This Participation Agreement (the “Agreement”) represents and confirms the mutual agreement with respect to our Affiliate’s (as such term is defined in the Terms & Conditions of FitIn found at [URL] (the “Terms”)) participation on the proprietary platform currently made available by FitIn Inc. (“FitIn”) on fitin.io and referred to as the “FitIn Platform”.
The terms of the Agreement are as follows:
- 1. Intended Projects. The parties agree to work in good faith with one another in connection with the fitness classes Affiliate makes available (each, a “Class”) via the FitIn Platform.
- 3. Availability of Classes. Affiliate will determine, and inform FitIn of, the quality, length, availability, intensity, time, location, description or other criteria that apply to the Classes (the “Criteria”) and Affiliate is solely responsible for ensuring that Affiliate’s Classes meet the Criteria. In the event any Classes are inconsistent with the Criteria (each, a “Substandard Class”), FitIn is under no obligation to: (a) make such Substandard Classes available for sale via the FitIn Platform; (b) pay any amounts to any of Affiliate’s customers; (c) offer any unpaid Classes to any of Affiliate’s customers; or (d) offer any support or dispute resolution to Affiliate’s customers. Affiliate is responsible for any and all costs of all Substandard Classes. With respect to each transaction processed for Affiliate on the FitIn Platform, Affiliate represents, warrants and covenants to FitIn that: (a) the transaction represents a bona fide sale and accurately describes the Classes to customers; (b) Affiliate will fulfill all of its obligations to customers and will resolve any dispute or complaint directly with the customers; and (c) the transaction complies with all laws, regulations, rules and agreements applicable to Affiliate and its business. Affiliate is responsible for all customer service policies and issues relating to the Classes, including pricing, fulfillment, cancellations or no shows.
- 4. Prices and Taxes. Affiliate is responsible for determining and setting the retail price (“Retail Price”) for each Class to be made available for sale via the FitIn Platform. Affiliate shall be the “retailer”, “provider” or “seller” of all Classes. The Retail Price shall include GST, HST and other sales taxes. Affiliate shall have a Harmonized Sales Tax (“HST”) registration number and shall be responsible for deducting and remitting HST to the appropriate regulatory authorities. Except as may be expressly agreed in this Agreement, each party shall be responsible for its expenses and costs during its performance under this Agreement.
- 5. Payment Collection. Affiliate: (a) appoints FitIn as Affiliate’s limited payment collection agent solely for the purpose of accepting payments from Affiliate’s customers on Affiliate’s behalf via the payment processing functionality facilitated by the FitIn Platform; and (b) agrees that payment made by Affiliate’s customer to FitIn (or to an affiliate of FitIn acting as an agent of FitIn) shall be considered the same as payment made directly by Affiliate’s customer to Affiliate.
- 6. Service Fee. In consideration for use of the FitIn Platform, Affiliate shall be charged in accordance with FitIn’s Pricing Policy found at [URL].
- 7. Marks. Subject to the terms and conditions of this Agreement, each party hereby grants to the other party a limited, non-exclusive and non-transferable license to use such party’s respective Marks (as defined below), on a royalty-free basis, for the sole purpose of promoting the FitIn Platform and the Classes. For the purposes of this Agreement, the term “Marks” means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such Marks. Neither party will use the other party’s Marks without the prior, express, written consent of the other party. All goodwill related to a party’s Marks shall enure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party shall be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted herein are expressly reserved.
- 8. Publicity. Except as may be expressly set forth in this Agreement, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of the other party.
- 10. Non-Exclusive. The parties hereby acknowledge and agree that their relationship is non-exclusive. As such, during the time that Affiliate participates on the FitIn Platform (the “Term”) and for a period of six (6) months thereafter, Affiliate agrees not to enter into or commit to any exclusive arrangements with any third parties for the availability of fitness classes via a technology platform similar to the FitIn Platform.
