Terms and Conditions*
By this Agreement, Gympass US LLC, and the Partner (described in Partnership Form above) agree to
enter into this Agreement under the following terms and conditions:
1 DEFINITIONS
1.1 Day Token shall mean a one (1) day token included in the Monthly Package that enables a User to access the facility and services of the Partner for a (1) specific day during the applicable month of such Monthly Package.
1.2 Partner Services shall mean the access to and use of a Partner’s facilities and services by Users through the Validation of a Day Token.
1.3 Monthly Package shall mean a group of Day Tokens (in an amount corresponding to the number of days for in the applicable month for which such Monthly Package is purchased) bought by Users that can be redeemed daily to access different Partner facilities for the duration of the month after the date of purchase, subject to the terms and conditions of the Monthly Package. For clarity, each Day Token applies to a specified day in the month and is considered used at the end of each day of the applicable month., consequently, any Day Tokens are no longer valid after the end of the specified day; Day Tokens shall not be rolled over and cannot be held for use in any future period. .
1.4 User shall mean any person who has an active Monthly Package.
2. OBJECTIVE
2.1 Gympass shall provide the intermediation services, including the promotion and marketing of the Partner in Gympass website, to the Partner(s) with respect to the sale of Monthly Packages (the “Gympass Services“) as described in the Partnership Form.
2.2 The Partner shall have no obligation to pay any fixed costs to Gympass, except for the payments as described in this Agreement. Gympass reserves the right to change the terms and pricing of the Monthly Package at any time and in Gympass’ sole discretion, provided that Gympass will use reasonable best efforts to maintain those terms and pricing to benefit the Partner.
2.3 In exchange for the Services, Gympass will receive a commission applied to each Day Token when a User visits the Partner facility and the Partner validates the visit (“Validation”) in the Gympass system.
3. PAYMENTS TO THE PARTNER
3.1 Gympass shall receive from the Users, on behalf of the Partner, the total amount charged to Users through the Gympass website for the purchase of a Monthly Package. As per this Section 3, the Partner will receive the Net Transfer to Partner for any Day Tokens validated by such User for the use of the Partner services. The Partner has no right to payment of any amount for any Day Tokens that are not redeemed for the use of such Partner’s Services.
3.2 Part of the amount charged to the User will be transferred by Gympass to the Partner per Day Token duly validated (“Net Transfer”), after deduction of Gympass’ commission. The Net Transfer amount(s) are specified in the Partnership Form and are already net of Gympass commissions and costs. For calculation purposes, the Net Transfer shall be considered to be 70% of the Base Price.
3.3 Only for the first 8 (eight) validations of the same User, the Net Transfer to Partner will be reduced (and commissions to Gympass increased) as follows: for the 1st Validation of a User the Net Transfer to Partner shall be 42.86% of the original value. For each subsequent validation, the percentage will be increased by 7.14 pp (percentage points) until the 9th validation. When the Net Transfer per validation reaches exactly the value specified in the Partnership Form, it remains constant for all subsequent validations for that specific User.
3.4 Gympass strives to perform the Net Transfer to the Partner on the fifteenth (15th) of each month by transferring the amount to the Partners’ bank account stated in the Partnership Form. The transferred amount is the sum of all Day Tokens duly validated by the Partner from the first until the last day of the month previous to the transfer date.
3.5 In the event of a delay of the Net Transfer, the Partner shall notify Gympass in writing of such delay. If Gympass fails to perform the Net Transfer within five (5) business days after receipt of notice of delay, Gympass shall be obliged to pay the Net Transfer amount due plus one percent (1%) of such amount per month on a pro rata basis. No interest will be applied if such payments are delayed due to any non-compliance of the Partner or errors in the Partner’s bank account information.
4. RESPONSIBILITIES OF THE PARTNER
4.1 The Partner agrees that it shall:
4.1.1 Provide the Services described in the Partnership Form, servicing the Users who made the purchase of the Monthly Package;
4.1.2 Perform validations of Day Tokens with reliability and attendance, following the Customer Care Protocol as specified in Section 7;
4.1.3 Issue invoices for services rendered if requested by Users or Gympass;
4.1.4 Provide Gympass with correct information about the Partners’ services and keep such information updated (such as photos, classes, schedules, terms and conditions of the usage of its premises and prices of regular memberships sold directly by the Partner); and
4.1.5 observe and enforce all relevant legislation with respect to the Partner Services, including health and safety regulations.
