Exos Preventative Maintenance Terms

These Exos Preventative Maintenance Terms (the “Terms”) are dated as of the Effective Date defined in the Exos Preventative Maintenance Order Form (“Order Form”) referencing these Terms, and are by and between Exos Works, LLC and the Counterparty specified in the Referral Form (the Referral Form and Terms together, the “Agreement”). Capitalized terms used and not defined in these Terms are as defined in the Referral Form.

1. Services & Payment Terms. Exos hereby engages Vendor, and Vendor agrees to provide, the services (“Services”) for one or more of Exos’ Client locations (each location, a “Customer Location”) in accordance with the Order Form. Vendor will perform the Services in a timely, professional and workmanlike manner according to industry best standards, and Exos will pay Vendor all undisputed amounts set forth in the Order Form (the “Fees”), net 30 days from receipt of invoice. 
   
   
2. Cost of Services. Vendor is responsible for all of its costs and expenses incurred in providing the Services, and is not entitled to additional compensation except as set forth above. Vendor may increase the Fees by 3% annually; provided that Vendor must provide Exos with at least 90 days written notice in advance of any such increase. In the event Vendor experiences any significant cost increase beyond the annual increase, Vendor may propose such additional fees to Exos by providing 90 days advance written notice to Exos; provided that Exos has the option to: (i) modify or remove the Services affected by such proposed pricing increase; or (ii) reject such price increase and terminate the Agreement. 
   
   
3. Term & Termination. This Agreement begins on the date it is fully executed and continues for a period of 12 months. Thereafter, the term will automatically renew for successive 1 year periods. Notwithstanding the foregoing, Exos may terminate this Agreement or any Order Form  at any time, with or without cause, upon 45 days’ written notice to Vendor, or immediately upon notice if Vendor creates a substantial risk of harm to Exos or any of Exos’ Clients or if any Exos Client terminates their fitness center management agreement with Exos. Vendor may terminate this Agreement or any Order Form if any valid account balance is past due by more than 30 days, provided that Vendor first notifies Exos and provides an additional 10 days to bring the account current. Upon termination for any reason, (a) Exos will pay Vendor all valid amounts that may remain unpaid only with respect to the applicable Customer Location being terminated and (b) Sections 3, 6 – 12 of this Agreement will survive.
   
   
4. Delivery and Acceptance. Exos will notify Vendor of any defect in the Services of which it becomes aware, following which Vendor shall promptly correct and re-deliver or re-perform the defective Services. Exos is not obligated to pay for defective Services until Vendor corrects them.
   
   
5. Independent Contractor. Vendor will act as an independent contractor with primary control over the means and manner of performing the Service (including providing all tools and supplies necessary to perform the Services). Exos will not train Vendor to perform the Services. Vendor may provide the Services to any and all other Clients of Vendor. Exos will not withhold or pay payroll or employment taxes under this Agreement. Vendor is responsible for all its filings with and payments to taxing authorities. Exos will not obtain workers’ compensation insurance or benefits on behalf of Vendor, as Vendor is responsible for these items.
   
   
6. Compliance. Vendor, and its employees and agents (“Representatives”) will comply with all federal, state, and local laws, rules and regulations, including those related to workplace conduct, discrimination, harassment, and drug use, that apply now or in the future to its business, equipment and personnel. Vendor and its Representatives will comply with all reasonable safety, security, and access policies when they are onsite at any Customer Locations. Vendor is solely responsible for Vendor’s acts and omissions and those of its Vendor Representatives in performing the Services. Vendor understands and agrees that Vendor has no authority to obligate or bind Exos in any manner whatsoever.
   
   
7. Insurance. Vendor agrees to carry, at its sole expense during the term of this Agreement and for two years thereafter, professional and general liability insurance coverage in minimum amounts of $2,000,000 per occurrence/$4,000,000 aggregate. Each policy will name the Exos and its client as an additional insured on a primary and noncontributory basis for ongoing and completed operations. The definition of “Covered Services” on the Professional Liability Policy shall include the Services rendered in the scope of this Agreement. If Vendor has employees, it will also carry Workers’ Compensation with the minimum statutory limits and $1,000,000 Each Accident, and Employer’s Liability with a $1,000,000 policy limit. Vendor hereby waives all rights of recovery against Exos and all Additional Insureds and agrees to procure an endorsement waiving such rights, as permitted by state law. All insurance shall be procured from insurers permitted to do business in the State in which the Services are performed having an A.M. Best Rating of at least “A-, Class VIII.” Vendor agrees to furnish Exos a Certificate of Insurance evidencing the specified coverage within 10 days of the date of this Agreement and prior to Vendor commencing work. Vendor’s insurance carrier(s) will agree to provide at least 30 days' prior written notice to Exos in the event coverage is canceled or non-renewed. In any such event, Vendor must replace the coverage ensuring there is no lapse for any period.
   