- 11. Confidential Information. “Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other Party (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, including the existence and contents of this Agreement. Confidential Information will not include information that: (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose the Confidential Information to any third party, or use the Confidential Information in any way other than as necessary to perform its obligations under this Agreement. Each Recipient will ensure that Confidential Information will only be made available to those of its employees, contractors and agents who have a need to know such Confidential Information and who are bound by written obligations of confidentiality at least as protective of the Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by a Discloser, each Recipient will deliver to the Discloser any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
- 12. Representations and Warranties. Each party hereby represents and warrants that: (a) it has, and shall have throughout the Term, the full right, capacity, power and authority to enter into this Agreement and to perform fully its obligations under this Agreement; (b) its performance of the terms of this Agreement do not breach, and shall not, breach throughout the Term, any other agreement to which it is or becomes party; (c) it has, and shall maintain at its sole expense throughout the Term, all necessary licences, certifications, permits, registrations and consents to comply with all relevant laws applicable to Affliate’s use of the FitIn Platform; (d) it has, and shall maintain at its sole expense throughout the Term, the required policies of insurance in accordance with this Agreement; (e) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; and (f) the content, media and other materials used or provided as part of this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party. Affiliate further represents and warrants that: (a) it has, and shall maintain at its sole expense throughout the Term, the required skills, experience and qualifications to provide the Classes; and (b) all of Affiliate’s equipment used in the provision of the Classes is, and shall remain throughout the Term, in good working order and suitable for the purposes for which it is used, conforming to all relevant legal standards.
- 13. Disclaimer. AFFILIATE ACKNOWLEDGES AND AGREES THAT AFFILIATE’S USE OF THE FITIN PLATFORM, ITS CONTENT AND ANY SERVICES, PRODUCTS OR ITEMS FOUND OR ATTAINED THROUGH THE FITIN PLATFORM IS AT AFFILIATE’S OWN RISK. THE FITIN PLATFORM, ITS CONTENT AND ANY SERVICES, PRODUCTS OR ITEMS FOUND OR ATTAINED THROUGH THE FITIN PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NEITHER FITIN NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS OR SERVICE PROVIDERS MAKE ANY WARRANTY, REPRESENTATION OR ENDORSEMENT WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, SUITABILITY, ACCURACY, CURRENCY OR AVAILABILITY OF THE FITIN PLATFORM OR ITS CONTENTS. WITHOUT LIMITING THE FOREGOING, NEITHER FITIN NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS OR SERVICE PROVIDERS REPRESENT OR WARRANT THAT THE FITIN PLATFORM, ITS CONTENT OR ANY SERVICES, PRODUCTS OR ITEMS FOUND OR ATTAINED THROUGH THE FITIN PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE FITIN PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FITIN IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOGRAPHY OR ANY OTHER CONTENTS ON THE FITIN PLATFORM.
- 14. Indemnification. Affiliate shall defend, indemnify, release and hold harmless FitIn and its personnel, agents, parent, subsidiaries, representatives, successors and assigns from and against all claims, obligations (contractual and extra-contractual), losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (collectively the “Claims”), arising out of or resulting from: (a) bodily injury, death of any person, or damage to real or tangible personal property; (b) Affiliate’s breach of any representation, warranty, covenant or obligation under this Agreement; (c) any Claim brought against FitIn with respect to an infringement of a third party's intellectual property rights; and (d) the negligence, gross negligence, or willful misconduct of Affiliate, including without limitation, Affiliate’s negligence, misconduct or inappropriate behavior in the provision of the Classes.
- 15. Limitation of Liability. FITIN’S LIABILITY FOR ANY CLAIM WHETHER IN CONTRACT, WARRANT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LOSS OR DAMAGE (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL) ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM, THIS AGREEMENT SHALL IN NO CASE EXCEED THE SUM OF TEN THOUSAND DOLLARS ($10,000) IN THE AGGREGATE.
- 16. Insurance. During the Term, Affiliate shall have and maintain in force commercial general liability insurance and any other applicable insurance, including professional liability insurance, with policy limits sufficient to protect and indemnify FitIn from any losses arising from Affiliate's conduct, acts, or omissions, which policy will include contractual liability coverage insuring the activities of Affiliate under this Agreement. Affiliate shall forward to FitIn a certificate verifying such insurance, upon FitIn's written request. Affiliate shall not do anything to invalidate such insurance and shall notify FitIn immediately in writing of termination of such insurance.
