Standard Terms of Service

Last Updated: September 1, 2024

These Standard Terms of Service constitute a legally binding agreement between you, whether personally or on behalf of an entity (“you”, “your,” or “Client”), and the specific GymSales Contracting Entity identified in Section 16 below (“GymSales”, “we”, “us”, or “our”). These Standard Terms of Service govern your access to and use of the gymsales.io Website and our products and services (the “Services”) as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected to the Services.

You agree that by accessing the Services, you have read, understood, and agree to be bound by these Standard Terms of Service. If you do not agree with these Standard Terms of Service, then you are expressly prohibited from using the Services and you must discontinue use immediately.

Supplemental terms and conditions or documents that may be posted on the Website from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Standard Terms of Service at any time and for any reason where necessary to comply with applicable law or otherwise protect our legitimate interests, provided such changes or modifications do not exceed what is permitted by applicable law.

We will alert you about any changes by updating the “Last updated” date of these Standard Terms of Service, and you waive any right to receive specific notice of each such change.

It is your responsibility to periodically review these Standard Terms of Service to stay informed of updates. You will be subject to, and deemed to have been made aware of and accepted, the changes in any revised Standard Terms of Service by your continued use of the Website after the date such revised Standard Terms of Service are posted. For Australia Clients (as defined below), if you believe the changes or modifications made by GymSales to these terms and conditions exceed what its permitted by law, you may contact us at Legal@abcfitness.com so that we may evaluate the basis of your request.

These Standard Terms of Service are in addition to the terms of your Subscription Agreement (as defined below). In the event of a conflict between these Standard Terms of Service and the terms and conditions of the various components of your Subscription Agreement, the Subscription Agreement will govern.

1. AGREED TERMS & INTERPRETATION

Unless the context requires otherwise, the following phrases and capitalized words must be interpreted as follows:

1.1. Access means obtaining access to the Software via the Website:

(a) with the Client first obtaining access to the Software via the URL issued to the Client by GymSales; and

(b) Users being granted the right to access the Software by the Client, whether Client restricts the Users’ access by password or other means.

1.2. Affiliate means a company that controls, is controlled by or is under common control with another company.

1.3. Australia Client means a Client who qualifies as a “small business” or “consumer” under the Australia Consumer Law, a schedule of the Competition and Consumer Act 2010 (Cth).

1.4. Confidential Information means in relation to each Party, any information about GymSales’ (and/or its Affiliates’) or the Client’s business, operations, or customers received by the other Party under these Standard Terms of Service, whether oral or in writing, that is designated as confidential or would reasonably be understood to be confidential and proprietary, including technical, marketing, sales, operating, performance, cost, know-how, research and development, business and process information, computer programming techniques, protected health information, nonpublic personal financial information, personal data, and all record-bearing media containing or disclosing such information or techniques. Confidential Information shall not include information which:

(a) is publicly known;

(b) is disclosed to the other Party without restriction by a third party and without any breach of confidentiality by the third party;

(d) was in such Party’s possession or known by it without an obligation of confidentiality prior to receipt from the other Party.

1.5. Content means all text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, and computer code contained on and comprising the content of the Website.

1.6. Data means the User’s history of all their interactions created by their use of the Software including any Data entered by the Client or the User. As referenced in the DPA (defined below), Data includes Subscriber Data, Account Data, and Usage Data.

1.7. Fees means the amount payable for the Software including any integration and customization, exclusive of all Taxes, as described in your Subscription Agreement or other agreement between the Parties.

1.8. Intellectual Property Rights means all rights in or to any patent, copyright (including future copyright), database rights, registered design or other design right, utility model, trade mark (whether registered or not), brand name, service mark, trade name, eligible layout right, Content, or any other proprietary right and any right to registration of such rights, or any similar rights protected by statute, wherever existing in the world, including all renewals, extensions and revivals of.

1.9. Marks means all trademarks, service marks, and Content including logos or other words or symbols identifying the Software and GymSales’ and/or its Affiliates’ business, as may be amended by GymSales from time to time at its discretion.

1.10. Party means each of GymSales and the Client.

1.11. Personal Information has the meaning given to it under any applicable Privacy Law.

1.12. Privacy Laws means applicable international, national, federal, state, provincial, or local privacy or data protection legislation in force, including, where applicable, statutes, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, any supervisory authority and other applicable authorities, including, in the United States of America, without limitation the California Consumer Privacy Act of 2018.

1.13. Service Levels means the uptime targets set out in Schedule 2.

1.14. Software means the sales management software referred to as “GymSales” or “ABC GYMSALES.”

1.15. Subscription Agreement means any pilot licensing agreement, subscription licensing agreement, order form, or other agreement executed by Client and GymSales outlining the specific services to be provided by GymSales.

1.16. Support & Hosting Services means the support and hosting services set out in Schedule 1.

1.17. Taxes means any taxes, levies, duties, or similar assessments of any nature, including but not limited to goods and services related, value-added, sales, use, or withholding taxes, which are assessable by any local, state, federal, or foreign jurisdiction.

