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. Definitions.
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. Miscellaneous.
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.