Gym Site Solutions Agreement - 97


GYM SITE SOLUTIONS AGREEMENT
This Agreement (“Agreement”) is entered into by and between and GYM SITE SOLUTIONS, INC., a California corporation (the “Agency”).

WHEREAS, Agency is in the business of providing CRM tools for fitness businesses;

WHEREAS, Customer desires to hire Agency to provide a CRM for Customer’s use in connection with Customer’s fitness business;

WHEREAS, Customer understands and agrees that this is a monthly subscription program. Access CRM, marketing tools, and other platform features provided by the Agency is contingent upon the Customer staying up to date with their monthly payments. Failure to maintain current payments will result in the loss of access to all services and tools, including the website and communication platforms;

NOW, THEREFORE, in consideration of the covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DESCRIPTION OF SERVICES

(a) Agency’s Services:
Agency agrees to provide the Customer with access to a CRM, and other marketing tools and platform features (the “Services”) for use in connection with the Customer’s fitness business, hosted by the Agency through a Software-as-a-Service (SaaS) model. The Services will be in accordance with the technical, functional, and aesthetic standards determined by the Agency. The service may include text, graphics, artwork, pictures, sound, video, logos, and other data provided by either the Agency or the Customer.

Customer acknowledges that the content, tools, or platform features provided by the Agency as part of the Services remain the property of the Agency and are not transferable. The Customer does not own the content, web elements, or any associated tools and will only have access to the Services as long as their subscription remains active and up to date. If the Customer fails to make timely payments, they will lose access to all Services, including the web forms, CRM tools, and communication features.

(b) Non-Exclusive Services & Repurposed Design and Content:
Customer acknowledges and agrees that Agency's design and platform services are in no way exclusive to Customer. The Agency may design similar websites and provide similar Services for other clients, including competitors of the Customer. Additionally, Customer understands that any design elements, content, or images used in the Customer's project may be repurposed from other websites or projects, and likewise, elements from the Customer’s project may be repurposed for other clients of the Agency.

(c) Customer Responsibilities:

(i) Usage Rights & Image Ownership:
Customer is solely responsible for ensuring that all images, logos, and content provided to the Agency for use in the project and platform comply with applicable copyright laws and that Customer has the necessary rights or permissions to use any third-party content, including images of clients, staff, or any other individuals. The Customer must secure permission from individuals depicted in any images used in connection with the Services. The Agency is not responsible for any legal issues arising from the Customer’s use of third-party content. The Customer will hold the Agency harmless from any claims, suits, or penalties arising from such use.

(ii) Domain & Other Responsibilities:
Customer is responsible for its own domain name registration, email hosting, and any compliance with laws, regulations, or technical requirements for the Services provided. The Agency's Services do not include domain name ownership, and the Customer assumes full responsibility for any legal and technical requirements related to their business operations.

(iii) Lawful Purpose:
Customer agrees to use the services provided and platform for lawful purposes only. The Customer will not transmit or ask the Agency to transmit any material that infringes upon the rights of others or that is unlawful, defamatory, obscene, or otherwise objectionable. The Customer will hold the Agency harmless from any claims or legal actions arising from unlawful or inappropriate content.

(iv) Marketing and Social Media Platforms:
While the Agency provides tools and guidance for improving social media engagement and ranking, the Agency does not guarantee better search engine rankings, social media performance, or customer engagement. Additionally, the Agency is not responsible for any suspension or banning of Customer’s social media accounts, including but not limited to actions taken by third-party platforms.

(v) Cooperation: Customer agrees to promptly cooperate with Agency in connection with this Agreement and to execute and deliver further documents and instruments and take all other actions as reasonably requested by Agency to carry out the intent and purposes of this Agreement.

(vi) Terms, Conditions & Privacy Policies: Agency may include generic terms and conditions and privacy policies (collectively, “Generic Terms and Policies”) on the Website. Customer acknowledges and understands the Generic Terms and Policies have not been drafted by Agency, are generic and are not specifically tailored for Customer. Customer further acknowledges and agrees the Generic Terms and Policies may not be compliant with applicable laws, rules and regulations. Customer is responsible to ensure the Generic Terms and Policies, along with all other content on the Website is compliant with all applicable laws, rules and regulations and will hold harmless, protect, and defend Agency and its employees, agents, insurers, attorneys, officers, directors and shareholder from any claim, suit, penalty, tax, and any other damages and costs (including but not limited to attorney’s fees and costs) related thereto.

(vii) Website Backup: Customer is responsible for backing up its existing website content Agency is not liable for the loss of any content of Customer’s existing website.

(viii) Compliance with Laws: The Customer agrees to use the platform, CRM, website builder, and all associated services in compliance with all applicable local, state, federal, and international laws and regulations. This includes, but is not limited to, laws governing marketing, email communications (such as the CAN-SPAM Act), data protection (such as GDPR and CCPA), accessibility (such as ADA compliance), and consumer rights.

