HomeMy WebLinkAboutContract 45464 CO SK
CONT ZAR
0,0
a
rti ,a
SERVICE AGREEMENT FOB LS MILLS PROGRAMS
KEY TERMS.
i stributor Fitness Marketing Systems, LLC dba mitt r rr:�r�r
777 Camp Bowie Blvd,, Ste 216, Fort Worth, TX 76,116
P 800-814-1207 F� 817-732-4706
St,cart Date Latest,date listed on the Signature Page of'this Agreemetit
CUS, tonier atidLocatioll Customer, City of Fort Worth
Location Name: Chisholm Tr,,.A C01 11TIL its Center
4680 McPhenion Bcmlevzacl PjjyS'CaI City, Fort Worth
Physical Address:
Physical State, Physical Zip: hone, i 7) 392-8070
Services Fees Progri,,im Nr n6,-,r Allotithly t-� Pr o ram Ni rri
$ 300.00 BODYPUMP
_.
4
m.
_ .. _
j
t
mounts are per niontlr and per Location The first (amr�rrnt for afll of the Programs is
payable ju-miediately oo signing thi s Agreerneol and subsegr.rer t nmionths are payable
30 days after the Start eats for each of the Programs antJ r.,rr rrthl tl :,,r e t r
ir'dtiad Tr it ing Fees As sat rrit in Schedi,ile 4 1
mstructor Resources Prices hor �r ra ih 'r gri.rr Krt $34,-)5 fo re- rdr-,�r faiAo ip or S
i J
t. for lit price �lrrr��
t if:rprn hart fling ,:rrirt rr r t lra��.)ble states taxe) , Prices aro object to change upon
n
30 days pn r r tics) fr r ) the Distr rt r,.rtor.
i
The Dist rrbutr r has certain rights to tt r c� Programs, and t r l f,*:.�rt in an emclosive territory r itor consisting of
Kentucky, tat ri),r b Tennessee, t.wouisiana, Arkansas, "Texas, New Mexico, Oklr t oni , Colorado, o r ing,
Montana,p and Mississippi collr.* tr el l err itor , 1`rusu rit to a Distrrb rtion Agreernent itli Les Mills North America
The Distril Lrtor certifies Instrt-ictons, to conduct classes e of the f r grr rr)s this
s .
C � r .. �r.. r the r �.r�rrr�� �t tiro l.."�r, rr.rr�r �.rrrt f.rr-:a ti��trrt�,,.rt�r lr� ��rr�ert try license tlie �r�strrrrh to
The ��rrt r �r f t rr�� t. � + , t t ��i
use th e Programs and lrrtollr r'Otual Propelly on the terms set out ire this A,g reen,en
For good and N rrcatl & tre receipt and stjfficlioncy of Which is acknrwlr(.te . the f j r s agree ,) Key
t3
"Fern is and the Terms r r d � rr�titir r r tt�r�l� �r;f
l
n 1 f 14 J;
RECEIVED MAR 2 7-2014
J
TERMS AND
oonoIT/ome
1 Rights Granted m tile ouammo,' The mamu.m,grants to the Customer the no"'wxmunIve right mmmt'ePrograms and
Intellectual pmne,tyat the Location nmommnommis Amm°m"m.
z Location: The CLIStOnle(must not use the Programs,or Intellectual Property outside the Location unless
(a) the Distributor gives prior written consent:arid
(N that use relates mmn exhibition u/the Programs for the puf pose"/promoting the
pmomm°�The Distributor must not unmmaonumv 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
Programs,the instructor Resources,the.Group Fitness Resources andlor Intellectual Property at any time without nonom.
Notwithstanding anything to the contrary,the City shall not uu responsible for implementing or abiding uy any such changes uom
such time aon has received nnuenommcanonmtxechunneuoomthooiombum,",Lesmmeommarensonamexmevwmmwh=»m
implement m abide uy any such changes,
o Term and Termination: This Agreement will commence on the Start Date and expire oo the last day o the monmthat is
[we/wz(1z)monmsaxo,the smrioa te.unless tonnmotemeamernumua tit mthe tenma set forth xerein 'The vameomav
renew this Agreement for five renewal periods of one year each on the same terms and conditions upon virliten mutual
aumnment. Either party may terminate this Agreement on one month's notice or in accordance with this Agreement- This
xoenmwnt may be terminated Immediately t--ipori notice by the DistribUtOr if the Customer is engag.i.ng in,or has engaged
,n.conduct that could damage.w/um.or Impair the Intellectual Property-
PART 1:rR/um/wo.soucAnomAmoxSe/oTAwos
s Initial training., Thecumomorwm-
(a) nominate the Instructors u would like the ommmmmm train m conduct moProgram,and
(u) pay the mma/Training Fee.m the o`om»um,prior wthe conm,nmamonto/tm'n/no
The Distributor will train each nominated Instructor in a professional and competent manner following the training procedUres in the
Instructor nemoume°arid the Group Fitness Resources.
6 Certification, The Distributor will certify an InstrLlCtOr tO CQndLJCt a PfOgfarn When,in the reasonable opinion of the Distributor.the
Instructor has satisfied tile ceflification guidelines contained in the Instructor Resources and paid the Instructor Assessment Fee.
r Training Workshops: "The Customer must er-ISUre that each Certified Instructor attendsand completes any Training
VVorkshops as required by the Distributor aod/oi-Les Mills,and to the Distributor's reasonable satisfaction. The Distributor'v
entitled to charge a$290,00 fee tO the CLIStOl-ner fOr attendance at Training Work5hops,
o mstrumor�
(o) Generally
(.)oy exeuur`on o, t h/o AnroomenI. the Customer represents that each of its employees that seek mmo
conmnu mstmctom unue,this Aom*mwnt are aware of the tmnn*of this Agreement uemm training to u°rume^
oemn,mmutmcto,o,haw fig ecce,som the mmnmm,n000umeum the om tip pxo°onoononms
(x)The Customer will ensure each mstmCto,cnmnneu With the terms m this Agreement.
00 The Customer will only conduct Programs using Instructors who are Certified Instructors in relation to the relevant
pnm,am.
