LES MILLS US SERVICES AGREEMENT – VIRTUAL

BACKGROUND

We are an authorized licensee and distributor of the Virtual Programs and have agreed to license You to use the Virtual Programs on the terms set out in this Agreement and these Terms and Conditions. By agreeing to the Approved Reseller’s quote or order form, You agree to license the Virtual Programs in accordance with this Agreement and these Terms and Conditions.

KEY TERMS

“We” “Our” “Us”

Les Mills United States Trading, Inc.
Address: 363 W. Erie Street, Suite 200, Chicago, IL 60654

Phone: +1-844-LES MILLS

Email: lmus.orders@lesmills.com

“You” “Your”

Customer licensing the Virtual Programs through Approved Reseller.

Minimum Commitment Period

The minimum commitment period from the first Billing Start Date as set out in the Approved Seller’s quote or order form.

Cancellation

Either You or We may end this Agreement by 90 days’ prior written notice to the other provided that the earliest such termination may take effect is the end of the Minimum Commitment Period. The Service Fee is non-refundable.

Virtual Programs

Either the GX Program Bundle or Cycle Program Bundle as set out in the Approved Reseller’s quote or order form

GX Program Bundle

BODYPUMP® Virtual

BODYCOMBAT® Virtual

BODYFLOW® Virtual

LES MILLS CORE® Virtual

LES MILLS GRIT® Virtual

Cycle Program Bundle

BODYPUMP® Virtual

BODYCOMBAT® Virtual

BODYFLOW® Virtual

RPM® Virtual

LES MILLS SPRINT® Virtual

Service Fee

If You wish to continue licensing the Virtual Programs after the expiry of the Minimum Commitment Period, You and We will mutually agree the ongoing Monthly Service Fee to apply.

Initial Billing Start Date

As set out in the Approved Reseller’s quote or order form.

Approved Reseller

The approved reseller that has sold the Virtual Programs license to You.


TERMS AND CONDITIONS

1. Rights Granted: We grant You a non-exclusive, non-assignable, non-transferrable and non-sublicensable license to use the Virtual Programs, the Customer Resources provided to You by Us (each of the foregoing, individually and collectively, Les Mills Content), solely in accordance with the terms and conditions set out in this Agreement.

2. Use of Programs: You may conduct the Virtual Programs for the term of the Agreement and only at the Location.

3. Changes to Programs: We, in our sole discretion, may;

(a) change the content of any Virtual Program; and

(b) withdraw any Virtual Program at any time by notice to You, in which event the Virtual Programs and Service Fee set out in the Key Terms will be deemed to be amended to reflect such withdrawal.

4. Term: This Agreement will commence on the date it is signed by You and Us and continue until terminated in accordance with this Agreement.

5. Use of Les Mills Content: You will (and will ensure that Your Representatives) use the Les Mills Content and Trademarks only as expressly permitted under this Agreement or as otherwise expressly approved by Us in writing. Without limitation, You must (and must ensure that Your Representatives):

(a) comply with all applicable laws and regulations;

(b) except as We or Les Mills approve in writing, not sell, distribute, copy, alter (including inserting or deleting any graphics, text, music or other content), broadcast, make available via the internet or wireless technology, create derivative works or otherwise reproduce in whole or part any of the Les Mills Content; and

(c) only use the Les Mills Content with Our approval in a way that is not likely to damage, dilute, or diminish Our reputation or the reputation of Les Mills or the Programs.

If You fail to comply with the requirements set out in this clause 5, We may, at our sole discretion, withdraw Your right to use some or all of the Les Mills Content and / or the Trademarks.

PART 1: TERMS APPLICABLE TO USE OF VIRTUAL PROGRAMS

6. Use of Virtual Programs: You will only:

(a) display the Virtual Program on a screen viewed by all class participants in a group fitness class at the Location; and

(b) access the Virtual Program through the Virtual Player.

7. Restrictions on Use: You may not:

(a) use or access the Virtual Programs other than as described in clauses 6; or

(b) remove or extract the Virtual Programs from the Virtual Player.

8. Releases: We will supply releases of the Virtual Programs to the relevant Virtual Player supplier and the relevant Virtual Player supplier is responsible for the delivery of such releases to You through the Virtual Player. You will delete any Virtual Programs that We advise are no longer current.

