These Standard Terms of Access constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”, “your” or “Client”) and GYMSALES PTY LTD (“we”, “us”, our” or “GymSales”), concerning your access to and use of the gymsales.net website and our products and services (the “Services”) as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto.
You agree that by accessing the Services, you have read, understood, and agree to be bound by all of these Standard Terms of Access. If you do not agree with all of these Standard Terms of Access, then you are expressly prohibited from using the Services and you must discontinue use immediately.
Supplemental terms and conditions or documents that may be posted on the Website from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Standard Terms of Access at any time and for any reason.
We will alert you about any changes by updating the “Last updated” date of these Standard Terms of Access, and you waive any right to receive specific notice of each such change.
It is your responsibility to periodically review these Standard Terms of Access to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Standard Terms of Access by your continued use of the Website after the date such revised Standard Terms of Access are posted.
Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
These Standard Terms of Access are in addition to the terms of your Subscription Agreement (as defined below). In the event of a conflict between these Standard Terms of Access and the terms and conditions of the various components of your Subscription Agreement, the Subscription Agreement will govern.
1 AGREED TERMS & INTERPRETATION
Unless the context requires otherwise, the following phrases and capitalized words must be interpreted as follows:
1.1 Access means obtaining access to the Software via the Website:
(a) with the Client first obtaining access to the Software via the URL issued to the Client by GymSales; and
(b) Users being granted the right to access the Software by the Client, whether Client restricts the Users’ access by password or other means.
1.2 Confidential Information means in relation to each Party, any information about GymSales’ or the Client’s business, operations or customers received by the other Party under these Standard Terms of Access, whether oral or in writing, that is designated as confidential or would reasonably be understood to be confidential and proprietary, including technical, marketing, sales, operating, performance, cost, know-how, research and development, business and process information, computer programming techniques, protected health information, nonpublic personal financial information, personal data, and all record-bearing media containing or disclosing such information or techniques, but excluding information:
(a) which is publicly known;
(b) which is disclosed to the other Party without restriction by a third party and without any breach of confidentiality by the third party;
(c) which is developed independently by the other Party without reliance on any of that party’s confidential information; or
(d) was in such Party’s possession or known by it prior to receipt from the other Party.
1.3 Data means the User’s history of all their interactions created by their use of the Software including any Data entered by the Client or the User.
1.4 Fees means the amount payable for the Software including any integration and customization, exclusive of all Taxes.
1.5 Intellectual Property Rights means all rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not), brand name, service mark, trade name, eligible layout right, or any other proprietary right, any right to registration of such rights, or any similar rights protected by statute, wherever existing in the world, including all renewals, extensions and revivals of.
1.6 Marks means all trademarks, service marks, logos or other words or symbols identifying the Software and GymSales’s business, as may be amended by GymSales from time to time at its discretion.
1.7 Party means each of GymSales and the Client.
1.8 Personal Information has the meaning given under the applicable Privacy Law, as defined herein.
1.9 Privacy Laws means: applicable international, national, federal, state, provincial, or local privacy or protection legislation in force, including, where applicable, statutes, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, any supervisory authority and other applicable authorities in the United States of America including, without limitation the California Consumer Privacy Act of 2018
1.10 Affiliate means a company that controls, is controlled by or is under common control with another company.
1.11 Service Levels means the uptime set out in Schedule 2.
1.12 Software means the sales management software called GYMSALES™.
1.13 Subscription Agreement means any pilot licensing agreement, subscription licensing agreement, or other agreement executed by Client and GymSales outlining the specific services to be provided.
1.14 Support & Hosting Services means the support and hosting services set out in Schedule 1.
1.15 Taxes means any taxes, levies, duties or similar assessments of any nature, including but not limited to goods and services related, value-added, sales, use or withholding taxes, which are assessable by any local, state, federal or foreign jurisdiction.
1.16 Technical Specifications means the specifications relating to the performance and availability of the Software, the technical requirements of any device that Accesses the Software and any other technical issues that relate to the Software or these Standard Terms of Access that may be posted by GymSales.
