Each gym or studio that has joined the SPLITFIT marketplace has executed a Participating Facility Agreement (the “Participating Facility Agreement”) with GetTrained, Inc. doing business as SPLITFIT (“SPLITFIT”, “we” or “us”). By executing the Participating Facility Agreement, you, the Participating Facility, agree to be bound by the following (collectively with the following, the “Agreement”) which are hereby incorporated by reference into the Agreement:
- these Terms & Conditions (the “Partner Terms & Conditions”).
Agreeing to these Partner Terms & Conditions means that the parties agree to important provisions, such as limits on SPLITFIT’s liability and mandatory waivers of rights to a jury trial and of class action remedies (including without limitation the provisions set forth in ALL CAPS below).
Term and Termination
The Agreement commences on the stated Effective Date and continues thereafter unless and until terminated.
Either party may terminate this Agreement without cause upon 15 calendar days’ advance notice. Either party may terminate this Agreement upon 3 business days’ advance notice if the other party commits a material breach of this agreement or a violation of law, provided however, if a material breach is alleged by one party the other party will have 10 calendar days following written notice of such breach to cure such material breach if such breach can be practicable cured within such time frame.
Termination of this Agreement will not release either party from any obligation or liability to the other party, including any payment and delivery obligation, that: has already accrued hereunder; comes into effect due to the expiration or termination of the Agreement; or otherwise survives expiration or termination of this Agreement.
General Responsibilities of SPLITFIT
- SPLITFIT’s objective is to facilitate the efficient sale of personal training services between you and users of personal training services in select geographic markets (such users referred to as “SPLITFIT Users”).
- SPLITFIT will provide access to and maintain the App as a convenient way for SPLITFIT Users to schedule SPLITFIT Sessions (defined below) at the Participating Facility.
- SPLITFIT will also provide access to and maintain the SPLITFIT scheduling system for, the Participating Facility.
Initial implementation of SPLITFIT
- Promptly following the execution of the Partner Agreement by a Participating Facility, SPLITFIT will commence an implementation and training project with the Participating Facility to instruct the Participating Facility on how SPLITFIT works, the Participating Facility’s initial set-up and ongoing maintenance of the Participating Facility’s personal training time slots in SPLITFIT’s scheduling system. The Participating Facility will provide SPLITFIT with basic information required for initial set up including but not limited to trainer short biographies, and trainer photos.
- Each of these time slots made available on the SPLITFIT scheduling system will be referred to as a “SPLITFIT Time Slot” and each SPLITFIT Time Slot that results in a completed personal training session will be referred to as a “SPLITFIT Session”.
Scheduling of Sessions
The following are the obligations of the Participating Facility as to scheduling SplitFit Sessions:
- On an ongoing basis and no less frequently than once per week, the Participating Facility will upload to the SPLITFIT admin portal its schedule information for each SPLITFIT Session at the Participating Facility for the calendar week starting no less than seven days in the future, including:exact address (if different than main address of the Participating Facility), time, personal trainer name assigned, and such other information as SPLITFIT might reasonably request for purposes of operating and updating the SPLITFIT’s scheduling system and the App.
- The Participating Facility must allow each SPLIFIT Time Slot to be filled as a SPLITFIT Pool.
- A “SPLTFIT Pool” means a small group training session of up to either 3 or 4 SPLITFIT. Users Participating Facilities will be encouraged to make each SPLITFIT Pool available for 4 SPLITFIT Users but may opt to offer SPLITFIT Pools for only 3 SPLITFIT Users.
- The Participating Facility must promptly notify SPLITFIT and update the SPLITFIT scheduling system of any SPLITFIT Time Slots that must be cancelled. Notice of cancellation must be emailed to scheduling@SplitFit.com no less than 12 hours before the original time of the SPLITFIT Session (the “Minimum Advance Notice”).
- If the Participating Facility cancels a SPLITFIT Session that has been booked by a SPLITFIT User without providing Minimum Advance Notice, the Participating Facility will bear financial responsibility for refunding the SPLITFIT User for the fee paid by that SPLITFIT User.
Marketing & Data
- You will permit SPLITFIT to actively market, advertise, promote and solicit the scheduling of SPLITFIT Sessions to prospective and existing client's consistent with good business practice and in a manner that reflects favorably on the good name, goodwill, and reputation of Participating Facilities.
