THIS AGREEMENT, made and entered into this ___ day of ____________, 2016 (“Effective Date”), by and between REFIT Revolution, LLC (“REFIT”), and ____________ (“Instructor").
Because physical exercise can be strenuous and subject to risk of serious injury, we urge you to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise activity. You agree that by participating in physical exercise or training activities, you do so entirely at your own risk. Any recommendation for changes in diet including the use of food supplements, weight reduction and/or body building enhancement products are entirely your responsibility and you should consult a physician prior to undergoing any dietary or food supplement changes. You agree that you are voluntarily participating in these activities and use of these facilities and premises and assume all risks of injury, illness, or death. We are also not responsible for any loss of your personal property.
You acknowledge that you have carefully read this “waiver and release” and fully understand that it is a release of liability. You expressly agree to release and discharge the trainer or instructor from any and all claims or causes of action and you agree to voluntarily give up or waive any right that you may otherwise have to bring a legal action against the trainer or instructor for personal injury or property damage.
To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence.
If any portion of this release from liability shall be deemed by a Court of competent jurisdiction to be invalid, then the remainder of this release from liability shall remain in full force and effect and the offending provision or provisions severed here from.
By signing this release, I acknowledge that I understand its content and that this release cannot be modified orally.
WHEREAS, Instructor is a licensed REFIT Instructor, having successfully completed REFIT’s Instructor training course;
WHEREAS, Instructor seeks to obtain the right to market Classes (as hereinafter defined) using the Marks (as hereinafter defined) in the Territory (as hereinafter defined) as provided herein; and
WHEREAS, REFIT and Instructor wish to enter into a long-term licensing relationship granting Instructor the right to use the Marks and Program Information in connection with the marketing of Classes in the Territory and setting forth the terms and conditions governing such use.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and promises hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, REFIT and Instructor, intending to be legally bound, hereby agree as follows:
Section 1. Definitions. For the purposes of this Agreement:
“REFIT®” shall mean the group fitness program that uses positive music, movements and messaging to build community and impact lives. The REFIT workout is primarily cardiovascular, varying in intensity levels, with at least 50% of the playlist comprised of REFIT Official Choreography (ROC). REFIT believes that fitness is for every body, and each workout is designed for all shapes, sizes and fitness levels through a powerful body + mind + soul + spirit connection.
“Marks” shall mean the common law rights owned by REFIT as well as any state or federal trademark or tradename rights.
“Classes” shall mean any class or instructor marketed under the “REFIT” brand.
“Program Information” shall mean the information, support data, instructions and terminology used in connection with any then-current “REFIT” program as it may exist from time to time.
“Territory” shall mean North America.
Section 2. Grant of License and Compensation. REFIT hereby grants Instructor a one-year exclusive right and license, starting on the Effective Date, to use the Marks and Program Information in connection with the marketing of Classes throughout the Territory during the term of this Agreement. Instructor is not authorized to grant sublicenses. REFIT hereby grants to Instructor a non-exclusive, royalty-free right and license to use the Marks and Program Information, in connection with the Classes. Within one (1) year of the Effective Date Instructor will be required to join the All Access Membership Program otherwise license and rights will be terminated on such anniversary date.
Section 3. Terms and Conditions of License.
Upon the terms and conditions set forth herein, REFIT hereby grants Instructor and Instructor accepts the non-exclusive rights as follows:
(a) Class Restrictions: Except as otherwise specifically authorized or communicated in writing by REFIT, all Classes led or taught by you shall be led and taught solely by you. No other instructor other than you is authorized under this Agreement to teach a Class to your Class participants, unless (i) expressly authorized by REFIT, or (ii) such other instructor is a licensed REFIT instructor and who has executed an Instructor Agreement. You acknowledge that the minimum age to be a REFIT instructor is eighteen (18) years or age, or older, and as such, you represent you are at least eighteen (18) years of age. At all times during the Term, you hereby agree to take all steps required or reasonably requested by REFIT to maintain your status as an official licensed REFIT Instructor. If at anytime during the Term your status as a Licensed Instructor shall lapse, the authorizations granted to you hereunder shall be suspended until such time that your status as a Licensed Instructor is brought back into good standing (as determined by REFIT in its sole and absolute discretion). You shall only perform REFIT workouts during Classes, and no other type of workouts may be offered, performed or taught during Classes. Teaching an alternative format within a marketed REFIT class is hereby expressly prohibited. Likewise, no alternative format other than what is outlined in the REFIT Instructor Training may contain the word REFIT in the Class title.
