws applicable to ABC’s provision of the Website, Software, and Services to its customers generally (i.e. without regard for Customer’s particular use of the Website, Software, and Services), subject to Customer’s use of the Website, Software, and Services in accordance with this Agreement, the applicable Documentation, and any applicable Order Form.
- Customer Responsibilities.
3.1 Users. Customer is responsible and liable for all use of the Software and Documentation resulting from access by or through Access Credentials directly or indirectly provided by Customer to Authorized Users. Without limiting the generality of the foregoing, any and all acts and/or omissions of Authorized Users that, had such acts and/or omissions been caused by or attributable to Customer would constitute a breach of this Agreement, will be deemed to constitute a breach of this Agreement by Customer and will be attributable to Customer hereunder.
3.2 Restrictions. Customer will not publish and/or make available any Content that and/or use any Website, Service, Software, and/or ABC Systems in any manner that:
(a) infringes, violates or misappropriates any third-party’s Intellectual Property or proprietary rights;
(b) contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(c) is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(d) is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
(e) is harmful to minors in any way;
(f) is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by ABC and/or any ABC Affiliate;
(g) impersonates an ABC and/or ABC Affiliate employee, or any other person, or falsely states or otherwise misrepresents Customer’s affiliation with any person or entity, or to obtain access to the Site or Service or a portion thereof without proper authorization;
(h) interferes or attempts to interfere with the proper working of any Website, any Service, any Software, the ABC Systems, and/or any of the foregoing, prevents others from using any Website, any Service, any Software, the ABC Systems and/or any of the foregoing, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Website, or that otherwise negatively affects other persons’ ability to use any Website, any Service, any Software, and/or the ABC Systems;
(i) uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the any Website, any Service, any Software, and/or any Content contained therein;
(j) facilitates the unlawful distribution of copyrighted Content;
(k) except as expressly permitted by ABC and/or any ABC Affiliate, licenses, sublicenses, rents or leases the Software and/or Service to third parties, or uses the Software and/or Service for third-party training, commercial time-sharing or service bureau use;
(l) includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through any Website, any Software, and/or any of the Services to users;
(m) constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
(n) stalks or otherwise harasses anyone on any Website and/or using any Service and/or Software or with information obtained from any Website and/or Service;
(o) collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
(p) requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of any Websites and/or Services for the purposes of automating logins to any Websites and/or access to any Services and/or Software;
(q) attempts to gain unauthorized access to the ABC Systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of any Website, any Service, and/or any Software;
(r) posts adult or pornographic Content;
(s) decompiles or reverse engineers or attempts to access the source code of any Software, any Service, and/or any Website;
(t) except to the extent expressly authorized in this Agreement, copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Website, the Services, and/or the Software;
(u) accesses any Websites, any Services, any Software, or any of the foregoing for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in any Website, any Services, and/or any Software;
(v) accesses any Website, any Service, and/or any Software for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;
(w) accesses any Website to upload any Content or computer code for the purposes of: (i) causing a breach or override of security to any Website, any Service, and/or any Software; (ii) interfering with the proper working, functionality or performance of any Website, any Service, and/or any Software; or (iii) preventing others from accessing or using any Website, any Service, and/or any Software; or
(x) violates, or which makes ABC or any ABC Affiliate violate, any privacy rights, including, but not limited to, the Telephone Consumer Protection Act of 1997 (“TCPA”) (or any similar law) or the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”).
ABC reserves the right to investigate and take appropriate action against any party that, in ABC’s sole discretion, violates this Section 3.2 (Restrictions), including without limitation, taking legal action. Customer will cooperate with ABC if ABC elects to perform an investigation.
3.3 Permits, Licenses, and Consent. Customer must obtain and maintain in effect all permits, licenses, consents, and authorizations necessary for use of the Software.
3.4 Legal Compliance. Customer will comply with, and be bound by, state, provincial, federal or local laws, rules, regulations or ordinances with respect to the operation of its business. Customer expressly understands and agrees that except as expressly stated in this Agreement, Customer is solely responsible for ensuring that Customer’s use of ABC’s Website, Services, and Software will be in compliance with applicable laws.
3.5 Customer Content. If any Software and/or Software Service enable Customer to provide or upload Content, then the following terms and conditions apply as between Customer and ABC:
(a) Customer acknowledges and agrees that Customer is solely responsible for all Content that Customer submits, provides or uploads and the consequences for submitting, providing or uploading it.
(b) ABC and/or ABC Affiliates will use Content that Customer uploads solely in connection with providing the Software Service to Customer, and for no other reason. Customer agrees that by uploading, or otherwise providing any Content on or through the Website and/or the Software Service, Customer hereby grants to ABC a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Software Service to Customer together with the right to sublicense each and any of the foregoing to ABC Affiliates and/or other third parties that ABC might use to facilitate the provisions of the Software Service to Customer. This license includes the right to host, index, cache or otherwise format Customer Content to provide the Software Service.
(c) Customer acknowledges and agrees that Customer’s Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Software Service, and as such may be accessible to others including without limitation to: (i) Customer’s agents; (ii) End Users; (iii) third-party service providers and their agents; (iv) any other person to whom any of the foregoing persons have granted access to Customer’s Content and (v) ABC Affiliates. ABC will take commercially reasonable steps to ensure that Content identified as private within the functionality of the Software Service is not shared (unless Customer selects otherwise), but Customer acknowledges and agrees that ABC and/or ABC Affiliates cannot and do not guarantee any confidentiality with respect to Customer Content whatsoever.
(d) Customer represents and warrants to ABC and to ABC Affiliates that Customer owns Customer’s Content or has the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to ABC or use thereof by ABC and/or ABC Affiliates will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
(e) Customer agrees that neither ABC nor any ABC Affiliates are responsible for any violations of any third-party Intellectual Property rights, privacy rights, publicity rights, trademark rights, contract rights or any other rights of any person or entity in any Content that Customer submits. Customer agrees to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by Customer to the Website.
4.1 Aggregated Data. ABC may monitor Customer’s use of the Software and collect, use, and compile Aggregated Data based on Customer Data. ABC owns all right, title and interest in Aggregated Data. ABC will use Aggregated Data in compliance with applicable law. This provision shall survive the termination of this Agreement.
4.2 Data Sharing. Notwithstanding anything to the contrary herein, ABC may share any Customer Data received in connection with the Services with any ABC Affiliate and/or third-party subcontractors to facilitate provision of the Services to Customer.
4.3 General. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, Customer hereby assumes such risks. ABC offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.4 Accuracy of Data. ABC will have no responsibility or liability for the accuracy or completeness of Customer Data uploaded to the Software or ABC’s System by Customer, including without limitation any Customer Data or information uploaded by Authorized Users.
4.5 Deletion of Data. ABC may remove Customer Data or any other data, information, or content of data or files used, stored, processed or otherwise by Customer or Authorized Users that ABC, in its sole discretion, believes to be or is:
(a) a virus, a worm, or other malicious code;
(b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, or obscene;
(c) used for the purpose of spamming, chain letters, or dissemination of objectionable material;
(d) used to cause offense, defame or harass; or
(e) infringing the Intellectual Property Rights or any other rights of any third-party.
4.6 Required Consents. Customer warrants and represents to ABC, on behalf of Customer and/or Authorized Users, that Customer has obtained and will obtain, throughout the term of this Agreement, all necessary consents from Authorized Users, Members, and/or any other third parties required under applicable law:
(a) to disclose their personal information to ABC, ABC Affiliates, and/or their respective directors, officers, employees, agents, and/or contractors to facilitate the provision of the Services,
(b) for ABC, ABC Affiliates, and/or their respective directors, officers, employees, agents, and/or contractors to collect, use, process, access, and/or disclose Personal Data as set forth herein or as otherwise designated by Customer or Authorized Users,
(c) for ABC, ABC Affiliates, and/or their respective directors, officers, employees, agents and/or contractors to collect, use, process, access and/or disclose Personal Data (including Members’ Personal Data) for any Customer marketing purposes subject to an opt-out of which ABC has been apprised in writing by Customer or the individual themselves, and
(d) for Customer, ABC, ABC Affiliates, and/or their respective directors, officers, employees, agents and/or contractors to collect, use, process, access and/or disclose Biometric Data to perform the Services.
Additionally, Customer represents and warrants to ABC and to ABC Affiliates that Customer is and will be, throughout the term of this Agreement and any extensions thereto, in compliance with all applicable laws, rules, regulations, ordinances, and standards including those that govern the use, collection, and processing of Biometric Data and Personal Data.
