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Digital Solution Agreement

To be entered into via Order Form (published 03.07.22)

Digital Solution Agreement

This Digital Solution Agreement (the “Agreement”) is dated as of the “Effective Date” provided in an applicable Order Form referencing this Agreement, and is made between EXOS Works, Inc., a New Jersey corporation located at 2629 E. Rose Garden Lane, Phoenix, AZ 85050 (“Exos,” “we,” “us” or “our”) and the party listed as “Customer” or “Subscriber” in such Order Form (“Subscriber,” “you” or “your”). It governs how Exos provides digital applications for fitness. 

  1. Services and License Grant
    1. Exos will provide to Subscriber the Services specified from time to time on an Order Form. Subscriber may extend its right to use the Services to its Affiliates and contractors, provided that it remains responsible for their use. 
    2. Subject to Subscriber’s timely performance of its obligations under this Agreement, Exos hereby grants to Subscriber, during the Term, the non-exclusive right to use and permit its Members to use the Services. By using the Services, Members acknowledge Exos’ privacy policy at legal-docs.teamexos.com/privacy-policy and agree to the end user terms of service at legal-docs.teamexos.com/terms-of-service. Exos, in its sole discretion, may terminate a Member's access to the Services if such Member breaches the end user terms of service.
    3. For Virtual Fitness Apps, Subscriber hereby grants Exos during the Term, the non-exclusive right to use its conferencing solution (e.g., MS Teams, Zoom, Go2ToMeeting) to enable live-streaming content. Exos does not monitor or control the communications within such conferencing. 
    4. Exos may alter the Services from time to time without prior notice to Subscriber; provided that (a) Exos shall use commercially reasonable efforts to notify Subscriber of any material Services alterations, (b) any alteration reasonably impacting Subscriber’s overall use or enjoyment of the Services shall be effective only following the then-current Term and (c) no alteration shall reasonably degrade the security of the Services. 
  2. Term and Termination.
    1. Term. Unless otherwise specified in an Order Form, (a) the initial Subscription Term for the Services is two years and (b) Subscription Terms automatically renew for a Subscription Term equal to the then-expiring Subscription Term. 
    2. Cancellation. Either party may terminate this Agreement as of the end of any then-current Subscription Term by providing at least 90 days’ notice.
    3. Termination for Cause. Either party may terminate this Agreement and all Order Forms for cause (a) upon notice to the other Party of a material breach by the other Party if such breach remains uncured 30 days after the breaching Party’s receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not discharged within 60 days.
    4. Refunds. Exos will refund Subscriber any prepaid Fees for a Subscription Term unapplied as of the effective date of termination if Subscriber terminates this Agreement for Exos’ uncured material breach. Otherwise there are no refunds. 
    5. Payment Upon Termination.  Subscriber will immediately pay any unpaid Fees covering the remainder of a Subscription Term if this Agreement is terminated for any reason other than Exos’ uncured material breach. For termination in the case Exos’ uncured material breach, Subscriber will pay all Fees through the effective date of termination. 
    6. Export of Subscriber Data. For 30 days following termination of this Agreement for any reason, Exos will make available to Subscriber a copy of Subscriber Data in a commercially reasonable format. Thereafter, Exos will have no obligation to maintain or provide any Subscriber Data.
    7. All terms of this Agreement intended by their nature to survive shall survive such termination, including all payment obligations, indemnities, liability limitations and provisions regarding Confidential Information. Any outstanding Order Forms shall terminate upon termination of this Agreement.
  3. Fees; Expenses; Invoicing. 
    1. Subscriber agrees to pay Exos all fees and expenses for Services described in an Order Form (collectively, “Fees”), together with any applicable taxes, within 30 days of presentation of an invoice. If Subscriber is located outside of the United States, upon Exos’ request, Subscriber agrees to withhold and pay over to the applicable taxing authority the amount of all taxes otherwise required to be paid by Exos with respect to such Fees.  
    2. Unless otherwise specified in an Order Form, Fees for any renewal Subscription Term shall be at Exos’ then- prevailing rates. 
    3. Any late payment of any Fees is a material breach of this Agreement, and Exos may charge interest thereon at 1.5% per whole or partial month, or the highest rate allowed by law, whichever is less. 
  4. Representations
    1. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and constitutes a binding agreement enforceable against such Party, (b) no approval of any third party is required for such Party to perform this Agreement and (c) the performance of this Agreement does not and will not violate any other agreement by which it is bound.
    2. Exos warrants that during each Subscription Term that (a) this Agreement and the Documentation will accurately describe the administrative, physical, and technical safeguards protecting the security of the Services and (b) Exos will provide the Services materially in accordance with the applicable Documentation.
