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HomeMy WebLinkAboutContract 45464 (2)L U ti R G11,E U+ COMACT kr, 45qt/1-L. Distributor Start Date araf,44"--- SERVICE AGREEMENT FOR LES MILLS PROGRAMS KEY TERMS Fitness Marketing Systems, LLC c.iba Fitrnarc"4 6777 Camp Bowie Blvd., Ste 216, Fort Worth, TX 76116 P 800-814-1207 F: 817-732-4706 Email: infocfitmarc,com www, fitrnarc.corn Latest date listed on the Signature Page of this Agreement Customer and Location CAS/Winer: City of Fort VVorth Location Name: Chisholm Trail Community Center Plrysical Address: 4680 McPherson FBcttrevard Physical City: Fort Worth Services Fees Physical State: _ f ` Physical Zip: _7' 123 Phone: (81 ) 392-8010 Program Number Monthly Service Fee Program N 11 no 300.00 BODYPLJ M P 2 r, 3 4 5 6 7 8 (.9 10 NM • 0.0 Amounts are per month and per Location. The first amount for all of the Programs is payable immediately on signing this Agreement and subsequent months are payable 30 days after the Start Date for each of the Programs and monthly thereafter. Initial Training Fees As set out in Schedule 4. instructor Resources Prices Choreography Program Kit: $34.95 for pre -order (autoship) or 344 70 for list price plus shipping, handling and any applicable states taxes. Prices are subject to change upon 30 clays prior notice from the Distributor. BACKGROUND A The Distributor has certain rights to the Programs and Intellectual Property in an exclusive territory consisting of Kentucky, Alabama, Tennessee, Louisiana, Arkansas, Texas, New Mexico, Oklahoma, Colorado, Wyoming, Montana, and Mississippi (collectively, "Territory") pursuant to a Distribution Agreement with Les Mills North America Holdings Limited (Les Mills). B The Distributor certifies Instructors to conduct classes of the Programs this Agreement. C The Customer wishes to use the Programs at the Location and the Distributor has agreed to license the Customer to use the Programs and intellectual Property on the terms set out in this Agreement. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree to these Key Terms and the Terms and Conditionsattached. Agreement with Fitness Marketing Systems, t_LC 1 of 14 RECEIVED MAR 2i1014 TERMS AND CONDITIONS Rights Granted to the Customer: "f he Distnbutur grants to the Customer the non-exclusive right to use the Programs and Intellectual Property al the Location as set forth in this Agreement 2 Location: The Customer roust not use the Programs or Intellectual Property outside the Location unless (a) the Distubutor gives prior written consent: and (b) that use relates to an exhibition of the Programs for the purpose of promoting the P rograms The Dtstnbutor must not unreasonably withhold such consent. 3 Rights Reserved: The Distributor and/or Les Mills, in their sole and absolute discretion, may change the list and content of the P rograms, the Instructor Resources, the Group Fitness Resources and/or Intellectual Property at any time without notice. N otwithstanding anything to the contrary, the Ctty shall not be responsible for implementing or abiding by any such changes until such time as it has received written notification of the changes from the Distributor or Les Mills and a reasonable time within which to implement or abide by any such changes 4 Term and Termination: This Agreement will commence on the Start Date and expire on the last day of the month that is twelve (12) months after the Start Date, unless terminated earlier pursuant to the terms set forth herein. The parties may renew this Agreement for five renewal periods of one year each on the same terms and conditions upon written mutual agreement Either party may terminate this Agreement on one month's notice or in accordance with this Agreement This Agreement may be terminated intmecliately upon notice by the Distributor if the Customer is engaging in or has engaged in, conduct that could damage. dilute, or impair the Intellectual Properly PART 1: TRAINING, EDUCATION AND ASSISTANCE 5 Initial training: The Customer will (a) nominate the Instructors it would like the Distributor to train to condiict the Program and (b) pay the Initial Training Fee to the Distributor prior to the commencement of training l he Distributor will train each nominated Instructor ill a professional and competent manner following the training procedures in the Instructor Resources and the Group Fitness Resources 6 Certification: The Dtstnbutor will certify an Instructor to conduct a Program when, in the reasonable opinion of the Distributor. the Instructor has satisfied the certification guidelines contained in the Instructor Resources and paid the Instructor Assessment Fee 7 Training Workshops: The Customer must ensure that each Certified Instructor attends and completes any Training W orkshops as required by the Distributor and/or Les Mills and to the Distributor s reasonable satisfaction The Distributor is entitled to charge a S290,00 fee to the Customer tor attendance at Training Workshops 8 Instructor. (a) Generally (r) By execution of this Agreement. the Customer represents that each of its employees that seek to be Certified Instructors under this Agreement are aware of the terms of this Agreement before training to become a Certified Instructor or having access to the Instructor Resources or the Group Fitness Resources (ii) The Customer will ensure each Instructor complies with the terms of this Agreement. OM The Customer will only conduct Programs using Instructors who are Certified Instructors in relation to the relevant Program (b) Certification, Once a Customer's employee has satisfied the certification guidelines contained in the Instructor Resources, the Distributor shall certify that employee to conduct each Program for which Certification has been granted Once Certification has been granted as provided herein, the Distributor is responsible for ensuring the ongoing quality of each Certification, including. but not limited to, the Distributor's obligations set forth in Section 12 and informing the Customer of any required Certification updates or changes necessary to maintain Certification (c) Classes. The Customer's employees may only conduct Program classes for those Programs for which they have been certified and for which the Customer has been granted a license under this Agreement. The Customer's