4.7 Franchisee Data. If Customer is a Franchisee, then Franchisee acknowledges and agrees that Franchisor owns all Customer Data derived from Franchisee’s Membership Agreements, including all Personal Data provided by Customer’s Members and the Membership Agreements themselves. Franchisee acknowledges and agrees that Franchisor may direct ABC to transfer such data (e.g., the Customer Data, the Personal Data, or both) to Franchisor or a third-party or otherwise use such data (e.g., the Customer Data, the Personal Data, or both) without regard to the effect of such use upon Franchisee. ABC is authorized to rely on such direction from Franchisor without the need to notify Franchisee, otherwise seek Franchisee’s consent to such direction, and/or review, consult, or obtain the franchise agreement.
- Data Privacy.
5.1 General Data Security Guidelines. During the Term, each Party will comply with, and will require its employees, contractors, and/or agents to comply with, all data security guidelines that are applicable to its business. While ABC will maintain the security of its environment, Customer expressly acknowledges and agrees that it is solely responsible for obtaining and maintaining its own security measures to protect Customer’s hardware, systems, and applications that interact with the Software. While ABC and/or ABC Affiliates may offer many optional features to increase data security, ABC and/or ABC Affiliates are unable to support customer-specific privacy and security requirements, since the platform is not built or customized on a per-customer basis.
- Intellectual Property Rights.
6.1 ABC Intellectual Property. Customer acknowledges and agrees that ABC owns all rights to, title to, and interests in the Services, the Software, the Documentation, the ABC Marks and any associated Intellectual Property rights. Customer will not use ABC Marks without prior written consent from ABC. Further, Customer will not remove, delete, alter, or obscure any ABC Marks, specifications, warranties, or disclaimers, or any copyright, patent, or other Intellectual Property or proprietary rights notices or labelling from any Documentation, including any copy thereof, or other product made available under this Agreement to Customer.
6.2 Customer Data. ABC acknowledges and agrees that, as between ABC and Customer, Customer owns all rights in, title to, and interests in Customer Data. Customer hereby grants to ABC a non-exclusive, worldwide, and royalty-free license, during the Term, to use, reproduce, distribute, publicly perform and display, and make derivative works of the Customer Data to the extent necessary for ABC to deliver the Services to Customer. ABC may sublicense any of the foregoing rights to ABC Affiliates and/or other third parties to the extent necessary to facilitate delivery of the Services by ABC to Customer through such ABC Affiliates and/or other third parties.
6.3 Feedback. Customer hereby grants and ABC and the ABC Affiliates now accept a transferable worldwide, non-exclusive, royalty free, perpetual, and irrevocable license to use or incorporate into any Software or Service any Feedback (including any associated Intellectual Property rights) provided by Customer to ABC.
- Confidential Information.
7.1 Disclosure of Confidential Information. Neither Party will disclose the other Party’s Confidential Information except as authorized by the disclosing Party in writing, as otherwise authorized in this Agreement, or if disclosure is required by operation of law. The Parties agree that, notwithstanding anything to the contrary in this Agreement, information is not confidential if the information:
(e) is publicly available or becomes publicly available through no action or fault of the recipient Party;
(f) was already in the recipient Party’s possession or known to the recipient Party prior to being disclosed or provided to the recipient Party by or on behalf of the other party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing Party or any other party with respect thereto;
(g) was or is obtained by the recipient Party from a third-party, provided, that, such third-party was not bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing Party or any other party with respect to such information or material; or
(h) is independently developed by the recipient Party without reference to the information.
7.2 Use of Confidential Information. Each Party will: (i) hold the other Party’s Confidential Information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of the other Party’s Confidential Information to those of its employees, agents, contractors, and affiliates with a need to know such information and who are under a duty of confidentiality respecting the protection of Confidential Information, which is substantially similar to the confidentiality obligations of this Agreement; (iii) use the Confidential Information solely for the purpose of enhancing services related to athletics facilities including enhancing the Software and/or the Services.
7.3 Misuse of Confidential Information. Each Party agrees that breach of this Section 6 (Confidential Information) may cause the other Party irreparable injury, for which monetary damages will not provide adequate compensation, and that in addition to any other remedies available at law and in equity, each Party will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.4 Confidentiality Term. Except for the ABC Confidential Information and Customer Data, which the Parties will treat as confidential in accordance with this Section 6 (Confidential Information) for as long as such items constitute “Confidential Information,” the Parties will treat each other item of Confidential Information received hereunder in accordance with this Section 6 (Confidential Information) for a period of five (5) years from the date of first disclosure of each such other item of Confidential Information.
- Services – General.
8.1 Performance. ABC will use commercially reasonable efforts to provide the Services to Customer.
8.2 Delegation and Subcontracting. Customer acknowledges that ABC uses the services of ABC Affiliates and/or third-party subcontractors, including third-party data centers, to provide Customer with access to the Software and to otherwise provide the Services. Customer agrees that ABC may delegate any of its obligations under this Agreement and/or subcontract any of its tasks under this Agreement to ABC Affiliates and/or other third parties for the purpose of facilitating the provision of Services to Customer.
8.3 Authority and Interpleader. In the event Customer wishes to change its agent dealing with ABC or to change the method or manner of receiving Net Receipts from ABC (in the event that Customer receives ABC IGNITE Core Services from ABC), Customer will notify ABC of such change in a writing accompanied by evidence satisfactory to ABC of the corporate approval of such change and the authority of the new agent. In the event ABC cannot determine, in its sole and absolute discretion, the authority of a person purporting to be authorized to act on behalf of Customer, ABC may, in its sole and absolute discretion, commence an action for interpleader in a court of competent jurisdiction and ABC will be released from any liability for the amount so interplead and Customer will indemnify, defend and hold ABC harmless from and against any cost or expense incurred in connection with such action.
8.4 Third-Party Software. Customer may receive access to third-party programs through the Services, Software, or both or third-party programs may be bundled with the Services, the Software, or both. These third-party software programs are governed by their own service or license terms, which may include open source or free software licenses, and those terms will prevail over this Agreement as to Customer’s use of the third-party programs. Nothing in this Agreement limits Customer or Authorized Users’ rights under, or grants Customer and Authorized Users rights that supersede, the terms of any such third-party program. Specifically, with respect to the ABC IGNITE CORE Services, Client understands that any sales or other tax services are currently offered through third-party software programs, and that ABC disclaims any responsibility for the same, and any such responsibility or liability shall solely be that of the provider of the third-party software program provider under their separate terms and conditions. Should Client who receive the ABC IGNITE CORE Services elect to not use any integrated third -party software programs for sales or other tax services, Client expressly agrees that it is solely responsible for confirming, submitting, updating, and otherwise maintaining its chosen tax rate(s) in the ABC IGNITE CORE Services, and ABC shall not be liable or responsible for the same in any manner.
8.5 Integration with Non-ABC Applications. The Services may contain features designed to interoperate with Software or Services not provided by ABC or its Affiliates. To use such features, Customer may be required to obtain access to such applications from their providers, and may be required to grant ABC access to your account(s) on such application. ABC cannot guarantee the continued availability of such features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of the application ceases to make the application available for interoperation with the Software or Services in a manner acceptable to ABC.
- ABC IGNITE CORE Services. If Customer has opted to receive ABC IGNITE Core Services as specified in an Order Form, Customer agrees to the following additional terms and conditions that govern specific aspects of the ABC IGNITE Core Services as specified in this Section 9 (ABC IGNITE Core Services). This Section 9 does not apply to Customers that have not elected to receive ABC IGNITE Core Services.
9.1 Merchant and Bank Account Set-Up. Customer hereby appoints ABC to act as its attorney-in-fact as follows:
(i) to establish and maintain a bank account and credit card processing merchant accounts on Customer’s behalf with such banks and credit card processors as ABC may designate;
(j) to receive payment due from Members under Membership Agreements, at least as described in Section 9.2 (Billing Services) below;
(k) to receive sales data from Customer and tender it for processing; and
(l) in connection with such accounts and this Agreement, to execute any and all documents and take any and all other actions, on behalf of Customer, that ABC deems necessary or appropriate without further authorization or consent of Customer. Such accounts will be maintained for the purpose of receiving and accepting proceeds of payment transactions processed pursuant to this Agreement and other related activity, including adjustments, chargebacks, returns and payment of fees, all on Customer’s behalf. Customer hereby irrevocably directs such bank to transfer, on each banking day, the closing balance of such account to a separate ABC account, as designated by ABC, to facilitate the transactions contemplated by this Agreement. The Power of Attorney created hereby is coupled with an interest and is irrevocable.