    3. Subscriber warrants that it will not (a) except as expressly permitted by law, reverse engineer or decompile or otherwise attempt to derive source code for or modify the Virtual Fitness Apps, (b) create any derivative work of the Services or (c) bypass or disable any security or technical feature of the Services or otherwise intentionally degrade their security, integrity or performance.
  5. Internal Marketing; Publicity.
    1. Internal Marketing. To best engage Subscriber’s Members, Subscriber agrees to use commercially reasonable efforts to promote the Services through available channels such as newsletters, emails, team meetings, town halls and webinars.
    2. Publicity. Subscriber agrees that Exos may use Subscriber’s name, logos and trademarks for promotional activities, subject to any written usage guidelines provided to Exos. Subscriber may opt out of new uses upon 10 days’ written notice to legal-notices@teamexos.com. 
  6. Confidential Information. Recipient will protect Discloser’s Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own Confidential Information, and with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, Recipient may use Discloser’s Confidential Information solely to exercise its rights and perform its obligations under this Agreement and shall disclose such Confidential Information: (a) solely to the employees and/or contractors who need to know it and who are bound by terms of confidentiality intended to prevent the misuse of thereof; (b) as necessary to comply with any valid court order (provided Recipient first gives Discloser, where legally permitted, an opportunity to oppose such disclosure); or (c) as reasonably necessary to comply with any other applicable law or regulation. The foregoing controls over any non-disclosure agreement of the parties with respect to Confidential Information disclosed following the Effective Date. 
  7. Indemnification.
    1. Indemnification By Exos. Exos agrees to defend Subscriber from and against any claim, demand, suit, or proceeding brought against Subscriber by a third party alleging that the Services infringe such third party’s Proprietary Rights (an “Infringement Claim”). Exos will indemnify Subscriber from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against Subscriber or for settlement amounts approved by Exos for an Infringement Claim. 
    2. Infringement Details. If the Services are, or in Exos’ opinion are likely to become, the subject of an Infringement Claim, Exos may at its option and expense (a) procure the right to continue providing the Services, (b) modify the Services to make them non-infringing or (c) if the foregoing are not reasonably practicable, terminate any infringing Services and refund Subscriber any unused pre-paid Fees. Exos has no liability or obligation under Section 7.1 for any Infringement Claim (a) arising out the use of the Services in violations of this Agreement or the Documentation; (b) arising from the combination, operation, or use of the Services with other applications, products, or services to the extent the Services would not alone be infringing; or (c) arising from Services for which there is no charge. 
    3. Indemnification Conditions. To receive indemnification: (a) the indemnified party must promptly notify the indemnifying party of any claim; provided any delay will not relieve the indemnifying party of its indemnification obligations except to the extent it is prejudiced thereby; (b) the indemnified party will reasonably cooperate with the indemnifying party at indemnifying party’s expense and (c) the indemnifying party will have sole authority to defend or settle any claim; provided the indemnifying party may not settle any claim unless it unconditionally releases the indemnified party of all liability, and provided further that the indemnified party may participate in its own defense at its own expense.
    4. Exclusive Remedy.  Section 7 states the indemnifying party’s sole liability to, and indemnified party’s exclusive remedy against, the other party for indemnified claims.
  8. Disclaimer and Limitation of Liability.
    1. EXCEPT FOR THE WARRANTIES IN SECTION 4, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXOS DOES NOT WARRANT THAT SUBSCRIBER WILL OBTAIN ANY PARTICULAR RESULTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR VIRUS OR ERROR-FREE. 
    2. NEITHER PARTY OR ITS AFFILIATES SHALL HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ANY REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. NO ACTION  ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF A PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FIRST AROSE 
    3. THE ENTIRE LIABILITY OF EACH PARTY AND ITS AFFILIATES ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAYABLE WITHIN THE 12 MONTHS PRIOR TO THE TIME ANY APPLICABLE CLAIM FIRST AROSE. SUCH LIMITATION OF LIABILITY APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY A PARTY AND ITS AFFILIATES. THIS SECTION 8 ALLOCATES RISKS BETWEEN THE PARTIES, AND THE PARTIES ARE RELYING ON SUCH ALLOCATION DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
    4. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 8, THE LIMITATIONS IN THIS SECTION 8 WILL NOT LIMIT THE RIGHT (A) OF EXOS TO RECEIVE FEES PAYABLE UNDER THIS AGREEMENT OR (B) OF AN INDEMNIFIED PARTY TO INDEMNIFICATION UNDER SECTION 7. 
  9. Employee Non-Solicitation. Subscriber agrees that during the Term, and for one year thereafter, Subscriber shall not, directly or indirectly, (a) hire as an employee, agent, advisor, or consultant any employee of Exos or its Affiliates who provided Services to Subscriber or (b) encourage any employee of Exos or its Affiliates who provided Services to Subscriber to end or alter his or her relationship with Exos (other than via any general solicitation or advertisement).