(b) Venue Restrictions: Each participant in the Classes taught by you shall be required by you, prior to participation in the Classes, to sign a standard waiver, indemnification and release of liability covering (amongst others) REFIT, and its members, managers, owners, officers, employees, contractors, agents and affiliates as indemnitees. All fees paid by participants in Classes taught by you shall be payable to you. Instructor acknowledges and agrees that Instructor will not teach a REFIT class or provide instruction in any other location in the greater Waco, Texas, Metropolitan area without prior consent from REFIT REVOLUTION, LLC.
(c) Printed materials: Approved promotion pieces are available for and provided to the Instructor by way of the All Access Membership Program. Only such promotion pieces are permitted for printed marketing purposes. This includes but is not limited to: flyers, business cards, and posters.
(d) Merchandise/Apparel: REFIT or its Marks may not be printed on any apparel or merchandise as gifts or for profit. In addition, the manufacturing of products similar in wording, design, or style to REFIT merchandise or apparel, past or present, may violate intellectual property.
(e) Online/Email: Appropriate trademark symbol (®) must be included when writing the REFIT name or logo in emails or on any social media platform. REFITREV may not be included in your email address. The home web address, www.refitrev.com should be included in any email communication with the Class participants.
(f) Domains: If an instructor wishes to create his/her own webpage or social media page, the home web address, www.refitrev.com must be posted somewhere on the site’s main page, stating “[insert Instructor’s name] is a licensed REFIT instructor”. Domain names may not contain REFITREV under any circumstance. REFIT has the right to purchase or remove any domain created with the trademarked REFIT name in the title.
(g) Social media: Instructors are allowed to use the REFIT name and logo on their social media pages. However, the title of the page and/or username may not contain the word REFITREV. This includes but is not limited to: Email address, social media accounts, or group names. The title of the page and/or username must also contain the Instructor’s full name or specific location to clearly indicate the Instructor as the owner of the page or username. REFIT may ask the Instructor to change or remove the page and/or profile if the ownership is unclear or the content is misrepresentative of the REFIT brand.
(h) YouTube/shared choreography: Instructors are not allowed to use the REFIT name, wear REFIT clothes, tag REFIT, or otherwise associate themselves with REFIT on any YouTube video or YouTube channel without specific permission from REFIT. Instructor may not promote his or her YouTube channel on any REFITREV social media pages or accounts. This includes but is not limited to: REFITREV, REFIT Instructors and REFIT Moves Facebook pages. Choreography posted on the REFIT Moves Facebook page may not be shared on any other social media platform, including other REFIT or REFITREV pages without the expressed consent of REFIT. If this Agreement is violated, REFIT will first ask for the content to be altered to comply with the requirements. If the Instructor does not cooperate with the initial command, REFIT has the right to terminate the Instructor’s All Access membership and remove certification.
Choreography and/or class sharing: Instructor agrees to teach REFIT Classes in a live setting only. No streamed or previously recorded classes may be shared with class participants.
(i) DBA, LLC, etc.: An Instructor may not use the trademarked REFIT name as part of their registered business name. or venue title. The only authorized REFIT Studio is located at 1109 Richland Dr. Waco, TX 76710. An Instructor is permitted to use the REFIT name as part of their trade name to identify the instructor or group of instructors (e.g. The Chicago REFIT Posse).
(j) Standard of Quality when using REFIT name or logo: If at any point REFIT feels the name or logo is being used in a way that is disreputable or inappropriate, REFIT has the right to require removal, and the Instructor agrees to promptly remove content. If the Instructor does not comply with REFIT’s required removal of content, REFIT has the right to terminate the Instructor’s All Access membership and remove certification. It is at the sole discretion of REFIT to determine if an Instructor’s social media page or website contains material deemed disreputable or inappropriate.