9. Third Party Costs / Support: You are responsible for paying the costs charged by the Virtual Player supplier and any other third party services or equipment necessary to use the Virtual Player, unless otherwise agreed in writing between You and Us. Except with respect to the LES MILLS® Virtual app, which Les Mills will support in accordance with its then current procedures, We and Les Mills have no responsibility for the ongoing support or maintenance of any Virtual Player.

PART 2: RESOURCES, QUALITY AND ASSISTANCE

10. Customer Resources: We will provide the Customer Resources to You. You may copy, distribute and use the Customer Resources and use the Trademarks only for the purpose of conducting or promoting the Virtual Programs.

11. Conduct of Programs: You will ensure the Virtual Programs are conducted to Our high standards of professionalism.

12. Sale of Merchandise: You may purchase Les Mills Merchandise only from persons We approve.

13. Assistance to Customer: If, at Your request, We make a Representative available at any Location to provide assistance to You, You will pay Our then current consultancy fee and all reasonable travel and accommodation expenses.

14. Inspection: Subject to Your reasonable security requirements, We may visit a Location during normal business hours to assess Your compliance with this Agreement.

15. Our obligations: We will ensure that all communications and Les Mills Content provided to You are of a reasonable quality.

PART 3: PAYMENT

16. Payment and Calculation of Service Fees: You will pay the Service Fees set out in the Key Terms. Service Fees and all other amounts payable under this Agreement are due and payable by direct debit from Your nominated bank account or approved credit card upon receipt of an invoice from Les Mills or its Approved Reseller as applicable.

17. Price Increases: We may alter any fee, rate or price under this Agreement with 30 days prior written notice to You following the expiry of the Minimum Commitment Period. Despite the Cancellation provisions set out in the Key Terms, if We give You notice of a fee, rate or price increase and You wish to end this Agreement as a consequence, You must give us notice to that effect within 10 days of receipt of such notice and this Agreement will end on the date that the price increase would have taken effect.

18. No Remission or Refund of Service Fees: Service Fees will be payable for the term of this Agreement regardless of any fault or other issue with any third party Virtual Player which results in You being unable to access any Virtual Programs.

19. Payment Default: Without limiting Our rights, You will pay interest, if demanded, on any amount due but not paid, from the due date until the date of payment at the rate of 10% per annum or the maximum allowable by law, whichever is less. You will pay, on demand, any collection costs, including reasonable attorney’s fees, We incur in respect of any overdue amounts payable by You.

PART 4: LES MILLS IP

20. Ownership of Les Mills IP: You acknowledge and agree that:

(a) as between You and Us, all right, title and interest in and to the Les Mills Content, Intellectual Property and Improvements (collectively the Les Mills IP) and Goodwill is (and will be) owned exclusively by Les Mills regardless of the media or other form in which it is embodied, now or in the future; and

(b) except as specifically set out in this Agreement, You do not have, and will not acquire, any right, title or interest in or to the any of the Les Mills IP or Goodwill.

21. Assignment: If You have, or acquire, any right, title or interest in or to any of the Les Mills IP or Goodwill (the Acquired Rights), then You hold the Acquired Rights on trust for Les Mills, and You:

(a) assign all existing Acquired Rights and (to the extent possible) all future Acquired Rights (upon creation) to Les Mills;

(b) (to the extent that any future Acquired Rights are not capable of assignment now), assign all future Acquired Rights immediately upon those Acquired Rights coming into existence; and

(c) will promptly (at Your own cost) execute all documents and do all things, upon Les Mills’ request, necessary to achieve, confirm or perfect those assignments.

22. No challenge or registration: You will not:

(a) do anything inconsistent with Les Mills’ rights in and ownership of any of the Les Mills IP or Goodwill; or

(b) do or permit to be done any act or thing which may in any way impair the rights of Les Mills in or to the Les Mills IP (including, without limitation, registering or using a confusingly similar name or mark, opposing any applications or cancelling any registrations of Les Mills relating to Intellectual Property).

23. Public Performance Rights: You are responsible for obtaining, and obligated to obtain, public performance rights for the use of the Virtual Programs at the Locations.

