(b) Billing Procedure.
Option A. You will receive an invoice from Square Inc. on the 1st of the month for the respective amounts and will re-occur until this agreement is terminated.
Option B. You will receive an invoice from Square Inc on the 1st of the month for $300.00 and then you will be charged for the above and beyond 20% of total revenue earned during the prior month.
(c) Changes. We reserve the right to change the Usage Fee Schedule upon at least thirty (30) days prior written notice to you (this can include notice via email). Changes will take effect after that 30-day period has passed.
3. INSURANCE
(a) Fitness Professional’s Insurance. During the Term of this Agreement and for the period stated below, you agree to maintain, at your own expense, Commercial General Liability Insurance (which will name Body In Rhythm Training LLC as an additional insured, will apply as primary insurance and not contribute with other insurance available to Body In Rhythm Training LLC, and will include a severability of interest clause), including coverage for Contractual Liability, Broad Form Property Damage Liability, and Personal Injury Liability, with minimum coverage of One Million Dollars ($1,000,000) per occurrence for bodily injury, personal liability injury and property damage combined, Two Million Dollars ($2,000,000) aggregate for the year, and any other type of insurance required by law or as is common practice in your type of business, whichever affords greater coverage. You agree to maintain the required insurance for two (2) years after the end of the Term (defined below in Section 7(a)) and provide coverage for claims made up to two (2) years after the end of the Term.
4. INDEMNIFICATION
You will, at your own expense, indemnify, defend and hold harmless Body In Rhythm Training LLC, its officers, directors, agents, and clients from and against any claim, suit or proceeding that is instituted against Body In Rhythm Training LLC, its officers, directors, agents or clients that arise out of or relate to (i) a claim by one of your clients or another third party alleging bodily injury, death, or damage to tangible property caused by any of your acts or omissions (including, without limitation, Services you provided, your negligence, willful misconduct, or misrepresentation); or (ii) a claim by a governmental entity or other third party alleging that you violated any applicable law or regulation (each a “Claim”). Body In Rhythm Training LLC will (x) give you prompt notice in writing of any such Claim or threat thereof of which we become aware, (y) give you sole control and full authority to defend and/or settle the Claim using counsel of your choice (provided such counsel is reasonably acceptable to us), and (z) give you any reasonably requested information and assistance, at your expense, to enable you to defend or settle such Claim.
5. LIMITATION OF LIABILITY
(a) No Non-Direct Damages. EXCEPT FOR LIABILITIES ARISING OUT OF FITNESS PROFESSIONAL’S INDEMNIFICATION OBLIGATIONS STATED IN SECTION 4 (“INDEMNIFICATION”), TO THE FULLEST EXTENT ALLOWED BY LAW THE PARTIES EXCLUDE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
(b) Dollar Cap. EXCEPT FOR LIABILITIES ARISING OUT OF FITNESS PROFESSIONAL’S INDEMNIFICATION OBLIGATIONS STATED IN SECTION 4 (“INDEMNIFICATION”), EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY FOR DAMAGES HEREUNDER, IF ANY, SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY FITNESS PROFESSIONAL TO BODY IN Rhythm Training LLC DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
6. INDEPENDENT CONTRACTOR
(a) Independent Contractor Status. You acknowledge and agree that you are performing the Services as an independent contractor. Nothing in this Agreement shall in any way be construed to you an agent, employee, or representative of Body In Rhythm Training. Neither Party will have the right to enter into any contracts or binding commitments in the name of the other Party or on such other Party’s behalf. You agree to furnish all tools and materials necessary to accomplish the Services (other than equipment provided by Body In Rhythm Training LLC at the Facility), and you shall be solely responsible for paying all expenses associated with your performance of the Services.
7. TERM AND TERMINATION
(a) Term. This Agreement will commence on the Effective Date and remain in effect until terminated by a Party in accordance with this Section 7 (the “Term”).
(b) Termination for Convenience. Either Party may terminate this Agreement for its convenience, and without further liability, upon thirty (30) days’ prior written notice to the other.
(c) Effect of Termination. Upon termination of this Agreement: (i) you will no longer have the right to access or use the Facility; (ii) you will return any key fobs or other security equipment we provided you; (iii) you will pay us all unpaid Usage Fees that you owe us within 30 days; and (iv) we will pay you (or, at our discretion, deduct from the amounts you owe us) all accrued unpaid incentive fees.
(d) Survival. The following sections shall survive the termination of this Agreement: 3 “Insurance” (survives for the stated period), 4 “Indemnification”,
5 “Limitation of Liability”, 6 “Independent Contractor”, 7(c) “Effect of Termination”, 7 (d) “Survival”, and 8 “General”.
8. GENERAL
(a) Entire Agreement; Order of Precedence; and Amendment. This Agreement is intended as the final, complete and exclusive statement of the terms of the agreement between the Parties, and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, relating to the subject matter hereof. Except where unilateral modification is expressly authorized herein, this Agreement may not be modified except in a writing executed by both Parties.
(b) Force Majeure. Neither Party shall be liable to the other Party for the failure to perform any of its obligations hereunder resulting from acts of the other Party, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy interruptions, strike, labor trouble, war, riot, accident, shortage, delay in transportation, or any other causes beyond the reasonable control of the Party whose performance is delayed or prevented.
(c) Notices. Notices shall be given in writing or by email.
(d) Waiver; No Election of Remedies. Failure of either Party to enforce compliance with any provision of this Agreement shall not constitute a waiver of such provision unless accompanied by a clear written and signed statement that such provision is waived. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The termination of this Agreement or the exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided hereunder or by law or equity.
(e) Severability. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If no such substitution can be made, such invalid, illegal or unenforceable provision shall be deleted, and the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives on the date(s) set forth below, to be effective as of the Effective Date.