FitGrid Terms of Service
Effective Date: July 20, 2017 amended and restated as of August 26, 2020
These Studio terms and conditions (the “Studio Agreement”) describe your rights and responsibilities when using our fitness customer relationship management and community engagement platform (collectively, the “Services”). Please read them carefully. If you are a Studio Customer (defined below), this Studio Agreement governs your access and use of our Services including making such Services or aspects thereof to persons who are affiliated or associated with you. This “Studio Agreement” form a part of a binding legal contract between you and us where:
- “You” or “your” or “Studio Customer,” on the one hand, refers to a fitness or similar studio (including a studio with one or more locations or affiliated studios) that subscribes to and uses or makes available; and
- “We,” “our,” “us” or “Company,” on the other hand, refers to YourGuru, Inc. d/b/a FitGrid.
Please make sure that as the natural person who is reviewing and accepting this Studio Agreement on behalf of Studio Customer, you have all necessary authority to enter into this Studio Agreement on behalf of such Studio Customer before proceeding.
This Studio Agreement may include any order form, supplement, addendum or other separate agreement relating to the Services that are mutually-executed by you and us in which case such separate agreement is incorporated in this Studio Agreement by reference (unless it expressly provides otherwise) and thus form a part hereof for the purposes of the binding legal contract between you and us. In case there is any conflict between any such separate agreement and the terms hereof, the mutually executed separate agreement shall prevail only as to what is expressly provided therein thereof.
- Principal Service Terms. Subject to the terms and conditions of this Studio Agreement, you hereby subscribe to the Services consisting of the associated tools, features and services made available via our websites, mobile sites and/or applications, all as the same may be updated and modified from time to time (collectively, the “Platform”).
- The Platform enables you to support staff and instructors associated with your studio in the recruitment, management, retention, transmission, and promotion of classes (and other studio offerings) (collectively, “Classes”), and for such staff, instructors and others to use the Platform to communicate among themselves and with individuals clients and, in certain circumstances, with other staff, instructors, clients and other individuals using the offerings of other studios.
- The Platform enables Studio Customer to (a) designate, or permit self-designation of, staff and instructors and potentially other individuals who become involved in the conduct, promotion, management or other aspects of its Classes (“Studio Representatives”) and (b) service the Studio Customer’s actual or prospective consumers (“Consumers” and, together with Studio Representatives, whether expressly authorized by Studio Customer or not, individually and collectively, the “Users”).
In connection with providing the Platform and performing Services in all the ways that now exist or are hereafter developed, Studio Customer grants Company (and its subcontractors involved in providing the same) the right to transmit, monitor, retrieve, store and use related information in connection with such Studio Customer’s and its Studio Representatives access and use of the Platform and to prepare usage reports to provide to such Studio Customer.
Further, Studio Customer grants to Company a limited license to use Studio Customer’s names, marks, logos and other graphical representations (collectively, “Studio Customer Marks”) in connection with provision of the Platform and other Services to Studio Customer and its Users. Studio Customer represents and warrants and covenants that it has obtained and shall maintain all necessary and legally valid permissions for the Company to use Studio Representatives’ names, biographies, likenesses, voices, and their other rights of publicity to the extent needed in connection with provision of the Platform and other Services and has obtained or shall maintain the opt-in permission from all its Consumers to send emails and other communications to such Consumers to enable performance of the Services for their benefit (e.g., confirm Class bookings) as well as providing and promoting the Company (as a third party service provider) in relation to the Platform and any and all other Services provided or performed by Company for the benefit of such Consumers. Studio Customer may notify Company in writing if it objects to the manner any of the Studio Customer Mark, any Studio Representative’s rights of publicity or Consumer’s information is used, and Company shall use commercially reasonable efforts to correct such use (additional service Fees may apply), but, absent intentional misconduct by Company, no use or misuse of a Studio Customer Mark provided by Studio Customer and configured either according to the Company’s standard documentation or instructions received from Studio Customer shall constitute a material breach of or liability by Company under this Studio Agreement.
Studio Customer shall remain responsible for all uses of the Platform and use of the Services in connection with its Classes and any other offerings provided by Studio Representatives or as used or enjoyed by other Users enabled by such Studio Customer’s use of the Platform and/or provision of Classes. Studio Customer agrees to take reasonable steps to prevent unauthorized uses of the Platform and will notify Company in writing of any unauthorized use of log-in credentials of which Studio Customer becomes aware.
- Term: The “Term” shall be month-to-month until terminated upon either party notifying the other party of its election not to renew it with at least 30 days prior written notice.
