Affiliate Member Terms of Agreement

Affiliate Member Terms of Agreement

This Affiliate Member Terms of Agreement (herein after referred to as the “Agreement”) is entered by and between Where Can I WOD, LLC, a California Limited Liability Company having its principal place of business in San Ramon, CA (hereafter “Where Can I WOD,” “WCIW,” “we,” “us”) and Affiliate, (“Affiliate,” “you” “your,”), who agrees to the terms of this Agreement by clicking the “I AGREE” checkbox on the registration form on the Where Can I WOD website.

WHEREAS, Affiliate and Where Can I WOD, LLC wish to enter into a strategic alliance to market and perform certain complementary business services;

NOW, THEREFORE, in consideration of the foregoing and of the mutual premises hereinafter expressed, the parties hereto do mutually agree as follows:

Affiliate shall, in a professional manner, take all steps necessary to perform its Affiliate Owners duties and other services as they pertain to accommodating Drop-Ins for WOD Pack Members (collectively, the “WOD Pack Members”) when referred to Affiliate by WCIW. Any engagement to satisfy Drop-Ins shall be on such terms and conditions as WCIW may approve in its sole discretion. Affiliate will perform, schedule, staff and manage all Affiliate Owner duties.

You, Affiliate, understand that if your Affiliate registers to participate in the Where Can I WOD Affiliate Network, Affiliate will receive numerous privileges as a result of this affiliation. Affiliate recognizes that Affiliate will not be asked to pay for any of those privileges (with the exception of a 1.5% Merchant Services (MS) Fee on payment transactions, which is substantially less than any other available MS Fee).

Since Affiliate will be receiving Affiliate Member privileges, Affiliate understands and agrees that it will fall solely into your/your facility’s responsibility to maintain the standards of safety, cleanliness, support and respect toward all WOD Pack Members who elect to drop-in at your Box (facility).

When a participating WOD Pack Member does a drop-in, Affiliate understands that WCIW systems will verify that drop-in event and remit a credit for the facility portion of that fee rate (based upon Member choice of a 5 WOD Pack, 10 WOD Pack or 15 WOD Pack) on a quarterly basis. Affiliate will receive that credit – via electronic transfer, or paper check, as requested – to the account selected and provided to WCIW.

Affiliate understands that it may take 5 to 10 business days to complete the transfer, depending upon selected Financial Institution and other factors. WCIW will make every effort to keep ongoing reconciled data for all drop-ins for you, which will be made available to Affiliate upon request.

In addition, Affiliate may benefit from tens of thousands of dollars invested solely by WCIW each Quarter due to WCIW promotional teams attending live and televised Events (including, but not limited to: Regional CrossFit Games®, Worldwide CrossFit Games®, and National Pro Fitness League® events), promotional giveaways, incentive giveaways, ongoing eCampaigns, and more. While this Agreement does not create a revenue partnership, You understand that it does secure an affiliation which can provide revenue for your facility; therefore, Affiliate confirms agreement with all necessary Terms & Guidelines herein stated, as well as those added in future revisions.

Affiliate also agrees to share facility Member contact info (first & last name and current e-mail address, at minimum) in order to facilitate the most effective promotions and eCampaign results. Affiliate agrees and understands that this is beneficial to all parties (Facility/Box, Member, and WCIW), and that WCIW enforces a no spam and full opt-out policy ongoing.

Affiliate further agrees and understands that all Affiliate Members will include the WCIW logo on: (1) Affiliate website home page [minimum legible size required], (2) Affiliate blog page, with (3) a live hyperlink to WCIW in your Pricing Section.

Affiliate understands that WOD Pack Members will submit satisfaction surveys regarding cleanliness, safety, and supportiveness of staff when they visit a new Box for their first drop-in. All comments are moderated, and Affiliate will be given immediate notice of any negative feedback in order to respond as necessary. If any measures are not up to appropriate standards, Affiliate recognizes and agrees that Affiliate Membership may be immediately revoked.

Affiliate agrees and commits to being a positive, participating, and fully compliant Affiliate, recognizing the extensive range of cost and value-oriented benefits – listed in detail throughout the Where Can I WOD website – that Affiliate will receive as a result.

Affiliate shall designate an Owner or Head Coach to be responsible for the overall administration of this Agreement. WCIW shall have ultimate responsibility for WOD Pack Member relationships.

Confidentiality & Non-Compete Agreements:

The parties hereby acknowledge and agree that, in the course of the performance of the Where Can I WOD, LLC Services and or additional services pursuant to this Agreement, both parties may be given access to, or come into possession of, confidential information of the other party which may contain trade secrets, proprietary data, or other details of a confidential nature. Materials used in any engagement undertaken pursuant to this Agreement shall not be used, shared, altered, or changed without the consent of both parties.

Mutual Termination – Either party can terminate this agreement at any time via writing.

Survivability – Affiliate agrees to keep all proprietary and confidential WCIW information as such for a minimum of 1 year from the date of this agreement, even in the event that other terms of this Agreement are terminated in writing prior.

