1. GENERAL

These terms and conditions (“Terms”) govern Company’s purchase of subscriptions to the Aaptiv audio fitness mobile application and related services as made available via download through Apple’s App Store and the Google Play Store (each individual mobile application download, including the related services, a “Subscription”) for use by Company employees and, in conjunction with the terms and conditions specified in the Order Form, constitute the complete agreement of Company and Aaptiv regarding Subscriptions (the “Agreement”).

Capitalized terms that are not defined in these Terms have the meaning specified in the Order Form.

2. FEES AND PAYMENT TERMS

2.1   Fees and Payment.  Fees and payment terms are provided in the Order Form.  Unless otherwise stated in an Order Form, Company will pay to Aaptiv in U.S. Dollars, and invoices are due net thirty (30) days after the invoice date.  Except as otherwise expressly provided in an Order Form, all fees are non-cancelable and non-refundable. In addition to any other rights it may have, Aaptiv will have the right to terminate this Agreement upon Company’s failure to make any payment due hereunder by the due date, provided that Aaptiv gives Company notice of non-payment and ten (10) days opportunity from the date of the notice to cure. Interest will accrue on past due amounts at the rate of 1.5% per month (or any lower legal maximum).

2.2   Resellers.  If Company purchased Services through a Reseller, then such payment terms negotiated by Company with such Reseller will control (as to payments between Company and such Reseller).

2.3  Taxes.  All fees stated exclude, and Company is responsible for payment of, any sales, use, value added, excise, property withholding or similar tax and any related tariffs, and similar charges, except taxes based on Aaptiv’s net income. Company will, and hereby agrees to, promptly reimburse Aaptiv for any and all taxes or duties that Aaptiv may be required to pay in connection with this Agreement upon receipt of Aaptiv’s invoice therefor.

2.4  Audits.  Company agrees that Aaptiv will have the right at its expense, no more than one time in any twelve (12) month period, to audit Company’s use of the Services to ensure compliance with this Agreement, if conducted during normal business hours, given ten (10) days advance notice, and if reasonable in scope. If not in material compliance with this Agreement, Company agrees to promptly reimburse Aaptiv for any reasonable expenses associated with conducting the audit in addition to any overdue payments.

 

3. END USER ACTIVATION AND COMPANY OBLIGATIONS

• Account Authorization. Any Eligible Employee who wishes to access a Subscription (each, an “End User”) will use a Company-specific landing page or email domain to accept Aaptiv's standard terms of use and create an Aaptiv account. Aaptiv will implement a domain restriction such that only individuals with Company email accounts from the domains specified on the Order Form can create an Aaptiv account through the landing page. Each End User will then be required to download Aaptiv's mobile application. Aaptiv will make any updates, error corrections, and improvements to its mobile application and services available to End Users as it makes them available generally to its other customers.
• Subscription Terms. Each Subscription will be active from the date on which an End User registers for Aaptiv’s service until the termination of this Agreement.
• Communications with End Users. Company acknowledges and agrees that Aaptiv may message directly to end users via the app (in app messaging and notifications) to promote engagement and provide information on related or additional services that are available to end users.
• Obligation for Internal Marketing. Company agrees to undertake an internal marketing campaign to all employees at least once a quarter that advises them of the Aaptiv services the employees can use.  Aaptiv will provide Company with marketing materials for this purpose and will work with and support Company in this marketing effort, each party bearing its own expenses.

4. TERM AND TERMINATION

• The term of this Agreement shall commence upon the Effective Date specified in the Order Form and will continue for as long as there is an Order Form in effect. If no Order Form is in effect, either party may terminate this Agreement without cause upon thirty (30) days’ written notice to the other party. If the Order Form does not specify a term, the initial term of this Agreement will be for a period of one (1) year beginning on the Effective Date.  Unless specified otherwise in the Order Form, this Agreement will automatically renew for successive terms of one (1) year each unless one party provides the other with thirty (30) days written notice prior to the end of the current term of its intent not to renew.
• Termination for Cause. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 15 days prior written notice, provided that the matters set forth in such notice are not cured to the other party's reasonable satisfaction within the 15-day period.
• Termination for Convenience. Aaptiv may terminate this Agreement at any time for convenience by giving thirty (30) days written notice to Company.
• No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other, because of such termination, for damages caused by the loss of prospective profits or anticipated sales. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
• Effects of Termination. The following provisions will survive any expiration or termination of this Agreement: Sections 4.4, 5, 6, 7 and 8.

5. CONFIDENTIAL INFORMATION

• "Confidential Information" means any non-public information that relates to the actual or anticipated business, research, or development of Aaptiv or Company and any proprietary information, trade secrets, and know-how of Aaptiv or Company that is disclosed to the other party.
• Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time the disclosing party disclosed the information to the receiving party, (b) became publicly known and made generally available, after disclosure to the receiving party by the disclosing party, through no wrongful action or inaction of the receiving party or others who were under confidentiality obligations, (c) was in the receiving party's possession, without confidentiality restrictions, at the time of disclosure by the disclosing party, as shown by the receiving party's files and records; or (d) is required to be disclosed by the receiving party by applicable law, rule, regulation or court order, provided that the receiving party gives the disclosing party prompt written notice of the required disclosure and cooperates with the disclosing party's attempt to limit the disclosure.
• Nondisclosure and Non-use. The receiving party will not, during and after the term of this Agreement, disclose the Confidential Information of the disclosing party to any third party or use such Confidential Information for any purpose other than as permitted under this Agreement. The receiving party will take all reasonable precautions to prevent any unauthorized disclosure of the disclosing party's Confidential Information.
• Marketing and Brand. During the term of the Agreement each party hereby grants the other a non­exclusive, non-transferrable, worldwide royalty-free license to use, display and publish, solely for the purposes of promoting such party pursuant to this Agreement, the other party's trademarks, logos and other related property provided by such party, subject to any usage guidelines communicated by such party. Company may not use any marketing language or materials to describe or market the partnership with Aaptiv that have not been expressly approved by Aaptiv.

6. WARRANTY DISCLAIMER

EXCEPT AS SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AAPTIV MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. AAPTIV EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. AAPTIV DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE OR AGAINST INFRINGEMENT. AAPTIV DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. COMPANY WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF AAPTIV TO ANY THIRD PARTY.

7. LIMITATION OF LIABILITY

• Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF IT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
• Cap on Liability. UNDER NO CIRCUMSTANCES, BUT TO THE EXTENT PERMITTED BY APPLICABLE LAW, WILL EITHER PARTY'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO AAPTIV UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
• The disclaimers and limitations of this Section 7 will not apply to either party’s confidentiality obligations under Section 5.

8. GENERAL

• Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent of or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.
• This Agreement is governed by the laws of Delaware without reference to conflict of law principles. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement in its entirety to any purchaser of all or any substantial portion of its business or assets or to any subsidiary or other affiliate without the prior approval of the other party. Each party must comply in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the technology and documentation provided hereunder. This is the entire agreement between the parties relating to the subject matter hereof. No waiver or modification of this Agreement will be valid unless in writing signed by each party. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
• Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by a) certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth above and with the appropriate postage affixed, or b) email with confirmation of receipt to the address listed below. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing, one business day following delivery to a courier, or upon receipt if sent via email.
• Force Majeure. Except for a party’s payment obligations, neither party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to, without limitation, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, loss and destruction of property or any other circumstances or causes beyond a party’s reasonable control.