- Fees. The fees are set forth here https://fitgrid.com/pricing (“Fees”). Fees owing hereunder will be due in advance or, if invoiced, owing and payable within thirty (30) days of the invoice date. Prices and charges do not include any applicable taxes. All amounts owing will be paid without set-off or counterclaim, and without any deduction or withholding. Studio Customer shall pay all such reasonable costs, fees and expenses incurred by Company if Company is required to retain the services of attorneys or take other actions including engaging a collection agent to enforce any payment or other obligations under this Studio Agreement.
- Communication with Users. Company shall have the right to communicate directly with Users, for operational, transactional, and/or promotional purposes, and enable Users to communicate with each other in connection with their use of the Platform and enjoyment of Studio Customer’s Classes and other offerings. Some of these communications may be sent on behalf of Studio Customer and/or its other Users depending on the functionality involved. Such communications may relate to use of the Platform, such as providing registration or other support or explaining and promoting features or benefits, or bookings by Consumers, or activities relating to or involving Studio Representatives.
- Studio Customer Data. Company shall have the right to collect, store, reproduce and use data about Studio Customer, Classes, and Users, as well as any information sourced through third party suppliers or otherwise (if any) (collectively, the “Studio Customer Data”), and Studio Customer grants to Company a non-exclusive unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license and right to use Studio Customer Data on its own behalf and in connection with Studio Customers’ Classes and Users who present or participate in such offerings. All Studio Customer Data provided by Studio Customer to Company (including via Studio Customer’s booking engine and/or other service provider) is and shall remain owned by Studio Customer or its service provider. Studio Customer shall be responsible for obtaining any and all opt-ins, permissions and/or consents from Users to support Company’s use as expressly provided in this Studio Agreement and in any documentation on the Platform and as otherwise contemplated hereunder or therein.
- Company’s User Data; Aggregate Data. Studio Customer acknowledges that Company may separately collect data from Users in connection with providing the services directly to Studio Customer’s Users and such data may be made available to or used for the benefit of the Studio Customer and other customers but shall be owned by the Company. Company shall have the right to use aggregated anonymous data compiled to provide statistical and performance information related to the provision and operation of the Platform and improve and supplement its offerings during the Term and afterwards, provided that no Studio Customer Data or any information specific to Studio Customer may be disclosed at any individual identifiable level for any commercial purposes that are not related to making the benefits of the Platform available to Studio Customer and its Users.
- User Submissions or Communications. The Platform provides Studio Customer and its Users with the ability to communicate, upload, submit, post, disclose, distribute or otherwise transmit content, videos, written comments, data, text, photographs, graphics, works of authorship or other information, which may be viewed by Studio Customer, other Users or others ("User Submissions or Communications"). Company has the right, but not the obligation, to monitor User Submissions or Communications. Company may remove or block any User Submission or Communication at any time for any reason (including upon receipt of claims or allegations from third parties or authorities relating thereto).
- Ownership. Studio Customer retains any and all right, title and interest to any Studio Customer Marks or Studio Customer Data, subject the rights granted Company and its subcontractors hereunder. Company (or its suppliers) shall own all right, title and interest, including all intellectual property rights, in and to the its Confidential Information, the Platform and any and all know-how and other technology relating to provision of any other Services. The suggestions or feedback from you and/or other customers can make the Platform and Services better. If Studio Customer sends us any such feedback or suggestions, there is a chance we will use it, so Studio Customer grants us an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Studio Customer, Users or others.
- Restrictions on Use, etc. Studio Customer may not and shall not permit its Users to:
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, entity or assignee (other than its Users), the Platform or any other Services in any way;
- modify or make derivative works based upon the Platform or the Content;
- "frame" or "mirror" any Content on any other server or wireless or Internet-based device; (
- interfere with or disrupt the integrity or performance of the Platform or the data contained therein;
- attempt to gain unauthorized access to the Platform or its related systems or networks;
- reverse engineer or access the Platform in order to build a competitive product or service or build a product using similar ideas, features, functions or graphics of the Platform;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or submit infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; or
- upload, send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
Further, Studio Customer agrees that the Platform may be only be used for lawful purposes, and any posting or transmission of data, content or other submissions or other uses of the Platform in violation of any applicable state, federal or other law is strictly prohibited. Company reserves the right to remove material that it deems infringing, harmful, obscene or in any way threatening to the safety, security, and enjoyment of its subscribers.