1.17 URL means the URL provided to the Client by GymSales to allow Access and manage use of the Software.
1.18 User means a person who has been authorized by the Client to use the Software pursuant to these Standard Terms of Access.
1.19 User Standard Terms of Access means the terms and conditions User’s agree to when Accessing the Software.
1.20 Website means GymSales’s website from time to time, currently at www.gymsales.net.
1.21 The words “includes” or “including” are not words of limitation.
1.22 Headings are for convenience only and do not affect interpretation.
1.23 Where a clause contains a number of sub-clauses then, unless expressly stated otherwise, each sub-clause is an independent requirement or obligation.
2 GYMSALES OBLIGATIONS
2.1 GymSales will provide the Client and the Users Access to the Software in accordance with the Service Levels and these Standard Terms of Access.
3 LICENSE TERMS
Grant of License:
3.1 GymSales grants to Client a limited, non-exclusive, non-transferable, revocable right to:
(a) allow Access to the Software solely for the purpose of the Client’s internal business operations and in accordance with these Standard Terms of Access;
(b) allow Users to Access the Software in accordance with the Standard Terms of Access; and
(c) allow the use of the Software by Client’s Affiliates, who agreed to be bound by the terms of these Standard Terms of Access.
License Exclusions:
3.2 Client must not:
(a) allow Access to the Software by any person other than the Users;
(b) modify, pledge, sub-license, lease, rent, loan, assign or create derivative works based on the Software including its user interfaces;
(c) copy, adapt, translate, distribute, publish, communicate to the public, or create any adaptation, translation or derivative based on the Software unless expressly permitted by these Standard Terms of Access or the law;
(d) reverse engineer, de-compile, disassemble or extract any element of and/or otherwise access, examine, share or discover any source code, object code, algorithms, methods or techniques embodied in the Software;
(e) knowingly remove, alter or obscure, any disclaimer or notice, or any restricted right legend, trademark, copyright or other ownership right legend appearing in the Software, on a screen or any printout from the Software unless otherwise agreed by GymSales.
3.3 Client grants GymSales a non-exclusive, royalty free, worldwide, license to use, modify, disclose and access Client’s Data:
(a) for the purpose of providing Access to the Software under these Standard Terms of Access; and
(b) for the purpose of complying with GymSales’s legal obligations.
3.4 Client acknowledges and agrees that:
(a) the Software is provided on a shared service basis to the Client and other clients from a common code base and GymSales may from time to time, without the prior consent of Client:
(i) change, add or delete the functions, features, performance or other characteristics of the Software to enhance or modify its features and functionality, and if such change, addition or deletion is made, the specifications of the Software shall be amended accordingly;
(ii) correct errors and/or patch the Software; and
(iii) amend the Technical Specifications.
(b) GymSales will provide prior written notice (including via email) of major changes or new versions of the Software to Client. GymSales does not guarantee that any change, addition, deletion, error correction or patch will be compatible with any application, other software or interface that connects to or interfaces with the Software that has been made by or on behalf of Client.
(c) Client and its Users are solely responsible for entering Data into the Software, maintaining that Data and ensuring that it is accurate, complete, and not false, misleading or deceptive nor is it likely to mislead or deceive.
(d) Client will comply with all applicable laws in connection with the Access to the Software and these Standard Terms of Access.
3.5 Each Party agrees to maintain reasonable and customary liability insurance as appropriate for its business.
3.6 Client shall be solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software. Client shall also be responsible for maintaining the security of the equipment, customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client’s account or the equipment with or without Client’s knowledge or consent.
4 SUPPORT & HOSTING SERVICES
Support
4.1 GymSales will provide the Client with Software availability in accordance with the Service Levels.
4.2 GymSales will attempt to respond to all support requests from the Client within a maximum of 24-hours and make reasonable efforts to:
(a) Respond within 2-hours or less;
(b) Correct errors in respect of the Software within a reasonable time frame.