(W Certification. on"a u Cunmmo/m mnn/ovpe has satisfied the certification oumennoncontained in the mmmom'
Resources,the Distributor mo^ncerlify that employee to conduct each Program for which oemnouoon has been granted,
Once Certification has been granted as provided herein,the Distributor'is responsible for enSUhng the ongoing quality of
each Certification,/nCluumo bmnot limited to.the Distributor's obligations set forth m Section'1oanommnnmomm
Customer of any required Cerlification updates or changes necessary to maintain Certification.
(c) Classes.The ou»tmne/o employees may only conduct Program classes for those pmomma for which they have been
cexmeu and for which the Customer has been granted a license Linder this Agreement. TxoCuommera eMployees may
conduct Prograrn CleSnouvmmout certification m instances where the Customer's employees have completed their initial
instructor tom'no and received the o/st//uutn,'e written mnsent'
y International transfer uvmumnmm� v the Customer is approached by anmaouuo,who previously conducted Program
classes m another Territory and now wishes mconduct Program classes m the Territory,the Customer wm�
(a) inform the oimmbu/u'u/oucxapproach,
(u) to the extent reasonably practicable provide,the Distributor with all information in its possession in relation to that Instructor.and
(n) only allQwthat InStfL)CtOrtocoiidt.ictProgi-aiii classes or have acoessto Group Fitness Re.r>ot-ircesfollowirigwi-itterI
oon,sentn/the mamuum'(not mue unreasonably wnh»em)
10 Assistance mCustomer: If,following t from the Customer,the Distributor makes a Representative available many
Location to provide assistance to the CUstomer,then the CLIstomer will pay to the Distributor'
(a) all reasonable travel and occnmmnuuuonevno"se°."m,emuv the Representative,
(b) the cxam»u/O/'S standard monthly rate o/m000uo for any consultancy assistance,
11 Inspection.- Subject to the Gustomei's reasonable security reqUirenients.the Dlmrjbutorand/or Les Mills rnay at -any time visit;-.I
Location to inspect Program classes conducted by tl-*Custorner to ensure compliance with this AgreemeriL
12 Distributor's obligations: The o/mvoum.will:
(a) mn°ue that all training is delivered m Les Mills'high standards mnmfeso/onmoan.
(u) provide Instructor nnoou,on"and oI-O"v Fitness Resources that are m high quality,and
(o> C0R1r!1U(1IC0t(?With 111�CUStOr'Fler on a reoular basis and keep the CLIStOl-VIef Updated With information regarding the Programs,
PART 2: QUALITY AND MATERIALS
/o Supply and use nr Instructor Resources: The Distributor will Sell m the ou5mmm.and the ouommo,Will poomaoennm
the Disti-Ibutor,the Most current release of the Instroctor Resources,The Customer will pay(lie relevant Instructor
nnaounms P,^uem the Distributor at the time any such material/a purchased from m*Distributor. The Customer will
ensufe,that each Certified Instructor has their own set ofme mast current release mmoo'mm'Resources for which
appropriate fees have been paid mthe Dimnuum,ano*m prohibit any copying o/the matfucto,Resources, The Customer
is permitted to,and mua/o"o.re that its oaxmau mutmmom are nmnmomu to use the mstmun'nnuouoea only:
(z)f-017 the Purpose of the Cumomo,00nuuct/no the pmmoma�
(Wm accordance with m/nxomuman/
(c)imao�' �o �yovoumx� uvmno�muumr Les Mills from time d)in accordance with all<,,ipplicable laws and regulations,'and
(e)in accordance with ally ITILISIC IiGensing rights of Les Mills or the Distributor that have been notified to the Customer,
For the avoidance of doubt the Custarner izc;responsible-for obtaining public performance rights for the use of the
Instructor Resources a/[fie Location.
w Supply oY Group Fitness Resources: The Distributor will muxo the Group Fitness Resources available m the Customer
15 Use oYMaterials: The Customer is permitted to,and must ensure that its Certified Instructors are permitted to,copy.
msmume.n,uamaoymmuG-coup Fitness Resources or any Inte-Ilectual Propetly(excluding the Instructor Resources dealt
with mt clause 1a above)on/v�
(a) for the purpose,of the ommmmer conducting m promoting the Programs"
(u) m accordance with this Agreement"
(c) in accordance with the Les Mills Brand Guidelines and any other directions given by the Distribi.11,01-or Les Mills from
time totime,
(u) m accordance with all em=licaNe laws and eoumwona'
16 Customization; The Custorner may only customize any of the Instructor Resources,GrOL11)Fitness Resources or Intellectual
pmvenv with the prior written na/m/a»ion of the Distributor,
17 Conduct orClasses: The Customer will maintain the highest standards and ensure the Program classes are conducted-
(a) by o onmneu Instructor or an Instructor who has completed me',mma/training and has the consent of the msmuum/to
conduct Program classes"
(u) m compliance with this Agreement:
(c) m Les Mills'high standards mpmfesm/on=nam.
(d) /n accordance with the Instructor Resources and Group Fitness neouurceo`
(e) m accordance with the current release o/the Program,and
(0 /na way that`a not likely to damage,dilute,n,diminish the reputation or the Pmnmmo'Les Mills and/or the o/"mu"m,
18 Sale n/Merchandise: The Customer may purchase Les Mills Merchandise only trom persons approved and/or licen,,,,"ed by Leo
Mills anum'the momuumr
pAnTo: pxYMcwr
19 Payment and Calculation o/Fmoo The Customer will pay the Distributor the monthly Services Fees set forth in the Key Ternis to
this Agreement for each Program used uy^Customer a[each Locauo" The Customer will pay the Distributor uuoh Services Fees
and all other at-MltltS as invoiced,on th(-,3 first day of each month by direct debil from the Customer's nominated bank aCCOUnt,
r»eo'xmuumrmava/te,anvfee.ratemv,/=°(/no/uu/now`mou/omnm'n"mpS",woeapeaa.memme/r,ommope,.moInotmom,
Assessment Fee and the Instructor Resources Price)under this Agreement with 30 days prior notice wthe Cumonler.provided that
the Distributor may not dimnge the Services Fees o^the Initial Training Fee Until after 12 months from the Start Date.