24. Infringement and other parties: You must immediately notify Us of:

(a) any suspected or actual infringement of the Les Mills IP by third parties; and

(b) any claims or threatened claims that the Les Mills IP infringes or violates any other party’s intellectual property rights.

PART 5: GENERAL

25. Indemnity: You will indemnify Us and Les Mills, and each of our respective affiliates, for any damages, loss or cost (including reasonable attorneys’ fees and costs) arising from or related to a third-party claim (i) alleging facts that if true would constitute a breach by You of this Agreement, or (ii) alleging physical harm caused, or contributed to, by the Virtual Programs as conducted by You.

26. Disclaimer: EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, YOU AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE AND LES MILLS MAKE NO WARRANTIES, REPRESENTATIONS OR GUARANTEES WHATSOEVER ABOUT THE QUALITY, RELIABILITY OR SUITABILITY OF THE LES MILLS CONTENT, VIRTUAL PLAYER, OR THE SERVICES PROVIDED BY OR ON BEHALF OF ANY THIRD PARTY. YOU WILL MAKE NO REPRESENTATIONS OR WARRANTIES ON OUR OR LES MILLS’ BEHALF WITHOUT OUR AND LES MILLS’ EXPRESS WRITTEN CONSENT, INCLUDING, WITHOUT LIMITATION, THE QUALITY OR SUITABILITY OF THE PROGRAMS, RESULTS OR ANTICIPATED RESULTS OF THE VIRTUAL PROGRAMS, FITNESS RESULTS OR WEIGHT LOSS.

27. Limitation of Liability: Our total liability in the aggregate for all claims arising out of or in connection with this Agreement, whether in contract, tort or otherwise, will be limited to the amount of Service Fees paid by You under this Agreement during the twelve (12) months preceding the claim.

28. Insurance: You must maintain during the Term valid comprehensive business liability insurance policies covering each Location and the use of the Programs, and provide evidence of such insurance at Our request.

29. Assignment: We may freely assign this Agreement. You may not assign this Agreement without Our prior written approval.

30. Immediate Termination: We may terminate this Agreement immediately on written notice to You if:

(a) You are engaging in, or have engaged in, conduct that could: (i) damage, dilute, or impair the Les Mills IP; or (ii) damage, dilute or diminish Our reputation or the reputation of Les Mills or the Virtual Programs;

(b) You: (i) breach this Agreement and such breach is not capable of remedy; or (ii) fail to rectify any breach capable of remedy within seven days of written notification by Us of such breach;

(c) You: (i) cease to carry on business; (ii) cease to pay Your debts as they become due; (iii) take any step to enter into an arrangement with Your creditors; or (iv) take any step to appoint a receiver, receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person in respect of Your assets; or

(d) We no longer have rights to sublicense the Virtual Programs, without penalty, financial or otherwise.

31. Consequences of Termination: Immediately upon termination, You will:

(a) cease to use and destroy (or delete, where applicable) or Customer Resources;

(b) cease any and all use of any Les Mills IP; and

(c) ensure that each of Your Representatives also cease to do the matters referred to in (a) and (b) above.

32. Obligations survive termination: All Your obligations which are to be performed in whole or part after the termination of this Agreement will survive termination.

33. Government Taxes and Charges: All amounts payable under this Agreement are exclusive of all taxes and duties. You will promptly pay, and indemnify Us against, all taxes and duties assessed in connection with this Agreement except for taxes payable on Our net income. In the event You or the transactions contemplated by this Agreement are exempt from the foregoing, You shall promptly provide Us with evidence of such tax-exempt status acceptable to Us.

34. Entire Agreement: This Agreement contains all of the terms, representations and warranties made between You and Us and supersedes all prior discussions and agreements covering the subject matter of this Agreement. You and We agree that electronic signatures may be used to sign this Agreement.

35. Amendments: Amendments to this Agreement must be in writing and signed by both You and Us.

36. Confidentiality: You must keep confidential and secure any of Our or Les Mills’ property and information in Your possession or within Your control which is commercially sensitive or confidential (including the terms of this Agreement).

37. Force Majeure: If either You or We are prevented from performing any of our respective obligations under this Agreement due to any cause beyond Your or Our reasonable control (a “force majeure event”) the time for Your or Our performance will be extended for the period of the delay or inability to perform due to such occurrence; provided however, that You will not be excused from the payment of any sums of money owed by You under this Agreement.