employees may conduct Program classes without certification in instances where the Customer's employees have completed their initial instructor training and received the Distributor's wi ilten consent. c) International transfer by Instructors: If the Customer is approached by an Instructor who previously conducted Program classes in another Territory and now wishes to conduct Program classes in the Territory. the Customer will (a) inform the Distributor of such approach' (b) to the extent reasonably practicable provide the Distributor with all information in its possession in relation to that Instructor. and (c) only allow that Instructor to conduct Program classes or have access to Group Fitness Resources following written consent of the Distributor (not to be unreasonably withheld) 10 Assistance to Customer: If following request from the Customer, the Distributor makes a Representative available at any Location to provide assistance to the Customer, then the Customer will pay to the Distributor (a) all reasonable travel and ac:commorlation expenses incurred by the Representative. lb) the Distributor's standard monthly rate of 5300 00 for any consultancy assistance 11 Inspection: Subject to the Customer's reasonable security requirements. the Distributor and/or Les fvlills may at any time visit a Location to inspect Program classes conducted by the Customer to ensure compliance with this Agreement 12 Distributor's obligations: The Distributor will (a) ensure that all training is delivered to Les Mills' high standards of professionalism, (b) provide Instructor Resources and Group Fitness Resources That are of high quality. and (c) communicate with the Customer on a regular basis and keep the Customer updated with information regarding the Programs PART 2: QUALITY AND MATERIALS 13 Supply and use of Instructor Resources: The Dislnbulor will sell to the Customer, and the Customer will purchase from the Distributor the most current release of the Instructor Resources The Customer will pay the relevant Instructor Resources Price to the Distributor at the time any such material is purchased from the Distributor The Customer will ensure that each Certified Instructor has their own 821 of the most current release of Instructor Resources for which appropriate fees have been paid 10 the Distributor and will prohibit any copying of the Instructor Resources The Customer is permitted to, and must ensure that its Certified Instructors are permitted to use the Instructor Resources only (a) for the purpose of the Customer conducting the Programs: (b) in accordance with this Agreement AEI eerie it :3th rifnec tvl.liketing Systems, LLC 2of 14 (c) In accordance with any directions given by the Distributor or Les Milts from time to time, (d) in accordance with all applicable laws and regulations, and (e) in accordance with any music licensing rights of Les Mills or the Distributor that have been notified to the Customer Foi the avoidance of doubt the Customer is responsible for obtaining public performance rights for the use of the Instructor Resources at the Location 14 Supply of Group Fitness Resources The Distributor will make (he Group Fitness Resources available to the Customer 15 Use of Materials: 1 he Customer Is permitted to, and must ensure that its Certified Instructors are permitted to, copy. distribute, or use any of the Group Fitness Resources or any Intellectual Property (excluding the Instructor Resources dealt with at clause 13 above) only, (a) for the purpose of the Customer conducting or promoting the Programs, (b) in accordance with This Agreement, (c) in accordance with the Les Mills Brand Guidelines and any other directions given by the Distributor or Les Mills from time to time, (d) in accordance with all applicable laws and regulations_ 16 Customization: The Customer may only customize any of the Instructor Resources, Group Fitness Resources or Intellectual Property with the prior written permission of the Distributor 17 Conduct of Classes: The Customer will maintain the highest standards and ensure the Program classes are conducted' (a) by a Certified Instructor or an Instructor who has completed their initial training and has the consent of the Distributor to conduct Program classes. (b) in compliance with this Agreement: (c) to Les Mills' high standards of professionalism, (d) in accordance with the Instructor Resources and Group Fitness Resources (e) in accordance with the current release of the Program, and (f) in a way that is not likely to damage, dilute or diminish the reputation of the Programs Les fvlills and/or the Distributor 18 Sale of Merchandise: The Customer may purchase Les Mills Merchandise only from persons approved and/or Ircensed by Les Mills and/or the Distributor PART 3: PAYMENT '19 Payment and Calculation of Fees The Customer will pay the Distributor the monthly Services Fees set forth in the Key Terms to this Agreement for each Program used by a Customer al each Location The Customer will pay the Distributor such Services Fees and all other amounts as invoiced on the first day of each month by direct debit from the Customer's nominated hank account The Distributor may alter any fee, late or price (including without limitation the Services Fees the Initial Training Fee, the instructor Assessment Fee and the Instructor Resources Price) under this Agreement with 30 days prior notice to the Customer provided that the Distributor may not change the Services Fees or the Initial Training Fee until after 12 months from the dart Date 20 Payment Default' Without limiting the Distributor's rights. the Customer will pay the Distributor interest. if demanded, on any amount past due but not paid. from the clue dale unfit the date of payment at the rate of 2 5% per month or pact month 21 No Direct Debit Where the Customer is unable or unwilling to pay the Services Fee or any other amount payable to the Distributor by direct debit, the Distributor may charge the Customer a reasonable administration charge not exceed 810 00 PART 4: INTELLECTUAL PROPERTY 22 Ownership of Intellectual Property: The Customer acknowledges and agrees that, (a) as between Customer. Distributor and Les Mills, all right title and interest in and to the Programs, Intellectual Property. Improvements, Instructor Resources and Group