(ix) Cookie Policy and Data Collection: The Customer is responsible for implementing and maintaining a legally compliant cookie policy on any websites or platforms developed or hosted by the Agency. The Customer must ensure compliance with all applicable data privacy laws, including but not limited to the GDPR (General Data Protection Regulation), CCPA (California Consumer Privacy Act), and other relevant privacy regulations that govern the collection, processing, and storage of user data.

(x) ADA Compliance: The Customer is responsible for ensuring that any websites or digital services provided by the Agency meet the applicable standards for accessibility, including the Americans with Disabilities Act (ADA), Web Content Accessibility Guidelines (WCAG), and any other relevant accessibility regulations. The Customer acknowledges that failure to comply with these standards may expose the Customer to legal liability, and the Customer assumes full responsibility for any such liability.

(xi) Prohibition of Spam and Unethical Marketing: The Customer agrees not to use the platform or any tools provided by the Agency to engage in any form of spamming, misleading advertising, or other unethical marketing tactics. This includes the unsolicited distribution of marketing materials, excessive or irrelevant messaging, and any other actions that could be deemed deceptive or in violation of advertising standards.

2. COMPENSATION
(a) Agency’s Fees: The fee for Agency’s Services is $97 per month, payable on a monthly basis after the initial 30-day free trial period. This subscription fee includes access to the CRM, and other platform features. Any additional services (e.g., extra SMS, emails, phone calls, phone number registration fees, AI usage etc.) beyond the standard package will be billed separately and added to the Customer’s monthly invoice.

(b) Promotions or Discounts: If the Agency offers any promotions or discounts to the Customer, such promotions and discounts are not redeemable for cash or other equivalents. Under no circumstances will any discounts or promotions be refunded or returned to the Customer.

3. ADDITIONAL SERVICES AND CHARGES
(a) Additional Services: Routine updates and support are included within the subscription. However, any substantial changes requested by the Customer after the initial setup, such as significant redesigns, additional web pages, new features, or platform enhancements, will be billed separately on a case-by-case basis. The Agency will notify the Customer of the estimated costs before performing any work.

(b) Additional Content and Custom Services: The standard subscription covers basic design and functionality as outlined by the Agency. If the Customer requests custom content (e.g., copywriting, videos, advanced integrations, or custom designs) or additional services (e.g., advanced SEO, custom development, or third-party software integrations), these will be treated as additional services and will incur additional charges. The Agency will provide the Customer with an estimate for such services prior to commencement of work, and work will only proceed upon written approval by the Customer.

(c) Billing for Additional Services: All charges for additional pages, content, or services will be billed separately from the monthly subscription fee. The Customer agrees to pay such charges upon receipt of the invoice or as otherwise agreed upon in writing between the Customer and Agency.

(d) Advertising Services Fee: In the event Customer utilizes the built-in ad manager for creating and managing Facebook advertisements, an additional fee of 20% of the Customer's total ad spend will be charged. This fee covers the integration of the ads with the CRM, automations, and workflows within the platform. The Customer will be responsible for the payment of both the ad spend and the associated 20% service fee, which will be billed separately.

4. TERM & TERMINATION
(a) Term: This Agreement will be effective as of the last date set forth on the signature page and will remain in effect on a month-to-month basis unless terminated in accordance with this Agreement’s terms.

(b) Termination:

(i) Payment Defaults: If the Customer fails to pay any portion of the monthly subscription fee when due, the Agency may terminate this Agreement immediately by providing written notice of termination to the Customer. The Customer shall lose access to the platform, including the CRM, web pages, and any related services. All data, including contacts, marketing materials, and content stored within the platform, will be permanently deleted after 30 days unless payment is made in full within that time frame.

(ii) Termination for Breach: If the Customer materially breaches any terms of this Agreement, the Agency may terminate this Agreement by giving 30 days' written notice to the Customer to cure the breach. If the breach is not cured within this period, the Agreement will be terminated. The Customer will not be required to pay further subscription fees, but all services will cease and access to the platform will be revoked.

(iii) Termination by the Customer: The Customer may terminate this Agreement at any time by providing 30 days' written notice to the Agency. No refunds for previous payments will be provided upon termination. The Customer acknowledges that all access to the Website, CRM, platform tools, and other services will cease upon termination.

(iv) Termination by the Agency Without Cause: The Agency may terminate this Agreement without cause at any time by providing 30 days' written notice to the Customer. In such an event, the Agency will refund any prorated portion of prepaid fees for the remaining service period beyond the termination date.

(c) Effect of Termination: Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will terminate immediately, except for those related to Customer payments, dispute resolution, governing law, confidential information, indemnity, warranties, limitation of liability, and termination, which shall survive. Upon termination, the Customer will lose all access to the Website builder, CRM, contacts, communications, and any other materials stored within the platform. The Agency is under no obligation to provide or deliver any data, Website content, or platform features after termination unless otherwise agreed upon in writing.