38. Rights of Third Parties: Les Mills is entitled to enforce the terms of this Agreement. No other person other than You and We will be entitled to enforce any obligation under this Agreement.

39. Governing Law: This Agreement is governed by the internal laws of the State of Illinois without regard to principles of conflicts of laws. Any disputes will be heard in the state or federal courts in Chicago, Illinois, and both parties agree and waive any objections to the jurisdiction of such courts. However, We may bring legal action to enforce the intellectual property and payment provisions of this Agreement in any court of competent jurisdiction where You are located or the violation is occurring.

40. Partial Invalidity: If any part of this Agreement is or becomes invalid or unenforceable, the remainder of this Agreement will not be affected.

41. Privacy: You will comply with any relevant privacy laws relating to any personal information collected, stored, used and disclosed by You.

42. Waiver: No waiver by either You or Us of any breach of this Agreement by the other will be considered as a waiver of any subsequent breach of the same or any other provision.

43. Notice by Email: Notices may be delivered by email to the email address of a then current manager (or equivalent level personnel) or to a then current relationship contact designated for a party.

44. Definitions: In this Agreement, the following terms shall be defined as follows:

Agreement means the Key Terms and these Terms and Conditions;

Customer Resources means marketing materials (all in English), images and logos for marketing use and other resources provided online or delivered digitally to You by Us from time to time;

Goodwill means all goodwill in the Les Mills IP;

Improvements means all modifications made to or based on the Les Mills Content or Intellectual Property which are developed or acquired by Les Mills, Us, You or any other person (whether alone or jointly with any person);

Intellectual Property means all intellectual property created, developed, obtained, acquired, incorporated or used by Les Mills and/or its affiliated companies in, for, as part of, on and/or in relation to the Virtual Programs and any other exercise programs created or developed by Les Mills (each of the foregoing, individually and collectively, Les Mills Program Suite), Customer Resources, whether existing at the date of this Agreement or subsequently created, developed, obtained, acquired, incorporated or used by Les Mills and/or its affiliated companies, and all rights and interests therein (including common law rights and interests). Intellectual Property includes, without limitation:

(a) any registered or unregistered trademarks, service marks, or trade names, including the Trademarks, and/or other devices used by Les Mills and/or its affiliated companies to identify and promote itself and/or the Les Mills Program Suite;

(b) know-how, trade secrets, trade dress and other distinctive get-up, technical/business or other information or experience devised, developed or acquired by Les Mills and/or its affiliated companies and/or applied to the development and marketing of the Les Mills Program Suite;

(c) copyrights, including copyright licenses held by Les Mills and/or its affiliated companies in any written material, routines or other works relating to the Les Mills Program Suite; and

(d) patents, registered and unregistered designs.

Les Mills means Les Mills International Limited;

Les Mills Content has the meaning set out in clause 1;

Les Mills IP has the meaning set out in clause 20 (a);

Les Mills Merchandise means any clothing, merchandise, goods or other item incorporating any Intellectual Property;

Location means a single physical facility at which You operate as set out in the Key Terms or the schedule to this Agreement;

Approved Reseller means a reseller of the Virtual Programs appointed by Us;

Representative means a representative of a party including its employees, agents, contractors, sub‑contractors, directors and officers;

Term means the term of this Agreement, specified in clause 4;

Trademarks means any registered or unregistered trademarks, service marks, or trade names used by Us or Les Mills on, in or in relation to the Les Mills Content;

Virtual Player means a hardware and/or software system that is on Les Mills’ list of players approved to play the Virtual Programs (as amended by Les Mills from time to time); and

Virtual Programs means the Virtual Programs listed in the Key Terms (if any).

45. General Construction: In this Agreement, unless the context otherwise requires:

(a) references to You or Us (or Les Mills) include successors and permitted assigns;

(b) references to Us/We/Our and Les Mills include the respective affiliated companies;

(c) if You comprise two or more persons, Your liability will be joint and several; and

(d) a reference to a prohibition or restriction on You doing anything includes a reference to You not permitting, suffering or causing that thing to be done.