Fitness Resources is (and will be) owned exclusively by Les Mills. regardless of the media in which embodied, now or in the future. (b) except as specifically set forth in this Agreement, the Customer does not have. and will not acquire or claim. any right. title or interest in or to the Programs, Intellectual Properly. Improvements Instructor Resources, Group Fitness Resources or the Goodwill. and (c) all Goodwill will inure for the exclusive benefit of Les Mills 23 Assignment: If, as a result of this Agreement or otherwise the Customer has, or ever acquires. any right. title or interest in or to any of the Programs. Intellectual Property, Improvements, instructor Resources Group Fitness Resources or Goodwill (collectively the Rights). then the Customer holds those Rights on trust for Les Mills the Customer. (a) assigns all its existing Rights (Les Mills may itself assign or modify those Rights) and (to the extent possible) all its future Rights to Les Mills, (b) (to the extent that the Customer s future Rights are not capable of assignment nowt assigns all future Rights (Les Mills may itself assign or modify those Rights) immediately on those Rights coming into existence: and (c) will promptly (at its own cost) execute all documents and do all things Immediately on Les Mills' request necessary to achieve. confirm or perfect that assignment 24 No challenge or registration: The Customer will not do anything Inconsistent with Les Mills' exclusive ownership of the Programs. Intellectual Property. Improvements Instructor Resources, Group Fitness Resources or the Goodwill or rights to the Licensed Rights and the Customer wilt (a) not in the future use (except as permitted by this Agreement). and not at any time register or attempt to register and (b) not object to, oppose or prevent Les Mills' use of (itself or by licensees) applications to register, or registrations of, any of the Programs. Intellectual Property. Improvements, Instructor Resources or Group Fitness Resources or any Trademark, brand. business name, trading name. company name. domain name, logo or stylization, design or work (or anything of a similar nature to any of these things) that is Identical to, confusingly similar to, or ncorporales any of the Programs Intellectual Property Improvements. Instructor Resources or Group Fitness Resources or .1 radernark anywhere an the world or assist or permit any other person to do any of these things Without limitation, the Customer will not at any time directly or indirectly (c) do or pernd to be done any act or thing which may in any way impair the rights of Les Mills in or to the IntellectuaI Property Programs. Improvements. Instructor Resources. Group Fitness Resources or Trademarks, or (d) challenge or call Into question the validity of Les Milk ownership of the Programs, Intellectual Property, Improvements Instructor Resources, Group Fatness Resources or Trademarks. or Les Milts' right to use or register or Distributor's right to use, any of the foregoing in the Territory or elsewhere 25 Use of Intellectual Property: The Customer wall (and will ensure That Its Representatives) use the Intellectual Properly, ,rr c r�irnt with fatness M irkrtulq Sy;tPPr'5, l Li 3 cif 11 P rograms. Improvements. Instructor Resources and Group Fitness Resources only as expressly permitted under this Agreement or otherwise approved by the Distributor in writing, In particular, without limitation, the Customer rnust (and must ensure Thal its Representatives)' (a) comply strictly with all stipulations, requirements or guidelines in the Instructor Resources, Group Fitness Resources or otherwise advised to the Customer by the Distributor or Les Mills reyaiding the use of the Intellectual Property, Programs or Improvements. (b) not alter or attempt to alter in any way the Programs, Improvements, Instructor Resources, Group Fitness Resources or Intellectual Property, including without IirnilaUon the appearance of any imagery graphic device or logo, and (c) not copy or reproduce in whole or part in any way any of the Programs, Improvements, Instructor Resources, Group Fitness Resources or Intellectual Property except as permitted under this Agreement or approved by the Distnbutor 25 Infringement and other parties: The Customer may notify the Distributor of any suspected or actual infringement of Les Millsor the Distributor's Intellectual Property rights by third parties of which the Customer is aware. in particular any copying of the Instructor Resources that pertain strictly to this Agreement The Customer may notify the Distributor and Les Mills of any claims or threatened claims made by any other parties (hat the Intellectual Property infringes or violates any other party's intellectual property rights PART 5: GENERAL 27 Indemnity' The Customer indemnifies the Distributor and Les Mills for any physical, direct and Indic ect/consequentialdamage. loss or cost (including attorneys' fees and ousts) to the Distributor and Les Mills or any other person and will protect the Distnbutor and Les Mills front any claim against the Distributor and Les Mills. to the extent caused or contributed to by the Customer in respect of this Agreement the Intellectual Property or the Programs including without limitation any claims of physical harm caused by Ihe Customer's use of the Programs 28 Disclaimer EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND. EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW INCLUDING BUT N OT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEf=RENT Customer WILL MAKE NO REPRESENTATIONS OR WARRANTIES ON DISTRIBt1TOR'SOR LES MILLS' BEHALF WITHOUT DISTRIBLH OR S AND LES MILLS' EXPRESS WRI17EN CONSENT. INCLUDING WITHOUT LIMITATION THE QUALITY OF THE PROGRAMS, RESULTS OR ANTICIPATED RESULTS OF THE EXERCISE ROUTINES. FITNESS RESULTS OR WEIGHT LOSS 29 Limitation of Liability: The Distributor's liability for all claims arising out of this Agreement whether in contract. tort or otherwise. will he limited to the amount of fees paid by the Customer to the Distnbutor under this Agreement during the Twelve (12) months preceding the claim 30 Insurance The Customer must have and maintain during the Tent valid and enforceable comprehensive business liability insurance policies covering the Location and the use of the Programs 31 Evidence