5. DISCLAIMER OF WARRANTIES
IN CONNECTION WITH THE CRM PLATFORM, AND ALL OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, THE AGENCY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY. THE AGENCY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES IT MAKE ANY WARRANTY REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM OR ANY OTHER SERVICES. ALL SERVICES, INCLUDING THE USE OF THE PLATFORM, WEBSITE, AND ANY MARKETING TOOLS, ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.

6. LIMITATION OF LIABILITY
THE AGENCY’S TOTAL LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIMS FOR DAMAGES RELATING TO THIS AGREEMENT OR THE CRM PLATFORM, WHETHER BASED IN CONTRACT, NEGLIGENCE, OR OTHER THEORY, SHALL BE LIMITED TO THE AMOUNT OF THE FEES ACTUALLY PAID BY THE CUSTOMER TO THE AGENCY UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL THE AGENCY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITIES, OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SAAS PLATFORM, EVEN IF THE AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. OWNERSHIP AND USE OF MATERIALS

(a) Ownership of Customer Materials: The Customer represents and warrants that they either own or have obtained the necessary licenses, rights, and permissions to use any materials, including logos, content, images, and data, that are uploaded or provided to the Agency as part of the services under this Agreement. The Customer is solely responsible for ensuring that the use of such materials does not infringe on the intellectual property rights of any third party, including copyrights, trademarks, or patents.

(b) Ownership of Agency Content and Restrictions: All materials created by the Agency for the Website, including but not limited to designs, templates, custom content, source code, follow-up sequences, and proprietary tools, are the sole property of the Agency. The Agency grants the Customer a limited, non-exclusive, non-transferable license to use these materials solely within the scope of their membership and for the operation of the related services. The Customer agrees not to copy, distribute, reproduce, or use the Agency's proprietary materials outside of the platform, beyond the scope of their membership, or for any unauthorized purposes without prior written consent from the Agency. Unauthorized use, sharing, or reproduction of these materials is a material breach of this Agreement and will result in immediate termination of the Customer’s membership and access to all services provided by the Agency, in addition to any legal remedies available to the Agency.

(c) Content Usage: The Agency may reproduce, store, and display any materials provided by the Customer as necessary to perform its obligations under this Agreement, including using these materials in the website platform, marketing tools, or other services. The Customer grants the Agency a non-exclusive, worldwide license to use, reproduce, and display these materials solely for the purpose of fulfilling its obligations under this Agreement.

(d) Transmission: The Agency may transmit, display, or distribute any Customer-provided content or materials through the platform as required to perform the services, including enabling access to the Web builder, CRM, and other tools provided under the Agreement.

(e) Authority: The Customer represents and warrants that they have the full legal authority to enter into this Agreement and that no third party rights will be violated through the use of any content or materials provided to the Agency.

(f) No Third Party Infringement: The Customer represents and warrants that none of the materials, content, logos, or other assets provided to the Agency, either in whole or in part, infringe upon any third party's intellectual property rights, including copyrights, trademarks, trade names, or rights of privacy. The Customer is solely responsible for securing any necessary licenses or permissions for the use of third-party content on the website and CRM platform.

8. INDEMNIFICATION
In addition to any other obligation of the Customer to indemnify the Agency, the Customer agrees to defend, indemnify, save, and hold the Agency and its officers, agents, employees, shareholders, subcontractors, and insurers (collectively, “Agency Indemnified Parties”) harmless from any and all demands, liabilities, losses, damages, costs, and claims, including reasonable attorney’s fees, arising out of or related to the use of the platform, website, or any services provided by the Agency under this Agreement. This indemnification includes, but is not limited to, claims related to the Customer’s breach of this Agreement, infringement of third-party intellectual property rights, violations of applicable laws or regulations, or any claims arising out of the Customer’s business operations, including services or products sold, distributed, or advertised through the platform.

The Customer also agrees to defend, indemnify, and hold harmless the Agency Indemnified Parties from any liabilities arising out of injury to persons or property caused by products or services sold, distributed, or advertised by the Customer through the platform or website, including claims related to defective products, misrepresentation, or infringement of proprietary rights of third parties, such as copyright infringement.

9. INTELLECTUAL PROPERTY RIGHTS
(a) Property Rights: All intellectual property rights with respect to the platform, the associated tools, and any services provided by the Agency under this Agreement, whether existing now or developed later, are and will remain the property of the Agency. The Customer’s use of the platform and any associated tools is limited to the terms of this Agreement and is provided on a non-exclusive, non-transferable basis for the Customer’s own internal business operations.

