ClubWorks, Inc. MXM Contract
This agreement is entered by ClubWorks, Inc. a Washington State Corporation with offices at 123 Ohme Garden Rd. Ste.2 Wenatchee, WA (ClubWorks, Inc.) and the MXM Customer identified in Attachment A with offices identified in Attachment A. This agreement covers the terms under which ClubWorks, Inc. MXM services will be provided to the customer.
1. Effective Date:This Agreement will become effective on the date of signature by the parties and completion of an ‘MXM Order Form’ (incorporated herein as Exhibit A)
2. Billing Interval and Subscription Term:
The Customer shall pay ClubWorks, Inc. subscription fees in the amount identified in the Order Form (Exhibit A). The first payment will be due immediately upon notice to the Customer that its Club/s are active on the MXM platform and ready to receive, process and display CX data. This first MXM payment will secure Customer use/access to the MXM product platform for one
month. Thereafter, the Customers subscription to MXM will automatically renew on a month-by-month basis unless or until either party notifies the other of its intent not to renew, or pursuant to section 8.2.
3. MXM products and services:
3.1 ClubWorks, Inc. MXM Subscription Services: ClubWorks, Inc. provides a subscription based customer experience management (CEM) system for use in health and fitness clubs under license from Medallia Inc. The ClubWorks, Inc. product (MXM) allows the Customer to access proprietary software and hardware based tools, designs, calculations, trademarks, displays, questionnaires, processes, formula and trade secrets developed by Medallia Inc.(Medallia). This agreement allows the Customer access to the MXM platform hosted by Medallia on a month to month subscription basis.
3.2 MXM Implementation Services: On receipt by ClubWorks, Inc. of: 1) a completed ClubWorks, Inc. MXM Order Form, 2) Customer Provided Information forms identified in Exhibit B, and 3) Payment for implementation services specified in the Customer’s Order Form; ClubWorks, Inc. will implement the MXM product platform for Customer.
3.3 ClubWorks, Inc. MXM Training Services: ClubWorks, Inc. will provide start up training to Customer on the use of the MXM system as follows: Training to
Customer and Customer designated employee(s), not to exceed 10 hours total duration per Customer Account. Note, where a given customer account includes multiple club sites, ClubWorks, Inc. and The Customer may agree to expand training hours to address issues associated with training a larger total employee group operating at multiple locations. Training shall be conducted via the web or telephone.
3.4 Subscription not a Sale: This is a subscription agreement for use of ClubWorks, Inc.’s product and not an agreement for sale. Customer agrees that ClubWorks, Inc. products and any and all related and underlying ClubWorks, Inc. or Medallia software and technology constitute trade secrets or copyrighted material of ClubWorks, Inc. and/or Medallia. No rights in products, intellectual property or trade secrets are granted to the Customer beyond those specifically and expressly granted herein. No right, title or interest in any of ClubWorks, Inc.’s or Medallia’s trademarks is granted hereunder.
4.1 Implementation Fees: The Customer shall pay to ClubWorks, Inc. the amount specified under “Implementation Fee” in the MXM Order Form signed by the Customer. Total MXM Implementation fees specified in the MXM Order Form shall be due upon submission of an MXM Order Form to ClubWorks, Inc. by the Customer.
4.2 Subscription Fees: Monthly MXM subscription fees shall be paid in the amount specified in the MXM Order Form signed by the Customer, all fees are non-refundable. ClubWorks, Inc.’ fees are exclusive of all shipping costs and Customer will pay any sales, use, GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, except for taxes based on the income of ClubWorks, Inc.
4.3 Subscription Fee Changes: The Customer recognizes and agrees that ClubWorks, Inc. may change its fee schedule in its sole discretion at any time. Where the Customer's MXM subscription fee set out in the Order Form will change as the result of a ClubWorks, Inc. pricing change, 60 days advance notice will be provided to the Customer.
4.4 Licenses: Subject to section 4.2, over the term of this agreement ClubWorks, Inc. will maintain those licenses necessary to provide MXM services to The Customer.