20 pevmen/oomun VV1010LIt III-niting the Distributor's rights.,the Customer will pay the Distributor interest,if demanded,on any
amount past due but not paid,from the due date until the date of payment m the rate mzom per month m pail mnnu
21 No Direct oom, Where the oumomo/ia Unable o,unwilling m pay the Services Fee m any other amount payable/othe
DiStril)Utor by direct debit,the DistribLit0fmay charge the Custarnet a reasonable adi-ninistration charge riot exceed$/oou
PART 4`INTELLECTUAL PROPERTY
zz Ownership o,/meoemuo/Property: The Customer acknowledges and agrees mot�
(a) as hetween CUstomer,DistribUtOr and Les Mills.all right,title and interest in and to the Programs,IntelleCtUal ProPertyt
Improvements,Instructor ReSOWCO.S arid Group Fitness Resources is(and will be)owned exclusively by Les Mills,
regardless"/the media mwhich embodied,now m.n the muum�
(b) except oa specifically set forth in this Agreement,the Customer does not have.arid will not acquire nro/a/m.any right,title o'
interest in or to the Programs,Intellectual Property,Improvements,Instructor Resources,Group Fitness Resources or the
Goodwill,,and
(4 all Goodwill will inure for the exclusive benefit m Les Mills.
zo Assignment: If,as a result of thits Agreement or otherwise.the Cu'stomer has,or ever acquires,tiny right,title or interest in or to
any of the Programs.Intellectual Property,Improvements,Instructor Resources,Group Fitness Resources or Goodwill(collectively
the Rigom).then the Customer holds those,Rights ontmot for Les Mills. The,Customer"
(a) assigns all its existing Rights(Les Mills may itself assign m modify those Rights)and(to the ement possible)all its mme
Rights m Les Mills;
(u) (to the extent that the ouomme,'oumxe Rights are m or assignnient now),assigns all mmm Rights(Les Mills m°v
itself assign or modify those Rights)inimediately on those Rights coming into existence-,and
(o> will promptly(at its own cost)execute all documents and uo all things immediately onLes Mills'request necessary/oachieve.
confirm o,perfect that eue'onmen/
24 mo challenge orregistration: The Customer will not do anything inconsistent with Les Mills'exclusive ownersmp of the Programs.
IntelleCtUal PFOPefty,1111prOVecilentS.,InSti-LIctc-ir Resources,Group Fitness Resources or the GoodvMl or rights to the Licensed Rights
and the Cusmmp/will,
(a) not in the future use(except as perniftted by this Agreement),and riot at any time register or attempt to register,and
(W not object to,oppose o,prevent Les Mmn'uonu/(itself o,u'omnaoem).applications m register.o,registrations of,
any of the Programs,Intellectual Property,|mpm"eno fits,Instructor Resources momup 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 or these things)that is identical to,confusingly similar to,or incorporates any of the Programs,)ntellG'CtU,3I Pmneflv.
Improvements,Instructor Resources or Group Fitnes Resources m Trademark anywhere/n the world m assist or permit any
mhe,narsonmuoanvor the oem.noa Wit ou/ommauon.the oua torn urnm"m,t"nvnmemrrct/vo'',mvemv
(c) uoo,permit to be done any act or thing which may m any way/mpao the rights m Les Mills mmm the Intellectual
Property!Programs.Improvements,Instructor Reoou1'Ce Group Fitness Resources m Trademarks,o,
(d) challenge m call/nmquestion the validity o/Les Mills'ownership or the pmo rams,Intellectual Property,Improvements
.
InStrUctor Resources,omw,Fitness w°mmnmso'Trademarks.m Les Mills'right m use m register mmammx rmmomm
use, any of the foregoing m the Territory",elsewhere.
�o uoao�mmoneome/pmpo�v` r»e�uxmmo,w�n(anuwmo",umm,/usnev,esenuowao)unempmm/eCua/pmnexv
Programs,Improvements.Instructor Resources Linder this Agreement or
n*me approved uv the Distributor mwriting. m particular,without limitation,the Cumume/muawnumus'nn""re.that its
(a) comply strictly with all stipulations.requirements or quidelineumthe.Instructor Resources,GrOLJp Fitness Resources or
otherwise advised to the.oustorner by the Distributor o'Les Mills regarding the U-se,of the,/ntelleCtUal Properly,Programs or
Improvements:
(b) not alter m attempt m alter m any way the Programs,Improvements,mmmctm Resources,Group Fitness Resources m
Intellectual Property,/ncmmnowxomu limitation the appearance m any imagery,graphic device m logo,and
(o) not copy or repiodLICE-it)Whole or part in any way any of the Prograrns.Irnprove-ments,Instructof Resources.Group Fitness
Resources or Intellectual Property except as permitted under this Agreement or j1ppfoved by the Distributor
26 mmnoomoni and other namoa, The ouSm=mr may notify the Distnuum,o/ally Suspected ur actual infringement o/Les mm"'m
me o'omuumr'S mmnoCtoa/pmpmu'onms by m,m names of which the oos/nme.is aware,in nvm=um,any Copying of the
Instructor Resources that pertain strictly m this Agreement, The Customer may notify the Distributor and Les Mills"/any n/a'f,115o,
threatened clainis made by ally other parties that the Intellectual Property infringes or violates any other party's intellectual
property rights,
pAnrmmcwsnAL
27 Indemnity: The Customer indernnifies the Distributor and Les Mills for any physical,direct and Indirect/consequential damage.loss
or cost(including attorneys'fees and costs)to the DistribUtor and Les Mills or any other person,and will protect the Distributor and
Les Mills from any claim against the Distributor and Les Mills,m the extent caused o,contributed wby the Cuomme,m respect or
this Agreement,the Intellectual Property or[fie Programs,including without limitation any claims of physical hatm caused by the
Customer's use m the,Programs.