Of Insurance Required The Customer must give evidence of the insurance policies required under this Agreement when requested by Ihe Distributor, 32 Assignment: The Distributor may assign this Agreement. which shall be binding on any successors and assigns The Customer w ill not assign this Agreement witnoul the Distributor's prior written approval 33 Immediate Termination: Either party may terminate this Agreement immediately on written notice to the other party If' (a) either party is in breach of this Agreement and has failed to rectify the breach within seven clays of written notification by the the non -defaulting party of such breach (b) either party ceases to carry on its business. ceases to be able to pay its debts as they become due, any step is taken to enter into an arrangement between the Customer and its creditors or any stet} is taken to appoint a receiver, receiver and manager a trustee in bankruptcy, a liquidator a pi °visional liquidator an administrator or other like person in respect of Ihe such party's assets or (c) the Distributor other than as a result of its own default, is no longer able to provide the Programs to the Customer without giving rise to any right in the Customer to compensation or damages 34 Consequences of Termination: Immediately upon the termination of this Agreement the Customer will (a) cease to conduct the Programs, (h) cease to use all Intellectual Property (c) cease to use and destroy any Instructor Resources or Group F ilness Resources, and (d) ensure that each of its Representatives also cease fo do the matters referred to in (a), (b) and (c) above 35 Prior breaches: Termination of this Agreement does not affect the parties' rights with respect to prior breaches. 36 Obligations survive termination: All obligations of the Customer, including confidentiality and intellectual property obligations which are to be performed in whole or part after the termination of this Agreement will survive termination, 37 Government Taxes And Charges: All amounts payable under this Agreement are exclusive of all wiles use, value-added. withholding, and other taxes and duties, The Customer will promptly pay. and indemnify the Distributor against all taxes and duties assessed in connection with any such amounts, this Agreement and its performance by any authority within or outside of the Territory except tnr taxis payable on the Distributors net income, In this event the Customer or the transactions contemplated by this Agreement are (or, after execution of this Agreement, become) exempt from the foregoing, the Customer shall promptly provide to the Distributor, as evidence of such tax-exempt status, proper exemption certificates or other documentation acceptable to the p Distnbutor 38 Entire Agreement: This Agreement contains all of the terms, representations and warranties made between the parties and supersedes all prior discussions and agreements covering the subject matter of this Agreement 39 Amendments: No amendment of this Agreement will be effective unless it is in writing and signed by the parties 40 Waiver: No waiver by either party of any breach of this Agreement by the other party will he considered as a waiver of any subsequent breach of the same or any other provision 41 Confidentiality: The Customer must at all tines keep confidential and secure any Les Mills or Distributor property and rnforriiation in its possession or within its control which is commercially sensitive or confidential (including this Agreement) The Customer may not issue any press release of information concerning this Agreement or its subject matter without the prior approval of the Distributor 42 Force Majeure If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond Agtewith FiWN,s Ne kcuni; Systems, I I ( 4 of I.4 the party's reasonable control including. without limitation an ad of God. fire flood, explosion, war. stake, embargo government regulation civil or military authority acts or omissions of carriers. transmitters, providers, vandals, or hackers (a force maleure event") the time for that party s performance will be extended for the period of the delay or inability to perform due to such o ccurrence. provided however, That the Customer will not be excused from the payment of any sums of money owed by Ihe Customer to the Distributor, and provided Further, however. that if a party suffering a force maleure event is unable to cure that e vent within 30 days, the other party may terminate Iles Agreement, 43 Specific Performance: Damages are unlikely to be an adequate remedy in relation to a preach of this Agreement by the Customer. The parties agree Thal specific performance and/or injunctive relief are the only adequate remedy and may be sought by Les Mills and/or the Distributor 44 Governing Law: This Agreement will be governed by the law of the Stale of Texas witliout regard to conflicts al laws principles, and the parties submit to the non-exclusive junsdictiorr of the courts in the State of Texas. 45 Partial Invalidity; If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or u nenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain in force to the greatest extent permitted by law 46 Counterparts: This Agreement may be signed electronically by fax or in counterparts 47 Definitions In this Agreement, the following terms shall be defined as follows: Agreement means this Services Agreement and includes all schedules and addenda; Certified instructor means an Instructor who has heen Certified. and is currently Certified, by the Distributor in relation to specified Programs in accordance with this Agreement Chub means a health and/or fitness club or any other organization interested in obtaining a license to use the Programs Distribution Agreement means the agreement between Les Mills and the Distributor setting out the terms on which Les Mills grants the Distributor the right to license Clubs in the Territory to use the Programs and the Intellectual Property Goodwill means all goodwill in, attaching to or arising from or in connection with the use of any of the Programs. Intellectual Property or Improvements. Group Fitness Resources means the materials, information and assistance relating to the Programs including those listed in Schedule 2, as modified from time to time by the Distributor and/or