4.2 The Partner bears all responsibility and liability resulting from the Partner Services and agrees to release, indemnify, defend and hold Gympass, its affiliated and related entities, and any of its respective officers, directors, agents and employees harmless from any claims, lawsuits, investigations, penalties, damages, losses, expenses (including reasonable attorney’s fees) and liabilities arising out of or relating to (i) any act, omission or breach of this Agreement by the Partner (including any personnel of the Partner); (ii) any Partner IP; and (iii) the use of Partner Services by Users or other third parties (including personal injury, death or property damage).
4.3 Gympass will not be liable or obligated to the Partner or any third party for any special, incidental, exemplary, consequential, punitive or indirect damages arising out of this Agreement or the Services. To the maximum extent permitted by law, in no event shall Gympass’ liability under this Agreement exceed the total Net Transfer amounts to be paid by Gympass to the Partner during the previous six (6) months.
4.4 The Partner agrees that it shall not establish a similar agreement and/or partnership or business relation with another company that generates direct or indirect competition to Gympass, both during the term of this Agreement and for up to six (6) months after its termination.
5. COMMISSIONS OF GYMPASS
5.1 Gympass is entitled to receive a commission as specified in the Partnership Form (the “Commission”), subject to the incentive payment structure described in Section 3.3 and the Partnership Form. Gympass will issue invoices to the Partner on a monthly basis, stating the commission due to Gympass.
5.2 The Partner agrees that, to perform its function of promoting User visits to the Partner facilities, Gympass shall be permitted to perform marketing actions related to the product, promotion, price and placement of the Partner. Such marketing actions will never change the value of the Net Transfer. In this case, any cost of marketing action taken by Gympass will be borne by Gympass, who will reduce it from its own Commission for Services, if applicable.
6. RESPONSIBILITIES OF GYMPASS
6.1 Gympass agrees that it shall:
6.1.1 make available, on its website or via proofs of purchase of Monthly Packages, the name of any User who has access to use the Day Tokens;
6.1.2 provide systems to enable the Partner to perform the Validations and maintain records on the Gympass website;
6.1.3 use commercially reasonable efforts to promote User visits to the Partner’s facilities and to promote the Partner Services; and
6.1.4 issue invoices for the Gympass Services in a timely fashion.
7. VALIDATION PROCESS AND CUSTOMER CARE PROTOCOL
7.1 To ensure that the User who visits a Partner facility is the same User that has an active Monthly Package, and to ensure that the Net Transfers occur as provided in this Agreement, the Partner is responsible for the Validation of each User before granting the User access to their facility.
7.2 When performing the Validation, the Partner shall verify that the person making the visit is the same User as displayed on the Gympass website as having a Day Token for use of the Partner facility and shall obtain all necessary documentation to make such verification. The Partner acknowledges that allowing facility access to Users without properly performing the Validation process may expose the Partner to risks, including that the Partner will not receive any payments from Gympass in the case of an improper Validation. Gympass will only make the Net Transfer payments in amounts owed after a proper Validation. Gympass reserves the right to make changes to its validation system so as long as it provides Partner with two (2) business days’ notice of such changes in advance via e-mail. If Gympass’ online system is down, Validations must be made by telephone to the phone number specified on Gympass’
7.3 Upon a User’s first visit to the Partner’s facility, the Partner shall perform the Validation and shall complete any customary initial registration. The Partner shall be responsible for performing the Validation, informing the User about the rules of use regarding the Partner facilities providing the User with an orientation tour. The Partner will present and offer the guidance of a professional with respect to the Partner Services to the User during any such visit to the Partner’s facilities, if applicable.