5 WARRANTIES
5.1 GymSales warrants and represents that:
(a) It has all necessary right, power and authority to grant the licenses and rights set forth hereunder; and
(b) That the Software, Marks and related services and information provided to Client by GymSales hereunder do not infringe upon, misappropriate or otherwise violate the Intellectual Property Rights of any third party;
5.2 CLIENT UNDERSTANDS AND AGREES THAT (I) CLIENT’S USE OF THE SOFTWARE AND RELATED SERVICES ARE AT CLIENT’S SOLE RISK AND (II) EXCEPT AS EXPRESSLY PROVIDED BY THESE STANDARD TERMS OF ACCESS AND TO THE EXTENT PERMITTED BY LAW: (A) THE SOFTWARE AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND (B) GYMSALES DISCLAIMS ALL GUARANTEES, WARRANTIES OR CONDITIONS (WHETHER EXPRESS OR IMPLIED BY STATUTE, GENERAL LAW, CUSTOM OR OTHERWISE) OR REPRESENTATIONS AND, IN PARTICULAR, DISCLAIMS ANY GUARANTEE, WARRANTY, CONDITION OR REPRESENTATION INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GYMSALES MAKES NO WARRANTY (A) THAT THE SOFTWARE OR SERVICE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; (B) THAT CLIENT’S ACCESS TO OR USE OF THE SOFTWARE OR RELATED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; (C) THAT ANY DEFECTS IN THE SOFTWARE OR RELATED SERVICES WILL BE CORRECTED; (D) THAT THE SOFTWARE OR RELATED SERVICES OR ANY SERVER THROUGH WHICH CLIENT ACCESSES THE SOFTWARE OR RELATED SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR (E) WITH RESPECT TO ANY THIRD PARTY PRODUCTS; (III) IN USING THE SOFTWARE OR RELATED SERVICES, SENSITIVE INFORMATION MAY TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER GYMSALES’S CONTROL AND GYMSALES MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES; (IV) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE OR RELATED SERVICES IS ACCESSED AT CLIENT’s OWN DISCRETION AND RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’s COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THE CLIENT ACKNOWLEDGES THAT THE NATURE OF COMPUTER SOFTWARE AND TECHNOLOGY IS SUCH THAT THE OPERATION OF THE SOFTWARE WILL NOT BE UNINTERRUPTED OR ERROR FREE AND THE CLIENT HAS RELIED ON ITS OWN JUDGEMENT IN DETERMINING WHETHER THE SOFTWARE IS SUITABLE FOR THE PURPOSES FOR WHICH IT INTENDS TO USE THE SOFTWARE.
5.3 The Client warrants that:
(a) its Data does not breach any applicable laws, regulations or codes;
(b) its Data does not infringe the Intellectual Property Rights of any third party;
(c) it, and its use of the Software and related services, will comply with all applicable laws and regulations, including, but not limited to Privacy Laws and the Telephone Consumer Protection Act (“TCPA”); and
(d) to the extent that the Data contains Personal Information, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with Privacy Laws and as contemplated under these Standard Terms of Access.
6 PAYMENT & INVOICING
6.1 Client must pay GymSales the Fees and Taxes Monthly within ten (10) days of receipt of an invoice. Any amount which is not paid within such time period shall accrue interest at the rate of one and a half percent (1.5%) per annum or the highest rate allowed by applicable law, whichever is higher.
6.2 Unless otherwise stated, the Fees do not include any Taxes. The Client is responsible for paying all Taxes associated with the Software Access purchased. If GymSales is liable to pay Taxes for which the Client is responsible, GymSales will invoice the Client for these Taxes unless the Client provides GymSales with evidence of a valid exemption.
7 INTELLECTUAL PROPERTY RIGHTS
Ownership & Assignment
7.1 All Intellectual Property Rights including adaptations, translations and derivative works in the Software or other material provided by GymSales to Client under these Standard Terms of Access and that are created by GymSales, Client or any other person, are the exclusive property of GymSales, or must vest in or be transferred to GymSales immediately upon creation, as the case may be.
7.2 At the request of GymSales, Client will assign or transfer the Intellectual Property Rights (to any adaptations, translations or derivative works of the Software or other materials in connection with any software made by Client, its contractors or agents to GymSales or its designee and will sign (or procure any person to sign) any document reasonably required to assign or transfer any such Intellectual Property Rights to GymSales or its designee.