9.2 Billing Services. ABC will provide the ABC IGNITE Core Services to Customer, as selected by Customer in an Order Form, with respect to all acceptable Membership Agreements that have been delivered to ABC from time to time under this Agreement. The ABC IGNITE Core Services, as selected by Customer in an Order Form, will be provided in accordance with ABC’s customary practices as modified by ABC from time to time. Upon receipt of an acceptable Membership Agreement or account information, both as determined by ABC in its reasonable discretion, and such Membership Agreement or account information becomes an active account on ABC’s billing system, ABC will collect and maintain account information pursuant to its customary practices as modified by ABC from time to time during the time ABC is actively collecting the account on behalf of the Customer. Customer will maintain a physical or digital copy of the Membership Agreement. Customer specifically authorizes the originating depository financial institution (“ODFI”) utilized by ABC to process ACH payments to originate ACH entries on behalf of Customer and ABC pursuant to this Agreement.
9.3 Remittance to Customer. Billing cycles will occur twice per month. The 1st through the 15th shall represent one billing cycle, while the 16th through the end of the month shall represent the other billing cycle. Net Receipts for each billing cycle will be remitted to the Customer by the 5th business day following the cycle cutoff. ABC will not be responsible for delay in remittance due to weekends, holidays or other conditions beyond the reasonable control of ABC. ABC may at its option and upon Customer’s request allow an early deposit of Available Collected Funds any business day of the month. ABC will use commercially reasonable efforts to post Available Collected Funds to Customer’s account one business day after their actual receipt. Where a Member has remitted payment to ABC, Member’s payment obligation to Customer in relation to such payment will be extinguished, and Customer will not attempt to hold Member liable for ABC’s non-remittance to Customer.
9.4 Acceptable Accounts. Only current Membership Agreements under which the Member is not in default or past due for any amount will be acceptable Membership Agreements under this Agreement. If, in the sole discretion of ABC, a past due account becomes uncollectible, Customer will be responsible for further collection of said account and ABC shall be released from any further responsibility with respect to such Membership Agreement.
9.5 Cancellation of Member Accounts. Customer may cancel the Membership Agreement of any Member, and such Membership Agreement will be removed from the active list and Customer will be notified. Cancellations will not be accepted from individual Members, only from Customer itself, unless prior authorization is received from Customer. In the event that ABC receives a dispute from a Member regarding such Member’s obligations under the Membership Agreement and ABC determines in the exercise of its reasonable discretion that cancellation of the Membership Agreement is the most efficient resolution of the matter, ABC may cancel that Membership Agreement without the consent of Customer provided ABC pays Customer the balance of any amounts that would have become due on such canceled Membership Agreement during the then-current term.
9.6 Legal Compliance. Customer hereby agrees to comply with, and be bound by, all Operating Rules of the National Automated Clearing House Association and all related Guidelines, as they may be amended from time to time, (the “NACHA Rules”) and all state, federal or local laws, rules, regulations or ordinances with respect to the operation of Customer. Customer will not initiate any automated clearinghouse entry that violates the NACHA Rules or such laws, rules, regulations or ordinances. Customer agrees that ABC and/or its Origination Depository Financial Institution (“ODFI”), has the right, at all reasonable times, to audit Customer’s operations to determine compliance with this Agreement and the NACHA Rules. In addition to any other rights and remedies available hereunder or pursuant to applicable law, ABC or the ODFI also have the right, at their respective options, to immediately terminate or suspend this Agreement for a breach of the NACHA Rules. Customer agrees that ABC may pass on any fines, penalties, fees, or other amounts imposed by the ODFI, any credit card companies, or other governing bodies arising from Customer’s acts or omissions. From time to time, Customer may request, and ABC may provide, forms (such as Membership Agreement templates) for the Customer’s use in connection with the operation of its fitness facility. ABC makes no representation or warranty whatsoever with respect to such forms, including without limitation, the compliance of such forms with any federal, state or local laws, rules or regulations. Customer understands and acknowledges that these forms are provided as a convenience only and the Customer remains solely responsible for consulting its own legal advisors in connection with the compliance of such forms with applicable law. Customer acknowledges and agrees that it is the author and drafter of such Membership Agreements.
9.7 WorldPay Addendum. By entering this Agreement, Customer agree to be bound by the WorldPay Billing Services Addendum attached hereto and incorporated herein by this reference.
9.8 Merchant Services Agreement. At the request of ABC, Customer shall execute the Merchant Services Agreement for Sub-Merchants, a form of which is attached hereto as “Exhibit A”.
9.9 Termination of ABC IGNITE CoreServices. ABC IGNITE Core Services are terminable on thirty (30) days’ prior written notice unless otherwise specified in an Order Form. If an Order Form provides for a term for ABC IGNITE Core Services other than month to month and if Customer elects to terminate the ABC IGNITE Core Services prior to the timeframe specified in an Order Form, then Customer will remit an early termination fee to ABC on the date on which Customer provides written notice of termination to ABC and which shall be calculated as100% of the fees that ABC would have received if this Agreement or the Order Form, as applicable, had remained in effect through the expiration of it’s then current Term (with the amount of each remaining month’s fee being equal to the average monthly fee charged during the immediately preceding six (6) month period) plus any other amounts stated on the Order Form as being part of the early termination fee. Further, if ABC has provided any hardware to Customer, and this Agreement is terminated prior to a date on which ABC has been fully remunerated by Customer for any such provided hardware, then, within twenty four (24) hours of the termination date of this Agreement (in whole or in part), Customer will pay ABC for any outstanding amounts owed to ABC for such provided hardware, which ABC may withhold or offset from amounts payable to Customer by ABC, or ABC may debit Customer’s account, which Customer hereby authorizes.
9.10 Payment for ABC IGNITE CORE Services. Customer agrees that, with respect to ABC IGNITE Core Services selected by Customer as specified in an Order Form:
(a) the Fees and other amounts collected by ABC on behalf of the Customer, such as pass-through costs and other amounts due to ABC or any ABC Affiliates from Customer pursuant to this or any other agreement will be deducted and retained by ABC from the amount collected on behalf of the Customer. The Fees apply to all payments on active Membership Agreements under service by ABC, whether payments are made to ABC or directly to the Customer. ABC reserves the right, from time to time, to change the Fees and charges provided for in an Order Form and/or elsewhere in this Agreement for various reasons, including upon a change in the Customer’s average monthly transaction volume, changes in Customer’s late and service fee policies, or changes in the cost of providing payment processing services to the Customer. Notwithstanding anything to the contrary, to the extent Client is a Canadian entity, Client shall receive a minimum of ninety (90) days’ notice of any fee increase or the introduction of a new fee related to any credit or debit card transactions. In the event of such fee increase, new fee, or a reduction in applicable interchange rates that is not passed on to Client, Client shall have the right to terminate the ABC IGNITE CORE Services for convenience, without penalty by providing ABC written notice prior to the end of such ninety (90) day period. Customer grants ABC the right(s) to retain all late and service fees. Moreover, Customer’s late and service fees must be uniformly applied to all of Customer’s Members.
(b) to secure the prompt and faithful performance of its obligation hereunder, subject to any prior, perfected interests or the subsequent refinancing of same even for a greater amount, Customer hereby grants to ABC a first and prior security interest in, and lien on, all accounts (including accounts receivable and the Reserve Account (as defined below)), payment intangibles, Membership Agreements and cash and noncash proceeds which may accrue to Customer, or be derived from, the ownership and/or operation of Customer’s health clubs, including without limitation, all fees, dues, income, rents, issues, profits, earnings, receipts, royalties and revenues therefrom; and all amendments and supplements to and renewals and extensions of any and all of the foregoing, whether now existing or hereafter entered into and all replacements, substitutions, products and proceeds from any and all of the foregoing. Customer agrees to execute any and all documents that ABC deems necessary to perfect the foregoing security interest and to otherwise cooperate with ABC, at ABC’s expense, to perfect the foregoing security interest.
9.11 Membership Agreements. Customer acknowledges that ABC may store Membership Agreements in the ABC Systems for the purpose of administering the Services. Customer acknowledges and agrees that ABC is not responsible for any loss of any such Membership Agreements that may be stored in the ABC Systems, and Customer is solely responsible for maintaining copies of the Membership Agreements.