- You will permit SPLITFIT to use the name, logo and pictures of the Participating Facility in SPLITFIT marketing and sales materials for the purpose of promoting SPLITFIT.
- You will cooperate or otherwise work with SPLITFIT to optimize marketing of the SPLITFIT service as it relates to the Participating Facility including either a) by providing SPLITFIT contact information sufficient for SPLITFIT to contact each of your members digitally (through email,messaging or social media) or b) by sending marketing and sales information to your members by email and/or social media.
Pricing Terms for SPLITFIT Users
- SPLITFIT will charge the Session Fee (defined below) to each SPLITFIT User for each SPLITFIT Session for that SPLITFIT User subject to the issuance of SPLITFIT User Incentive Credits and Partner Discount Codes (each defined below).
- The “Session Fee” means the price for the SPLITFIT Session as set forth in the following pricing schedule (the “SPLITFIT Fee Schedule”) after applying any discounts, credits, or adjustments. The Session Fee does not include any sales or use tax applicable to the SPLITFIT User:
- “Peak Hours” means (a) on non-holiday, weekdays: 5am – 8am, 11am – 1pm and 5pm – 7pm and (b) on 8am – 11am on holidays and Saturdays.
- SPLITFIT may modify the SPLITFIT Fee Schedule at its discretion with 10 days’ advance notice to the Participating Facility.
- In order to generate adequate marketing momentum for any or all of SPLITFIT’s Participating Facilities, SPLITFIT will have the right to issue SPLITFIT User Incentive Credits (defined below) or SPLITFIT and the Participating Facility may agree to issue Partner Discount Codes (defined below) that, in each instance partially reduce the Session Fee or make the SPLITFIT Session free to the User. The terms of compensation for the Participating Facility when a SPLITFIT User uses a SPLITFIT issued discount code are set forth below.
User Payment Terms and Fees
- Each SPLITFIT User has also agreed to pay SPLITFIT directly via a mobile payment processing service selected by SPLITFIT, such as Stripe.
- SPLITFIT Users are responsible for all sales, use and excise taxes, and any other similar taxes
Participating Facility Fee
- For each SPLITFIT Session that a Participating Facility conducts, SPLITFIT will remit (in accordance with the terms below), the “Participating Facility Fee” which means the following for each SPLITFIT Session:
- the aggregate Session Fee for such SPLITFIT Session;
- LESS the Administrative Fee (defined below);
- LESS the appropriate reduction related to any Partner Discount Code utilized for Such SPLITFIT Session.
- For the sake of clarity, the Participating Facility Fee for any SPLITFIT Session will not be less than zero and will not be greater than 70% of the Session Fee.
- SPLITFIT will remit to the Participating Facility by the 10th of each month the following resulting from SPLITFIT Sessions in the immediately previous month:
- The aggregate Participating Facility Fees for each SPLITFIT Session either conducted by the Participating Facility or scheduled at the Participating Facility and not cancelled by the SPLITFIT User in accordance with the Agreement;
- LESS any amounts due to SPLITFIT for SPLITFIT User refunds authorized by SPLITFIT in accordance with the Agreement.
- The Participating Facility bears financial responsibility if a SPLITFIT User requests a full or partial refund of the Session Fee due to non-attendance or unreasonable tardiness of the personal trainer with whom the SPLITFIT Session was originally booked or if the Participating Facility does not otherwise provide the SPLITFIT User with a SPLITFIT Session as originally booked by the SPLITFIT User.
- The Participating Facility will not, and will not permit its personal trainers to, accept payment directly from a SPLITFIT User for a SPLITFIT session.
- The Participating Facility will not impose additional fees on a SPLITFIT User for the use of its facility before during the SPLITFIT Session unless the additional fee is accepted at the user’s discretion and is for additional professional services (not merely access to the Participating Facility’s equipment, workout areas and locker room). For example, the Participating Facility may charge for supplemental services such as spa services, babysitting or parking BUT may not charge for access to workout areas and equipment, pools, locker rooms, and the like.
- The Participating Facility is solely responsible for compensating the personal trainer who leads any SPLITFIT Session conducted by the Participating Facility.