1.18. Technical Specifications means the specifications relating to the performance and availability of the Software, the technical requirements of any device that accesses the Software and any other technical issues that relate to the Software that may be posted by GymSales.

1.19. Term means the period of time commencing when Client begins Accessing the Software pursuant to a Subscription Agreement and continuing for the duration of any active Subscription Agreement.

1.20. URL means the uniform resource location provided to the Client by GymSales to allow Access to, and management of the use of, the Software.

1.21. User means a person who has been authorized by the Client to use the Software pursuant to these Standard Terms of Service.

1.22. Website means GymSales’ website from time to time, currently at www.gymsales.net.

1.23. The words “includes” or “including” are not words of limitation.

1.24. Headings are for convenience only and do not affect interpretation.

1.25. Where a clause contains a number of sub-clauses then, unless expressly stated otherwise, each sub-clause is an independent requirement or obligation.

2. GYMSALES OBLIGATIONS

GymSales will use commercially reasonable efforts to provide the Client and the Users Access to the Software in accordance with the Service Levels and these Standard Terms of Service. Any part of the Services under these Standard Terms of Service may be provided by one or more GymSales Affiliate.

3. LICENSE TERMS

Grant of License:

3.1. GymSales grants to Client during the Term a limited, non-exclusive, non-transferable, revocable right to:

(a) allow Access to the Software solely for the purpose of the Client’s internal business operations and in accordance with these Standard Terms of Service;

(b) allow Users to Access the Software in accordance with these Standard Terms of Service; and

(c) allow the use of the Software by Client’s Affiliates, who agreed to be bound by the terms of these Standard Terms of Service as if they had entered into such terms directly with us.

License Exclusions:

3.2. Client must not:

(a) allow Access to the Software by any person other than the Users;

(b) modify, pledge, sub-license, lease, rent, loan, assign, or create derivative works based on the Software including its user interfaces;

(c) copy, adapt, translate, distribute, publish, communicate to the public, or create any adaptation, translation or derivative based on the Software or the Content unless expressly permitted by these Standard Terms of Service or the law;

(d) reverse engineer, de-compile, disassemble, or extract any element of and/or otherwise access, examine, share or discover any source code, object code, algorithms, methods or techniques embodied in the Software;

(e) knowingly remove, alter, or obscure, any disclaimer, or notice, or any restricted right legend, trademark, copyright or other ownership right legend appearing in the Software, on a screen or any printout from the Software unless otherwise agreed by GymSales;

(f) forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send on or through the Website or Software, or pretend that you are or that you represent someone else or impersonate any other individual or entity;

(f) trace or seek to trace any information of any user or customer of GymSales, including any GymSales account not owned by you to its source. You may not exploit the Website or any service or information made available or offered by or through the Website in any way where the purpose is to reveal any information, including but not limited to personal identification information or other Personal Information;

(g) attempt to gain unauthorized access to any portion or feature of the Software or Website, or any other systems or networks connected to the Software or Website or to any other services offered on or through the Software or Website, by hacking or any other illegitimate means;

(h) scan or test the vulnerability of the Software, Website, or any network connected thereto, nor breach the security or authentication measures of the same;

(i) use any device, software, or routine to interfere or attempt to interfere with the proper working of the Website or any transaction being conducted on the Website, or take any action that imposes an unreasonably large burden on the infrastructure of the Website or GymSales’ systems or networks, or any systems or networks connected to the Website; or

(j) use the Software, Website, or any Content for any purpose that is unlawful or prohibited by these Standard Terms of Service, or to solicit the performance of any illegal activity or other activity which infringes the rights of GymSales or others.

3.3. Client grants GymSales during the Term a non-exclusive, royalty free, worldwide license to use, modify, disclose, and access Client’s Data:

(a) for the purpose of providing Access to the Software under these Standard Terms of Service, including but not limited for monitoring Software performance, running analytics, and preventing fraud; and

(b) for the purpose of complying with GymSales’ legal obligations.

3.4. Client acknowledges and agrees that:

(a) the Software is provided on a shared service basis to the Client and other clients from a common code base and GymSales may from time to time, without the prior consent of Client:

(i) change, add or delete the functions, features, performance or other characteristics of the Software to enhance or modify its features and functionality, and if such change, addition or deletion is made, the specifications of the Software shall be amended accordingly;

(ii) correct errors and/or patch the Software; and

(iii) amend the Technical Specifications, provided that there will be no material decrease in the level of functionality offered by the Software.

(b) GymSales will provide prior written notice (including via email) of major changes or new versions of the Software to Client. GymSales does not guarantee that any change, addition, deletion, error correction, or patch will be compatible with any application, other software or interface that connects to or interfaces with the Software that has been made by or on behalf of Client.

(c) Client and its Users are solely responsible for entering Data into the Software, maintaining that Data and ensuring that it is accurate, complete, and not false, misleading or deceptive nor is it likely to mislead or deceive.

(d) Client will comply with all applicable laws in connection with the Access to the Software and these Standard Terms of Service, and Client is responsible for all fees or fines as a result of any Access or use of the Software by Client that does not comply with applicable laws, rules, or regulations.