  10. Assignment. Each party may assign all of its rights and obligations under this Agreement and all Order Forms to a successor to all or substantially of its business, provided that it notifies the ​​other party promptly thereafter. Any other assignment is void. Subject to the foregoing, this Agreement and any Order Forms shall inure to the benefit of, and be binding upon, successors and permitted assigns.
  11. Ownership. 
    1. The Services are performed or licensed without transfer of ownership. As between the parties, Exos owns the Services, including any Proprietary Rights therein (e.g., techniques, know-how, procedures, methodologies). Nothing in this Agreement limits Exos’ right to develop, use, license, or otherwise exploit the Services. Exos reserves all rights not expressly granted herein. 
    2. Subscriber recognizes that, based on the nature of the Services, no materials or work product, tangible or intangible, or any other Proprietary Rights (collectively, “Materials”) are created specifically for Subscriber under this Agreement. Therefore, all Materials that Exos creates or delivers as part of the Services are, from the moment of creation, Exos’ exclusive property, and Subscriber hereby assigns any Proprietary Rights that it may acquire therein to Exos. Subscriber likewise hereby assigns to Exos all Proprietary Rights in any suggestions or feedback it provides to Exos regarding the Services. 
    3. Exos recognizes Subscriber’s ownership of the Subscriber Data, and Subscriber hereby grants Exos a non-exclusive, limited license to use Subscriber Data to provide, secure and improve the Services in a manner that does not publicly  identify Subscriber or any Member. Exos will never sell, rent, or lease Subscriber Data to any third party, nor will Exos share it with third parties except as permitted by this Agreement. To comply with data protection laws, Subscriber may enter into the Exos Data Processing Agreement with respect thereto by requesting it from legal-notices@teamexos.com. 
    4. The parties recognize the rights of Members in their respective Member Data. Exos uses Member Data only in accordance with its privacy policy linked above, as the same may be updated.
  12. Member Provisioning.  From time to time upon the reasonable request of Exos, Subscriber will provide Exos a report of all persons eligible to be or become Members with access to the Virtual Fitness Apps. Thereafter, Exos shall promptly remove access to the Virtual Fitness Apps from all persons who are no longer eligible to be Members.   
  13. Entire Agreement. This Agreement, including any  accompanying Order Form or exhibit is the entire agreement of the parties with respect to its subject matter, superseding any prior understandings, written or oral. No purchase order, unless manually executed by both parties, entered into before or after the execution of this Agreement, will inform the interpretation of this Agreement, or be or remain binding on the parties, and they shall be void. Notwithstanding 
  14. Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective against Exos or Subscriber unless such modification, amendment or waiver is in writing signed by both parties either manually or via a third party e-sign platform. No waiver by either party of its exercise of any right or power under this Agreement shall operate as a waiver of any other exercise of such right or power of such party. No delay on the part of either party in exercising any right or power under this Agreement shall operate as a waiver thereof.
  15. Severability. Any unenforceable term of this Agreement shall be reformed to reflect the parties’ original intentions to the maximum possible extent, and all other terms shall remain fully effective. 
  16. Notices. Notices under this Agreement must be sent to the address specified in the recitals or an Order Form, to legal-notices@teamexos.com in the case of email notice to Exos, or to any other address specified for a party via a notice. Notices must be sent via certified mail or overnight courier and will be deemed delivered upon receipt; provided notices may also be sent via email, and such notices will be effective if and when acknowledged by reply email. 
  17. Governing Law and Jurisdiction. This Agreement is  governed by New York law. The state and federal courts of New York County, NY are the exclusive venue to resolve any dispute between the parties, and the parties waive any objection that such courts are an inconvenient forum; provided that no adequate remedy may exist at law for a breach Sections 4.3 or 6, it would be difficult to determine any related damages, and therefore the non-breaching party is entitled to seek an injunction and no other remedies in any court of competent jurisdiction to prevent or restrain any such breach. THE PARTIES WAIVE THEIR RIGHT TO A JURY TRIAL IN ANY DISPUTE BETWEEN THEM AND AGREE TO RESOLVE CLAIMS ON AN INDIVIDUAL BASIS ONLY. Accordingly, neither party can bring or participate in a dispute as a plaintiff or class member in a class action, consolidated action, or representative action.
  18. Miscellaneous. The parties are independent contractors and not partners or agents. The rights and remedies under this Agreement are cumulative and not exclusive. The interpretation of this Agreement shall not be construed against either party. “Including” means “including, without limitation.”
  19. Definitions

