OPTIMIZE FITNESS PARTNER AGREEMENT

This Partner Agreement (this “AGREEMENT”) is a binding contract between you, a fitness professional (“Fitness Professional,” or “you”) and Optimize Fitness, Inc., a Corporation organized under the laws of the State of Colorado (“Optimize Fitness,” “we,” “us” or “our”), governing your use of the mobile software applications that Optimize Fitness makes available for download (individually and collectively, the “App”), the related website located at https://optimize.fitness/ and any other online properties owned or controlled by or on behalf of Optimize Fitness (collectively with the App, the “Optimize Platform”). Both Fitness Professional and Optimize Fitness may be referred to as a “Party” or, collectively, the “Parties” in this AGREEMENT. BY INSTALLING OR OTHERWISE ACCESSING OR USING THE OPTIMIZE PLATFORM, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU MAY NOT USE THE OPTIMIZE PLATFORM.

Background.

  • Optimize Fitness is a leading-edge health and fitness technology company that uses powerful machine learning algorithms to analyze user preferences, workout history, and goals to deliver efficient workouts that keep users improving wherever and whenever they exercise.

  • As part of the Optimize Platform, Optimize Fitness provides users who desire fitness training (“Users”) with access to fitness professionals (“Partners”) who develop personalized workouts for, provide fitness guidance to, and monitor the progress of such Users. The Optimize Platform provides Users with the opportunity to take workout classes and receive coaching from Partners solely for personal use.

  • Fitness Professional wishes to become a Partner in accordance with the terms of this AGREEMENT.

NOW THEREFORE, in consideration of the mutual promises contained herein and other good and sufficient consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto agree as follows

  1. Partner Services.

    1. Description of Partner Services. As a Partner, you may provide the following services (collectively, “Partner Services”) to Users of the Optimize Platform:

      1. Training Plans;

      2. Training Guidance;

      3. Workout Videos;

      4. Modification of a User’s workouts;

      5. Posts to Social Media such as Optimize Fitness, Facebook, Instagram; and

      6. Images.

    2. Eligibility; Qualifications. In order to participate as a Partner, you represent and warrant that:

      1. You are at least eighteen (18) years of age;

      2. You possess active licenses or certifications for all credentials you hold yourself out as having on the Optimize Platform;

      3. You are not currently, nor will you subsequently while a Partner be, bound by a non-compete agreement with a third party for services similar to the Partner Services or that would hinder your relationship and performance with Optimize Fitness in any way; and

      4. You possess the requisite skills, experience, and training to assist Users with their fitness goals and workout routines through the Optimize Platform.

    3. Verification. By enrolling as a Partner, you authorize Optimize Fitness to conduct any and all verifications, background checks, and reference checks necessary to confirm your compliance with this Section 1(b), including, but not limited to, checks performed by a third-party service. If Optimize Fitness, at any time and at its sole discretion, believes you are not in compliance with this Section 1, Optimize Fitness can terminate this AGREEMENT without notice to you.

    4. License to Optimize Fitness. You grant to Optimize Fitness a non-exclusive, worldwide, royalty-free, irrevocable license to all workouts, tips, trade secrets, training, personal bios, images, videos, and all other content (collectively, “Partner Content”) you use or post within the Optimize Platform for the term of this AGREEMENT and for a reasonable time thereafter that it takes for Optimize Fitness to remove your Partner Content from the Optimize Platform. You grant to Optimize Fitness the right to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Partner Content to provide and/or promote the Optimize Platform, in any media or platform.

    5. Relationship Between Partners and Optimize Fitness. As a Partner, your relationship with Optimize Fitness is limited to being an independent, third-party contractor, and not an employee, agent, or joint venturer of Optimize Fitness for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Optimize Fitness. Optimize Fitness is not itself affiliated with any Partner or User.

    6. Terms and Conditions; Privacy Policy. Your access to and use of the Optimize Platform is also subject to Optimize Fitness’s Terms and Conditions and Privacy Policy.
       

  2. Term. Except as provided in Section 1(c), this AGREEMENT is perpetual (“Term”). This AGREEMENT may be terminated at any time and for any reason by either Party with thirty (30) days’ written notice.
     