Les Mills Improvements means all improvements, developments. enhancements. derivations, alterations or other modifications made to or basecl on the Programs or Intellectual Property which are developed or acquired by Les Mills or the Distributor (whether alone jointly with each other, or jointly with any other person). /nstrucformeans a person engaged by the Customer to instruct Programs at the Location, Instructor Agreement means the instructor agreement substantially in the form set out in Schedule 3. Instructor Resources means the materials including music audio visual footage and choreography for the use of Instructors relating to the Programs. including those listed in Schedule 1, as modified from lime to time by the Distributor and/or Les Mills, Intellectual Finnerty means all intellectual property rights and interests (including common law rights and interests) created. developed or used by Les Mills and its affiliated companies in relation to the Programs whether existing at the date of this Agreement or subsequently created developed or used by Les Mills and its affiliated companies. and that the Distributor authorze the Customer to use Intellectual Properly includes, without limitation (a) the Trademarks names and/or other devices used by Les Mills and its affiliated companies to identify and promote itself and/or the Programs and that the Distributor authorizes the Customer to use. (b) know-how trade secrets technical/business or other information or experience devised, developed or acquired by Les Mills and its affiliated companies and/or applied to the developrnent and marketing of the Programs and that the Distributor authorizes the Customer to use, (ci copyright including copyright licenses held by Les Mills and its affiliated companies in any written rriateriul. [cuhnes of other works relating to the Programs and that the Distributor authorizes the Customer to use' (d} patents. registered and unregistered designs and thal the Distributor authorizes the Customer to use. and (e) Improvements which Les Mills and its affiliated companies decides to include within the intellectual Properly licensed to the Customer under this Agreement L s Mills Brand Guidelines means the brand guidelines contained in the Group Fitness Resources or as otherwise provided by Les Mills or the Distributor to the Customer from time to lime, Les Mills Merchandise means any clothing. merchandise, goods or other item incorporating any Intellectual Property. Customer means a Club which has entered into a License Agreement with the Distributor: Licensed Rights means intellectual property rights for which Les Mills has obtained a license from third parties to use in connection with the Programs: Location means a single physical facility at which a Customer operates. Program means the Les Mills programs listed in the Key Terms, as amended from tune to time by the Distributor and/or Les Mills: Representative means a representative of a party including its employees agents contraclois, subcontractors. directors or officers, Rights means rights as defined in clause 23; Tern? rm means the term of this Agreement. specified in clause 4: Traidarnarks means any registered or unregistered trademarks, seance !narks, or trade names of Les Mills and/or the Distributor used in relation to the Programs and that the Distributor authorizes the Customer to use. twinning Workshop means a workshop conclifctecl by the Distributor In accordance with Ihe Irishuctur Resources anri the Group Fitness Resources 48 General Construction: In this Agreement. unless the context otherwise requires (a) references lo a party (or Les Mills) include successors and permitted assigns. (b) references to the Distributor and Les Mills Include their respective affiliated companies. (c) if the Customer comprises two or more persons their liability will be joint and several (d) a reference to a prohibition or restriction on the Customer doing anything includes a reference to Ilse Customer not permitting. suffering or causing that thing to be done, and (e) including and similar words do not imply any limitation Agreement with fines arf.etin,*; Systems, I if 5 of 14 SCHEDULE 1 INSTRUCTOR RESOURCES 1 Music to accompany the Programs and assocrulecf material, 2 Audio visual footage of the Programs and associated material. 3 Audio visual footage of the Program techniques 4 Choreography notes for the Programs 5 Education notes for the Programs 6 Instructor training material r�iont tivrth Fitm3s•. itl,ir6E!rig Sy',ftti l I 6:,t14 SCHEDULE 2 GROUP FITNESS RESOURCES 1 Group Fitness Management resources 2 Online access to selected Group Fitness Resources. 3 Sales and marketing materials inrau(1inq sales material for use by Customers in procuring members On English) and images and logos for marketing use by the Customers 4 Les Mills Brand Guidelines, 5 Other material provided by Les Milk to the Distributor for distribution to Customers from time to time Agr een 14 it with riInyy. ir1arkrtnq; I C 7 of Distributor (We) Our contact details Instructor (You) Your contact details Programs you are currently Certified for BACKGROUND SCHEDULE 3 INSTRUCTOR ACKNOWLEDGEMENT [ 1 Address: Phone: Facsimile: Email Address: Phone: Facsimile: Email A Distributor has rights to license the use of the Programs and Intellectual Property in the Territory pursuant to a Distribution Agreement with Les Mills North America Holdings Limited (Les Mills). Distributor licenses Clubs to conduct classes of the Programs pursuant to a services agreement (the Services Agreement). All Instructors who conduct classes at Customers must be Certified in accordance with Les Mills' standards. C. Instructor acknowledges that he/she has read the terms and conditions of the Distributor's Services Agreement with the City. Distributor is willing to certify you to conduct Program classes provided that you sign this acknowledgement. SIGNED AS AN ACKNOWLEDGEMENT [ ] by Authorized Person Instructor of 14 ent with ntnecs >tlafS:cting Systam t Lt. 8 Initial Training Details Program Name BODYPUMPO BODYVIVE® CXWORX Tr.' BODYATTACK® BODYCOMBAT® BODYFLOWih) BODYJAM® BODYSTEP® RPM'' SH'BAM® ;Initial Training Days Host Facility Benefits 2 2 2 2 2 SCHEDULE 4 Individual price $290 Includes Instructor Assessment Fee $290 Instructor Assessment Fee, Instructor