9.12 Data Privacy. In addition to any other provisions that might govern data privacy, such as one or more addenda to this Agreement, the Parties agree to the following additional terms and conditions governing data privacy and security:
(a) Warranties and Representations. To the extent that either Party receives credit card payments and/or wire transfers of funds, each Party represents and warrants to the other Party that:
(i) each Party has complied with all applicable requirements to be considered PCI-DSS compliant (including compliant with the PCI-DSS Cloud Computing Guidelines), and has performed the necessary steps to validate its compliance with PCI-DSS;
(ii) each Party is compliant with the ACH Security Framework of NACHA (“ACH Security Framework”);
(iii) each Party will remain compliant with PCI-DSS and the ACH Security Framework throughout the Term; and
(iv) any software distributed to the other is PA-DSS compliant and any equipment provided by one to the other that accepts PIN entry is PCI-PED compliant
(b) Additional Requirements. Moreover and to the extent that either Party receives credit card payment and/or wire transfers of funds, each Party agrees to:
(i) supply the other with evidence of its most recent validation of PCI-DSS no later than ten (10) business days after the Effective Date;
(ii) supply the other Party with a new status report and evidence of validation of compliance with PCI-DSS at least annually during the Term;
(ii) immediately notify the other Party if a Party learns that it or any of its subcontractors is no longer PCI-DSS or ACH Security Framework compliant, that any of the distributed software supplied to the other is no longer PA-DSS compliant, or any equipment supplied to the other that that accepts PIN entry is no longer PCI-PED compliant;
(iv) in the event of becoming non-compliant, the non-compliant Party will immediately provide the other Party with the steps being taken to remediate the PCI-DSS, ACH Security Framework, PA-DSS and/or PCI-PED non-compliant status and to promptly perform the remediation or, in the case of a subcontractor, ensure that remediation is performed;
(v) in no event will a Party’s notification to the other be later than four (4) calendar days after such Party learns that it (or its subcontractor, as the case may be) is no longer PCI-DSS or ACH Security Framework compliant, that software supplied to the other is no longer PA-DSS compliant, or that any equipment supplied to the other that accepts PIN Entry is no longer PCI-PED compliant; and
(vi) will provide and will ensure that any subcontractor provides all reasonable assistance to enable the other Party to comply with an audit request from a Payment Network or a Payment Processor.
(c) Security; Security Breach. The Parties agree that:
(i) any Payment Information generated or collected by a Party or its subcontractors in connection with the performance of its obligations under this Agreement must be fully encrypted at the time of collection and during storage in accordance with the Data Security Guidelines;
(ii) neither Party will access or use or attempt to access or use any Personal Data of the other or the other’s customers or any of other’s systems used to maintain, store, process or transmit Personal Data except to the extent expressly authorized by such Party’s written consent or expressly required in order to perform its obligations under this Agreement. Where such access or use is expressly required in order to perform its obligations under this Agreement, such Party will seek the minimum access and use reasonably required to perform such obligations, and all such access and use will be in accordance with the Data Security Guidelines;
(iii) each Party represents and warrants to the other Party that it is not aware of any breach of the Data Security Guidelines by the other Party and that such Party has not received:
(a) any material complaints from any of its employees, business partners or customers, any customers of its business partners, or any other individuals regarding its handling of personal financial data (including Personal Data), or
(b) any notice from any governmental authority or other governmental authority-approved personal data protection organizations concerning its compliance with the Data Security Guidelines;
(iv) without limiting any other provision of this Section if: (i) a Party becomes aware of a breach of the security of its systems wherein the other Party’s Personal Data or Confidential Information is disclosed, (ii) any Personal Data is disclosed by a Party in violation of the Data Security Guidelines, or (iii) a Party becomes aware that an unauthorized access, disclosure or use of such Personal Data has occurred or is likely to occur as a result of an act or omission of such party or any subcontractor or ABC of such party (each such event, an “Information Security Breach”), such Party must immediately notify the other Party’s chief information officer of such Information Security Breach, and at the discretion of the other Party must promptly: (i) reasonably investigate, remediate, and mitigate the effects of the Information Security Breach and (ii) provide the other party with assurances reasonably satisfactory to such party that such Information Security Breach shall not recur; and
(v) if any Information Security Breach occurs and applicable laws or the Data Security Guidelines require notification of public authorities or of individuals whose data were so affected or require other remedial actions, or the other party determines that other remedial measures are warranted, including such Party responding to reasonable requests from the other Party regarding, and cooperating with the other Party in connection with, any investigation, incident management, media relations or law enforcement activities, and providing consumer remedies such as credit monitoring or ID theft insurance (the foregoing, collectively, the “Remedial Actions”), such Party must, at the other Party’s request undertake such Remedial Actions or cooperate with the other party in undertaking Remedial Actions in accordance with industry best practices. A Party must provide such Remedial Actions and cooperation without charge unless the Information Security Breach was due to the acts or omissions of the other Party, in which case the Remedial Actions and cooperation shall be provided at such Party’s standard rates. Each Party must require its subcontractors to comply with the terms of this Section.
9.13 Reserve Account. ABC may require you to establish a reserve account based on: (a) Customer’s breach of this Agreement; (b) an adverse event affecting Customer’s financial condition, including without limitation, liens or levies; (c) Customer’s notice of termination, as contemplated in Section 11.3(c)(1); or (d) excessive chargebacks or returns (“Reserve Account”). Customer understands that the amount will be determined based on factors such as: (i) the amounts of previous settlements, chargebacks/refunds, assessments and fines,/penalties; (ii) the frequency and amount of credits and adjustments; (iii) the value of any goods and/or services billed in advance of fulfillment; and (iv) the amount of any fees or discounts due along with any current or anticipated card organization fees or fines. Upon receipt of a notice from ABC, Customer agrees that ABC may fund the Reserve Account as set forth in the notice, which may occur immediately. The Reserve Account may be funded though any combination of: (i) debits to amounts owed to Customer under Section 9.10 above; (ii) deductions or offsets to any payments otherwise due to Customer by ABC or its Affiliates; or (iii) Customer’s delivery ABC of a letter of credit, issued or established by a financial institution acceptable to ABC. If funds from your Reserve Account are not sufficient to cover chargebacks/returns, adjustments, merchant processing rates and other charges due by Customer, or if ABC has released funds in your Reserve Account, Customer agrees to promptly pay ABC such sums upon request.
10.1 Fees; Changes to Fees. The Fees as of the Effective Date are set forth in the applicable Order Form(s). ABC may change the Fees as set forth in the Order Form or, if not specified in the Order Form, on thirty (30) days’ prior written notice by posting such fee changes to one or more Websites, through email notification, or both, and Customer agrees that it will be responsible for paying any such modified billing rates. ABC will provide no refunds or credits for partial months of service or for periods in which an account remains open but during which one or more Services are not used.
10.2 Payment of Fees – General. Customer must pay all Fees as set forth on an Order Form by the deadlines specified therein, as otherwise specified in this MSA, or both. Customer agrees that ABC is authorized to do one or more of the following in ABC’s sole discretion: (a) invoice Customer on a monthly basis; (b) automatically draft the Fees directly from Customer’s bank account on file; and/or (c) charge Customer’s credit card on file for such Fees. On the Effective Date or upon ABC’s request, Customer must provide ABC with appropriate bank account and/or credit card information to enable such auto-drafting or credit card charges. If Customer fails to pay, ABC will be entitled, at ABC’s sole discretion, to:
(i) suspend provision of the Services and/or access to the Software until Customer fulfills Customer’s pending obligations;
(ii) charge Customer an interest rate as specified in this MSA for any and all overdue amounts; and/or
(iii) terminate this Agreement.
Unless otherwise stated, all payments made under this Agreement must be in U.S. Dollars. ABC will not be required to refund Fees, or other payments from Customer to ABC, under any circumstances. Except as otherwise specified in Section 9.10 (Payment for ABC IGNITE Core Services) of this Agreement, all Fees are due on a monthly basis, and will be deemed past due if not paid within 30 days of their due date. Any past due Fees will accrue interest at the rate of 10% per annum, or at the highest legal interest rate, if less, and Customer will reimburse ABC for all expenses (including attorneys’ fees) incurred by ABC to collect any amount that is not paid when due.
10.3 Data Usage Charges. One or more of the Services may use information and data transmission networks operated by third parties to send data, information and Content from a computer or device to one or more of ABC’s Systems, and to serve data, information and Content back to such computer or device. Depending on Customer’s wired or wireless data or similar plan with such third-party operators, Customer may incur charges from such third-party operators for use of such third-party’s information and data transmission networks. Customer is solely responsible for any and all costs, including without limitation wireless and cellular data costs, that Customer may incur as a result of the usage of any Service and/or as a result of data, information and Content submitted or received by Customer’s computer or device through any Service.
