Terms and Conditions
TERMS OF SERVICE/LICENSE AGREEMENT
This X3 Sports Terms of Service/License Agreement (the “Agreement”) is by and between X3 Management, LLC, a Georgia limited liability company (“X3M”) and Licensee (as hereinafter defined).
1.1 “Product” is defined herein as the custom branded software developed and improved by X3M, including all formulae, data, software, source code, object code, instructions and manuals, both electronic and in hard copy, developed by X3M for the exclusive use of the corporate-owned, franchised and/or licensed businesses of X3 Sports Enterprises, LLC, known as “X3 Sports”, or any other name(s) hereinafter designated, which Product currently allows existing and potential members of X3 Sports locations, among other developments, features and benefits, to:
· Check-In/Barcode for club access
· Review personal information
· Find an X3 Sports location
· Connect to a wearable
· Refer a friend to earn points and send guest passes to friends
· Receive notifications
· Allow access to photo gallery
· Access the leaderboard
· Book a class
· Purchase credits
· View X3 Plus
1.2 “Licensee” is defined as the party agreeing to the terms of this Agreement, being an individual who is a member of an X3 Sports location.
1.3 “License” is defined as the right to use and access the Product, according to the terms and conditions of this Agreement and as intended by X3M.
1.4 “Effective Date” is defined as the date on which Licensee accesses for the first time the X3 Sports Application.
2. License Grant and Term.
2.1 Subject to the terms of this Agreement, X3M hereby grants to Licensee for the term of this Agreement a limited nonexclusive, nontransferable right and License to use the Product.
2.2 This Agreement and the License herein granted shall commence on the Effective Date and continue for as long as Licensee uses the Product and X3M offers the Product for use.
2.3 Either party may terminate this Agreement without cause and penalty at any time and without prior notice.
3. Obligations of Licensee.
3.1 Licensee shall use the Product only for the purposes intended and shall not use the Product, or any portion thereof, in any other manner or in any other medium than that set forth in this Agreement. Licensee shall not copy, appropriate, abridge, modify, alter, or adapt the Product in any manner, whatsoever, without the prior, written approval of X3M.
3.2 Licensee acknowledges that, by downloading the Product, X3M may engage in the delivery, upgrades, updates and modifications of and to the Product. Licensee shall provide X3M with timely notice of any errors and malfunctions of the Product.
3.3 This Agreement and the License granted hereunder are personal to Licensee and shall not be assigned by any act of Licensee or by operation of law. Any attempt by Licensee to assign this Agreement or any rights herein granted shall be null and void. Licensee is not authorized to and shall not License or permit others (except for the authorized Users) to use, and shall not, in any event, retransmit, reproduce or distribute the Product.
3.4 Licensee’s use of the Product in any manner, whatsoever, serves as Licensee’s initial and ongoing agreement to comply with the terms of this Agreement.
3.5 Licensee shall not use the Product for any unlawful, illegal or immoral acts, without exception. Licensee shall not improperly access other parties’ personal or private information and shall diligently protect all confidential information obtained through its activities.
4. Intellectual Property Rights.
4.1 Nothing in this Agreement shall be construed to grant to Licensee any ownership or other proprietary interest in the Product, in whole or in part. Licensee agrees that it does not acquire any title, ownership or other exclusive intellectual property right or License under this Agreement. X3M retains all rights in the Product.
4.2 Copyright. Licensee shall not alter or delete any notice or any other copyright information appears and/or is embedded in the electronic portion of the Product.
5. Disclaimer of Warranties and Limitation of Liabilities.
5.1 X3M EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES (INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING TO LICENSEE’S USE OF THE PRODUCT NOT OTHERWISE EXPRESSLY GRANTED HEREIN.
5.2 X3M shall not be liable to Licensee or any third party for a failure to properly use or apply the Product or upon a disregard of professional advice or delay in seeking such advice, because of anything set forth in the Product. RELIANCE ON ANY INFORMATION CONTAINED IN THE PRODUCT IS SOLELY AT THE READER’S AND LICENSEE’S OWN RISK.
5.3 Notwithstanding anything else in this Agreement, X3M, its owners, officers, agents and representatives shall not be liable or responsible for any damage to Licensee’s hardware or software, for any reason, whatsoever. Except as expressly stated herein, X3M makes no representations or warranties, express or implied. X3M shall in no event and under no circumstances be liable for consequential, indirect, special, punitive or incidental damages, whether foreseeable or unforeseeable, based on claims of Licensee (including but not limited to, claims for loss of data, goodwill, profits, use of money or use of the Product, interruption in use or availability of data, stoppage of other work or impairment of other assets), arising out of breach of implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, except only in the case of (A) personal injury arising out of improper, intentional acts; or (B) where and only to the extent that applicable law prohibits exclusion of such liability.
6. Indemnification. Licensee does hereby agree to and shall defend, indemnify, and hold harmless X3M from and against all liability, demands, damages, expenses, and losses arising out of the Licensee’s use of the Product.
7. Default and Remedies.
7.1 X3M may, in its sole and absolute discretion, immediately terminate this Agreement if Licensee fails to comply with the terms and conditions of this Agreement.
7.2 Except as provided herein, the remedies provided herein shall be cumulative and shall not preclude the assertion by any party hereto of any other rights or the seeking of any other remedies against the other party hereto.
7.3 The failure or delay of any party at any time to require performance of any provision or to exercise its rights with respect to any provision hereof shall in no manner operate as a waiver of or affect such party’s right at a later time to enforce the same.
8. Force Majeure. Neither party shall be responsible for any delay caused by any act of God, including, but not limited to, fire, sabotage, flood, drought, strike, riot, labor difficulty, insurrection, war, act of government authority, or inability to obtain material, labor, equipment or transportation, which results in a party’s failure to perform in accordance with the terms hereof.
9. Notice. All notices, requests, claims, demands and other communications made to X3M hereunder shall be in writing and shall be deemed to have been duly given upon actual delivery and/or three (3) days after mailing, all by my means providing receipt, at the electronic or physical address last posted or provided by X3M.
10.1 This Agreement represents the entire understanding and agreement between the parties hereto and may be modified or waived only by a separate writing signed by both parties expressly so modifying or waiving this Agreement.
10.2 If any term, paragraph or provision of this Agreement or its application to any circumstances shall to any extent be deemed invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
10.3 This Agreement shall be governed by and construed under and in accordance with the laws of the State of Georgia, excluding its principles governing conflicts of law, and the parties hereby submit to the exclusive jurisdiction of the Courts of Cobb County, Georgia in connection with any litigation arising out of this Agreement and waive any and all objections to this forum, including without limitation forum non conveniens.
10.4 This Agreement shall inure to the benefit of, and shall be binding upon, the parties and their heirs, successors, assigns and personal representatives.
10.5 This Agreement shall not be strictly construed against any party being deemed as causing it to be drafted.
10.6 This Agreement contains the entire Agreement concerning the License granted by X3M to Licensee, and the terms and conditions hereof and may not be changed or modified, except by a writing signed by the parties hereto.