7.3 Subject to payment of the Fees, GymSales agrees that Client will own:
(a) the Intellectual Property Rights to code developed in order to integrate the Software into the Client’s system, and;
(b) the Client Data.
Reserved Rights
7.4 Except for the rights expressly granted by GymSales to Client under these Standard Terms of Access:
(a) GymSales and its licensors, if any, reserve all right, title and interest in and to the Software and other materials provided under these Standard Terms of Access and all Intellectual Property Rights in them;
(b) Except as set forth herein, no right, title or ownership interest in or to the Software or other materials provided under these Standard Terms of Access whether by implication, estoppel or otherwise, is granted, assigned or transferred to Client under or in connection with these Standard Terms of Access.
7.5 Client does not acquire any right to, or interest in, any of the Marks. Client must not at any time or in any way indicate its ownership of or any right in the Marks and must not contest the right of GymSales to the use of any of the Marks.
7.6 Client must not remove, alter or obscure any Mark, nor attach any additional trademarks, logos, trade dress, or proprietary or restricted use legend, on the Software or on any other materials provided under these Standard Terms of Access.
7.7 Client acknowledges and agrees that the unauthorized disclosure, use or copying of the Software or other materials provided under these Standard Terms of Access may cause GymSales serious financial loss. Accordingly, if there is any unauthorized disclosure, use, or copying of any Intellectual Property Rights in any of the Software or other materials provided under these Standard Terms of Access, Client agrees that GymSales may obtain injunctive or other equitable relief without the necessity of posting a bond.
Trademarks and Marketing
7.8 The Parties agree that, the Software will be co-branded with the GYMSALES™ trade mark owned by GymSales.
7.9 GymSales may include Client’s name along with Client’s properly formatted logo, solely in accordance with Client’s then-existing trademark usage guidelines, to identify Client as a GymSales customer on its website and in presentation, sales or marketing materials which identify and/or list names of GymSales customers.
8 CONFIDENTIALITY
8.1 Each Party agrees that it will not permit the use of the other Party’s Confidential Information by, nor disclose the other Party’s Confidential Information to, any third party, other than:
(a) A Party may disclose the other’s Confidential Information to its Affiliates, and any contractors and employees of its Affiliates which have agreed in writing to maintain the confidentiality of such Confidential Information (provided, that the receiving Party shall remain responsible for breach of such confidentiality obligations by its Affiliates, contractors and employees);
(b) either Party may disclose the other Party’s Confidential Information to their professional advisers who have an obligations to maintain the confidentiality of such Confidential Information (provided, that the receiving Party shall remain responsible for breach of such confidentiality obligations by its professional advisors),
unless such use or disclosure is specifically authorized in writing by the other Party or required to be disclosed by applicable law or regulations, in which case the subject Party shall use reasonable efforts to notify the disclosing Party of the legal disclosure requirement (if allowed by law) and reasonably cooperate with any efforts of the disclosing Party to obtain a protective order with respect to such Confidential Information.
8.2 Each Party must only use the other Party’s Confidential Information for the purpose of performing the obligations under these Standard Terms of Access, or if the recipient is a professional adviser, the professional adviser may use the Confidential Information for purposes connected with advising on or reporting on these Standard Terms of Access.
9 PRIVACY
9.1 Each Party must use any Personal Information that is provided by the other party in connection with these Standard Terms of Access in accordance with the Privacy Laws.
9.2 Client warrants that it has obtained each of its employees’, customers’ and contractors’ informed consent for GymSales, its Affiliate, and their respective contractors to collect, use, store, transmit, transfer, process, manipulate, or otherwise deal with their Personal Information.
9.3 Client must ensure that any collection, processing, use, disclosure and transfer by Client and its employees and contractors of Personal Information in connection with its use of the Software or related services complies with all applicable Privacy Laws and the privacy policy of the Client. Client must use, hold, store, transfer and disclose Personal Information provided under or in connection with these Standard Terms of Access only to the extent required for the performance of these Standard Terms of Access.