5. Customer Provided Information and Indemnification
5.1 Implementation and operation of the MXM platform requires the Customer to provide complete and accurate information regarding certain aspects of the Customer’s member-base and club operations. Please note that a list of the required information is included and incorporated in this agreement as Exhibit B “MXM Customer Data”. In addition the Customer may provide look and feel data, trademark, trade name or other data for use in the Customers MXM presentation to members. The Customer recognizes that delivery of MXM services is contingent upon the accuracy of this Customer supplied information listed in Exhibit B. The Customer warrants to ClubWorks, Inc. that all data provided to ClubWorks, Inc. by the Customer under this agreement is legally in the Customer’s possession under local, State and Federal law, and that its use in the MXM system violates no 3rd party claim of interest in Customer provided data or content. The Customer agrees to indemnify ClubWorks, Inc. and Medallia for any claim for damages associated with Customer provided Information/content.
5.2 Customer acknowledges that certain features of the MXM platform may require the inclusion of data from its customers (the “Participants”). Customer agrees that it shall be solely responsible for (a) securing any consents that may be required from Participants to have their data gathered and processed by ClubWorks, Inc., Medallia and the MXM platform, (b) securing from Participants such permissions as may be necessary or required in order to collect, store and use such data as contemplated by this Agreement, (c) promptly communicating to ClubWorks, Inc. any “opt out” requests from Participants to no longer receive solicitations for feedback, and (d) providing for use of Participant data in its privacy and data use policies consistent with the relationship contemplated by this Agreement.
6. Permitted Use of MXM Products, Processes, and Data,
6.1 Customer Use of MXM, ClubWorks, Inc. and Medallia Products: The MXM product (developed and hosted by Medallia) provides the Customer access to proprietary information, processes, methods and trade secrets developed and owned by Medallia Inc. related to the capture of customer experience (CX) data, processing and treatment of CX data, display of CX data, and application of CX data to club/business operations. The Customer agrees to use MXM only in support of the Customer’s club operations. The Customer may use ClubWorks, Inc. products for its own benefit only, and only as expressly authorized by ClubWorks, Inc. Customer shall not a) rent, lease, copy, provide access to or sublicense ClubWorks, Inc. Products to a third party, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to ClubWorks, Inc. Products, (c) remove or obscure any product identification, proprietary, copyright or other notices contained in ClubWorks, Inc. products (including any reports or data printed from ClubWorks, Inc. Products), or (d) publicly disseminate information or analysis regarding the performance of ClubWorks, Inc. Products.
6.2 Disclosure of MXM, Products, Processes and Data: The Customer acknowledges that ClubWorks, Inc. MXM product content is valuable and must be protected against disclosure to third parties. Accordingly, the Customer agrees not to disclose MXM: data display formats, methods, processes, software tools, system capabilities, trade secrets or look and feel information beyond the Customer’s club operations, unless the disclosure is made to another MXM Customer as reasonably determined by the Customer in advance of disclosure. This limitation on Customer use and disclosure does not limit or preclude the Customer’s disclosure of scoring and ratings produced by MXM to third parties, provided that no MXM product content as described in 6.1 and 6.2 is included in the disclosure. Customer shall not permit any third party, known by the Customer to be a competitor of ClubWorks, Inc. or Medallia Inc. to access the ClubWorks, Inc. Products or ClubWorks, Inc. Products Data or Trade Secrets.
6.3 Customer Use/Treatment of Trade Secrets: Customer acknowledges that use of ClubWorks, Inc. Products will expose Customer to proprietary methodologies, formula, presentations, user interfaces, and other trade secret materials of ClubWorks, Inc. and/or Medallia. During the term of this Agreement and for a period of one year following the termination thereof, Customer shall not create or develop any information, products, concepts, systems, or techniques that are similar to or compete with the information products, concepts, systems, or techniques contemplated by or embodied in ClubWorks, Inc.’s or Medallia’s Confidential Information ("Competing Products"). In addition to the foregoing, during the term of this Agreement Customer shall not have any Competing Products.