Tube and Ball $290 Instructor Assessment Fee and Instructor Tube $290 1 Instructor Assessment Fee $290 Instructor Assessment Fee $290 Instructor Assessment Fee $290 $290 Instructor Assessment Fee Instructor Assessment Fee $290 Instructor Assessment Foe 2 $290 Instructor Assessment • Two free enrollments (up to 5490 value'), does not include equipment or assessment fees, must have 10 registered to receive two free enrollments • CEC's and CEU's are available at the completion of the training survey. • Your facility and a link to your website available on our website www Jusin(I!s<,eeIT • Support from your Client Service Manager on how to develop and recruit a successful training program at your facility. Host Facility Requirements Exclusive use of a training room Saturday and Sunday (preferably q nup fitness studio with mirrors) for the duration of the module training (between 9 - 11 his per day) • Training Room available one hour prior to each hauling day A start time between 7 00 am to 12 00 pm • Group fitness studio sound system (CD or Pod compatible) wi Headset microphone's Television for Instructor Feedback • Space large enough to accommodate up to 20 instructors comfortably Space is quiet, comfortable and conducive to learning Proximity to a major city • Exclusive Onsite 1 raining also available upon request At,reenient with r hues Macke rig Systenm, I LC 9 1 fitmarc - south central US distributor for les mills 427 N Theard Street Suite 230, Covington, I A 702133 US toll free: 1-800-814-12U7 fax: 985-867-4871 e mail accounting: Maureen (a fitmarc.c om web: w\v\v.htrnarc.com FAX THI,s TO ACCOUNTING AT 985-867-4871 FILLING AUTHORIZATION AGREEMENT AND CONTACT INFORMATION LUII NANiF.: '('L1'B Pi/LW ':l/. ADDRESS: ' CLUIi .tiMP TO AD1)14I'ati: ('1A Ili /FILL/;'sT Al) )ItESS Ilf different from phssieaU: `BILLING CONTACT I'El4SON: *BILLING I')IONE N1tNIISE12: • BILLING I:\JAI .AI)1)Rh,SS: t"I (Required Infurnriti„n (:ONII'ANY: Fitness Market in++„Stistems, LLC 1 1\\'I.3 hcreFh\ authorize! Imes\lurl.clim S stems, 1.1 1, to gin iate dthit enin to ow ❑weultnt indicated het(\\\ at the depositthe purchase amount „I'priyrain liten,e IeeS. CIRCLE ONE: CREDIT CARD 1)EPOSI'I'OR1' NAM(': Wane Appearing on Card) 'fYl'1': of (';1R1) \i,srNlasier( and)1)iscn\er \mex1 ('A121) MINIM 12 I)I':1'OSIT0RI' NA\1 ('II CITY / S'I ,1"1'1t I?XNIRA'IION I)A'1'I': ItOL'fINt, ti1.NIB1'12 (min \\'\\'I BILLIN(. Gil' COI)1? ACCOUNT NUMBER BANK DRAFT This authorization i': to remain in Dull three until COMPANY reeci\ ed \sriuen notilicali(m front lilt tor Either u(uS) ui its termination in such time and in such nr.nuier t to :Ilford CO:\II'-\\1' anti I)FPOSI T011l' IeaSon,lhlc opportunity to act upon 11. NAMEIS) SIGNA I i121': 1';) DATE Agreement tv,th FlU esh Mink( 1 It 1-3 „.ttC 10 of 14 IN WITNESS WHEREOF the parties hereto have executed this Agreement in Tarrant County Fort Worth, Texas CITY OF FORT WORTH: By Susan Alan's Assistant City Manager Date APPROVED AS TO FORM AND LEGALITY f3y ATTEST By Assistant City Attorney City Secretary Agry 'mefT with Fitness Iviarkettott Sy 11 of 14 tint ,, LK FITNESS MARF(ETINGt SYSTEMS, L,L.C. By- o��/'- Charles A Brady Ji Authorized Representative Dale �ftl/1'/ fI ifick BODY IN WITNESS WHEREOF, the parties hereto have executed this Agreement in Tarrant County, Fort Worth, Texas. CITY OF FORT WORTH: By: Susan Alanis Assistant City Manager Date: 1./6,' ( 4 APPROVED AS TO FORM AND LEGALITY: By: istant City Attorney ATTEST' By:_ �d C aCity Secretary I MO 1W8K: REQUICY4?\ D Agreement with Fitness Marketing Systems, LLC 11of14 FITNESS MARKETING SYSTEMS, L.L.C. By: Date: Charles A. Brady, Jr. Authorized Representative ADDENDUM TO AGREEMENT BETWEEN THE CITY OF FORT WORTH AND FITNESS MARKETING SYSTEMS, LLC FOR USE OF THE LES MILLS FITNESS PROGRAM This Addendum ("Addendum') is by and between the City of Fort Worth ("City' or "Customer) and Fitness Marketing Systems, L L.0 _ a Louisiana limited liability company ("Distributor") and is intended to supplement the Agreement between the City and Distributor for use of the Les Mills fitness programs ("Agreement) This Addendum is attached to said Agreement and is subject to the following terms and conditions. which are incorporated for all purposes into the Agreement In the event of a conflict between (he Agreement and this Addendum. this Addendum shall govern. Any term or condition of the Agreement That is not superseded by a Term or condition of this Addendum shall remain in full force and effect 1 Governing Law and Venue If any action, whether real or asserted. at law or Ill equity, arises on the basis of any provision of the Agreement including this Addendum venue for such action shall lie in slate courts located in Tarrant County. Texas or the United States District Court tor the Northern District of Texas - For) Worth Division This Agreement, including this Addendum, shall he constiued in accordance with the laws of the Slate of Texas. 2 Travel Expenses In the event the Agreement. including this Addendum requires City to reimburse Vendcrr lei travel expenses then reasonable (ravel, meals. and lodging expenses shall he charged in accordance with and shall not exceed the City s Navel steal and lodging reimbursement guide lines applicable to employees of the City 3 Payment Payments made pursuant to This Agreement shall comply with Chapter 2251 of the Texas Government Code The City shall make payment for the Service Fees set torah in the Key Terms for each Program used by the G;ty at each Location and all other amounts duo, under pursuant to this Agreement within thirty (30i calendar days after the City receives an invoice detailing said amounts, unless there is a dispute as to the invoice or service performed In the event of a disputed or contested billing the City shall notify the Distributor of any error in an invoice not latei than the 21" calendar clay after the City receives the invoice Only that portion so contested ;nay be withheld from payment. and the undisputed portion will be paid If any dispute is resolved in favor of the Crty. then the Consultant shaft submit a corrected invoice to the City which shall he paid within (30) calendar days after the City receives said invoice Furthermore. Distributor acknowledges and understands that the payment of any fees or other