SPLITFIT’s Administrative Fee
- As consideration to SPLITFIT for the use of the SPLITFIT service, and the App, the Participating Facility agrees that SPLITFIT will retain the “Administrative Fee” which means the following for each SPLITFIT Session:
- 30% (effective 1/1/19) of the aggregate Session Fee for such SPLITFIT Session;
- LESS the appropriate reduction related to any Partner Discount Code utilized for such SPLITFIT Session.
- For the sake of clarity, the Administrative Fee for any SPLITFIT Session will not be less than zero and will not be greater than 30% of the Session Fee.
- SPLITFIT is responsible for payment processing (e.g., credit card fees) costs arising from each SPLITFIT User’s use of the mobile payment processing service.
Discounts & Pricing Incentives for SPLITFIT Users:
- SplitFit will unilaterally implement various pricing incentive programs to encourage user adoption that may include loyalty credits, discount codes or the like (each to be referred to as a “SPLITFIT User Incentive Credit”)that can be used for a SPLITFIT Session at any Participating Facility without prior consent from that Participating Facility. When a SPLITFIT User uses a SPLITFIT Incentive Credit, SPLITFIT will bear the financial responsibility for making sure that the Participating Facility receives the Participating Facility Fee that it otherwise would have received if the SPLITFIT User had paid the full SPLITFIT User Fee.
- In limited instances, SPLITFIT will obtain written or electronic consent from a Participating Facility before issuing a discount code that can be used at that Participating Facility (such discount code to be referred to as a “Partner Discount Code”). When a SPLITFIT User uses a Partner Discount Code, SPLITFIT and the Participating Facility will share financial responsibility for the amount of the discount resulting from the Partner Discount Code proportionate to the Participating Facility Fee and Administrative Fee otherwise owed for that SPLITFIT Session. For example, if the Partner Discount Code is for 50% off a SPLITFIT Session Fee, then the Participating Facility Fee and the gross Administrative Fee will both be reduced by 50% for the SPLITFIT Session against which the Partner Discount Code was used.
Other Obligations of the Participating Facility
- At your own expense, you must maintain and carry in full force and effect commercial general liability insurance provided to and acceptable to SPLITFIT, with limits no less than $1,000,000 for each occurrence and $3,000,000 in aggregate.
No Franchise or Business Opportunity Agreement
- The parties herein are independent business entities and nothing in these Partner Terms & Conditions or other provisions of the Agreement will be deemed or constructed as creating a joint venture, partnership, agency relationship,franchise or business opportunity between SPLITFIT and the Participating Facility. Neither party, by virtue of these Partner Terms & Conditions or other provisions of the Agreement, will have any right, power or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision,daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under the Agreement will be accomplished.
SPLITFIT User Eligibility Criteria
Confidentiality of User Information
- The Participating Facility will comply with all applicable federal, state and local laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective relating in any way to the privacy, confidentiality or security of information. The Participating Facility acknowledges that certain personal information about Website and App SPLITFIT Users is contained in records that may be accessible to the Participating Facility during the provision of services and that this information is confidential and will only be disclosed by the Participating Facility as necessary to perform its services under the Agreement.
- If the Participating Facility believes that there has been a security breach, the Participating Facility must notify SPLITFIT upon the earlier of forty-eight(48) hours after discovery or any time frame required by applicable law. As soon as reasonably practicable after any such security breach, SPLITFIT and the Participating Facility will consult in good faith regarding the cause and any remediation efforts. In the event that any unauthorized access to or acquisition of confidential information is caused by the Participating Facility’s breach of its data security obligations under the Agreement, the Participating Facility will, at its own expense, use commercially reasonable efforts to provide notification of the security breach to applicable government and relevant industry self-regulatory agencies, to the media (if required by applicable law) and to individuals whose confidential information may have been accessed or acquired.
Assumption of Risk
- The Participating Facility uses the Internet solely at its own risk and subject to all applicable local, state, national, and international laws and regulations. While SPLITFIT has endeavored to create a secure and reliable Website and App, the confidentiality of any communication or material transmitted to or from our Website or App over the Internet cannot be guaranteed. Accordingly, SPLITFIT is not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Website or App, or for the consequences of any reliance on such information.