- 17. Notice. Any notice or other communication to be given in connection with this Agreement shall be given in writing and may be given by electronic transmission, personal delivery or by regular mail as follows: to FitIn at email@example.com and to Affiliate at the email address provided by Affiliate to FitIn when Affiliate signed up for an Account (as defined in the Terms) or such other address as may be designated by notice by any party to the other. Any notice given by personal delivery will be deemed to have been received on the day of actual delivery and, if transmitted by electronic transmission before 3:00 p.m. on a day other than a Saturday, Sunday or bank holiday in Ontario (a “business day”), will be deemed to have been received on that business day and, if transmitted by facsimile after 3:00 p.m. on a business day, will be deemed to have been received on the next business day after transmittal.
- 18. Dispute Resolution. If any dispute shall occur between the parties relating to the interpretation or implementation of any of the provisions of this Agreement, the parties shall make a good faith attempt to resolve such dispute via non-binding mediation. If non-binding mediation is unsuccessful, such dispute shall be resolved by arbitration. The arbitration shall be conducted by a single arbitrator. The arbitrator shall be appointed by agreement between the parties. The arbitration shall be held in the City of Toronto. The procedure to be followed shall be agreed by the parties or, in default of agreement, determined by the arbitrator. The arbitration shall proceed in accordance with the provisions of the Arbitrations Act (Ontario), S.O. 1991, c. 17. The arbitrator shall have the power to proceed with the arbitration and to deliver his award notwithstanding the default by any party in respect of any procedural order made by the arbitrator. It is further agreed that such arbitration shall be a condition precedent to the commencement of any action at law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
- 19. Enurement and Assignment. This Agreement will be binding on and shall enure to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any legal or equitable right or benefit of any nature whatsoever. Affiliate shall not assign any rights under this Agreement without FitIn’s prior written consent.
- 20. No Partnership. Nothing in this Agreement shall be construed to create any association, partnership, joint venture, agency, fiduciary or employment relationship between Affiliate and FitIn, for any purpose, and neither party has the authority to contract for or bind the other party in any manner whatsoever.
- 21. Interpretation. In this Agreement, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. Every use of the words “including” or “includes” in this Agreement is to be construed as meaning “including, without limitation” or “includes, without limitation”, respectively. The division of this Agreement into Sections and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
- 22. Amendment and Waiver. Any amendment to this Agreement must be in writing and executed by both parties. No waiver by any party of any of the provisions hereof shall be effective unless it is set in writing and signed by the waiving party. Failure or delay in exercising any right, remedy, power or privilege or in enforcing any term or covenant under this Agreement does not constitute a waiver or an estoppel. No waiver of any provision in this Agreement shall be deemed or constitute a waiver of any other provision.
- 23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party irrevocably submits to the exclusive jurisdiction and venue of the courts located in the Province of Ontario in any legal suit, action or proceeding arising out of or based upon this Agreement.
- 24. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall apply to the term or provision only to the extent that invalidity or unenforceability, and shall not affect any other term or provision of this Agreement.
- 25. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, and related exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. There are no warranties or representations by FitIn, except as specifically provided in this Agreement.
- 26. Independent Legal Advice. Affiliate acknowledges and agrees that Affiliate has read and understands the terms and conditions of this Agreement and that Affiliate has had the opportunity to seek, and was not prevented or discouraged by FitIn from seeking, any independent legal advice which Affiliate considered necessary before the execution and delivery of this Agreement and that if Affiliate did not avail herself/himself/itself of that opportunity before signing this Agreement, Affiliate did so voluntarily without any undue pressure, and agrees that her/his/its failure to obtain independent legal advice will not be used by her/him/it as a defence to the enforcement of her/his/its obligations under this Agreement.
- 27. No Contra Proferentem. Each party acknowledges that this Agreement is the product of their joint efforts, that it expresses their agreement, and that, if there is any ambiguity in any of its provisions, that provision should not be interpreted in favour of either one of them.