(e) Client will comply and ensure Users comply with these Standard Terms of Service. Client is fully responsible for: (i) controlling Access of its Users; (ii) all actions and use of the Software and Services by its Users; and (iii) its Users’ compliance with these Standard Terms of Service.

3.5. Each Party agrees to maintain reasonable and customary liability insurance as appropriate for its business.

3.6. Client shall be solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Software. Client shall also be responsible for maintaining the security of the equipment, customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client’s account or the equipment with or without Client’s knowledge or consent, and Client is fully responsible for all conduct carried out under such passwords and accounts. GymSales is not liable for any loss of confidentiality or for any damages arising from your failure to comply with these security measures.

4. SUPPORT & HOSTING SERVICES

Support

4.1. GymSales will provide the Client with Software availability in accordance with the Service Levels.

4.2. GymSales will attempt to respond to all support requests from the Client within a maximum of one business day and make reasonable efforts to:

(a) Respond within 2-hours or less; and

(b) Correct errors in respect of the Software within a reasonable time frame.

5. WARRANTIES

5.1. GymSales warrants and represents that:

(a) It has all necessary right, power, and authority to grant the licenses and rights set out in these Standard Terms of Service; and

(b) That the Software, Marks, and related services and information provided to Client by GymSales under these Standard Terms of Service do not infringe upon, misappropriate, or otherwise violate the Intellectual Property Rights of any third party.

5.2. CLIENT UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED BY THESE STANDARD TERMS OF SERVICE AND SUBJECT TO LOCAL LAWS AND THE NON-EXCLUDABLE TERMS IN CLAUSE 5.4 BELOW (AS APPLICABLE): (I) CLIENT’S USE OF THE SOFTWARE AND RELATED SERVICES ARE AT CLIENT’S SOLE RISK; (II) THE SOFTWARE AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; AND (III) GYMSALES DISCLAIMS ALL GUARANTEES, WARRANTIES, OR CONDITIONS (WHETHER EXPRESS OR IMPLIED BY STATUTE, GENERAL LAW, CUSTOM, OR OTHERWISE) OR REPRESENTATIONS AND, IN PARTICULAR, DISCLAIMS ANY GUARANTEE, WARRANTY, CONDITION, OR REPRESENTATION INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUBJECT TO LOCAL LAWS AND THE NON-EXCLUDABLE TERMS (AS APPLICABLE), GYMSALES MAKES NO WARRANTY: (I) THAT THE SOFTWARE OR SERVICE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; (II) THAT CLIENT’S ACCESS TO OR USE OF THE SOFTWARE OR RELATED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (III) THAT ANY DEFECTS IN THE SOFTWARE OR RELATED SERVICES WILL BE CORRECTED; (IV) THAT THE SOFTWARE OR RELATED SERVICES OR ANY SERVER THROUGH WHICH CLIENT ACCESSES THE SOFTWARE OR RELATED SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) WITH RESPECT TO ANY THIRD PARTY PRODUCTS. IN USING THE SOFTWARE OR RELATED SERVICES, CLIENT ACKNOWLEDGES THAT SENSITIVE INFORMATION MAY TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER GYMSALES’S CONTROL AND GYMSALES MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE OR RELATED SERVICES, INCLUDING ANY THIRD-PARTY WEBSITE LINKED TO THE WEBSITE, IS ACCESSED AT CLIENT’S OWN DISCRETION AND RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THE CLIENT ACKNOWLEDGES THAT THE NATURE OF COMPUTER SOFTWARE AND TECHNOLOGY IS SUCH THAT THE OPERATION OF THE SOFTWARE WILL NOT BE UNINTERRUPTED OR ERROR FREE AND THE CLIENT HAS RELIED ON ITS OWN JUDGEMENT IN DETERMINING WHETHER THE SOFTWARE IS SUITABLE FOR THE PURPOSES FOR WHICH IT INTENDS TO USE THE SOFTWARE.

5.3. The Client warrants that:

(a) the disclosure of the Data to, or the storage or processing of the Data by, GymSales does not breach any applicable laws, regulations or codes;

(b) its Data does not infringe the Intellectual Property Rights of any third party;

(c) it, and its use of the Software and related services, will comply with all applicable laws and regulations, including, but not limited to Privacy Laws, the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003, Canada’s Anti-Spam Legislation, and such similar laws;

(d) to the extent that the Data contains Personal Information, it has obtained the necessary consents and provided all necessary notices as required by the Privacy Laws in order to collect, transfer, process, or permit access to this Data and GymSales may use and hold the Personal Information in accordance with Privacy Laws for the purposes contemplated under these Standard Terms of Service. In the event such consent is altered or revoked, you covenant to only use the Software and Services in a manner that is in compliance with the consent(s) you have obtained; and

(e) it has obtained the necessary consents and provided all necessary notices as required by the Privacy Laws and any other applicable law for the Services and/or Software to be used to contact (e.g., SMS, phone, automated dialer, email) and record telephone calls with its Users, employees, customers, and contractors, as may be applicable based on the specific functionality of the Software the Client has selected to Access and use. In the event such consent is altered or revoked, you covenant to only use the Software and Services in a manner that is in compliance with the consent(s) you have obtained.