9.4 Client must take all necessary steps to ensure that the Personal Information held or accessed by it in connection with these Standard Terms of Access is protected against misuse, interference and loss, and from unauthorized access, modification and disclosure (“Data Breach”). Client will immediately give written notice to GymSales of any actual or suspected Data Breach and will provide information, assistance and other cooperation as requested by GymSales with respect of the Data Breach.
9.5 Client must co-operate with any reasonable requests or directions of GymSales relating to the security, use, disclosure, transfer and erasure of Personal Information, GymSales’s legal obligations relating to the Personal Information, complaints relating to the Personal Information and the rights of individuals to access and correct the Personal Information or opt out of receiving any communications from or on behalf of the Client.
9.6 GymSales and its Affiliates shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Data and data derived therefrom), and GymSales will be free to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other GymSales offerings, and (ii) use and disclose such Data solely in aggregate or other anonymized form.
9.7 Gymsales and its Affiliates shall have the right to disclose Personal Information to their respective third party vendors in connection with Gymsales’s performance of its obligations under these Standard Terms of Access.
10 LIABILITY
10.1 TO THE EXTENT PERMITTED BY LAW, GYMSALES IS NOT LIABLE TO THE CLIENT (OR ANY PARTY CLAIMING THROUGH THE CLIENT) IN CONTRACT (INCLUDING UNDER AN INDEMNITY),TORT, BREACH OF STATUTORY DUTY OR OTHERWISE FOR ANY:
(a) LOSS OF PROFITS, OPPORTUNITY, REVENUE, DATA, GOODWILL, BUSINESS OR ANTICIPATED SAVINGS, PURE ECONOMIC LOSS, LOSS OF VALUE OF EQUIPMENT, LOSS OF DATA OR EXPECTATION LOSS; OR
(b) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE;
EVEN IF SUCH LOSS OR DAMAGE WAS REASONABLY FORESEEABLE, AROSE NATURALLY OR WAS IN THE CONTEMPLATION OF THE PARTIES, RESULTING FROM USE OF THE SOFTWARE OR RELATED SERVICES.
10.2 TO THE EXTENT PERMITTED BY LAW, GYMSALES’S CUMULATIVE LIABILITY TO THE CLIENT IN RESPECT OF ALL CLAIMS MADE BY THE CLIENT (OR ANY PARTY CLAIMING THROUGH THE CLIENT) UNDER OR IN CONNECTION WITH THESE STANDARD TERMS OF ACCESS, WHETHER ARISING UNDER CONTRACT (INCLUDING UNDER AN INDEMNITY) NEGLIGENCE OR ANY OTHER TORT, MISREPRESENTATION, UNDER STATUTE OR OTHERWISE, WILL NOT EXCEED IN AGGREGATE THE AMOUNT OF FEES PAID BY CLIENT TO GYMSALES IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO CLAIM.
10.3 CLIENT AND ITS AFFILIATES WHO USE THE SOFTWARE AND RELATED SERVICES SHALL BE JOINTLY AND SEVERABLY LIABLE TO GYMSALES HEREUNDER.
Mitigation
10.4 Each Party shall take all reasonable efforts to mitigate any loss, damage or expense that it may suffer arising out of or in connection with these Standard Terms of Access or the relationship between the Parties.
11 INDEMNITY
11.1 Client agrees to defend, indemnify, and hold GymSales harmless against all liability, damage, loss, cost, expenses, fees (including reasonable legal fees) arising out of or in connection with:
(a) Client’s breach of these Standard Terms of Access;
(b) any and all unauthorized use of the Software;
(c) Client’s violation of any applicable laws, including, but not limited to Privacy Laws and the Telephone Consumer Protection Act.
(d) injury to, or death of, any person caused by any act or omission by or on behalf of the Client or its personnel; and
(e) damage to any real or tangible property caused by any act or omission by or on behalf of the or its personnel.
12 TERMINATION
12.1 Either party may immediately terminate by giving written notice if:
(a) The other Party breaches any of the provisions of clauses 3, 5, 7, 8, 9, and 10;
(b) The other Party ceases to carry on business, is unable to pay its debts as they fall due, enters into liquidation, has a trustee, controller, managing controller, liquidator or administrator appointed; or
(c) The other Party is in breach of any other provision of these Standard Terms of Access thirty (30) days after receiving notice of such breach.