- Representations and Warranties etc. Studio Customer represents, warrants and covenants on its own behalf and on behalf of its Studio Representatives and its Consumers (to the extent such Consumers use the Platform in relation to such Studio Customer or any Studio Representative or its or their Classes and/or other offerings) that it has the right and authority to enter into this Studio Agreement, and that by agreeing to this Studio Agreement and using the Platform and enjoying the benefits of the Services, neither it nor its Classes and its Users will violate, conflict with or cause a material default under any applicable law or contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is or they are a party or by which it or they or any of its or their property is or may become subject or bound. Studio Customer shall indemnify, defend and hold Company, including its shareholders, parent organizations, subsidiaries, affiliates, officers, directors, employees, partners, and agents harmless from and against any third party claims, actions, suits, proceedings, and demands arising out of or in connection with: (i) any conflict, violation or infringement of any intellectual property rights, privacy, publicity or other rights of any person or entity by any of Studio Customer Data, User Submission or Communications and any other data, information or other materials uploaded into the Platform by Studio Customer or its Users; (ii) Studio Customer's operations including the way Studio Customer uses the Platform to conduct its operations or pursuing its purposes, (iii) the misuse of the Platform or any other use of the Platform for a purpose for which it was not intended, outside the scope of any relevant documentation or in violation of this Studio Agreement, (iv) any personal injury or property damage suffered by any Users as a result of or in connection with Studio’s Classes or caused by any Studio or any User associated with the Studio, and (v) any material breach of Studio Customer’s representations, warranties or covenants in the Studio Agreement.
- Infringement etc. If at any time an allegation of infringement of any third party rights is made, or in Company's opinion is likely to be made, in respect of any portion or feature of the Platform, Company will, in its sole discretion, either (x) obtain the right for Studio Customer to continue using the Platform, (y) modify or replace the same so as to eliminate the alleged infringement, or (z) offer a substitute technology and/or methodology to accomplish the utility or functionality thereof. If Company determines that none of these alternatives is reasonably available, either Studio Customer or Company will have the right to terminate this Studio Agreement, in whole or in part including in respect of any product or service that may be causing the infringement with a pro rata refund for unperformed services. We will indemnify, defend and hold Studio Customer harmless from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Platform or other Services in an authorized manner under this Studio Agreement infringes or misappropriates a third party’s intellectual property rights, subject to Company’s rights under the preceding sentence, provided, however, that we will have no liability to Studio Customer or any other party if any such claim arises from (a) Studio Customer Data, User Submission or Communications, or Studio Customer Marks, or any non-Company products or services; and (b) any modification, combination or development of the Platform or other Services in manner that is not intended or performed by us, including the use of any application programming interface (API) in connection with non-Company-provided software or hardware where there would be no basis for such infringement or misappropriate claim otherwise. This section finally and exclusively states all of Studio Customer's or any User’s rights against Company in case of such controversies, and Company shall have no additional liabilities or obligations to Studio Customer and/or Users in respect thereof. Studio Customer will cooperate fully in mitigating any such alleged misappropriation or infringement after being notified thereof and implement any modifications, enhancements or substitutions provided by Company that could avoid the same.
- DISCLAIMER OF WARRANTIES. COMPANY MAKES NO PROMISE THAT THE PLATFORM OR ANY OTHER SERVICES OFFERED HEREUNDER WILL FUNCTION IN ANY ENVIRONMENT, MEET THE ORGANIZATION’S REQUIREMENTS, RESULT IN ANY OUTCOME OR BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ITS SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR MATERIALS BY THIRD PARTIES. TO THE FULL EXTENT PERMITTED BY LAW, COMPANY AND ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, RESELLERS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE PLATFORM OR ANY OTHER SERVICE HEREUNDER DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM COMPATIBILITY, NON-INFRINGEMENT AND QUIET ENJOYMENT.
- LIMITATION OF LIABILITY. COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY OF ITS USERS OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES WHETHER BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE CUSTOMER OR SUCH PARTIES OR ITS OR THEIR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. If Company does not meet Company's obligations under this Studio Agreement, then, unless Company disputes Studio Customer's claim in good faith, Company will, at its option, either re-perform the service in question or issue the Studio Customer a credit for such portion of the fees that were actually paid to Company and is fairly attributable to the nonconforming service. Studio Customer must notify Company in writing within thirty (30) days of receiving any nonconforming service. Failure to notify Company on a timely basis shall mean that Studio Customer has accepted such services "AS IS, WHERE IS", and Company shall have no liability whatsoever with respect to such services. This re-performance or credit constitutes Studio Customer's sole remedy and Company' maximum liability for any breach of this Studio Agreement by Company. IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON COMPANY, THEN COMPANY'S TOTAL LIABILITY TO THE ORGANIZATION (INCLUDING AS TO INDEMNIFICATION OBLIGATIONS) FOR ANY CLAIM, CAUSE, LIABILITIES, DAMAGES, COSTS OR LOSSES WHATSOEVER WILL BE LIMITED TO THE LOWER OF $250 AND THE FEES ACTUALLY PAID BY THE CUSTOMER DURING THE PRIOR ONE MONTHS HEREUNDER.