For the avoidance of doubt, you acknowledge that while GymSales offers various configurations in the Software to assist you in capturing certain consents of Users, it is your sole and absolute responsibility to make sure you provide proper notifications and obtain and maintain any consents required by the Privacy Laws and any other applicable law. You understand that aspects of the Software or Services may be provided through third-party telecom providers, and that such providers may prohibit you from sending messages via the Software if you have not properly captured and maintained such consent or if they believe you may be in violation of certain rules such as “do not call” rules. You understand that it is your sole responsibility to ensure your compliance with the foregoing, and that you may be asked by such third parties to provide documentation evidencing your compliance of the same.

Non-Excludable Terms – Applicable to Australia Clients Only

5.4. For Australia Clients only, GymSales acknowledges that there are certain warranties, guarantees, conditions, and terms that are implied or imposed by local laws and that cannot be excluded (a “Non-Excludable Term”). Nothing in these Terms excludes, restricts, or modifies the Non-Excludable Terms otherwise than according to such laws. To the extent that GymSales is able to limit the Client’s remedy for a breach of the Non-Excludable Terms, then GymSales’ liability for breach of the Non-Excludable Term is limited exclusively (so far as applicable laws do not prohibit) to, at GymSales’ option:

(a) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again by a third party; and

(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired.

6. PAYMENT & INVOICING

6.1. Client must pay GymSales the Fees and Taxes on a monthly basis within ten (10) days of receipt of an invoice. Any amount which is not paid within such time period shall accrue interest at the rate the lesser of one and a half percent (1.5%) per month or the maximum rate allowed by applicable law.

6.2. Unless otherwise stated, the Fees do not include any Taxes. The Client is responsible for paying all Taxes associated with the Software Access purchased, including, but not limited to GST, where applicable. If GymSales is liable to pay Taxes for which the Client is responsible, GymSales will invoice the Client for these Taxes unless the Client provides GymSales with evidence of a valid exemption.

6.3. When upgrading or downgrading your plan, you will be pro-rata credited for the remainder of your current plan. You will then be charged the full amount for the new plan you have selected and your next billing date will be adjusted accordingly. You will have the changed plan limits applied immediately. If this adjustment causes your account to be credited, this will be applied to your subscription and used for future payments. We do not provide refunds for these amounts. Downgrading or cancelling your account may result in the loss of access, content, or features of the service. GymSales does not accept any liability for such loss.

6.4. All monthly subscription Fees must be paid monthly in advance. All Fees related to the Service, including but not limited to the monthly subscription plan Fees, are subject to change upon thirty (30) days’ notice from us. Such notice may be provided at any time by updates to the Website, notices within the Service itself, or by email correspondence. If you have any questions about charges made to your account, please contact us immediately. If there are any charges made in error, we will credit your account or credit card account for the appropriate amount.

6.5. SMS messaging (an optional feature) is charged per SMS credit sent. You are responsible for ensuring you have sufficient credit for SMS reminders (these are charged separately from the monthly subscription). You are also responsible for all fees or fines assessed by SMS carriers due to the content of SMS messages you send.

7. INTELLECTUAL PROPERTY RIGHTS

Ownership & Assignment

7.1. All Intellectual Property Rights, including adaptations, translations, and derivative works in the Software or other material provided by GymSales to Client under these Standard Terms of Service and that are created by GymSales, Client or any other person, are the exclusive property of GymSales, and vest in, or must be transferred to, GymSales immediately upon creation, as the case may be.

7.2. At the request of GymSales, Client will assign or transfer (or will procure the assignment or transfer of, as the case may be) all right, title, and interests (including all Intellectual Property Rights) in respect of any adaptations, translations, or derivative works of the Software or other related materials provided by GymSales in connection with Software created by or on behalf of the Client, its contractors, or agents to GymSales or its designee and will sign (or procure any person to sign) any document reasonably required to assign or transfer any such Intellectual Property Rights to GymSales or its designee.

7.3. Subject to payment of the Fees, GymSales agrees that Client will own:

(a) the Intellectual Property Rights in respect of any source code developed exclusively for Client in order to integrate the Software into the Client’s system; and

(b) the Client’s Data.

Reserved Rights

7.4. Except for the rights expressly granted by GymSales to Client under these Standard Terms of Service:

(a) GymSales and its licensors, if any, reserve all right, title, and interest in and to the Software and other materials provided under these Standard Terms of Service, including all Intellectual Property Rights in them; and

(b) Except as set forth herein, no right, title, or ownership interest in or to the Software or other materials provided under these Standard Terms of Service whether by implication, estoppel or otherwise, is granted, assigned, or transferred to Client under or in connection with these Standard Terms of Service.

7.5. Client does not acquire any right to, or interest in, any of the Marks. Client must not at any time or in any way indicate its ownership of or any right in the Marks and must not contest the right of GymSales to the use of any of the Marks.