Consequences of Termination
12.2 Termination for any reason does not:
(a) release the Client from the obligation to pay any Fees to GymSales whether due before or after termination. GymSales has no obligation to refund any amounts paid to GymSales by the Client for the Software; or
(b) discharge either Party from any liability which has been incurred by that Party prior to termination.
12.3 In addition to the right of termination given GymSales, GymSales is entitled through technical or other means, to suspend Access to the Software for any period that the Client is in breach of any provision of these Standard Terms of Access.
12.4 GymSales shall retain Client Data provided under these Standard Terms of Access for a minimum of one (1) year from termination and will provide such Client Data to Client upon request. Client shall not be responsible to retain for any Client Data after such one (1) year period.
12.5 Those provisions which by their nature are intended to be performed after termination or expiration of these Standard Terms of Access, shall so survive, including, without limitation, those provisions relating to confidentiality, indemnification, data security, privacy, payment and dispute resolution.
13 FORCE MAJEURE
13.1 Neither Party will be liable for any delay in performing any of its obligations (except for an obligation to pay) if such delay is caused by circumstances beyond the reasonable control of the Party so delaying (including any act of God, terrorism, fire, governmental order, flood, strike, epidemic, pandemic, lock-out or other form of industrial action or software, hardware, telecoms or other computer failure).
14 DISPUTES
14.1 If a dispute arises, each Party must not commence any court proceedings relating to the dispute unless it has complied with the provisions of this clause, except to seek urgent interlocutory relief.
14.2 A Party claiming that a dispute has arisen must notify the other in writing giving details of the dispute (“Notification”).
14.3 On receipt of a Notification, the Parties must use reasonable endeavors to resolve the dispute.
14.4 If within 10 days of receipt of a Notification the Parties fail to resolve the dispute, the Parties must refer the dispute to their respective managers or equivalent representatives. Each Party must ensure that its representative uses reasonable endeavors to resolve the dispute.
14.5 If the dispute is not resolved within 30-days pursuant to clause 14.4, either party may commence court proceedings.
15 GENERAL
Assignment & Novation
15.1 Client must not assign, subcontract, mortgage or otherwise transfer or novate or dispose of the whole or any part of these Standard Terms of Access without the prior written consent of GymSales. GymSales may assign its rights and obligations under this agreement without notice to the Client.
Invalid or unenforceable provisions
15.2 If a provision of these Standard Terms of Access is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.
Relationship of Parties
15.3 The Parties’ relationship is that of independent contractors and the Parties do not intend to create by these Standard Terms of Access any form of partnership, employment, agency or trust relationship and neither Party has, and neither Party will represent that it has, the authority to act for, or incur any obligation on behalf of, the other party.
Applicable Law
15.4 The Standard Terms of Access are governed by the laws of the state of Delaware.
Notices
15.5 Any notice required or permitted in these Standard Terms of Access may be sent via email (and will be deemed to have been duly given upon receipt) to Client at the email address that Client provides when registering its account or at the address on file with GymSales. Any notice required or permitted in these Standard Terms of Access must be sent to GymSales via certified mail or overnight courier to ABC Fitness Solutions, LLC, 2600 North Dallas Parkway, Ste. 590, Frisco, TX 75034, Attn: General Counsel.
Waiver
15.6 Any failure by GymSales to enforce or exercise a right provided in these Standard Terms of Access shall not be a waiver of that right.
SCHEDULE 1 – SUPPORT & HOSTING SERVICES
SCHEDULE 2 – MONTHLY UPTIME PERCENTAGE
99.95% during the month except for: (1) planned downtime, (2) any unavailability caused by problems or outages associated with systems or providers, such as, but not limited to, Internet Service Providers or the Internet network backbone or other force majeure events, or (3) any downtime caused by the actions or omissions of Client or other third parties (collectively, “Uptime Exception Periods”). The monthly uptime percentage is calculated dividing the total number of minutes in the calendar month (excluding Uptime Exception Periods) minus the total number of minutes the Software was unavailable in the calendar month (if any) by (ii) the total number of minutes in the calendar month (excluding Uptime Exception Periods).