charges under this Agreement by the City shall not exceed S50 000 00, unless approved in advance by the Fort Worth City Council 4, Insurance City is insured for general liability insurance under a self-insurance program covering its limits of liability The parties agree that such self-insurance by City shall without further requirement. satisfy all general liability insurance obligations of City under the Agreement 5 Limitations City is subject to constitutional and statutory limitations on its ability to enter into certain terms and conditions of the Agreement, Including this Addendum, which may include, but are not limited to, those terms and conditions relating to: disclaimers and limitations of warranties; disclaimers and limitations of liability for damages; waivers, disclaimers, and limitations on legal rights, remedies, requirements, and processes; limitations of time in which to bring legal action; granting control of litigation or settlement to another party; liability for acts or omissions of third parties; payment of attorney's fees; dispute resolution; indemnities; and confidential information. Terms and conditions that are the subject of any constitutional or statutory limitation will only be binding on City to the extent permitted by the Constitution and the laws of the State of Texas. It is understood that by execution of the Agreement, Including this Addendurn, the City does not waive or surrender any of it governmental powers or immunities. 6 INDEMNIFICATION. DISTRIBUTOR SHALL AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND AND HOLD HARMLESS CITY AND CITY'S EMPLOYEES, REPRESENTATIVES, OFFICERS, AND SERVANTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS. LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES, (INCLUDING, BUT NOT LIMITED TO, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE. KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) BY ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF DISTRIBUTOR UNDER THE AGREEMENT. INCLUDING THIS ADDENDUM OR (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF DISTRIBUTOR OR ANY EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF DISTRIBUTOR, OR ANYONE DISTRIBUTOR CONTROLS OR EXERCISES CONTROL OVER, PROVIDED THAT THE INDEMNITY IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITIES ARISING OUT OF OR RESULTING SOLELY FROM THE NEGLIGENCE OR WILFULL MISCONDUCT OF THE INDEMNITEES. 7 Intellectual Properly Distributor agrees to assume full responsibility for complying with all Stale and Federal Copyright L aws and any other regulations, including. but not limited to the assumption of any and all responsibilities for paying royalties that are clue for the use of other third -party copyrighted works by Distributor City expressly assumes no obligations. implied or o therwise, regarding payment or collection of any such fees or financial obligations City specifically does not authorize. permit or condone the reproduction or use of copyrighted materials by Distributor without the appropriate licenses or permission being secured by Distributor in advance IT IS FURTHER AGREED THAT DISTRIBUTOR SHALL RELEASE, DEFEND, INDEMNIFY. AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES O F EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE S UBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL rlgrrement with, runes; Marken'i Sy.t+Juts, U C 12of14 COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Distributor 8. COPYRIGHT INFRINGEMENT - Distributor agrees to defend. settle, or pay, at its own cost and expense, any claim o r action against the City for Infringement of any patent, copyright. trade secret, or similar property right arising from City's use of the Program and any associated documents, resources, items, media and the like, including, but not limited to, the instructor's resources and Intellectual Property (collectively "Items"). in accordance with this Agreement. Distributor shall have the sole right to conduct the defense of any such claim or action and all negotiations for Its settlement or compromise and to settle or compromise any such claim, and City agrees to cooperate with it in doing so. City agrees to give Distributor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. If the Items aro held to Infringe and the use (hereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted. Distributor shall, at its own expense and as City's sole remedy. either: (a) procure for City the right to continue to use the Items; or (b) modify the Items to make them n on -infringing, provided that such modification does riot materially adversely affect City's authorized use of the Items; or (c) replace the Items with equally suitable, compatible, and functionally equivalent non -infringing Items at no additional charge to City: or (d) if none of the foregoing alternatives is reasonably available to Distributor, terminate this agreement and refund to City the payments actually made to Distributor under this Agreement. 9 Limitation of Liability' Distributors liability under the Agreement shall not be limited in any way sumes no 10 Confidentiality Distributor understands and acknowledges that City is a public entity under the laws of the State of Texas and as such. all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code Distributor shall clearly indicate to City what information it deems proprietary, If City is required to disclose any documents that may reveal any o f Distributor proprietary information to third parties under the Texas Government Code, or by any other legal process. law rule. or judicial order by a court of competent jurisdiction. City will notify Distributor prior to disclosure of such documents and give Drstnbutor The opportunity to submit reasons for objections to disclosure City agrees to restrict access to Distributor's information to those persons within its organization who have a need to know for purposes of management of this Agreement City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures Thal will prevent any unauthorized disclosure or transfer of information City will use its best efforts to secure and protect Distributor's information un the same manner and to the same degree it protects its own proprietary information: however City does not guarantee that any information deemed proprietary