28 Disclaimer,- EXCEPT AS SPsmpIoAu,PROVIDED/wTHIS AoREsMsw/.excw PARTY ExpRe'S�sLv DISCLAIMS ALL
WARRANTIES OF ANY KIND,EXPRFSS OR IMPLIED,TO THE FULLEST EXTENT PERMITTED BY LAW,INCLUDING BUT
morum/Tsoro THE/Mpuenwmn:AwnEeoF MERCHANTABILITY. FITNESS FOR^PARTICULAR PURPOSE AND NOW
/wpn/wsEmEm/ Customer WILL MAKE wo REPRESENTATIONS on WARRANTIES owo/SrnIeuron'soR I-ES muLS'
BEHALF WITHOUT DISTRIBUTOR'S AND LES MILLS'EXPRESS WRITTEN GONSENT,INCXUDING.WITHOUT LIMITATION.
rne QUA LIT,op THE Pnos RAMS,RsmuoaoR ANTIC pAreo*EsucroorrneExE Rooe ROUT ms�.nrwsSS
RESULTS oR WEIGHT LOSS,
29 Limitation of Liability. The Distributor's liability for all cfaims arising out of this Agreement,whether in contract,tort or otherwise.
will be Jim`ted to the ani oumof fees pamby the C ustoni ermthe,ms trlhti tmund er I his xoeom,muun rig the twewe(1z)"onI hs
preceding the cla/m
oo muumnce� The Customer niust have and maintain during the-Term valid arid enforceable comprehensive business liability
insurance policies oov ,mm/m°Looatmnarmm°u"ammePmo,omo
31 Evidence cx Insurance n imu The CUStonner must give evidence,of the insufance policies requ.ired Under this Agreement
when requested b'the Distributor,
32 xoe/onmm`u The Distributor may ` this Agreement,which shall ma binding on any successors and assigns. The Customer
will not assign this Agreement wxhout the Distributor's pnof written approval.
33 Immediate Termination: Either party may terminate this Agreement immediately on written notice to the other nanvir
(o) either party is in breach of this Agreement and has failed to rectify the breach within seven(lays of written notificotion by the
the non-defaulting party ur such breach,
(u) either party ceases m carry oil'ts,business"ceases toue able m pay its debts vo they become uue.,any step i,taken m
enter into an arrangement between the(A,jstonier and its creditors"or any step is taken to appoint a receiver,receiver and
manager.atmnteemb""xfun/cv.a/mumam,a provisional nnu/oo tor,an administrator".other like person m respect o/the
sucop,oya000ets-=x
(m the cn-st^»uor.other than a"anmuxof its own default,.sno longer amemwovme/oop"m,amam/oecumumer.,wthom,
giving rise m any right m the oumom*rm compensation o,damages.
34 Consequences o/Termination: Immediately upon the termination o/this Agreement,the Customer wm.
(a) cease m conduct the Programs`
(m cease m use all Intellectual pmveu/-
(c) cease m use and destroy any maouCto nwoourcesm Group Fitness Reammes`nnu
(u) ensure that each o/its Revmu maove�,-,mlouoea,otouumamouemmmno mm(u).(W and(c)above.
3 Prior breaches, Termination of this Agreement does not aff ect the parties'r4its with respect to phor breaches.
3 Obligations survive termination: All obligations or the Customer,including confidentiality and intellectual property obligations.
which are to be pemonneu in whole or non after the termination o/this Agreement will ou,mvomnnmm'=
or oowammemt Taxes And Charges: All amounts payable Linder this Agreement are exclusive or all sales,use,value-auued.
withholding,arid other taxes and duties, The Customer vwonmmpn pay,and indemnify the Distributor against all taxes and uuno'S
assessed in connection with any^uCh amou"ta.this Agreement and its performance uy any authority within oro"umeorthe
Territory except for taxes payable nn tile Distributor's net income, m this event the cosmmer",the transactions contemplated u
this Agreement are(o,.after execution y this Agreement,become)exempt nomthe foregoing,the Customer shall promptly nmmdm
to the Distributor,as evidence,of such tax-exempt status,proper exemption cerfificates or other dOGUmentation acceptable to the
o/mmuu/oc
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 mouubjoctmatte,o/mmAomomunt.
so Amendments: No amendment of this>Agteement will he effective unless it is in writing and signed by the parties.
40 vvaive,, No waiver by elther party of any breach of this Agreement by the other party will be considered as a waiver of any
subsequent breach of the same or any mme,vmv/u`on.
41 onnouenmomy` The(�uowme,must at all umon keep"=,noentim and o°"um any Lee Mills or o`umuum'property and^nmnnouo"
in its possession or within its control Which is commercially sensitive or confidential(including this Agreement). rxecuammermov
not iSSUe any press,re-lease of information concerning(his Agreement of Its suked Matter WithOLIt tile prior approval of tile
oiumumo,'
42 ruummu]vum If either party u prevented mxn performing any m its obligations,tinder this Agreement due m any cause beyond
the pady's reasonable control,InCILKIII)g,without limitation.an act of God.fire,omn explosion,war,strike,embargo,government
reQL11afiOn,civil or military authority,acts or ornissions of carriers,transmitters,providers,vandals,of hackers(a Jorce MajeWC4
event")the time for that party's performance�vill be exlended for the period of the delay or Inability to perform due to such
occurrence,provided however,that the CUstonier will not be excused frorn the payment of any sums of money owed by the
CUS11001er tO the Distributor',and provided further,however,that It a party suffering a force majeure event IS Unable tO CUre thZit
event within 30 days,the other party may terminate this Agteefnent.
43 Specific Performance: Dam unlikely mbea"adequate remedy m relation mo breach mthis Agreement by the
oustomec The parties agree that specific performance and/or injunctive relief are the only adequate remedy and may beouUgmuv
Les Mills anum'the Distributor,
w Governing Law: This Agreement will be governed by the law of the State of Texas without regard to conflicts of laws principles,
and the parties submit to the nonaxo/uswownou/onnnm the courts m the State ofTexas,
45 Partial Invalidity: If any provision of this Agreement or Its application to any party or circurnstance is or becomes invalid or
unenforceable to any extent.the remainder of this Agreement and its application will not be affected and will remain in force tome
greatest extent permitted uv/m,.