- Neutral Host. Company does not generally monitor user activity occurring in connection with the Platform or other Services. Studio Customer acknowledges that the Platform is highly automated and constructed to be used on a self-service basis by Studio Customer and Users. Company does not, and assumes no liability or responsibility to, review, endorse, police or enforce any activities that may be undertaken by Studio Customer or Users or any other users of the Platform. Company is not responsible or liable for the acts, omissions, agreements or promises of or by any person or entity using the Platform or any tools, services and/or other resources to share data, reports or analytics, or enter into any arrangement or otherwise work with any other person or entity.
- Suspension. Any tools or other features (including the referrals to book, management or attendance of Classes) and/or any User’s right to access or use any portion or all of the Platform or any Service may be suspended by Company in Company’s sole determination including due to (a) a security risk or other adverse impact on the Platform or the Company, customers and/or any users or (b) risk of potential liability to a third party or due to prosecution, action or other proceeding by a governmental authority. In addition, Company reserves the right to suspend or terminate this Studio Agreement, including your access to the Platform or other Services in the event you are past due on any payment obligation or your account otherwise becomes delinquent. You may continue to be charged during any period of suspension. Company’s suspension right in the foregoing is in addition to any other rights or remedies available to Company in equity or as a matter of law.
- Termination. This Studio Agreement may be terminated (a) by Company, if Studio Customer breaches any payment obligation and does not cure such payment breach within ten (10) business days of receiving a prior written notice thereof; or (b) by the non-breaching party, upon any material breach by the other party of this Studio Agreement, which breach remains uncured or unwaived for a period of forty-five (45) days following written notice thereof.
- Effect of Termination. Upon termination of this Studio Agreement, Studio Customer will immediately (or on such other timetable as the parties may agree) cease using the Platform and any other Services and Company will cease to use the Studio Customer Marks. Company shall have no obligation to either maintain or to return or destroy any Studio Customer Data or User Submissions or Communications after any termination, and Company may continue to use Studio Customer Data or User Submissions or Communications. However, Company may maintain any and all Studio Customer Data according to its ordinary course retention and archival policies, subject to applicable laws requiring or preventing Company from destroying all or part of Studio Customer Data. Any rights or remedies of either party arising out of a breach or violation by the other party of the Studio Agreement will survive any expiration or termination thereof. Any and all provisions which by their terms are reasonably expected to survive any expiration or termination of this Studio Agreement, including all of the provisions of this Studio Agreement, shall survive any expiration or termination hereof.
- Force Majeure. Neither party will be liable for delay or default in the performance of its obligations under this Studio Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, acts of God, fire, acts of terror, flood, accident, electrical outages, earthquakes, telecommunications line failures, network failures, pandemic, or labor disputes. Such excuse for delay or default shall not in any way relieve Studio Customer from its obligations as to the amount of money that would have been due and paid without such condition.
- Relationship of the Parties. Each party shall be an independent contractor in the performance of their obligations under this Studio Agreement, and nothing herein shall create an expressed or implied partnership, joint venture, employment or other association between the parties. Nothing in this Studio Agreement shall prevent Company from entering into any further agreements or business relationships, nor prevent Company from conducting similar business with others. This Studio Agreement may not be assigned by Studio Customer without the prior written consent of Company. Company may freely assign this Studio Agreement. Any assignment in violation of the above shall be null and void. If any provision of this Studio Agreement or its application to any person, party or entity or circumstance is held by a court with jurisdiction to be invalid or unenforceable, the remaining provisions, or the application of such provision to other persons, parties, entities or circumstances, will remain in full force and effect. Such court may substitute therefor a suitable and equitable provision to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and, if such court will not do so, the parties will negotiate in good faith to agree upon such a provision. Any provision that is judicially unenforceable in any jurisdiction will not be affected with respect to any other jurisdiction. With respect to the parties’ respective indemnification obligations, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
- Governing Law. This Studio Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to its conflict of law rules.