by Distributor will be protected from public disclosure if release is required by law The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement 11 Independent Contractor. It is expressly understood and agreed that the parties shall operate as independent entities in e ach and every respect hereunder and not as an agent, representative. or employee of the other The parties shall have the e xclusive control and the exclusive right to control all details and day-to-day operations and activities relative to operation of each The parties acknowledge that the doctrine of respondeal superior shall riot apply as between the City and Distributor, its officers. agents. servants employees, contractors subcontractors. licenses, and invitees. Nothing contained in this Agreement shall be construed as the creation of a partnership or joint enterprise between the City and Distributor 12. Authority By executing this Agreement. including the Addendum. Distributor's agent affirms that he or she is authorized by the Distributor to execute this Agreement, including the Addendum, and that all representations made herein with regard to Distributor's identity. address and legal status (corporation, partnership individual, etc are true and correct 13 Fiscal Funding Out IL for any reason, at any time during any term of this Agreement. the Fort b'Vorth City Council fads to appropriate funds sufficient tor City to fulfill its obligations under this Agreement City may terminate this Agreement to be effective on the later of (t) thirty (30) days following delivery by City to Distributor of written notice of City's intention to terminate or (ii) the last dale for which funding has been appropriated by the Fort Worth City Council for the purposes sel forth in this Agreement 14 Entire Ara cement The Agreement. including this Addendum. contains the entire understanding and agreement between the City and Distributor as to the matters contained in the Agreement. Any pnor or contemporaneous oral or written agreement rs hereby declared null and void to the extent in conflict with any provision of this Agreement CITY OF FORT WORTH: FITNESS MARKETING SYSTEMS, Lit. By Susan Alanis Assistant City Manager Date _ APPROVED AS TO FORM AND LEGALITY Ry - Assistant Crty Attorney AFtrrentent with fitni s Marketing tiys ttiti 13 of 14 By r# (.f Charles A. Brady. Jr Authorized presentative Date s COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Distributor. 8. COPYRIGHT INFRINGEMENT - Distributor agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the City for infringement of any patent, copyright, trade secret, or similar property right arising from City's use of the Program and any associated documents, resources, items, media and the like, including, but not limited to, the instructor's resources and Intellectual Property (collectively "Items"), in accordance with this Agreement. Distributor shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim, and City agrees to cooperate with it in doing so. City agrees to give Distributor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. If the Items are held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Distributor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Items; or (b) modify the Items to make them non -infringing, provided that such modification does not materially adversely affect City's authorized use of the Items; or (c) replace the Items with equally suitable, compatible, and functionally equivalent non -infringing Items at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Distributor, terminate this agreement and refund to City the payments actually made to Distributor under this Agreement. 9. Limitation of Liability: Distributor's liability under the Agreement shall not be limited in any way. 10. Confidentiality. Distributor understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Distributor shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Distributor proprietary information to third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Distributor prior to disclosure of such documents, and give Distributor the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Distributor's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. City will use its best efforts to secure and protect Distributor's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Distributor will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 11. Independent Contractor. It is expressly understood and agreed that the parties shall operate as independent entities in each and every respect hereunder and not as an agent, representative, or employee of the other. The parties shall have the exclusive control and the exclusive right to control all details and day-to-day operations and activities relative to operation of each. The parties acknowledge that the doctrine of respondeat superior shall not apply as between the City and Distributor, its officers, agents, servants, employees, contractors, subcontractors, licenses, and invitees. Nothing contained in this Agreement shall be construed as the creation of a partnership or joint enterprise between the City and Distributor. 12. Authority. By executing this Agreement, including the Addendum, Distributor's agent affirms that he or she is authorized by the Distributor to execute this Agreement, including the Addendum, and that all representations made herein with regard to Distributor's identity, address and legal status (corporation, partnership, individual, etc.) are true and correct. 13 Fiscal Fundina Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Distributor of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 14. Entire Agreement. The Agreement, including this Addendum, contains the entire understanding and agreement between the City and Distributor as to the matters contained in the Agreement. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. CITY OF FORT WORTH: By: Susan Alanis fflerAssistant City Manager Date: '; ie-tet APPROVED AS TO FORM AND LEGALITY: By: Assistant City Attorney G Agreement with Fitness Marketing Systems, LLC 13of14 FITNESS MARKETING SYSTEMS, L.L.C. By: Date: Charles A. Brady, Jr. Authorized Representative bY: 46-c • •frv) Ronald P. GonzaIes9 _. ATTEST: By: City Sec ary Agreement with Fitness Marketing Systems, LLC 14of14