46 Counterparts: This Agreement may uesigned electronically uv fax mmcounterpails.
w Definitions-. In this Agreement,the following terms shall»o defined mmfollows.
xomonemmeanmmissnwmvsxomemnnt and mcmuw onomeuules and addend a�
Certified Instructor means o"Instructor who has been Certified,and/ocurrently Certified,by the Distributor'n relation mspecified
pmnmmo'"anmmmooe with this Agreement,
ouibmean,mmsexhanu/or fitness uubo,any nme,oman,zaoonmtemamomoumm/noa lice nemm use the Pmo'ome�
oismbixion Agreement muanampaomnment between Les Mills and the Distributor setting ou,the tonn000 which Les Mills grants
the Distributor the fight tu license Clubs m the remm to use the Programs and the mtnneCtualProperty,
000dwixmnmnm all goodwill m, attaching to or anmi"o fro" or in connection with the use of any of the pmo,ama.mmn*muu/
Property or/ nmvni°ms.
Group Fitness Resources means the materials,information and assistance relating to the Programs including those listed In
Schedule 2.an modified from omem time»v the momuomr and/Or Les Mills,
/alprove/77ents me-ans all improvements.,developments,enhancements,derivations.-Aterations or other modifications made to or
based on the Programs of Intellectual Properly whl(-,fi are developed or acquired by Les Mills or the Distributor(whether alone:
)mnuv`mmeach other,o,Jointly with any m»arpomon)�
matruom' oanaoperson enoa d by the,GLIStOillef to InstfUCA Programs at the Location',
Instructor Agreement means the instructor agreement substantially m the mnn set out m Schedule 3'.
lostructor Resources means the te' / Including music.audio v1sual fom u choreography for the use of Instructors relating
to the Programs.,including those listed In Schedule 1,as modified from time to finie by the Distributor andlor Les MilK
developed or used by Le�,Mills and its affiliated companies in relation to the Programs whether existing at the date of this
Agreement m Subsequently created,developed Les Mills and its affiliated compamea.and that the Distributor uumorizea
the Customer muse. Intellectual Property mdumeo.without/monotmn
(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 o'ambu/or authorizes the Customer mMe,
(b) know-how,trade secrets,technical/business or other information or experienc-e devised,developed or acquVed by Les Mills
and its affiliated companles andlor applied to the.,development and marketing of the Programs and that the Distributor
authorizes me.Customer m.oe�
(c) copyright including copyright x nses field by Les Mills and Its affiliated mmnun=a In any written material,routines or other
works relating m the Programs and that the Distributor aumunzoa the Customer muso�
(u) patents,registered and unregistered designs and that the Distributor authorizes the Customer to use-,and
(e) Improvements which Les Mills and its affilia�d companies decides to include within the Intellectual Property licensed to the
Customer under this Ag,eammnc�
Olks 8riw-O Gtjidelines means the brand guidelines contained in the GrOUp Fitne%s Resources or as othervilse provided by Les
Mills o'the Distributor m the Customer from time m//me�
Les Mills Morchrandise means any clothing,merchandise,goods or other item incorporating any Intellectual Property:
ousmme,moanon Club which has entered into a License Agreement with the momumu,�
Licensed Rights means intellectual properly rights for which Les Mills has obtained a license frorn third parties to use in connection
with the Programs,
Location means o single physical facility at which a Customer"ne/um"`
the Les Mills nmommm listed/n the Key Terms,oa amended from omam time ovthe Distributor and/or Les Mills:
Rppesenlaovamaanmamvreaenmuvmo/ano'w Inc!u cling its amn/ovea° *oe"u cont raumi-S.auucont ra ctom.direct ors o,"mce,a.
Rights means rights ea defined.n clause zz.'
n,m,means the mnno/this Agreement.specified m clause*.'
Trademarks means any registered or unregistered trademarks,sefvIce marks,of trade narnes of Les Mills and/or the Distributor
used in relation m the Pmo,omu and that the Distributor authorizes the Customer to""e,
no means a workshop conducted uv the ois.-,/uum/,"accofda""°with the moo""'",Rauuumeae"uthe Group
Fitness Resources.
48 General Construction: m this Agreement,unless the context Otherwise renu/rieo
(a) references ma party(or Les Mills)muuue successors and nmmimeuassigns,
(N references to the Distributor arid Les Mills Include their respoclive affillated companies�
(c) n the Cumome,comprises two o'more persons their liability will ua omt and eevem/�
(u) a reference m a prohibition o,momctionon the ouummm doing anything mmuu,Sn reference m the oumomer not permitting.
suffering u,causing that thing mua done`and
(e) including and similar words oonot imply any limitation.
Aore~me",with r'm°oM"m"O"ow=tf-,ms,uc 5.,m
SCHED ALE
INSTRUCTOR RESOURCES
I Music to accompany the Programs and associated material,
2 Audio MUal footage of the Programs and also ated material.
3 ALidio visual footage of the Program techniques.
4 Choreography notes for the Programs,
5 EdUcation notes for the Programs,
6 Instructor training material,
A # }}L [ ii Ma f aa i
SCHEDULE 2
GROUP FITNESS RESOURCES
1 Group Fitness Management resorJre�S
2 Online access to selected Group Fitness Resources,
3 Sales and- marketing matemals including sales material for use by Customers in procuring members (In English) and
images and loges for marketing use by the Ct..rstc.mers.
4 Les dills Brand Guidelines.
5 Other material provided by Les Mills to the Distributor for d stribtAior1 to Customers from time to time.
Y
14
SCHEDULE 3
INSTRUCTOR
ACKNOWLEDGEMENT
Distributor (We) j )
ur contact details ddress
Phone:
Facsimile:
Email:
Instructor (You) l
..................................._....._.__...__.................. ..............._..._......w.__........._..._....._...............
Your Gont ct details ddress-, Phone: Facsimile: Email-
Programs you are CUrren l
Pertified for
_..._.___...
BACKGROUND
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).