7.6. Client must not remove, alter, or obscure any Mark, nor attach any additional trademarks, logos, trade dress, or proprietary or restricted use legend, on the Software or on any other materials provided under these Standard Terms of Service.

7.7. All Content, including but not limited to the design, structure, selection, coordination, expression, ‘look and feel,’ and arrangement of such Content contained on the Website is owned, controlled, or licensed by or to GymSales, and is protected by Intellectual Property Rights and unfair competition laws.

7.8. Client acknowledges and agrees that the unauthorized disclosure, use, or copying of the Software or other materials provided under these Standard Terms of Service may cause GymSales serious financial loss. Accordingly, if there is any unauthorized disclosure, use, or copying of any Intellectual Property Rights in any of the Software or other materials provided under these Standard Terms of Service, Client agrees that GymSales may obtain injunctive or other equitable relief, including relief without the necessity of posting a bond (if applicable).

Trademarks and Marketing

7.9. The Parties agree that the Software will be co-branded with the ABC GYMSALES™ trademark owned by GymSales.

7.10. GymSales may include Client’s name along with Client’s properly formatted logo, solely in accordance with Client’s then-existing trademark usage guidelines, to identify Client as a GymSales customer on its Website and in presentation, sales or marketing materials which identify and/or list names of GymSales customers.

8. CONFIDENTIALITY

8.1. Each Party agrees that it will not permit the use of the other Party’s Confidential Information by, nor disclose the other Party’s Confidential Information to, any third party, other than:

(a) A Party may disclose the other’s Confidential Information to its contractors and employees, its Affiliates, and any contractors and employees of its Affiliates who have a need to know such information and who have agreed in writing to maintain the confidentiality of such Confidential Information (provided, that the receiving Party shall remain responsible for breach of such confidentiality obligations by its contractors and employees, Affiliates and their contractors and employees);

(b) either Party may disclose the other Party’s Confidential Information to their professional advisers who have an obligation to maintain the confidentiality of such Confidential Information (provided, that the receiving Party shall remain responsible for breach of such confidentiality obligations by its professional advisors);

(d) where the Confidential Information is required to be disclosed by applicable law or regulations, in which case the disclosing Party shall, to the extent permitted by law, use reasonable efforts to notify the disclosing Party of the legal disclosure requirement and reasonably cooperate with any efforts of the disclosing Party to obtain a protective order with respect to such Confidential Information.

8.2. Each Party must only use the other Party’s Confidential Information for the purpose of performing the obligations under these Standard Terms of Service, or if the recipient is a professional adviser, the professional adviser may use the Confidential Information for purposes connected with advising on or reporting on these Standard Terms of Service.

9. PRIVACY & SECURITY

9.1. Each Party must use any Personal Information that is provided by the other Party in connection with these Standard Terms of Service in accordance with the Privacy Laws.

9.2. Client warrants that it has obtained each of its Users and other employees’, customers’ and contractors’ to whom the Data relates informed consent for GymSales, its Affiliate, and their respective contractors to collect, use, store, transmit, transfer, process, manipulate, or otherwise deal with their Personal Information in accordance with these Standard Terms of Service, including any necessary consents to contact and record telephone calls with Users, employees, customers, and contractors, as applicable.

9.3. Client must ensure that any collection, processing, use, disclosure and transfer by Client and its employees and contractors of Personal Information in connection with its use of the Software or related services complies with all applicable Privacy Laws and the privacy policy of the Client.

9.4. Client must use, hold, store, transfer, and disclose Personal Information provided by GymSales under or in connection with these Standard Terms of Service only to the extent required for the performance of these Standard Terms of Service.

9.5. All of GymSales’ data processing activities under these Standard Terms of Service will be governed by the Data Processing Addendum (“DPA”), as may be updated from time to time, with the most current version available here, incorporated by reference into these Standard Terms of Service, and Client and GymSales shall be subject to the terms, conditions, and obligations of the DPA.

9.6. GymSales and its Affiliates shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Data and data derived therefrom), and GymSales will be free to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other GymSales offerings, and (ii) use and disclose such Data solely in aggregate or other anonymized form.

9.7. GymSales and its Affiliates may disclose Personal Information to their respective third party vendors in connection with GymSales’ performance of its obligations under these Standard Terms of Service, subject to the terms, conditions, and obligations of the DPA.

10. LIABILITY

10.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND SUBJECT TO LOCAL LAWS AND THE NON-EXCLUDABLE TERMS IN CLAUSE 5.4 (AS APPLICABLE), GYMSALES IS NOT LIABLE TO THE CLIENT (OR ANY PARTY CLAIMING THROUGH THE CLIENT) IN CONTRACT (INCLUDING UNDER AN INDEMNITY),TORT, BREACH OF STATUTORY DUTY OR OTHERWISE FOR ANY:

(a) LOSS OF PROFITS, OPPORTUNITY, REVENUE, DATA, GOODWILL, BUSINESS OR ANTICIPATED SAVINGS, PURE ECONOMIC LOSS, LOSS OF VALUE OF EQUIPMENT, LOSS OF DATA OR EXPECTATION LOSS; OR

(b) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE;

EVEN IF SUCH LOSS OR DAMAGE WAS REASONABLY FORESEEABLE, AROSE NATURALLY OR WAS IN THE CONTEMPLATION OF THE PARTIES, RESULTING FROM USE OF THE SOFTWARE OR RELATED SERVICES.