  3. Subscription Fee Sharing.

    1. To enjoy the full benefits of the Optimize Platform, including, without limitation, to use Partner Services, Users must purchase a subscription to the Optimize Platform (each, a “Subscription Fee”). In consideration for Partner Services, Optimize Fitness will compensate you with a percentage of each Subscription Fee according to the following schedule:

If User registers for Optimize Platform through iOS/Android:

If User registers for Optimize Platform through any other medium:

Year 1: Sixty percent (60%) of each Subscription Fee.

All Years: Eighty-five percent (85%) of each Subscription Fee.

Year 2+: Seventy-five percent (75%) of each Subscription Fee.

 

 

    1. Users will be subscribed to only one Partner at a time, with no minimum or maximum commitment. You will only receive a percentage of a Subscription Fee for the duration of time in which such User has subscribed to you and your Partner Services. Therefore, it is possible to receive a percentage of a Subscription Fee for less than one month.

    2. Payment to you will be remitted monthly through a third-party payment platform using the account information you provide to Optimize Fitness. You are responsible for maintaining accurate and current account information to receive payment. If your information changes at any time, you must notify Optimize Fitness immediately at team@optimize.fitness. Third-party platforms, including your own banking institution, may be subject to different terms and conditions and privacy practices. Optimize Fitness is not responsible or liable for the availability, accuracy, delay, or performance of such third-party platforms or banks.

    3. Optimize Fitness may, from time to time and at its sole discretion, change these fee sharing terms upon thirty (30) days’ written notice to you. If you disagree with any such changes, your sole remedy is to terminate this AGREEMENT.
       

  1. Intellectual Property.

    1. License to Partner. The Optimize Platform is licensed, not sold, to you for use only under the terms of this Agreement. Optimize Fitness reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with this AGREEMENT, Optimize Fitness hereby grants you a non-exclusive, limited, revocable, non-transferable license to access and use the Optimize Platform.

    2. Content. Except for your Partner Content and content provided by Users (“User Content”), the content that Optimize Fitness provides to Users on or through the Optimize Platform, including without limitation, any class, workout plan, training, text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Optimize Fitness or its third party licensors (collectively, the “Optimize Fitness Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, Post, create derivative works of, publicly perform, publicly display, use for commercial purpose, or distribute any Optimize Content in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this AGREEMENT or permitted by the Optimize Platform’s intended functionalities. You may not modify or use any materials obtained from or available through the Optimize Platform, including Partner Content provided by other Partners, unless you have obtained the applicable copyright owner’s prior express written authorization. Optimize Fitness owns all design rights, databases, and compilation and other intellectual property rights in and to the Optimize Content and Optimize Platform, in each case whether registered or unregistered, and all related goodwill. You may use your own Partner Content outside of the Optimize Platform so long as your use conforms with Section 1(b)(iii), above.

    3. Marks. Optimize Fitness trademarks, service marks, and logos (the “Optimize Fitness Trademarks”) used and displayed on the Optimize Platform are Optimize Fitness’s registered and unregistered trademarks or service marks. Other product and service names located on the Optimize Platform may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Optimize Fitness Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Optimize Fitness or the applicable third-party, Optimize Fitness’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Aside from using the Optimize Fitness Trademarks to promote Optimize Fitness and/or your Partner Services on the Optimize Platform through the duration of this AGREEMENT, you may not use the Trademarks for any purpose without express consent by Optimize Fitness or the applicable third-party.

    4. Restrictions. Optimize Fitness hereby reserves all rights not expressly granted to you in this Section. Accordingly, nothing in this AGREEMENT or on the Optimize Platform will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Optimize Platform or any Optimize Fitness Content or Trademarks located or displayed therein.
       

  2. Registration.

    1. Log-In Credentials. While you may always browse the public-facing portions of the Optimize Platform without registering with us, in order to become a Partner, you must register an account with us (an “Account”).

    2. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Optimize Fitness immediately at team@optimize.fitness if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Optimize Fitness will not be liable for any loss or damage arising from unauthorized use of your credentials.

    3. Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as Optimize Fitness requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this AGREEMENT, cause damage to or impair the Optimize Platform, infringe or violate any third party rights, damage or bring into disrepute the reputation of Optimize Fitness, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Optimize Fitness may terminate your Account immediately without notice to you and without any liability to you or any third party.
       

  3. Confidentiality. While using the Optimize Platform, Users provide Partners with private information including, but not limited to, health status and medical history (collectively, “Confidential Information”). You agree to keep such Confidential Information confidential and to use commercially reasonable efforts to secure the Confidential Information at all times.
     