10.4 Disputing Fees. If Customer reasonably disputes any Fees charged to Customer, Customer must still timely pay the undisputed portion of the Fees and submit written notice of the claim (with sufficient detail of the nature of the claim, the amount and invoices in dispute and information necessary to identify the affected Service(s)) for the disputed amount. All claims must be submitted to ABC in writing within thirty (30) days from the date on which the Fees’ are charged for those Services. Customer waives the right to dispute any Fees or charges after such thirty (30) day period.
10.5 Taxes. All Fees are exclusive of taxes, and Customer must pay or reimburse ABC for all taxes arising out of transactions contemplated by this Agreement. If Customer is required to withhold any tax for payments due, Customer will gross up such payments to ABC, so that ABC receives sums due in full, free of any deductions. Customer will provide documentation to ABC showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, use, and other taxes (other than taxes on ABC’s income), export and import fees, customs duties and similar charges imposed by any government or other authority.
- Term and Termination.
11.1 Term. The Term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated. Subscriptions to Services commence on the date set forth in the Order Form and continue for the term set forth in the applicable Order Form and, upon any expiration of such term, automatically renew for an additional term of equal length to the expired term (or such other renewal period set forth in the Order Form) until explicitly terminated in accordance with this Agreement.
11.2 Termination for Cause. Either Party may terminate this Agreement on ten (10) days’ prior written notice to the other Party if the other Party is in material breach of this Agreement. The notice of termination will identify the alleged breach, and the alleged breaching Party may cure the breach within the ten (10) day notice period, whereupon if the alleged breach is cured to the satisfaction of the non-breaching Party, this Agreement will continue in full force and effect.
11.3 Effect of Termination. Upon termination of any Services, in whole or in part:
(a) Customer will destroy any Documentation associated with the terminated Services and provide, within a thirty (30) day period, written confirmation to ABC that such Documentation has been destroyed;
(b) ABC will terminate Customer’s access to any Software associated with the terminated Services and, by extension, access to any Software associated with the terminated Services of any of Customer’s Authorized Users;
(c) if ABC IGNITE Core Services are among the terminated Services, then:
(i) ABC will, upon the Customer’s request, provide Customer with all data reasonably required by the party replacing ABC and which ABC customarily provides in such situations. Customer will pay ABC the data extraction and transfer fee specified in an Order Form per data set as a condition to receiving such data; provided, however that if Customer is a Franchisee, ABC will not be required to release any data to such Franchisee and/or Franchisee designee if Franchisor has directed the data to be transferred to Franchisor and/or Franchisor’s designee. Furthermore, upon any termination of this Agreement, ABC will be entitled to withhold up to 200% of the rolling 12-month average of the membership payment returns and chargebacks processed by ABC in the Reserve Account to be applied to any returns or chargebacks associated with ABC’s processing of membership payments during the term hereof. ABC may hold such funds for a period of up to 90 days after the effective date of the termination hereof, at which time, the remaining balance, if any, will be remitted to Customer; and
(ii) If ABC is required to withhold or pay any taxes under Section 9.5 (Taxes) of this MSA and/or if Customer and/or any Customer Affiliates ever become liable to ABC and/or any ABC Affiliates for any sums or losses, the amount so paid by ABC for said taxes and any sums expended or losses incurred by ABC and/or any other amounts owed by Customer and/or any Customer Affiliates to ABC and/or to any ABC Affiliates, including amounts in the Reserve Account, will be offset and deducted from all money collected, held or controlled by ABC and/or ABC Affiliates under any existing agreements between ABC and/or ABC Affiliates and Customer and/or any Customer Affiliates, including this Agreement, and any billing and/or collection agreements, and further including, but not limited to, any such money held in any account or accounts of Customer and/or Customer Affiliates held or set up by ABC related to same, as well as from any collections and/or funds held or controlled by ABC and/or any ABC Affiliates for the benefit of Customer related to same. Further, Customer hereby authorizes ABC and/or ABC Affiliates to debit or charge any credit card or bank account on file with ABC for the Software or Services for such amounts. In the event the amounts are not satisfied, any remaining amounts owed will be due and payable to ABC by Customer within twenty-four (24) hours upon notification and request for payment to Customer by ABC; (d) if ABC has provided any hardware to Customer, and this Agreement is terminated prior to a date on which ABC has been fully remunerated by Customer for any such provided hardware, then, within twenty four (24) hours of the termination date of this Agreement (in whole or in part), Customer will pay ABC for any outstanding amounts owed to ABC for such provided hardware; and/or
(iii) in addition to amounts that may be due under Sections 10.3(c) and/or 10.3(d), Customer will pay ABC any outstanding amounts owed to ABC for any terminated Services within thirty (30) day of the effective date of termination.
11.4 Survival. The following provisions will survive any termination and/or conclusion of this Agreement: Sections 1 (Definitions), 6 (Intellectual Property Rights), 7 (Confidential Information), 8.3 (Authority and Interpleader) with regard to the right to institute interpleader proceedings, 10 (Payment) to the extent that any amounts are still due, 11 (Termination), 12 (Waivers and Disclaimers of Warranties, Limitation of Liability, and Indemnification), 13 (General Provisions), and any terms implying that they survive termination and/or conclusion of this Agreement.
- Waivers and Disclaimers of Warranties, Limitation of Liability, Indemnification
12.1 Waivers and Disclaimers of Warranties. EXCEPT FOR ANY WARRANTIES AND REPRESENTATIONS EXPRESSLY MADE IN THE DATA PRIVACY ADDENDUM, THE SERVICES, SOFTWARE, DOCUMENTATION, AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING THIRD-PARTY HOSTED SERVICES, ARE PROVIDED ON “AS IS” AND “AS IS AVAILABLE” BASIS. ABC DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, CONTINUITY, OR ABSENCE OF DEFECT RELATING TO THE SERVICES, SOFTWARE, UNDERLYING SYSTEMS, DOCUMENTATION, ANY OTHER PRODUCT OR SERVICES, OR RESULTS OF THE SAME PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. ABC DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED. CUSTOMER’S ACCESS, INSTALLATION, AND USE OF THE SOFTWARE AND SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS DEVICE(S) OR THE LOSS OR CORRUPTION OF ITS DATA. ABC ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH CUSTOMER MAY UTILIZE THE SERVICES AND SOFTWARE, AND CUSTOMER SPECIFICALLY WAIVES ANY RIGHTS AND CLAIMS CUSTOMER MAY HAVE AGAINST ABC WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12.2 Limitation of Liability. IN ADDITION TO ANY OTHER LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL ABC, ABC AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, UNDERLYING SYSTEM, DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE AGGREGATE LIABILITY OF ABC, ABC AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, AND THE SOLE REMEDY AVAILABLE TO CUSTOMER ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAYABLE OR PAID TO ABC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO TERMINATION.
12.3 Indemnification. IN ADDITION TO ANY OTHER DUTIES TO PROVIDE INDEMNIFICATION UNDER THIS AGREEMENT, CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS ABC, ABC AFFILIATES, AND THEIR RESPECTIVE, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS FROM AND AGAINST ANY CLAIMS ARISING OUT OF, DUE TO, AND/OR ASSOCIATED WITH: (I) CUSTOMER’S DATA; (II) CUSTOMER’S BREACH OF THIS AGREEMENT; (III) CUSTOMER’S AND/OR AUTHORIZED USER’S USE OF THE SERVICES, SOFTWARE, OR DOCUMENTATION IN VIOLATION OF THIRD-PARTY RIGHTS, INCLUDING ANY INTELLECTUAL PROPERTY RIGHTS, OR ANY APPLICABLE LAWS; (IV) CUSTOMER’S OR AUTHORIZED USER’S MISUSE OF THE SERVICES, SOFTWARE, OR DOCUMENTATION; (V) THE ACTS AND/OR OMISSIONS OF CUSTOMER AND/OR AUTHORIZED USERS INCLUDING FAILURE TO COMPLY WITH LAWS, REGULATIONS, RULES, STANDARDS, CONTRACTS, AND/OR ORDINANCES; (VI) THE ACTS AND/OR OMISSIONS OF CUSTOMER IN OPERATING ITS CLUBS AND/OR FACILITIES; (VII) ABC’S ACTS AND/OR OMISSIONS TAKEN AT THE DIRECTION OF FRANCHISOR; (VIII) ABC’S RELIANCE ON EVIDENCE OF THE AUTHORITY OF CUSTOMER’S AGENT(S); (IX) MEMBERSHIP AGREEMENTS THAT VIOLATE AND/OR THAT ARE ALLEGED TO VIOLATE ANY LAWS, REGULATIONS, AND/OR STANDARDS; AND/OR (X) ABC’S PURSUIT OF AN INTERPLEADER JUDGMENT PURSUANT TO THIS AGREEMENT.
- General Provisions.