7. Ownership, Use and Protection of Customer Data
7.1 ClubWorks, Inc. use of Raw Customer Data: “Raw Customer Data” are the Customer’s unformatted, unprocessed member survey scores and unstructured commentary derived from MXM/Medallia surveys (surveys are Medallia products), Customer shall retain all rights, and interest in “Raw Customer Data”. ClubWorks, Inc. may use such raw, unprocessed Customer Content for the purposes of providing ClubWorks, Inc. Products. Subject to the terms of this Agreement, Customer hereby grants to ClubWorks, Inc. the non-exclusive, revocable worldwide, royalty-free license to use, copy, store, transmit, modify, create derivative works of and display Customer “Raw Customer Data” solely to the extent necessary to provide ClubWorks, Inc. Products.
7.2 ClubWorks, Inc. use of MXM Products: ClubWorks, Inc. may use and disclose the Customer’s MXM product content related to one or more Customer facilities to third parties provided that any such disclosure does not disclose the Customer’s MXM product output/s in a form that can identify or be identified with the Customer, Customer’s Employees, Customer’s Members, or any Customer facility/s. Note: this limitation on disclosure shall not apply to information in the public domain, prior to disclosure.
7.3 Protection of Customer Data held by ClubWorks, Inc.: ClubWorks, Inc. will reasonably protect both Customer Raw Data and MXM product content related to the Customer from accidental or unauthorized disclosure to third parties, applying data protection methods/systems that ClubWorks, Inc. would apply to its own similar data, and in no less than a commercially reasonable method. If ClubWorks, Inc.
8.1 Termination: Customer may terminate its access to ClubWorks, Inc. Products at any time upon 30 days written notice to ClubWorks, Inc. Where said notice is delivered to ClubWorks, Inc. less than 30 days in advance of the Customer’s next billing date, ClubWorks, Inc. may bill for the next month services. The Customer shall not be entitled to any refund or credit of any type upon such a termination (including with respect to any Subscription Term that will not be completed due to Customer’s termination﴿ nor shall Customer be relieved of paying any fees then due under this Agreement.
8.2 Termination for Improper Use or Disclosure of Products, Processes or Data: Where the Customer violates the terms of section 6 of this agreement, this contract shall be subject to the rights of ClubWorks, Inc. to immediately terminate the Customer’s access/subscription to all MXM products. The Customer hereby agrees that violations of section 6 of this agreement shall entitle ClubWorks, Inc. to immediate injunctive relief against the Customer’s wrongful use or disclosure of MXM products, processes or data.
8.3 Effect of Termination: Upon any termination or expiration of this Agreement, Customer shall immediately cease any and all use of and access to ClubWorks, Inc. Products (including any and all related ClubWorks, Inc. software, technology and systems) and delete ﴾or, at ClubWorks, Inc.’ request and expense, return) any ClubWorks, Inc. passwords or access codes and any other ClubWorks, Inc. Products Data and ClubWorks, Inc. Confidential Information in its possession. Subject to the ongoing obligations of the sections entitled “Customer’s Use of Data” and “Confidentiality,” so long as this Agreement was not terminated for Customer’s breach Customer may retain and use internally hard copies of all reports containing ClubWorks, Inc. Products Data, which Customer printed in hardcopy form prior to termination or expiration. Termination of this Agreement shall be in addition to, and not in lieu of, any equitable or other remedies available to the terminating party. CLUBWORKS, INC. SHALL HAVE NO LIABILITY ARISING FROM ANY TERMINATION OF
CLUBWORKS, INC. PRODUCTS OR DUE TO ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT
8.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 6﴾Permitted Use of MXM Products, Processes, and Data), 5. (Customer Provided Information and Indemnification), 3.4 (Subscription not a Sale), 4(Fees), 8 (Term and Termination), 11.2 (Warranty Disclaimer), 10 (Remedies and Damages), 12 (Indemnification), and 13 (General Terms).