  4. Prohibited Uses. In addition to any other restrictions set forth in this AGREEMENT, and without limiting those restrictions, when using the Optimize Platform, you agree not to (and not to attempt to):

    1. Provide any false personal information to Optimize Fitness; or

    2. Create a false identity, duplicate Account, or impersonate another person or entity in any way.
       

  5. User Injury Disclaimer.

    1. Partners and Users use the Optimize Platform at their own risk. You are solely responsible and liable for everything you communicate to Users through your Partner Content, updates to your Partner Content, or direct messages, including damages or causes of action resulting from User injury.

    2. You should consult with a licensed medical professional if you have any questions regarding your Partner Content. We are not responsible in any way for any health problems or injuries sustained by you or Users, including, without limitation, incapacity or death, which may result from or be related to your use of the Optimize Platform.
       

  6. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Optimize Fitness, its affiliates, and their respective officers, directors, employees, agents, suppliers and licensors (collectively, the “Optimize Fitness Parties”) from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this AGREEMENT; (b) your access to, use, or misuse of Optimize Fitness Content or the Optimize Platform; (c) your Partner Content, (d) your communications with Users; and (e) your Partner Services, such as the workouts and training advice you provide to Users. Optimize Fitness will provide notice to you of any such claim, suit, or proceeding. Optimize Fitness reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Optimize Fitness believes that you are unwilling or incapable of defending Optimize Fitness’s interests. In such case, you agree to cooperate with any reasonable requests assisting Optimize Fitness’s defense of such matter at your expense.
     

  7. Limitation of Liability and Disclaimer of Warranties. THE FOLLOWING TERMS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:

    1. THE OPTIMIZE FITNESS PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE OPTIMIZE PLATFORM AND ANY USER CONTENT AND PARTNER CONTENT AVAILABLE ON THE OPTIMIZE PLATFORM, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS, APPROPRIATENESS, TIMELINESS, OR RELIABILITY THEREOF. THE OPTIMIZE FITNESS PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY USER CONTENT OR PARTNER CONTENT ON THE OPTIMIZE PLATFORM OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A PARTNER, YOU AGREE THAT YOU USE THE OPTIMIZE PLATFORM AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL PARTNER CONTENT YOU UPLOAD TO THE OPTIMIZE PLATFORM.

    2. THE OPTIMIZE FITNESS PARTIES DO NOT MAKE ANY GUARANTEES THAT USERS WILL SUBSCRIBE TO YOUR PARTNER CONTENT.

    3. THE OPTIMIZE FITNESS PARTIES DO NOT WARRANT THAT THE OPTIMIZE PLATFORM WILL OPERATE ERROR FREE, OR THAT THE OPTIMIZE PLATFORM AND ANY CONTENT THEREON IS FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.

    4. THE OPTIMIZE PLATFORM AND ALL CONTENT THEREON (INCLUDING CLASSES) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE OPTIMIZE FITNESS PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.

    5. IN NO EVENT WILL ANY OPTIMIZE FITNESS PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE OPTIMIZE PLATFORM AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH OPTIMIZE FITNESS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPTIMIZE FITNESS’S LIABILITY, AND THE LIABILITY OF ANY OTHER OPTIMIZE FITNESS PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF ANY FEES YOU HAVE PAID US OR U.S. $100.
       

  8. Third Party Disputes. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE OPTIMIZE PLATFORM, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, USER, OR OTHER PARTNER IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE OPTIMIZE FITNESS PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
     

  9. General Provisions.

    1. Governing Law. This AGREEMENT will be governed, construed, and enforced in accordance with the laws of the State of Colorado, without regard to its conflict of laws rules. Any suit brought under this AGREEMENT must be brought in the courts of Denver County.

    2. Survival. Your obligations under Section 6 will survive termination of this AGREEMENT.

    3. Severability. If any term of this AGREEMENT is to any extent illegal, otherwise invalid, or incapable of being enforced, such term will be excluded to the extent of such invalidity or unenforceability; all other terms hereof will remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this Severability provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the Party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation.

    4. Restriction on Assignment. Neither Party will assign any of its rights, or delegate any of its obligations, under this AGREEMENT (including by operation of law) without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.

    5. Notices. All notices required or to be sent under this AGREEMENT must be in writing. If to Optimize Fitness, notices must be sent to team@optimize.fitness via email. If to Fitness Professional, notices will be sent to your last-known email address.