- WE WILL NOT BE LIABLE TO YOU OR OTHERS FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL WHICH INFECTS ANY COMPUTER EQUIPMENT, COMPUTER PROGRAM, DATA OR OTHER PROPRIETARY MATERIAL DUE TO THE PARTICIPATING FACILITY’S USE OF THE WEBSITE,APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR APP OR BY DOWN LOADING ANY MATERIAL POSTED ON THE WEBSITE OR APP, OR ON ANY WEB SITE LINKED TO IT.
Disclaimer of Warranties
- SPLITFIT HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
- THE PARTICIPATING FACILITY’S USE OF THE WEBSITE AND APP, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR APP IS AT YOUR OWN RISK.THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR APP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SPLITFIT NOR ANY PERSON ASSOCIATED WITH SPLITFIT MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE OR APP. WITHOUT LIMITING THE FOREGOING, NEITHER SPLITFIT NOR ANYONE ASSOCIATED WITH SPLTIFIT REPRESENTS OR WARRANTS THAT THE WEBSITE OR APP, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR APP WILL BE ACCURATE, RELIABLE, ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation on Liability
- IN NO EVENT WILL SPLITFIT, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS,EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND,UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, APP, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE, THE APP, OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, THE APP OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
Arbitration; No Class Actions
- THE PARTICIPATING FACILITY AND SPLITFIT AGREE TO WAIVE THE RIGHT TO A JURY TRIAL,AND INSTEAD AGREE THAT EITHER PARTY CAN REQUIRE ARBITRATION OF ANY DISPUTES ARISING FROM THE PARTNER AGREEMENT, THESE PARTNER TERMS & CONDITIONS OR OTHERWISE ARISING IN CONNECTION WITH THE WEBSITE OR THE APP, INCLUDING WITHOUT LIMITATION DISPUTES OVER THE SCOPE, INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION CLAUSE. THE PARTIES AGREE TO CONDUCT THE ARBITRATION IN BOSTON, MASSACHUSETTS, BEFORE A SINGLE ARBITRATOR, AND AGREE THAT THE ARBITRATION WILL OTHERWISE BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THERE OF ANY CLAIMS FILED BY THE PARTIES IN ARBITRATION MUST BE BROUGHT IN THE PARTIES’INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING.
Limitation on Time to Bring Claims
- ANY CAUSE OF ACTION OR CLAIM THE PARTICIPATING FACILITY OR SPLITFIT MAY HAVE AGAINST ONE ANOTHER WHICH ARISES OUT OF OR RELATES TO THESE TERMS AND CONDITIONS OR THE WEBSITE OR APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- THE PARTICIPATING FACILITY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS GETTRAINED, INC., ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY CLAIMS,LIABILITIES, DAMAGES, JUDGMENTS, AWARDS, LOSSES, COSTS, EXPENSES OR FEES(INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RELATING TO YOUR VIOLATION OF THE AGREEMENT OR YOUR USE OF THE WEBSITE OR APP, INCLUDING, BUT NOT LIMITED TO ANY USE OF THE CONTENT ON THE WEBSITE OR APP, SERVICES AND PRODUCTS OTHER THAN AS EXPRESSLY AUTHORIZED IN THESE TERMS, OR YOUR USE OF ANY INFORMATION OBTAINED FROM THE WEBSITE OR APP.
Governing Law and Your Consent to Jurisdiction
- All matters relating to the Agreement, the Website and the App, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule(whether of the Commonwealth of Massachusetts or any other jurisdiction).
- THE PARTICIPATING FACILITY CONSENTS TO PERSONAL JURISDICTION OF ALL FEDERAL OR STATE COURTS LOCATED WITHIN SUFFOLK COUNTY IN THE COMMONWEALTH OF MASSACHUSETTS. GETTRAINED, INC. ALSO RETAINS THE RIGHT (AT OUR OPTION) TO BRING ANY SUIT, ACTION OR PROCEEDING AGAINST YOU IN COURTS LOCATED IN YOUR PLACE OF RESIDENCE. YOU HEREBY WAIVE ANY AND ALL OBJECTIONS TO THE EXERCISE OF JURISDICTION OVER YOU BY SUCH COURTS AND TO VENUE IN SUCH COURTS. THIS CONSENT TO JURISDICTION IN EACH CASE IS SUBJECT TO THE RIGHT OF EITHER PARTY TO DEMAND ARBITRATION OF THE MATTER, AS PROVIDED ABOVE.