13.1 Notices. All notices and other communications under this Agreement must be in writing and will be deemed given (a) when delivered personally, (b) three Business Days after deposit in the U. S. mails, and sent by certified mail, return receipt requested, or (c) one Business Day after delivery to a recognized overnight courier for overnight delivery; for Customer the addresses set forth in an Order Form and b) for ABC at the addresses below:
|ABC Fitness Solutions, LLC|
2600 North Dallas Parkway, Suite 590
Frisco, TX 75034
Attn: General Counsel
13.2 Interpretation. The headings contained in this Agreement are solely for the purpose of reference and convenience and are not intended to add or subtract from the terms of the Agreement.
13.3 Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, each of which will remain in full force and effect. If any provision of this Agreement is determined to be unenforceable, the Parties will promptly replace such unenforceable provision with an enforceable provision that has a substantially similar legal and economic effect as the unenforceable provision.
13.4 Binding Effect; Assignment; Third-party Beneficiaries. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise specified, neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated without the prior written consent of all of the other parties hereto, and any purported assignment or delegation in violation hereof will be null and void; provided, however, that ABC delegate any of its obligations hereunder to any ABC Affiliates and/or to any subcontractors selected by ABC. Except to the extent otherwise specified in the WorldPay Billing Services Addendum and/or Merchant Services Agreement for Sub-Merchants, nothing herein is intended to benefit any third-party or third parties.
13.5 Entire Agreement/Order of Precedence. This Agreement (as may be updated, modified, or amended from, as provided herein), including any attached ,_ Addenda and executed Order Forms, contain the entire understanding of the parties relating to the subject matter hereof and supersede all prior written or oral and all contemporaneous oral agreements and understandings relating to the subject matter hereof. The Addenda and any executed Order Forms are hereby incorporated by reference into and made a part of this Agreement for all purposes. This Agreement may be amended, supplemented or modified by ABC as provided for herein. Any provision hereof may be waived, only by written instrument making specific reference to this Agreement and signed by each Party. If there is any conflict between the terms and conditions of an Order Form, the MSA, and the Addenda, the order of precedence shall be, from highest to lowest, the Order Form, the MSA, and then the Addenda.
13.6 Remedies Not Exclusive. Unless otherwise expressly stated in this Agreement, no right or remedy described or provided in this Agreement is intended to be exclusive or to preclude a party from pursuing other rights and remedies to the extent available under this Agreement, at law or in equity.
13.7 GOVERNING LAW AND VENUE.UNLESS CUSTOMER IS DOING BUSINESS WITH NOVA SCOTIA COMPANY, THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF ARKANSAS WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, TO THE EXTENT NOT PRE-EMPTED BY FEDERAL LAW. IF CUSTOMER IS DOING BUSINESS WITH NOVA SCOTIA COMPANY, THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE PROVINCE OF ONTARIO WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, TO THE EXTENT NOT PRE-EMPTED BY FEDERAL LAWIF THE PARTIES WERE TO MUTUALLY AGREE TO OPT OUT OF SECTION 12.8 (DISPUTE RESOLUTION), THEN VENUE FOR ANY DISPUTES ARISING UNDER OR ASSOCIATED WITH THIS AGREEMENT IS AND/OR WILL BE IN PULASKI COUNTY, ARKANSAS FOR UNITED STATES CUSTOMERS AND TORONTO, ONTARIO, CANADA FOR CANADIAN CUSTOMERS, AND CUSTOMER IRREVOCABLY AGREES TO THE JURISDICTION OF THE COURT, AS APPLICABLE, TO ADJUDICATE ANY DISPUTES ARISING UNDER OR ASSOCIATED WITH THIS AGREEMENT. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT.
13.9 Drafting. Neither this Agreement nor any provision contained in this Agreement will be interpreted in favor of or against any party hereto because such party or its legal counsel drafted this Agreement or such provision.
13.10 Usage. Whenever the plural form of a word is used in this Agreement, that word will include the singular form of that word. Whenever the singular form of a word is used in this Agreement, that word will include the plural form of that word. The term “or” will not be interpreted as excluding any of the items described. The term “include” or any derivative of such term will be deemed to be followed by the words “without limitation” and accordingly such term does not mean that the items following such term are the only types of such items. Wherever from the context it appears appropriate, pronouns stated in either the masculine or the neuter gender shall include the masculine, the feminine and the neuter. Except as the context may otherwise require, “hereunder,” “hereof,” “hereto” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other provision hereof. In determining any period of time under this Agreement, “from” means “from and including,” and “to” means “to but excluding.” Any action required hereunder to be taken within a certain number of days shall, except as may otherwise be expressly provided herein, be taken within that number of days excluding the day on which the counting is initiated and including the final day of the period. “Extent,” when used in the phrase “to the extent,” means the degree to which a subject or other thing extends, and such phrase shall not simply mean “if “ The measure of a period of one month or year for purposes of this Agreement shall be the date of the following month or year corresponding to the starting date; provided, that if no corresponding date exists, then the end date of such period being measured shall be the next actual date of the following month or year (for example, one month after August 25 is September 25 and one month after August 31 is October 1). If any date on which a party is required to make a payment or a delivery or perform some other action pursuant to the terms hereof is not a Business Day, then such party shall make such payment or delivery or perform such other action on the next succeeding Business Day.
13.11 No Public Disclosure. Neither Party will make any public statement, announcement, or disclosure to third parties concerning the existence of this Agreement or its terms, the business relationship between the Parties or the transactions contemplated hereby, without the prior written approval of the other Party except as required by applicable law (including, but not limited to, securities laws), provided, however, that ABC may refer to Customer as one of ABC’s customers and use Customer’s logo as a part of such reference, provided that ABC complies with any trademark usage requirements notified to it in writing by Customer.
13.12 Force Majeure. ABC will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms or other elements of nature; blockages; embargoes; riots; acts or orders of government; pandemics, epidemics, acts of terrorism; and war.
WorldPay Billing Services Addendum
This WorldPay Billing Services Addendum only applies to Customers that have elected to receive ABC IGNITE CoreServices.
WHEREAS, ABC and Customer entered into a Master Subscription Agreement (“MSA”) attached hereto (the “MSA”) pursuant to which Customer agreed to be bound by the terms of this Addendum which are incorporated into the MSA;
WHEREAS, ABC has entered into an agreement with Worldpay, LLC (“Worldpay”) governing acceptance of credit and debit card transactions initiated by Customer which obligates it to obtain Customer’s agreement to abide by certain rules and regulations promulgated by Worldpay;
WHEREAS, the Customer will receive substantial benefit and gain as a result of its members being able to make payments for Customer services via credit and debit cards and therefore is willing to be bound by the rules and regulations as described herein; and
WHEREAS, all capitalized terms used herein but not otherwise defined shall have the meaning given to them in the MSA or the Operating Regulations (as defined below).
NOW, THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer agrees that the by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standards, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program and any other program or requirement (collectively, the Operating Regulations”) that may be published and/or mandated by Mastercard International Inc., VISA U.S.A. Inc., Discover and certain similar entities (collectively, the “Associations”) are incorporated by reference into this Addendum and that nothing in this Addendum shall be construed to interfere with or lessen the right of ABC, Worldpay’s designated Member Bank, or the Associations to terminate the MSA at any time. In the event of a conflict between this Addendum and the Operating Regulations, the Operating Regulations will control.
A. Customer acknowledges and agrees:
a. it is responsible for the actions of its employees and agents;
b. it will comply with all applicable laws and regulations and all applicable parts of the Operating Regulations; including those parts regarding the ownership and use of Association Marks;
c. ABC or an Association is authorized to research Customer’s background including, but not limited to, credit background checks, banking relationships, and its financial history;
d. notwithstanding any provisions in the agreement to the contrary, information obtained in connection with Customer’s application or processing relationship may be shared with Association for any legitimate purpose;
e. it will notify ABC of any 3rd party that will have access to cardholder data;
f. it will comply with, and will contractually require its suppliers and agents to comply with, the provisions of the Cardholder Information Security Program (CISP) and PCI DSS, or other security program as required by an Association and demonstration compliance with these security obligations; and
g. Associations may conduct, or direct another party to conduct, an audit of Customer at any time, and Customer must comply in all material respects with such audit until its completion.