8. INTELLECTUAL PROPERTY
8.1 During the Term of this Agreement, the Partner grants to Gympass a royalty-free, nonexclusive license to use, edit, reproduce and display any of the Partner’s trademarks, names and logos, and any photos, content or other material provided or made available by the Partner pursuant to this Agreement in connection with the Services and any advertising, marketing or other promotional activities relating thereto (“Partner IP”). After any termination of this Agreement, Gympass will use commercially reasonable efforts to remove Partner IP from its marketing materials; however, Gympass shall be permitted to maintain Partner IP to the extent reflected on the Gympass website, cached pages or in other marketing materials where more than one partner is referenced or which otherwise would not be commercially feasible for Gympass to remove and/or modify.
8.2 The Partner may use the Gympass name, logo and other Gympass intellectual property only with the prior written approval of Gympass for each instance and in accordance with any guidelines that Gympass may provide from time to time. Gympass reserves the right to withdraw or limit such permission at any time.
8.3 Gympass exclusively owns and retains all right, title and interest in and to (including after the termination of this Agreement) all User data arising out of or in connection with this Agreement, including but not limited to all User data submitted on the System and Website that the Partner may have access during the term of this Agreement (“Gympass Data”). Nothing in this Agreement shall be deemed as if any Gympass Data, information or intellectual property is being transferred or assigned to the Partner, whose access will be granted solely during the term of this Agreement.
9. TERM AND TERMINATION OF CONTRACT
9.1 This Agreement shall enter into force on the Effective Date as set forth on the Partnership Form and shall continue until terminated.
9.2 Either party may terminate the Agreement for any reason upon ninety (90) days prior written notice without penalty to the other party. At any time during the term of the Agreement, including the period after a notice of termination has been received, Users may access the Partner facilities to use their active Monthly Package.
9.3 On the 15th of the month after the termination of this Agreement, Gympass shall make any outstanding Net Transfers to Partner payments for those Day Token properly Validated during the term.
10. OTHER PROVISIONS
10.1 Except as expressly stated herein, Gympass does not make any representations or warranties with respect to the Services and the Gympass website. Gympass does not warrant or guarantee that the execution of this Agreement will result in the sale of Partner Services by Gympass or any other revenue or profit for the Partner. The marketing actions provided by Gympass agrees to use reasonable best efforts to market and promote the Partner Services, but has no obligation to achieve a certain amount of sales related thereto.
10.2 The parties hereto are independent contractors and nothing herein shall be construed to create an agency relationship, joint venture or partnership between the parties.
10.3 This Agreement and any Appendices or amendments hereto may be executed in two or more counterparts, all of which together shall be considered one in the same agreement. The Partner is at all times subject to the Gympass Terms of Use, available on the Gympass website. Gympass may amend its Terms of Use from time to time. Unless Gympass provides a delayed effective date, all amendments will be effective upon posting of such updated Terms of Use. Your continued access to or use of the Gympass website and the Validation of Users after such posting constitutes your consent to be bound by the Terms of Use, as amended.
10.4 Each party (the “Receiving Party”) will keep confidential and not disclose to any other party or use (except as expressly authorized by this Agreement) information, technology, software or business or technical information (“Confidential Information”) obtained from the other party (the “Disclosing Party”). Confidential Information shall not include any information that the Receiving Party can show was: (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that the Receiving Party gives reasonable notice to the Disclosing Party to contest such order or requirement. Additionally, with prior written consent of the Partner, Gympass may disclose Confidential Information for the purpose of marketing the Partner Services. Promptly after the termination of this Agreement (or at the Disclosing Party’s request at any other time), the Receiving Party shall return all of the other’s tangible Confidential Information and destroy Confidential Information and any information, records and materials developed therefrom. This Agreement is confidential and all information related to it shall not be disclosed by the Partner to third parties.
10.5 In case of a violation of the provisions of Section 4.4, 8 and 10.4 of this Agreement, the Partner agrees to pay to Gympass liquidated damages equal to three hundred dollars ($300) per violation without any requirement for notice of violation to be given and without prejudice to GymPass’ rights such as, but not limited to, demanding full compensation and/or compliance with this Agreement, plus any reasonable attorneys’ fees and costs incurred in enforcing this Agreement should the Partner fail or refuse to pay the liquidated damages amount in full within thirty (30) days following its violation.
10.6 This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws provision thereof. The parties specifically consent to the jurisdiction of the local, state and federal courts in the State of New York