“Affiliate” means, any entity directly or indirectly controlled by, controlling, or under common control; 

“Confidential Information” means all information disclosed by a party (“Discloser”) to the other party (“Recipient”) which is in tangible form and designated as confidential, and all information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, but in all cases excluding information that: (a) was already known to Recipient at the time of disclosure; (b) is obtained by Recipient from a third party not under a duty of confidentiality to Discloser; (c) is or becomes available to the public other than by violation of any rights or duty owed to Discloser; or (d) is independently developed by the Recipient without the use of the Confidential Information. Without limiting the foregoing, the terms of this Agreement and each Order Form are Exos’ Confidential Information.

“Documentation” means each Order Form and any Exos publication specifying the functions or limitations of the Services.

“Member” means any employee or other person Subscriber has authorized to access the Services;

“Member Data” means all information or material that a Member uploads to Services or otherwise discloses to Exos in connection therewith;

“Order Form” means any order form provided by Exos referring to this Agreement entered into by the parties.

“Proprietary Rights” means all rights, title, and interest in and to the Services and all content therein, including, but not limited to, copyrights, trademarks, trade secrets, deliverables, documentation, processes, know-how or technology developed or owned by Exos or its Affiliates, and any modifications or derivative works thereof; and

“Services” means the Virtual Fitness Apps.

“Subscriber Data” means all information or material that Subscriber uploads to Services or otherwise discloses to Exos in connection therewith; 

“Subscription Term” means the committed period for which Subscriber has agreed to subscribe to one or more Services; and

“Virtual Fitness Apps” means the Exos virtual fitness and wellness applications identified in an Order Form.

 

[End of Agreement]

CURRENT AGREEMENT

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