B. Customer represents and warrants that it will not:
a. discriminate against Cards or Issuers (e.g limited acceptance options) except in full compliance with the Operating Regulations;
b. intermingle fees associated with an Associations’ transactions with fees associated with other Card transactions in its pricing;
c. submit any transaction to ABC that was previously charged back and subsequently returned to the Customer, irrespective of Cardholder approval;
d. knowingly submit any transaction that is illegal or that the Customer should have known was illegal. Customer acknowledges that such transaction must be legal in both Cardholder’s and Customer’s jurisdiction;
e. submit a transaction that it knows, or should have known is either fraudulent or not authorized by the Cardholder;
f. require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed, nor request a Card Verification Value 2 (“CVV2”) for a card-present transaction, nor retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Operating Regulations or this Addendum, including CVV2;
g. add a surcharge to transactions, except as expressly permitted by, and in full compliance with, the Operating Regulations;
h. charge a minimum or maximum amount for a transaction unless expressly authorized by, and in full compliance with, the Operating Regulations;
i. disburse funds in the form of cash unless Customer is participating in full compliance with a program supported by an Association for such cash disbursements and in full compliance with the Operating Regulations;
j. submit a transaction that does not result from an act between the Cardholder and the Customer;
k. accept a Card issued by a U.S. Issuer to collect or refinance an existing debt, unless expressly authorized by, and in full compliance with, Operating Regulations;
l. request or use a Card account number for any purpose other than as payment for its goods or services; and m. add any tax to transactions, unless applicable law expressly requires that a Customer be permitted to impose a tax. In such event, any tax amount, if allowed, must be included in the transaction amount and not collected separately.”
C. Applicable to ABC Merchant Agreements for Customers participating in the American Express OptBlue Program. The following will only apply to Customer’s participation in the American Express Program, as controlled by the American Express OptBlue Program Operating Regulations. (Capitalized terms below are defined in the American Express Operating Guide or the American Express OptBlue Program Operating Regulations):
a. Customer must comply with, and accept Cards in accordance with, the terms of its MSA and the American Express Merchant Operating Guide, as such terms may be amended from time to time.
b. Customer acknowledges that the American Express Merchant Operating Guide is incorporated by reference into this Agreement (and is available online at the following web link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf).
c. Customer expressly authorizes ABC to submit transactions to, and receive settlement from, American Express on behalf of the Customer.
d. Customer expressly consents (i) to ABC collecting and disclosing Transaction Data, Customer Data, and other information about the Customer to American Express; and (ii) to American Express using such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of the Program Agreement, and important transactional or relationship communications from American Express.
e. Customer acknowledges that: □ By checking this box, Customer opts out of receiving future commercial marketing communications from American Express. Customer may continue to receive marketing communications, however, while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.
f. Customer acknowledges that it may be converted from the Program to a direct Card acceptance relationship with American Express if and when it becomes a High CV Merchant in accordance with Section 10.5, “High CV Merchant Conversions” o Customer expressly agrees that, upon conversion, (i) Customer will be bound by American Express’ then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by the Customer for Card acceptance.
g. Customer acknowledges that American Express may use information obtained in the Customer application at the time of setup to screen, communicate, and/or monitor Customer in connection with Card marketing and administrative purposes.
h. Customer agrees that it shall not assign to any third-party any payments due to it under its respective ABC Merchant Agreement, and further agrees that all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Customer may sell and assign future Transaction receivables to ABC, its affiliated entities and/ or any other cash advance funding source that partners with ABC or its affiliated entities, without consent of American Express.
i. Customer agrees that American Express is a third-party beneficiary to the MSA and retains all rights, but not obligations, in the MSA that will fully provide American Express with the ability to enforce the terms of the MSA against the Customer.
j. Customer may opt out of accepting Cards at any time without directly or indirectly affecting its rights to accept Other Payment Products.
k. Customer agrees that ABC may terminate the Customer’s right to accept Cards if Customer breaches any of the provisions in this Section or the American Express Merchant Operating Guide.
l. Customer agrees that ABC has the right to immediately terminate a Customer for cause or fraudulent or other activity, or upon American Express’ request.
m. Customer agrees that its refund policies for purchases on a Card must be at least as favorable as its refund policy for purchases on any Other Payment Products, and further agrees that the refund policy be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law.
n. Customer acknowledges that it is prohibited against billing or collecting from any Cardmember for any purchase or payment on the Card unless Chargeback has been exercised, the Customer has fully paid for such Charge, and it otherwise has the right to do so.
o. Customer agrees it must comply with all Applicable Laws, rules and regulations relating to the conduct of the Customer’s business, including the DSR and PCI DSS, each as described in Chapter 15, “Data Security.”
p. Customer agrees that it will report all instances of a Data Incident immediately to ABC after discovery of the incident.
q. Customer agrees it will cease all use of, and remove American Express Licensed Marks from the Customer’s website and wherever else they are displayed upon termination of the ABC Merchant Agreement or a Customer’s participation in the Program.
r. Customer will ensure data quality and agrees that Transaction Data and customer information will be processed promptly, accurately and completely, and will comply with the American Express Technical Specifications.
s. Customer agrees it is solely responsible for being aware of and adhering to privacy and data protection laws and provide specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data.
Except as specifically stated in this Addendum, the MSA shall remain in full force and effect.
EXHIBIT A TO MASTER SUBSCRIPTION AGREEMENT MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS
This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS only applies to Customers that have elected to receive ABC IGNITE CoreServices.
This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (“Merchant Agreement”) constitutes a binding agreement by and between you, whether personally or on behalf of an entity (“you”, “your” or “Sub-merchant”) and WORLDPAY, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Member Bank (collectively “Acquirer”) in connection with the agreement between Sub-merchant and ABC Fitness Solutions, LLC ( “Provider”).
Sub-merchant agrees that by accessing the Services, (defined below) Sub-merchant has read, understood, and agrees to be bound by this Merchant Agreement. If Sub-merchant does not agree with all of the terms of this Merchant Agreement, Sub-merchant is expressly prohibited from using the Services and must discontinue use immediately.
Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Merchant Agreement.
In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with Mastercard International Inc. (“Mastercard”), VISA U.S.A. Inc. (“VISA”), Discover (“Discover”), and certain similar entities (collectively, “Associations), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments.
Sub-merchant agrees that the Operating Regulations of the Associations are incorporated by reference into this Merchant Agreement and that nothing in this Merchant Agreement shall be construed to interfere with or lessen the right of Acquirer or the Associations to terminate this Merchant Agreement at any time.
In the event of a conflict between this Agreement and the Operating Regulations, the Operating Regulations will control.
In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations.
By reading, understanding, and agreeing to be bound by this Merchant Agreement, Sub-merchant has fulfilled such requirement.
However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
- Certain Sub-merchant Responsibilities. Sub-merchant acknowledges and agrees:
a. it is responsible for all the actions of its employees and agents;
b. to comply with the by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standards, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program and any other program or requirement that may be published and/or mandated by the Associations (collectively “Operating Regulations”). Sub-merchant may review the VISA, Mastercard, and Discover websites for a copy of the Visa, Mastercard and Discover regulations. The websites are: https://usa.visa.com/support/small-business/regulations-fees.html and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/.
c. to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”); Provider or an Association is authorized to research Sub-merchant’s background including, but not limited to, credit background checks, banking relationships, and its financial history;
d. notwithstanding any provisions in the agreement to the contrary, information obtained in connection with Sub-merchant’s application or processing relationship may be shared with Association for any legitimate purpose;
e. it will notify Provider of any 3rd party that will have access to cardholder data; g. it will comply with, and will contractually require its suppliers and agents to comply with, the provisions of the Cardholder Information Security Program (CISP) and PCI DSS, or other security program as required by an Association and demonstrate compliance with these security obligations; and
f. Associations may conduct, or direct another party to conduct, an audit of Sub-merchant at any time, and Sub-merchant must comply in all material respects with such audit until its completion.
2. Sub-merchant represents and warrants that it will not:
a. discriminate against Cards or Issuers (e.g. limited acceptance options) except in full compliance with the Operating Regulations;
b. intermingle fees associated with an Associations’ transactions with fees associated with other Card transactions in its pricing;
c. submit any transaction to Provider that was previously charged back and subsequently returned to the Sub-merchant, irrespective of Cardholder approval;
d. knowingly submit any transaction that is illegal or that the Sub-merchant should have known was illegal. Sub-merchant acknowledges that such transaction must be legal in both Cardholder’s and Sub-merchant’s jurisdiction;
e. submit a transaction that it knows, or should have known is either fraudulent or not authorized by the Cardholder;
f. require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature, or any other Card account data in plain view when mailed, nor request a Card Verification Value 2 (“CVV2”) for a card-present transaction, nor retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Operating Regulations or this Agreement, including CVV2;
g. add a surcharge to transactions, except as expressly permitted by, and in full compliance with, the Operating Regulations; h. charge a minimum or maximum amount for a transaction unless expressly authorized by, and in full compliance with, the Operating Regulations;
h. disburse funds in the form of cash unless Sub-merchant is participating in full compliance with a program supported by an Association for such cash disbursements and in full compliance with the Operating Regulations;
i. submit a transaction that does not result from an act between the Cardholder and the Sub-merchant;
j. accept a Card issued by a U.S. Issuer to collect or refinance an existing debt, unless expressly authorized by, and in full compliance with, Operating Regulations;
k. request or use a Card account number for any purpose other than as payment for its goods or services; and
l. add any tax to transactions, unless applicable law expressly requires that a Sub-merchant be permitted to impose a tax. In such event, any tax amount, if allowed, must be included in the transaction amount and not collected separately.