9. Service Commitment
9.1 Availability. Where ClubWorks, Inc. fails to meet a monthly 99% ClubWorks, Inc. Products Availability, as Customer’s sole and exclusive remedy and Customer makes a request for service credit within 30 days of the failure, ClubWorks, Inc. will credit Customer’s account one day’s current monthly fees for each 1% of ClubWorks, Inc. Products unavailability or any portion thereof over the allowed percentage in any calendar month (not to exceed one-half of total monthly fees for ClubWorks, Inc. Products) ﴿ (﴾“Service Credits”) ﴿. Service Credits will be applied in the month following the Customer’s request. Daily service credits shall be calculated based on a 365-day Subscription Term.
9.1. Exclusions. ClubWorks, Inc. shall not be responsible for, and Customer shall not be entitled to Service Credits for, any ClubWorks, Inc. Products failures caused by: (i) use by Customer in a manner not authorized in this Agreement or the documentation accompanying ClubWorks, Inc. Products, (ii) Customer or third party equipment, (iii) third party acts or systems unrelated to ClubWorks, Inc.; (iv) scheduled off-peak downtime, or (iv) general Internet problems, force majeure, natural disasters, emergencies, acts of terror or war, or other factors outside of ClubWorks, Inc.’s reasonable control.
10. Remedies and Damages
10.1 EXCEPT AS OTHERWISE STATED HEREIN, NEITHER PARTY SHALL BE LIABLE FOR LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 10.1 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER SECTIONS 5. (Customer Provided Information and Indemnification.
10.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CLUBWORKS, INC. ENTIRE LIABILITY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO CLUBWORKS, INC. UNDER THIS AGREEMENT.
10.3. The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11. Limited Warranty
11.1 ClubWorks, Inc. warrants, for Customer’s benefit only, that ClubWorks, Inc. Products will be provided in material conformity with the then-current Documentation. ClubWorks, Inc. does not warrant that the operation of ClubWorks, Inc. Products will be uninterrupted or error-free. Except as may be stated in this Agreement, as Customer’s sole and exclusive remedy for any breach of warranty, ClubWorks, Inc. will use reasonable efforts to correct any material defects in ClubWorks, Inc. Products at no charge to Customer. If ClubWorks, Inc. determines it cannot resolve a material defect within a reasonable period of time, Customer will have the right to terminate the Subscription Term and receive as its sole remedy a refund of: (a) the subscription fees specified in the Statement of Work which are allocable to the 30 day period prior to the date the warranty claim was made and (b) any fees Customer has pre-paid for use of the ClubWorks, Inc. Product which it has not yet received as of the date of the warranty claim. The limited warranty set forth in this Section 11.1 shall not apply: (i) unless Customer makes a claim within 60 days of the date on which the Customer knew or should have known about the condition giving rise to the claim or
(ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services.
11.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 11.1, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLUBWORKS, INC. PRODUCTS AND ALL SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. CLUBWORKS, INC. AND MEDALLIA: (I) DO NOT REPRESENT OR WARRANT THAT THE (A) CLUBWORKS, INC. PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR FREE, (B) ANY CUSTOMER CONTENT, CLUBWORKS, INC. PRODUCTS DATA, OR OTHER STORED DATA WILL BE ACCURATE, OR NON-CORRUPTED, OR (C) THAT CLUBWORKS, INC. PRODUCTS WILL BE FREE OF ANY VIRUSES OR MALICIOUS CODE WHICH CANNOT BE DETECTED USING COMMERCIALLY AVAILABLE PRODUCTS AND (II) SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO CLUBWORKS, INC. PRODUCTS. CLUBWORKS, INC. PRODUCTS DATA, OR OTHER STORED DATA AND ANY RELATED SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF ANY KNOWLEDGE OF CUSTOMER’S PARTICULAR NEEDS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
NEITHER CLUBWORKS, INC. NOR MEDALLIA SHALL BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CLUBWORKS, INC., EXCEPT AS OTHERWISE STATED HEREIN.