B. Distributor licenses clubs to conduct Glasses of the Programs pursuant to a services
agreement (the Services Agreement).
C. 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.
D, Distributor is willing to certify you to conduct Program classes provided that YOU sign this
acknowledgement.
SIGNED AS AN
ACKNOWLEDGEMENT
C by
Authorized Person
Instructor
Agreement witty ritness Marketin n3 t.1. 8
of 14
SCHEDULE 4
Initial Training Details
Program Marne ;Initial Training Days Individual price InclUdes
B 7Y't l lt' $299 Instructor Assessment Fee �
I �
'
a VI E $299 Instructor Assessment Fee, Instructor Tube and Ball
� f
$290 Instructor Assessment Fee and Instructor Tube
$290
BODYATTAC"'K0 i 2 f Instructor Assessment Fee
BODYCOMBAT-� 290 1 InStructorY Assess€Bent Fee
�� �
__.
f
BODY FL OVOO $290 IrIslrtictor Assessment Fee
,
S I��JAIVi $290 Instructor Assessment Fee
i
BODY STEP. $290 1 I nstru(.Aor Assessment Fee
� f
s i
—t
F Pf'v1 � $290 Ins-tructor Assessment Fee
................................ _ — ----.....-....:..-.-...._...._.__.._._.._..�_...-._..
S BA M i _ 2 $290 IrIstructor Assess-n rent Fee
Host Facility Benefits
0 Two free enrollments (up to $490 value!); does not include eClu€pnent or assessment fees; must have 10
registered to receive two free enrollments
# CEC's and CF.U's are available at the completion of the training survey.
Your facility and a link to your website available on our website viviv.lr,t t-n'�l� .���n-i.
Support from your Client Service Manager on hoer to develop and recruit. a successful training progr-an) at your
facility,
Host Facility Requirements
Exclusive trs of a training roots-i Saturday and Sunday (preferably group fitness studio with niirrots� for the
duration of the r-tiodule training (between 9- 11 hr•s, per day).
Training Room available one hour prior to each training clay,
A start time between 7:99 arn to 1 ZOO far€ ,
Group fitness studio sound systen-i (Ca or IPod compatible) wl Headset microphone/s.
AW Television for Instructor Feedback.
Space fame enough to accommodate. up to 20 inslrUdors comfortably.
Space is quiet, comfortable and conducive to learning.
Proximity to a rnajor city.
Exclusive Onsite Training also available upon 1'eguest.
Agrf.?Ptnent with Fitness fAarkennr,`,��Sit�����,11C 9 of 14
...........:.:..:::.:............::.:--:.....
.:.......:......
........
L ESP.vll 1 L 2611 w
M
fitmarc south central US distributor for les mills
127 N Theard Street:Suite 239,Covington,LA 70133
US toll free: 1-800-814-1207
fax:985-867-487 t.
email accounting: MarrreenCdfitmarc.com
web:
X-I'A FINC Al" 985-867-4871.
1AAX THIS TO ACCOUN'. if
B1LL'1NC`r AUTHORIZATION AGREEMENT
NAME.,
r�^CLUB P YSICA.I..6 ADDRESS:
Required Int*ormatim
1 ( k., , ..........-_- -_ _ ---- ------ - -- hef'ChV;rrlttlm,i/e 1•itriess V1 rr-ketim-) Sr.�;te�rr 5 '. to irlitiirre�1e hil enlr%, It)c�trr
... .... - --..... .
indick,- ed 1_�elo =ri t11e deposito l-y r"Arced helms , liar the purdllklse i�rrmL-11i�i0'1-?1'����F-r�tr�l 1i�
CIRCLE ONE: RD BANK DRAF"I"
DEPUSITORY NAMP_ DEPOSITORY NAME'
(Name Appeming on Cat-d)
Vi s<r: I aster(err d D r sco car'1 r c,\)
CITY/ST
CARD NUMBER AJ
BILLING" 2111 CORI'. ik(..l�_rOU NT x UINI HIER
This m-11.11miz rtiolr IN to Wrrl�rrn rrt 0011 Corce until C(.)?.\,1 AN h1,�t r'ec ived written Iloli l)C�Mion 11-om 111C(fir-6t110'0C LVO Of Its
ter r atr�ttr r�rr� such time�r� 1 ire rrLli rtr�rr r �l Erg t 130,61-d ' 1'.F� " arr 1 1:)1~:1'�S1.1`f RY re,'Ismi'lNe opl.a�ar�trrr-1rt�:,to ret upon it.
DATF
Pum
IN WITNESS WHEREOF,the parties hereto have exeCcJted this Agreement in Tarrant County Fort Worth,Texas,
CITY OF FORT WORTH, FITNESS M IETIN�SYSTEMS, L.L.C.
By
Susan Alanis Charles A, Brady,Jr. �
Assistant City Manager ALIthorized Representative
Date-
Date: "51.I I -Y............................
APPROVED AS TO FORM AND LEGALITY
Assistant City,attorney
ATTEST:
B y-._
City'r.cretary
3
Ag r ef�ment with fitness Marketing 111
11 of 14
�"' 4, W ��m �� '� � j IAN N PPI
!� �I �'
IN WITNESS WHEREOF,the parties hereto have executed this Agreement In Tarrant County,Fort Worth,Texas.
CITY OF FORT WORTH: FITNESS MARKETING SYSTEMS,L.L.C.
�mm
m
"
yr y,
P an Alanls Charles A.Brady,Jr.
tart City° anager Authorized Representative
Late: Date:.
APPROVED AS TO FC RM'AND LEGALITY:
00 w�
A t rot City Attorney
ATTEST- .
�� City Secretary e
,..