3. Applicable to Provider Merchant Agreements for Sub-merchants participating in the American Express OptBlue Program: The following will only apply to Sub-merchant’s participation in the American Express Program, as controlled by the American Express OptBlue Program Operating Regulations. (Capitalized terms below are defined in the American Express Operating Guide or the American Express OptBlue Program Operating Regulations):
a. Sub-merchant must comply with, and accept Cards in accordance with, the terms of its Provider Merchant Agreement and the American Express Merchant Operating Guide, as such terms may be amended from time to time.
b. Sub-merchant acknowledges that the American Express Merchant Operating Guide is incorporated by reference into this Agreement. (And is available online at the following web link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf).
c. Sub-merchant expressly authorizes Provider to submit transactions to, and receive settlement from, American Express on behalf of the Sub-merchant.
d. Sub-merchant expressly consents (i) to Provider collecting and disclosing Transaction Data, Sub-merchant Data, and other information about the Sub-merchant to American Express; and (ii) to American Express using such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of the Program Agreement, and important transactional or relationship communications from American Express.
e. Sub-merchant acknowledges that: □ By checking this box, Sub-merchant opts out of receiving future commercial marketing communications from American Express. Sub-merchant may continue to receive marketing communications, however, while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.
f. Sub-merchant acknowledges that it may be converted from the Program to a direct Card acceptance relationship with American Express if and when it becomes a High CV Merchant in accordance with Section 10.5, “High CV Merchant Conversions”
g. Sub-merchant expressly agrees that, upon conversion, (i) Sub-merchant will be bound by American Express’ then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by the Sub-merchant for Card acceptance.
h. Sub-merchant acknowledges that American Express may use information obtained in the Sub-merchant application at the time of setup to screen, communicate, and/or monitor Sub-merchant in connection with Card marketing and administrative purposes.
i. Sub-merchant agrees that it shall not assign to any third-party any payments due to it under its respective Provider Merchant Agreement, and further agrees that all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Sub-merchant may sell and assign future Transaction receivables to Provider, its affiliated entities and/ or any other cash advance funding source that partners with Provider or its affiliated entities, without consent of American Express.
j. Sub-merchant agrees that American Express is a third-party beneficiary to the Agreement and retains all rights, but not obligations, in the Agreement that will fully provide American Express with the ability to enforce the terms of the Provider Merchant Agreement against the Sub-merchant.
k. Sub-merchant may opt out of accepting Cards at any time without directly or indirectly affecting its rights to accept Other Payment Products.
l. Sub-merchant agrees that Provider may terminate the Sub-merchant’s right to accept Cards if Sub-merchant breaches any of the provisions in this Section or the American Express Merchant Operating Guide.
m. Sub-merchant agrees that Provider has the right to immediately terminate a Sub-merchant for cause or fraudulent or other activity, or upon American Express’ request.
n. Sub-merchant agrees that its refund policies for purchases on a Card must be at least as favorable as its refund policy for purchases on any Other Payment Products, and further agrees that the refund policy be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law.
o. Sub-merchant acknowledges that it is prohibited against billing or collecting from any Cardmember for any purchase or payment on the Card unless Chargeback has been exercised, the Sub-merchant has fully paid for such Charge, and it otherwise has the right to do so.
p. Sub-merchant agrees it must comply with all Applicable Laws, rules and regulations relating to the conduct of the Sub-merchant’s business, including the DSR and PCI DSS, each as described in Chapter 15, “Data Security.”
q. Sub-merchant agrees that it will report all instances of a Data Incident immediately to Provider after discovery of the incident.
r. Sub-merchant agrees it will cease all use of, and remove American Express Licensed Marks from the Sub-merchant’s website and wherever else they are displayed upon termination of the Provider Merchant Agreement or a Sub-merchant’s participation in the Program.
s. Sub-merchant will ensure data quality and agrees that Transaction Data and customer information will be processed promptly, accurately and completely, and will comply with the American Express Technical Specifications.
t. Sub-merchant agrees it is solely responsible for being aware of and adhering to privacy and data protection laws and provide specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data.”
If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and Sub-merchant must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sale made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any fraudulent, unauthorized, illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities. All fees associated with each Associations’ transactions must be separate and distinguishable from fees associated with other Card transactions.
Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other acceptance brand.
- Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.
- Term and Termination. Sub-Merchant agrees upon accessing the Services, this Agreement shall be binding upon Sub-merchant. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer’s opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer, Member Bank, or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association de-registers Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by Member Bank or any of the Associations.
- Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Submerchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then-current Bank Card Merchant Agreement, which would be provided to Sub-merchant upon request, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub-merchant.
- Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Sub-merchant shall not disclose any Acquirer confidential information to any person or entity (other than to those employees or agents of Sub-merchant who participate directly in the performance of this Agreement and need access to such information, or, only to the extent strictly necessary, in response to a valid subpoena, court order, or Association requirement.) Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. An Association may audit or direct the audit of Sub-merchant at any time, and nothing herein shall limit an Association from limiting or terminating an agreement with Sub-merchant. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement. “Member Bank” as used in this Agreement shall mean a member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N. A., located in Cincinnati, OH, 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another similarly situated bank by Acquirer at any time without notice to Sub-merchant.
IGNITE Engagement Software Addendum
If Customer has selected the IGNITE Engagement Software, then the additional terms and conditions found at https://www.trainerize.com/legal.aspx apply, and are hereby are expressly incorporated into the MSA as between Customer and ABC and/or any ABC Affiliate, such as TSR Gym Technik Ltd. (referred to as “Trainerize”) through which the IGNITE Engagement Software is accessed.
If Customer is organized in Canada and if Customer has selected one or more ABC IGNITE Core Services in the Order Form, then the following additional terms and conditions apply as though included in the MSA as between Customer and the Nova Scotia Company:
- Province of Quebec. For the purposes of Section 9.10(b) of the MSA, when (i) the Customer’s head office is situated in the Province of Quebec, (ii) the Membership Agreement specifies that the payments thereunder are to be made in the Province of Quebec or, (iii) the Customer’s Members are situated in the Province of Quebec, the Customer irrevocably assigns the universality of all claims, present and future, arising from all of its accounts receivable and Membership Agreements in respect of which payments are to be made in the Province of Quebec or where the Customer’s Members are situated in the Province of Quebec, including without limitation, all fees, dues, income, rents issues, profits, earning, receipts, royalties and revenues arising therefrom (the “Assigned Claims“). For greater certainty, it is the intention of ABC and the Customer that the transfer and assignment contemplated in this Section 1 (Province of Quebec) constitutes an absolute and irrevocable sale of all Assigned Claims and is not intended to be and will not be construed to be a loan or arrangement by way of security. Following the termination of this Agreement, ABC will, upon written request from the Customer, reconvey to the Customer ABC’s interest in the Assigned Claims arising after the termination of the Agreement. The reconveyance by ABC to the Customer pursuant to this Section 1 (Province of Quebec) will be effected without any express, implied or legal representation, warranty or condition (including any legal warranty contemplated by the Civil Code of Quebec) except for ABC’s warranty that the reconveyed Assigned Claims are not subject to any lien, charge, security interest or hypothec created by ABC. ABC will sign all documents reasonably required by the Customer to give effect to such reconveyance and to render same opposable to third parties. The Customer hereby agrees that ABC may, in its sole discretion, make a single registration at the Register of Personal and Movable Real Rights (Quebec) to register and publish the aforesaid assignment of universality of claims pursuant to Article 1642 of the Civil Code of Quebec. This Section 1 (Province of Quebec) is governed by, and is to be construed and enforced in accordance with, the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflict of laws principles thereof.
- English Language. The Parties hereto confirm their request that the Agreement and all related documents referred to herein and therein be drafted and executed in the English Language. Les Parties aux presentes conferment avoir expressement requis que le present contrat ainsi que tout document s’y repportant soient rediges en anglais.