No Partnership – Nothing herein contained shall be construed to imply a joint venture, partnership, or principal-agent relationship between WCIW and Affiliate. Neither party shall have the right, power, or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing. The parties do not contemplate a sharing of profits relating to the WCIW Services nor the Affiliate Services so as to create a separate taxable entity under Section 761 of the Internal Revenue Code of 1986, as amended; nor co-ownership of a business or property so as to create a separate partnership under the law of any jurisdiction. Accordingly, for tax, property and liability purposes, WCIW will refer the WOD Pack Members to Affiliate for drop-in services, and Affiliate will accommodate the WOD Pack Member accordingly. Revenues and expenses relating to the said drop-in Services and any additional services shall be reported separately by the parties for tax purposes. Affiliate’s personnel, who are to provide services to WOD Pack Members or additional services to be provided by Affiliate hereunder, shall be under the employment and ultimate control and management and supervision of Affiliate. It is understood and agreed that Affiliate’s employees shall not be considered WCIW’s employees within the meaning or application of WCIW’s employee fringe benefit programs for the purpose of vacations, holidays, pension, group life insurance, accidental death, medical, hospitalization, and surgical benefits, and vice versa.

Trademark, Trade Name and Copyrights – Except as expressly provided herein, this Agreement does not give either party any ownership rights or interest in the other party’s trade name, trademarks or copyrights.

Indemnification – Each: of WCIW and Affiliate, at its own expense, shall indemnify, defend and hold the other, its partners, shareholders, directors, officers, employees, and agents harmless from and against any and all third-party suits, actions, investigations and proceedings, and related costs and expenses (including reasonable attorney’s fees) resulting solely and directly from the indemnifying party’s negligence or willful misconduct. Neither WCIW nor Affiliate shall be required hereunder to defend, indemnify or hold harmless the other and/or its partners, shareholders, directors, officers, directors, employees and agents, or any of them, from any liability resulting from the negligence or wrongful acts of the party seeking indemnification or of any third party. WCIW and Affiliate each agrees to give the other prompt written notice (20 to 30 business days) of any claim or other matter as to which it believes this indemnification provision is applicable. The indemnifying party shall have the right to defend against any such claim with counsel of its own choosing and to settle and/or compromise such claim as it deems appropriate. Each party further agrees to cooperate with the other in the defense of any such claim or other matter.

Limitations of Liability

a. Exclusion of Damages

Each party agrees that in no event will the other party or its suppliers or licensors be liable, under any theory of liability, however arising; for any costs of cover or for indirect, special, incidental, or consequential damages of any kind (including any loss of use, interruption of business, loss of business profits, loss of business information, and the like) arising out of this agreement, even if such party has been advised of the possibility of such damages. These limitations shall apply despite any failure of essential purpose of any limited warranty or remedy

b. Limitation on Damages

If there shall be any liability of one party to the other that arises out of or is in any way connected to this Agreement, each party’s aggregate liability for all damages, losses and causes of action whether in contract, tort (including negligence) or otherwise, either jointly or severally, shall not exceed the total amounts paid by the claiming party to the liable party during the immediately preceding the day that the act or omission occurred that gave rise to the claim. Each party acknowledges that the other is not an insurer; that the payments made by hereunder are based solely on the value of the services, and are not sufficient to warrant assuming any risk of consequential or other damages due to negligence or failure to perform. Due to the nature of the services to be performed, it is unrealistic extremely difficult to fix the actual damages, if any, which may result (proximately or otherwise) from negligence or failure to perform under this agreement. This limitation of liability reflects an allocation of risk between the parties in view of the fees charged, is not a penalty, and shall be exclusive. The limitations in this agreement shall apply despite any failure of essential purpose of any limited warranty or remedy.

Non-Solicitation of Personnel

Affiliate and WCIW agree not to engage in any attempt whatsoever, to hire, or to engage as independent contractors, the other’s employees or independent contractors during the term of this Agreement for 12 months from the date of signing, and following expiration or termination of this Agreement for a minimum of the equivalent period, except as may be mutually agreed in writing, signed by both parties, and notarized.

Intellectual Property

Work performed on engagements pursuant to this Agreement by either WCIW and/or Affiliate and information, materials, products and deliverables developed in connection with engagements pursuant to this Agreement shall be the property of the respective parties performing the work or creating the information. All underlying methodology utilized by Affiliate and WCIW respectively which was created and/or developed by either prior to the date of this Agreement and utilized in the course of performing engagements pursuant to this Agreement shall not become the property of the other.

Entire Agreement

This Agreement constitutes the entire and sole agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements, negotiations, understandings, or other matters, whether oral or written, with respect to the subject matter hereof. This Agreement cannot be modified, changed or amended, except for in writing signed by a duly authorized representative of each of the parties.

Conflict

In the event of any conflict, ambiguity or inconsistency between this Agreement and any other document that may be annexed hereto, the terms of this Agreement shall govern.

Assignment and Delegation

Neither party shall assign or delegate this Agreement or any rights, duties or obligations hereunder to any other person and/or entity without prior express written approval of the other party.

Notices

Any notice required or permitted to be given under this Agreement shall be in writing, by hand delivery, commercial overnight courier or registered or certified U.S. Mail, and shall be deemed duly given upon receipt. The parties hereto may from time to time designate in writing other addresses expressly for the purpose of receipt of notice hereunder.

Severability

If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of California.