10.2. TO THE EXTENT PERMITTED BY LAW AND SUBJECT TO LOCAL LAWS AND THE NON-EXCLUDABLE TERMS IN CLAUSE 5.4 (AS APPLICABLE), GYMSALES’S CUMULATIVE LIABILITY TO THE CLIENT IN RESPECT OF ALL CLAIMS MADE BY THE CLIENT (OR ANY PARTY CLAIMING THROUGH THE CLIENT) UNDER OR IN CONNECTION WITH THESE STANDARD TERMS OF SERVICE, WHETHER ARISING UNDER CONTRACT (INCLUDING UNDER AN INDEMNITY) NEGLIGENCE OR ANY OTHER TORT, MISREPRESENTATION, UNDER STATUTE OR OTHERWISE, WILL NOT EXCEED IN AGGREGATE THE AMOUNT OF FEES PAID BY CLIENT TO GYMSALES IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO CLAIM.

10.3. CLIENT AND ITS AFFILIATES WHO USE THE SOFTWARE AND RELATED SERVICES SHALL BE JOINTLY AND SEVERALLY LIABLE TO GYMSALES HEREUNDER.

Mitigation

10.4. Each Party shall take all reasonable efforts to mitigate any loss, damage, or expense that it may suffer arising out of or in connection with these Standard Terms of Service or the relationship between the Parties.

Content

10.5. GymSales does not make any warranty as to the accuracy, completeness, or currency of the Content. Client and Users are required to make their own inquiries before entering into any transaction in reliance upon the Content. To the extent permitted by law and subject to local laws and the non-excludable terms in Clause 5.4 (as applicable), GymSales is not liable to Client for any loss or damage (including without limitation, indirect, special, or consequential loss or damage) arising from the use of or reliance upon the Content.

11. INDEMNITY

Indemnity – Applicable to Australia Clients Only

11.1. For Australia Clients only, Client agrees to defend, indemnify, and hold GymSales harmless against all liability, damage, loss, cost, expenses, and fees (including reasonable legal fees) arising out of or in connection with:

(a) Client’s breach of these Standard Terms of Service;

(b) any and all unauthorized use of the Software or use of the Software in violation of the Standard Terms of Service;

(c) Client’s violation of (or Client’s use of the Software or Services in violation of) any applicable laws, regulations, rules, standards, contracts, including, but not limited to Privacy Laws, the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003, Canada’s Anti-Spam Legislation, and such similar laws;

(d) injury to, or death of, any person caused by any act or omission by or on behalf of the Client or its personnel; and

(e) damage to any real or tangible property caused by any act or omission by or on behalf of the Client or its personnel.

Indemnity – Applicable to All Other Clients

11.2. For all other Clients, Client agrees to defend, indemnify, and hold GymSales harmless against all liability, damage, loss, cost, expenses, and fees (including reasonable legal fees) arising out of or in connection with:

(a) Client’s breach of these Standard Terms of Service;

(b) any and all unauthorized use of the Software or use of the Software in violation of the Standard Terms of Service;

(c) the acts or omissions of Client, including Client’s violation of (or Client’s use of the Software or Services in violation of) any applicable laws, regulations, rules, standards, contracts, including, but not limited to Privacy Laws, the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003, Canada’s Anti-Spam Legislation, and such similar laws.

(d) the acts or omissions of Client in the operating of its business and/or facilities;

(e) injury to, or death of, any person caused by any act or omission by or on behalf of the Client or its personnel; and

(f) damage to any real or tangible property caused by any act or omission by or on behalf of the Client or its personnel.

12. TERMINATION

12.1. Termination – Applicable to Australia Clients Only

12.1.1. Either party may immediately terminate the agreement formed by these Standard Terms of Service by giving written notice if:

(a) The other Party breaches any of the provisions of clauses 3, 5, 7, 8, 9, or 10;

(b) To the extent permitted by applicable law, the other Party ceases to carry on business, is unable to pay its debts as they fall due, enters into liquidation, has a trustee, controller, managing controller, liquidator or administrator appointed;

(c) The other Party is in breach of any other provision of these Standard Terms of Service and such breach is capable of remedy, and the breach remains uncured within thirty (30) days after receiving notice of such breach; or

(d) without limiting any other terms of this clause 12.1.1, immediately following a material breach of the Agreement by the other Party which is not capable of remedy.

Consequences of Termination

12.1.2. Termination of the agreement formed by these Standard Terms of Service for any reason does not:

(a) release the Client from the obligation to pay any Fees to GymSales whether due before or after termination and GymSales has no obligation to refund any amounts paid to GymSales by the Client for the Software, other than where required by law or where the Client terminates under Section 12.1.1, in which case GymSales will provide a pro rata refund to the Client in respect of any amounts paid in advance relating to the period after the effective date of termination; or

(b) discharge either Party from any liability which has been incurred by that Party prior to termination.