CLUBWORKS, INC. AND MEDALLIA MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE STATISTICAL SIGNIFICANCE OF CLUBWORKS, INC. PRODUCTS DATA OR ANY OTHER INFORMATION PROVIDED BY OR DERIVED FROM CLUBWORKS, INC. PRODUCTS OR THE SUITABILITY OF THIS DATA FOR USE IN ANY WAY, INCLUDING WITHOUT LIMITATION, TO MAKE BUSINESS, ECONOMIC, EMPLOYMENT, FRANCHISE OR PROMOTIONAL DECISIONS. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO DETERMINE THE SUITABILITY OF THE CLUBWORKS, INC. PRODUCTS DATA FOR ALL USES.
12.1 Intellectual Property. ClubWorks, Inc. shall indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s authorized use of ClubWorks, Inc. Products, provided that ClubWorks, Inc. shall have received from Customer: (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any of ClubWorks, Inc. Product is, or in ClubWorks, Inc. opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, ClubWorks, Inc. may, in its sole discretion: (a) substitute substantially functionally similar services; (b) procure for Customer the right to continue using ClubWorks, Inc. Products; or if (a and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term which was paid by Customer but not rendered by ClubWorks, Inc.. The foregoing indemnification obligation of ClubWorks, Inc. shall not apply: (1) if a ClubWorks, Inc. Product is modified by any party other than ClubWorks, Inc., but solely to the extent the alleged infringement is caused by such modification; (2) a ClubWorks, Inc. Product is combined with other non-ClubWorks, Inc. products or processes not authorized by ClubWorks, Inc., but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of ClubWorks, Inc. Products; (4) to the Customer Content or any third-party deliverables or components contained within ClubWorks, Inc. Products; or (5) to any action arising as a result of the Customer Content. THIS SECTION 12 SETS FORTH CLUBWORKS, INC.’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
13. General Terms
13.1. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.2. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transaction Act. Unless waived by ClubWorks, Inc. in its sole discretion, the jurisdiction and venue for actions related to the subject matter hereof shall be Washington state and United States federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts.
13.3. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
13.4. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at such other address as may be given in writing by either party to the other by registered or certified mail.
13.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that ClubWorks, Inc. Products are on-line, subscription-based product, and that in order to provide improved customer experience ClubWorks, Inc. may make changes to ClubWorks, Inc. Products, and ClubWorks, Inc. will update the ClubWorks, Inc. Products Service Description accordingly.
13.7. Audit Rights. Upon ClubWorks, Inc.’s written request, Customer shall furnish ClubWorks, Inc. with a signed certification certifying that ClubWorks, Inc.
Products and ClubWorks, Inc. Products Data are being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice, ClubWorks, Inc. may audit the use of ClubWorks, Inc.
Products and ClubWorks, Inc. Products Data by Customer provided such audit is during regular business hours.
13.8. Statistical Information. Notwithstanding anything else in the Agreement or otherwise, ClubWorks, Inc. and Medallia may monitor Customer’s use of the system and use data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the system, and may make such information publicly available, provided that such information does not identify Customer or Customer's Confidential Information or any personally identifiable information.
13.9. Subcontractors. ClubWorks, Inc. may use the services of subcontractors for performance of services under this Agreement. B Works Products as required under this Agreement.
13.10. Independent Contractors. The relationship of the parties hereto is that of independent contractors. Neither party shall be deemed to be the legal representative of the other. Each party agrees to assume complete responsibility for its own employees with regard to federal or state employers' liability and withholding tax, worker's compensation, social security, unemployment insurance, and Occupational Safety and Health Administration requirements and other federal, state and local laws.
13.10. Compliance with Laws. Customer will comply, at Customer’s expense, with all statutes, regulations, rules and ordinances of any governmental body, department or agency, which apply to or result from Customer’s obligations under this Agreement. Customer agrees not to export ClubWorks, Inc. Products directly or indirectly, separately or as part of a system, without first obtaining proper authority to do so from the appropriate governmental agencies or entities, as may be required by law.
COO ClubWorks, Inc.
Date: Februry 15, 2018
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