   
8. Indemnification. Vendor will defend, indemnify and hold harmless Exos and its client, and their respective affiliates, contractors, employees, agents and invitees from and against all claims, losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from (a) Vendor’s negligence or willful misconduct, (b) Vendor’s breach of this Agreement or (c) any personal injury or property damage arising out of the Services. In connection with an indemnification request: (i) the indemnified party shall promptly notify the indemnifying party, provided the failure to do so shall only relieve the indemnifying party of its indemnification obligations to the extent it has been prejudiced by such delay; (ii) the indemnifying party shall exclusively control the defense and settlement of claims, provided no settlement shall admit fault or adversely affect the indemnified party without its prior consent; (iii) the indemnified party will cooperate in investigating and defending claims at the indemnifying party’s expense; and (iv) the indemnified party may participate with separate counsel at its expense.
   
   
9. No Publicity. Vendor may not use Exos or its Client’s name or trademarks in any sales or marketing materials.
   
   
10. Confidentiality. Exos agrees to keep Vendor’s pricing for the Services confidential; provided, however, Exos may disclose pricing to its Clients and professional advisors on a need-to-know basis. Vendor agrees by virtue of access to Client’s facilities or otherwise arising under this Agreement, it may have access to information owned or licensed by Exos or Client, including, without limitation, processes, methods, lists and usage information (collectively, “Confidential Information”). Confidential Information excludes information that: (a) is or becomes available to the general public other than through a breach of duty to the disclosing party; (b) was lawfully in Vendor’s possession prior to receipt under this Agreement; (c) is independently developed by Vendor without reference to Confidential Information; or (d) is subsequently obtained from a third party without restriction or breach of an obligation to the disclosing party. Vendor agrees to protect Confidential Information with reasonable care and not disclose it to any third party, or use it for any purpose except as expressly permitted under this Agreement; provided Vendor may disclose Confidential Information (a) to persons who need to know it who are bound by written confidentiality obligations no less restrictive than in this Section and (b) to the extent necessary to comply with any law or order of a governmental agency if it first notifies Exos and provides Exos with an opportunity to prevent or limit such disclosure. Vendor agrees to destroy all Confidential Information upon termination of this Agreement, other than backup copies not readily accessible for so long as they remain inaccessible.
    
    
11. Notices. All notices under this Agreement are validly given only if sent to the address on the signature page hereto: (a) personally, which are deemed received upon delivery, (b) by overnight courier, which are deemed received on the business day after delivery or (c) via email, and which are deemed received upon the recipient’s reply (other than an automatic reply).
    
    
12. Miscellaneous. This Agreement is governed by New York law, without regard to conflict of laws provisions. The state and federal courts of New York County, NY are the exclusive venue for resolving any dispute between the parties and the parties submit to such jurisdiction and waive any objection that it is an inconvenient forum; provided each party is entitled to seek an injunction only and no other remedies in any court of competent jurisdiction to prevent or restrain a breach of this Agreement. THE PARTIES WAIVE THEIR RIGHT TO A JURY TRIAL IN ANY DISPUTE BETWEEN THEM. Neither party may assign this Agreement; provided it may assign all of its rights and obligations hereunder to a successor to at least substantially all of its assets in connection with a merger, change of control, reorganization or sale of its assets. Any other assignment is void. No failure to enforce any rights under this Agreement will waive such rights. Any unenforceable term of this Agreement shall be reformed to reflect the intent of the parties to the extent lawful, without affecting the validity of other terms. This Agreement is the entire agreement between the parties, superseding any prior understanding, written or oral. No click-through, purchase order or other terms, 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 the foregoing, if the parties contract for any services outside of these Terms, such contract shall be deemed to be an additional Order Form subject hereto. In case of inconsistency, a manually signed Order Form takes precedence over the body of this Agreement; provided any Order Form terms that purport to conflict with any of the provisions of Section 5-12 (inclusive) of these Terms are void. This Agreement may only be modified by a written amendment signed by both parties manually or via a third party e-sign platform.