12.1.3. Without limiting GymSales’ rights of termination under these Standard Terms of Service, GymSales is entitled through technical or other means, to suspend Access to the Software for any period that the Client is in material breach of any provision of these Standard Terms of Service.

12.1.4. GymSales shall retain Client’s Data provided under these Standard Terms of Service for up to ninety (90) days from termination and will provide such Data to Client upon request prior to the deletion of such Data pursuant to these Standard Terms of Service. Client may request that GymSales delete Client’s Data prior to such ninety (90) day period. GymSales shall delete Client’s Data after such ninety (90) day period and shall not be responsible for retaining any of Client’s Data after such ninety (90) day period.

12.1.5. Those provisions which by their nature are intended to be performed after termination or expiration of these Standard Terms of Service, shall so survive, including, without limitation, those provisions relating to confidentiality, indemnification, data security, privacy, payment, and dispute resolution.

12.2. Termination – Applicable to All Other Clients

12.2.1. Either party may immediately terminate the agreement formed by these Standard Terms of Service by giving written notice if:

(a) The other Party breaches any of the provisions of clauses 3, 5, 7, 8, 9, or 10;

(d) without limiting any other terms of this clause 12.2.1, immediately following a material breach of the Agreement by the other Party which is not capable of remedy.

Consequences of Termination

12.2.2. Termination of the agreement formed by these Standard Terms of Service for any reason does not:

(b) discharge either Party from any liability which has been incurred by that Party prior to termination.

12.2.3. Without limiting GymSales’ rights of termination under these Standard Terms of Service, GymSales is entitled through technical or other means, to suspend Access to the Software for any period that the Client is in breach of any provision of these Standard Terms of Service.

12.2.4. GymSales shall retain Client’s Data provided under these Standard Terms of Service for up to ninety (90) days from termination and will provide such Data to Client upon request prior to the deletion of such Data pursuant to these Standard Terms of Service. Client may request that GymSales delete Client’s Data prior to such ninety (90) day period. GymSales shall delete Client’s Data after such ninety (90) day period and shall not be responsible for retaining any of Client’s Data after such ninety (90) day period.

12.2.5.Those provisions which by their nature are intended to be performed after termination or expiration of these Standard Terms of Service, shall so survive, including, without limitation, those provisions relating to confidentiality, indemnification, data security, privacy, payment, and dispute resolution.

12.3. You are solely responsible for the cancellation of your account. You can cancel your account at any time via email to help@gymsales.net. A thirty (30) day notice period is required for cancellations, and your service will remain active during this period. Except as agreed otherwise pursuant to these Standard Terms of Service and GymSales’ data retention policies and practices, all of your content and data will be deleted ninety (90) days after cancellation or termination of your account. This information will not be able to be recovered.

12.4.Failure to pay your subscription fees will result in your account being suspended. Accounts are suspended for a maximum of ninety (90) days before the account may be terminated by GymSales. GymSales is not responsible for any loss you suffer as a result of such suspension or termination. A suspended account can be reactivated by supplying valid payment credentials and resuming your subscription.

12.5. GymSales, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service for any reason and at any time. Such termination can result in the deactivation or deletion of your account. GymSales reserves the right to refuse service to anyone for any reason at any time.

13. FORCE MAJEURE

Force Majeure – Applicable to Australia Clients Only

13.1. For Australia End Users only, neither Party will be liable for any delay in performing any of its obligations (except for an obligation to pay for Access to the Software in respect of any time period in which Access to the Software is available) if such delay is caused by circumstances beyond the reasonable control of the Party so delaying (including any act of God, terrorism, fire, governmental order, flood, strike, epidemic, pandemic, lock-out or other form of industrial action or software, hardware, telecoms or other computer failure).

Force Majeure – Applicable to All Other Clients

13.2. For End Users only, neither Party will be liable for any delay in performing any of its obligations (except for an obligation to pay for Access to the Software) if such delay is caused by circumstances beyond the reasonable control of the Party so delaying (including any act of God, terrorism, fire, governmental order, flood, strike, epidemic, pandemic, lock-out or other form of industrial action or software, hardware, telecoms or other computer failure).

14. DISPUTES

14.1. If a dispute arises, each Party must not commence any court proceedings relating to the dispute unless it has complied with the provisions of this clause, except to seek urgent interlocutory relief.

14.2. A Party claiming that a dispute has arisen must notify the other in writing giving details of the dispute (“Notification”). For a Notification to GymSales to be properly received, it must be successfully delivered to GymSales’ address listed herein.

14.3. On receipt of a Notification, the Parties must make reasonable efforts to resolve the dispute.

4.4. If, within ten (10) days of receipt of a Notification, the Parties fail to resolve the dispute, the Parties must refer the dispute to their respective managers or equivalent representatives. Each Party must ensure that its representative uses reasonable endeavors to resolve the dispute.

14.5. If the dispute is not resolved within 30-days pursuant to clause 14.4, either party may commence court proceedings.