0,001000 000o'
NO q
f
I
i
t
t,
ass
l
,Agreement with Fitness Marketing Systems,LLC
11 of 14 J'
l
{
4
1'
ADDENDUM TO AGREEMENT SETWEEw THE CITY OF FORT WORTH AND FITNESS MARKETING SYSTEMS,LLG
FOR USE opTHE Lem MILLS FITNESS PnoonAm
This Addendum ("Addendum') Is by and between the City of Fort Worth ("City", m �mmmm) and Fitness Marketing
Systems. u.c. "LOL11sianaom'led liability company('Distrimutor")and is intended moUPpleMent the,Agreement uetweenmno/ty
and Diumuuux for use ofthe Les Mills fitness nmomme ("Agreement'. rxisxuummum Is attached m said Agreement and is
subject to the mnmw'no m,mo arid oumuu`unm.wmu`are mou,no'amu for an purposes into the Agreement. In the event ma conflict
between the ^omwmem and this xooemuum. this Auuo"uum mhun ommm. Any term or nunomoo of the »mreem°m that is not
superseded»vo term o,condition or this Audenuum shall remmm.n full force and effect.
I nanvmonu,whamo/ma/ora°°oneu.at law o,m equity,arises on the basis u/any provision
n/the Agreement, Including this Addendum, manm, for such action shall lie in state courts/oout°u in Tan-ant County.Texas or the
United States District cuun for the Northern District o/Texas-Fort Worth Division This Aoreemeot.mo/"u'nuthis muoeouum.shall
ue construed m accordance with the laws m the State mT°v^s
2 Ifauvel_jEmf.�ostu. In the event the Agreement, '"=mu'no this Addendum. requires City to reimburse vvnuo, for travel
expnnoe= men reasonable travel,meals, and/uuo/no expenses s»oo he ohmigoo m accordance.with and shall not exceed the o`w'o
travel,meal. and/ouomo reimbursement ou/uenn"a=pnncmme,to emn/ovoaa of the cuv
a Pgumieni. povm""ts mauo v"muu"t to this Agreement shall comply with cx"om, 2_251 of the roxoo Government oouo
vuon The City shall maxe payment mr the Service peau aor forth in me Key na""u m,°aux p�sm.n used by me o
and an "mmr aMount~ due under p",,"""t to m/° Agreement nxm" mmv (30) calendar days one` me ow receives an invoice
dummno said omnunu unless m"e ,o e m"vute as to the invoice or service nonmnneu In the event o/" u^aputoo or comeutau
mmno the City oxan notify the Distributor o,any err(,),`"an 'mm'ne not late(than the 21"calendar day after the City receives the
invoice Only that mm`un so ooma,teu may be w/m^rm from navment, and the undisputed portion nm be paid If mavum is
resolved m favor u/the City,then the Consultant shall submit a corrected invoice m the City,which shall ua paid within(so)calendar
uava after the City receives said invoice: punoonnure. Distributor acknowledges and understands that the payment of any foes or
other charges unuer this Agreement by the c.w axoo not nxcmou $oo.00noo, unless approved in au,onoa by the Fort vvonx City
Council.
^ Insurance. City is insured for general liability inmuranCe Wider o self-insurance nmeram covering nsmnuawliability, The
parties oome that such mmf-maumnoa by City shall, without mnmer enu'mmem,ooumy an o°n°m/omm/nv ."euranm, ouoonnonm of
City under the Agreement,
5� Limitations- City msubject tu000wuononu/and statutory limitations on its ability m enter into certain terms and
oonumuma of the ,mmomont, mo/uomu this xuuenuum, which mav momuo, but are not nmiuou m, mnoo terms and
, onnumunn nxnmnu tu� ummu>mn,s and limitations of warranties; o*om/m*rs and limitations of nomotv for damages,
' *mivor� maclu/mom` and xmn�ionoon /onm /iomm. mn�mns. mou/mmenm, and nnmosmos, nm�ommnau,ommmmmmm
to umnn legal mmmm; granting controf of litigation or settlement to another party; liability for mma nromisoionaofm|m
parties; payment o/attorney's fees; m"p"m roaumnnn; muomnmom; and o"000eomol mmnnao"n, Tennis and nonmnooa
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 |mwa of the auma of Texas. It Is unme,m*mu that by omanuVon of the Agreement, mmumno this
Addendum,the City does not waive o,surrender any o,x governmental powers or/mmunmon.
o INDEMNIFICATION. DISTRIBUTOR enAu AND oocS maneE ro /woeMw/pv. pnorccT. oErswo AND *oLo
HARMLESS CITY'S sMpLO,sEa' nspnEeswTxrvEo' oFnoe:e` AND SERVANTS (couECnvEL,.
^/woENIwnneeS ) FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, LIENS, CAUSES
OF Aonow. Smre, JUDGMENTS AND expsws o (INCLUDING, BUT NOT umrrEo rn. COURT COSTS, ATTORNEYS'
FEES AND COSTS oF/wvsen or ANY NATURE, KIND on DESCRIPTION ARISING on ALLEGED ro ARISE nv
REASON oF INJURY roon DEATH or ANY PERSON Oil DAMAGE ronR LOSS op PROPERTY (1) nv ANY BREACH,
VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF DISTRIBUTOR UNDER THE AGREEMENT, INCLUDING THIS
ADDENDUM on (2) BY REASON op ANY OTHER CLAIM WHATSOEVER op ANY PERSON oR PARTY OCCASIONED on
ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACTOR OMISSION ON THE PART OF DISTRIBUTOR OR
AwYsMPLovEs. mnEoron. opF/oen. SERvAwr, OR CONTRACTOR OF mSrnIeuron. on AwvowE marq/euroo
oowrnoLo on exe*o/Sse oownnoL ovEn. PROVIDED THAT THE INosMwnv IN THIS PARAGRAPH So^u NOT
Appu/ TO ANY uAmunco An/a/wo our OF on nseuLT/wa SOLELY FROM THE weouGEwos on vv/Lpuu
MISCONDUCT ur THE/wosmwITEsa.
Federal Copyright Distributor agrees w assume full responsibility for complying with m/ State and
Lona and any other regulations, mo/uumu, but nm limited m,the aa,umpnon many and all muvmnu/uxmes for paying royalties that
are due for the use of other m,rd'nanv "mvynohteu works by o'amoutor. City oxnrema/v assumes no cmnom'oms. 'mplied or
nme°mae, emommo payment or collection of any uuox fees or ononmo/ obligations. City specifically umm not authorize. nonmn. or
"znu000 the mpmuwm/un o' uue of copyrighted materials by Distributor without the appropriate licenses or nonn/am/on being
uooueu by oismumo,m oumamm. n is FURTHER AGREED THAT oISTnmuron SHALL RELEASE, oEpswo. /woEMm/FY.
AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS,LOSSES,DAMAGES,ACTIONS,onEXPENSES
or EVERY TYPE AND DESCRIPTION. INCLUDING BUT NOT LIMITED TO, ATTORNEY'S FEES TO WHICH THEY MAY BE
SUBJECTED ARISING OUT OF CITYS USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR AcruxL
Agreement with nm°"sm°k"u"mSy~,e".�uc
COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY, City expressly assumes no
obligation m review m obtain appropriate licensing and all such licensing shall m°the exuuowo obligation mDistributor.
8, COPYRIGHT INFRINGEMENT- Distributor agrees to defend,settle at its mm and expense,any mm
or action against the City for Infringement ot any patent, copyright, trade secret, or similar property right arising from
City's use of the Program and any associated docurnents, resources, items, media and the like, including, but not limited
to, the instructor's resources and Intellectual Property (collectivoly "Items"'), in accordance with this
Agreement. Distributor shall have the sole right to condLICt the defense of any such claim or action arid 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 firnely written notice of any such clairn 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
seltlement or compromise, such use is materially adversely restricted, Distributor shall, at its own expense and as
City's sole remedy,elther:(a)procure for City the right to continue to use the Iterns;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 VI�Oftlally rnade to Distributor under this Agreement.
u, Limitation of Liabil.ity,Distributor's liability tinder the Agreement shall not be limited many way.
/o [oofideotialit . oismomm understands and acknowledges City mepublic entity Linder the laws o,the State mTexas
and. as om=o all documents hem by City are subject to disclosure under Chapter 5e2 of the Texas Government Code- o/smuuu,
shall cmo,/v indicate to City what information it deems proprietary, o City^a mqu/nm to disclose any documents that may reveal any
o/o/smuum,vmn^eun mmnnaoon to third pamae under the Texas Government Code, or by any other/eoo/process, /aw, m/o. or
/umc/"/ order by o court of competent Junou.ctmn, onv will notify mamuum, prior to disclosure Of ,uco documents. and o^m
Distributor the"pnnn"nuv m auum.t reasons for objections to oIScmau,m, City aom"s to re=mct access to Distributor's,nmnn000n to
m=ae persons wnm" x" organization who have, m need to xomw for purposes of n,i°",oemont of this x feemem ow agrees to
inforn)Its employees of the obligations under this paragraph and to enforce r-Liles and procedi-IfeS,that will prevent any unatithorized
u'amoo"re or transfer of information, City Will uma na best efforts to amom and vmte=/mamuum,'^'"mmnaoo"in me same manner
and to the a"rnmumuree it nmtemu no own proprietary information: however- ouv u"n" not guarantee that any information deemed
vmnn°mry bvo/aum.m'Ml be protected from num/co/uo/oaore if release is rov.o°u by law The foregoing om.oauon regarding
confidentiality shall reiiialn in effe.0 for a period of three(3)years after the expiration of this Agreement.
11 It .oexnreosI'Understood and agreed that the parties sxon ovo,u'a as independent entities m
each and every respect ooFeunue' and not as an uoent, mprenenmtme, or employee of the omer The parties shall have the
exclusive control and the exclusive oom to mmnx all details and day-to-day operations and activities m/ouve to operation of each.
The parties auxnmw/ouoe that the doctrine of respondeat superior,shall not apply as uowaen the City and o'smumm, its omoom,
uoenm, aewonta, empmveom, oont,aotmn. soucontoctom. noonawo and `nvnpeo. wmmno conm.mau in this Agreement shall be
oonoouod as the creation of peunorsmp m/omt enterprise bemn°"the ouv and momumor.
12 8uohgdLty. Bv executing this Agreement, mmumnu the*udenuum Distributor's agent affirms that fie m She'"aumoozeu
by the Distributor mexecute this *wmemem. including moAuue'mum 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. u for any,mason. at any nm°uuvno any term of this Aoeement, the Fort worth City ouun"o m^l°to
~s appropriate funds sufficient for City m�mo n^ouonuuono u"oe,this Agreement, on�nav terminate this Agreement m be effect'
on the later of(1)thirty(30)(Jays following delivery by City to Distributor of written notice of City's intention to teraitnate or 01)the last
date for which funding has been appropriated uv the Fom Worth City Council for the nurpo ",emmnxmm'o^gmmmem
14 E4ure Aciteement. The Auemmemt, including this^odvnuum contains the onore unuennnnd,ny
and agreement uou,men
the onv and om,,uuAmao m the matters 000mmau in the Agreement. Any pno, of"onmmnoranooua oral ",mmten agreement'u
hereby declared null and void/o the extent m conflict with any provision n/this Agreement,
CITY op FORT WORTH: FrrNESS m Y a Lo
uv- B'
Aam/amnt City Manager Authorized ReM,esentafive
oota ___.____.________ oa��`____��_�_,�_/__L_��___-
APPROVED AS TO FORM AND LEoAurv�
»v_______________—_-------------
x=°`sunt o./'mmme'
13 i)f 14
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 Liabili :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
judi'cia'l 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 thlis,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 Distributors,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 eachl.
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
Distributors identity,address and legal status(corporation,partnership,individual,etc.)are true and correct.
13. Fiscal Funding Cut. 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(0)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: FITNESS MARKETING SYSTEMS,L.L.C.
Fua By:
By: I ,A i
-tsan Alanis Charles A.Brady,Jr.
sisistant City anager Authorized Representative
Date: Date:
0000000
A
APPROVED AS TO FORM AND LEGALITY-
0
0
0
By': d byO
Ao,sigtant City Attorney ,f o
j,
VI F
00
Agreement with Fitness Marketing Systems,LLC
13 of 14
Id P. Gonzales As I
cety AW
ATTEST:
By:
City Secretary
Agreement with Fitness Marketing Systems,LLC
14 of 14