The Customer does not have the right to modify, copy, reverse engineer, or create derivative works based on the platform or any tools provided by the Agency. No part of the platform or services is considered a work-for-hire, and no transfer of intellectual property rights is contemplated or made under this Agreement. All source code, technology, tools, and know-how developed by or licensed to the Agency remain the sole property of the Agency.

(b) Limited License: If the platform incorporates any proprietary technology or tools owned or licensed by the Agency ("Agency Property"), the Customer is granted a limited, non-exclusive, non-transferable license to use the Agency Property solely in connection with the platform for the purpose of operating the Customer’s business, such as managing their fitness business.

This license does not grant the Customer ownership or control over the Agency Property or its source code, and it is limited to the use of the platform’s features as provided under this Agreement. The Customer acknowledges that any third-party plugins, tools, or technologies used within the platform may be subject to updates, changes, or limitations beyond the Agency's control, and the Agency is not responsible for any such impact on the functionality of these tools.

If any such changes or limitations occur within the first twelve (12) months following the Customer’s acceptance of the platform, the Agency will use reasonable efforts to assist the Customer in finding suitable replacements for any affected third-party plugins or tools. However, the Agency is not responsible for maintaining or modifying third-party plugins beyond the scope of this Agreement.

10. EARNINGS DISCLAIMER
The Customer acknowledges and agrees that there is no guarantee regarding the level of business or financial success the Customer may experience through the use of the platform, tools, or any other services provided by the Agency. The Agency makes no guarantees, representations, or warranties that the Customer will achieve any specific level of income, profit, or success. The Customer accepts that business outcomes, including earnings, vary from one business to another. The use of the platform and any other services provided by the Agency is based on the Customer’s own due diligence. The Customer agrees that the Agency is not liable for any success or failure that is directly or indirectly related to the platform or other services provided.

11. TESTIMONIALS
The Customer understands that they may be asked (but are not required) to provide testimonials and reviews regarding the Agency’s services, which may be used for publicizing and promoting the Agency. The Customer authorizes the Agency to use the Customer’s name, photograph, brief biographical information, business details, and any review or testimonial provided in various marketing initiatives, including but not limited to social media, online marketing, and other promotional platforms or materials.

The Customer acknowledges that this information may be used in various formats, both print and digital, for purposes such as publicity, illustration, advertising, and web content. The Customer grants the Agency the right to use and publish these materials in any medium without the need for further approval. Furthermore, the Customer waives any right to inspect or approve the finished product or marketing material in which their likeness, review, or testimonial appears.

12. INDEPENDENT CONTRACTOR
The Agency's relationship to the Customer under this Agreement is that of an independent contractor. Neither party is an agent, employee, or partner of the other, and neither party has the authority to bind the other or act on behalf of the other in any contractual or legal matters. The Agency provides the platform and related services as an independent service provider, and the Customer retains full responsibility for its own business operations, decisions, and compliance with applicable laws. This Agreement does not create any joint venture, partnership, or employment relationship between the parties.

13. NOTICE
Any notice or communication required or permitted under this Agreement must be in writing and emailed to the parties at the following email addresses:


GYM SITE SOLUTIONS, INC.
omar@gymsitesolutions.com

All notices delivered by email will be deemed given at the time the email is sent, provided the sending party has no reason to believe the email was not received. A party may change its email address for notices by providing written notice to the other party.

14. FORCE MAJEURE
Agency shall not be liable for any failure or delay in performance due to any event beyond its reasonable control, including but not limited to acts of God, riots, pandemics, strikes, technical failures, or other acts or orders beyond Agency’s control.

15. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions.

16. DISPUTE RESOLUTION & ATTORNEYS' FEES
Any disputes arising from this Agreement shall be resolved through arbitration under the rules of the American Arbitration Association (AAA) in San Diego County, California. The award of the arbitrator shall be final and binding. Prior to arbitration, parties must attempt mediation. The prevailing party in arbitration or litigation shall be entitled to recover reasonable attorneys' fees. Small claims may be brought directly in San Diego Superior Court, Central Division, without mediation or arbitration.

17. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior agreements, oral or written. Any modification to this Agreement must be in writing and signed by both parties.

18. ASSIGNMENT
Customer may not assign this Agreement without Agency’s written consent. Agency may assign its rights and obligations under this Agreement without Customer's consent, at which point Agency's obligations to Customer shall terminate. This Agreement binds and benefits the parties and their respective successors and assigns.

19. SEVERABILITY
If any provision of this Agreement is found to be invalid or unenforceable, the remainder of the Agreement will continue in full force and effect.

20. COUNTERPARTS AND ELECTRONIC SIGNATURES
This Agreement may be signed in counterparts, each of which will be deemed an original. Electronic signatures shall have the same validity as handwritten signatures.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the last date written below.

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Signed by Omar Nasouri
Signed On: September 30, 2024


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Document name: Gym Site Solutions Agreement - 97
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