15. GENERAL

Assignment & Novation

15.1 Client must not assign, subcontract, mortgage or otherwise transfer or novate or dispose of the whole or any part of these Standard Terms of Service without the prior written consent of GymSales. GymSales may assign its rights and obligations under this agreement without notice to the Client as reasonably necessary to protect its legitimate interests, including but not limited to assignment to a successor in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities.

Invalid or unenforceable provisions

15.2. If a provision of these Standard Terms of Service is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.

Relationship of Parties

15.3. The Parties’ relationship is that of independent contractors. The Parties do not intend to create by these Standard Terms of Service any form of partnership, employment, agency, or trust relationship and neither Party has, nor will represent that it has, the authority to act for or incur any obligation on behalf of the other party. However, to the extent that an indemnity under the Agreement refers to persons other than a Party, the relevant Party holds the benefit of the indemnity as principal and on trust for each of those other persons.

Applicable Law

15.4. By accessing the Website and/or the Software or Services, you accept that any disputes about the Website, the Software, the Content, or the Services will be governed and construed and interpreted in accordance with the substantive laws of the State of Arkansas without giving effect to any conflicts of law or principle that might result in the application of the laws of another jurisdiction, to the extent not pre-empted by applicable law. If you are doing business in any jurisdiction outside of North America, by accessing this Website and/or the Software or Services, you accept that any disputes about this Website and/or the Services will be governed and construed and interpreted in accordance with the substantive laws of the State of Victoria, Australia without giving effect to any conflicts of law or principle that might result in the application of the laws of another jurisdiction, to the extent not pre-empted by applicable law.

Venue for any disputes arising under or associated with these GymSales Standard Terms of Service is and/or will be in Pulaski County, Arkansas for users doing business in North American and Victoria, Australia for users doing business in any jurisdiction outside of North America.

TO THE EXTENT APPLICABLE AND PERMITTED BY LOCAL LAWS, 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 THESE STANDARD TERMS OF SERVICE.

Although the Website, Software, and the Services can be Accessed in many geographic areas and jurisdictions worldwide, GymSales does not represent that the Content complies with all applicable laws (including intellectual property laws). Further, while GymSales commits to comply with laws and obligations applicable to it, GymSales does not represent, warrant, or guarantee that Client’s use and Access of the Website, Software, Content, or Services will ensure compliance with all laws applicable to Client. Client understands that from time to time, the Software or Services may contain tools or functionality designed to help with compliance with such laws, but Client hereby agrees that it is ultimately responsible for ensuring that such tools or functionality are properly configured to the laws and other requirements applicable to Client and Client’s use of the Software or Services. Client acknowledges and understands that while using and Accessing the Website, Software, Content, and the Services there may be laws, rules, or regulations, that require additional action by Client to maintain Client’s compliance, and Client is solely responsible for ensuring its own compliance with applicable law.

Notices

15.5. Any notice required or permitted in these Standard Terms of Service may be sent via email (and will be deemed to have been duly given upon receipt) to Client at the email address that Client provides when registering its account or at the address on file with GymSales. Any notice required or permitted in these Standard Terms of Service may also be sent to GymSales via certified mail or overnight courier to ABC Fitness Solutions, LLC, 2600 North Dallas Parkway, Ste. 590, Frisco, TX 75034, Attn: General Counsel with a copy sent to Legal@abcfitness.com.

Waiver

15.6. Any failure by GymSales to enforce or exercise a right provided in these Standard Terms of Service shall not be a waiver of that right.

16. CONTRACTING ENTITIES FOR GYMSALES

The table below explains the GymSales entity with whom you are contracting depending on the location of your business (the “GymSales Contracting Entity”):

GymSales Contracting Entity	Client’s Business Location
GymSales Software Pty Ltd. (ABN 48 600 605 623)	Worldwide (except USA, Canada & United Kingdom)
ABC Fitness Solutions, LLC	USA
3287646 Nova Scotia Company d.b.a ABC Global Services	Canada
Glofox UK Ltd.	United Kingdom

SCHEDULE 1 – SUPPORT & HOSTING SERVICES

Amazon
- Web server: http://aws.amazon.com/ec2/sla/
- Database Server: http://aws.amazon.com/rds/sla/

Support (M-F, 24hrs Weekend for Urgent requests)
- Email: help@gymsales.net
- Phone: (855) 855-2977
- Online: https://login.gymsales.net/

SCHEDULE 2 – MONTHLY UPTIME PERCENTAGE

99.95% during the month except for: (1) planned downtime, (2) any unavailability caused by problems or outages associated with systems or providers, such as, but not limited to, Internet Service Providers or the Internet network backbone or other force majeure events, or (3) any downtime caused by the actions or omissions of Client or other third parties (collectively, “Uptime Exception Periods”). The monthly uptime percentage is calculated dividing the total number of minutes in the calendar month (excluding Uptime Exception Periods) minus the total number of minutes the Software was unavailable in the calendar month (if any) by (ii) the total number of minutes in the calendar month (excluding Uptime Exception Periods).

PREVIOUS VERSIONS:

Terms of Access (Updated August 1, 2021)