(k) Nature of relationship: The parties to this Agreement are independent, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. Nothing herein or otherwise provided by REFIT to Instructor shall operate as a guarantee or implication that he or she will successfully locate venues in which to teach Classes, participants for such Classes, or generate revenue from the activities authorized by this Agreement. Your personnel involved in your business shall at all times be employees or subcontractors/independent contractors of you and not of REFIT. You shall be solely responsible for payment of all compensation for such personnel and all related taxes and benefits for activities conducted at your venue. You agree to accept exclusive liability for complying with all applicable state, local and federal laws and any and all laws of the country of your residence, as applicable, including, without limitation, obligations such as payment of taxes. You hereby agree to indemnify and defend REFIT against any and all such taxes, payments and obligations, including penalties and interest. Neither you nor any of your agents or employees shall pass on, any express or implied warranty on behalf of REFIT to any third-parties
(l) Competing products: Instructor agrees that he/she will not indirectly or directly produce, market, sell or distribute any DVD, streaming classes, or apparel, including but not limited to the REFIT name or associated terms, phrases, and slogans expect what is contemplated in this Agreement.
(m) Master Classes: Instructors are authorized to conduct REFIT Master classes, but Master Classes must be clearly marketed as such. A Master Class is described by the following:
• A class led by multiple instructors
• A class for a cause (e.g. Breast Cancer Awareness, Hurricane Sandy victims etc…)
• A playlist varied from one of the outlined REFIT REMIX formats
• A playlist longer than 60 minutes in length
• A playlist comprised of only one genre of music
(n) Media Requests and Opportunities: Any national opportunities for media exposure, publicity, or otherwise, must be approved by REFIT home office and must include home office representation.
(o) Release: You hereby agree to release and forever discharge REFIT, its members, employees, officers, managers, instructors, contractors, agents and affiliates (collectively, all such parties including REFIT are referred to herein as the “Released Parties”) from any and all claims, actions, damages, liability, costs, expenses, and attorneys’ fees which are related to, arise out of, or are in any way connected to REFIT, whether or not such claims, actions, damages, liability, costs, expenses, and attorneys’ fees are caused by the acts or omissions, negligent or otherwise, of REFIT or any of the Released Parties or anyone else’s participation in the REFIT Program or Classes. By execution of this Agreement, it is your intention to surrender and waive any rights to exercise any legal action or seek any damages against REFIT and all Released Parties. You also confirm and represent that you have agreed to a REFIT Instructor consent and liability waiver prior to your participation in the REFIT Training. While you are a licensed REFIT Instructor, you agree, from time to time, at REFIT’s sole discretion, to execute an updated version of the REFIT Instructor consent and liability waiver should REFIT make such a request. REFIT may institute additional restrictions and policies (as applicable to all REFIT Instructors) that shall be applicable to you upon ten (10) days notice to you.
(p) Insurance and Certifications: You shall maintain during the Term: (1) comprehensive general liability insurance, including individual automobile coverage, and (2) professional liability insurance. Such coverage shall be maintained in a minimum amount of $1,000,000 and cover no less than the following activities: (i) bodily injury and property damage, (ii) personal and advertising injury, (iii) damage to premises rented to you, medical expenses, and (iv) professional liability. You shall promptly supply REFIT with proof of such insurance upon request. You agree to add REFIT as an additional insured under such policies immediately upon REFIT’s request. Instructor agrees to maintain a current CPR certification as long as his or her REFIT license is active and will supply REFIT with proof of certification if requested.
Section 4. Proprietary Rights. Instructor acknowledges that REFIT is the sole and exclusive owner of the Marks and Program Information, and that Instructor will not contest, or take any action or make any statement inconsistent with, REFIT's exclusive title to and ownership of the Marks, or the validity of REFIT's registrations for the Marks, as well as the Program Information. Instructor agrees that all goodwill resulting from use of the Marks by Instructor shall inure to the benefit of REFIT.
Section 5. Term and Termination. The term of this Agreement shall be for a period of one (1) year from the Effective Date indicated above (the “Initial Term”). Within one (1) year of the Effective Date, Instructor will be required to join the All Access membership program otherwise license and rights will be terminated on such anniversary date.
(a) Notwithstanding anything herein to the contrary, REFIT shall have the right to terminate this Agreement effective upon 30 days' written notice to Instructor for any or no reason.
(c) Upon termination of this Agreement pursuant to this Section 5, Instructor shall, unless otherwise agreed in writing with REFIT, cease any and all use of the Marks, Program Information and teach the Classes, and the obligations set forth in Sections 6, 7, 8 and 10 shall survive any termination of this Agreement.
(d) Instructor shall maintain his/her status as a REFIT instructor during the term of this Agreement. Additionally, Instructor agrees to comply with the All Access Membership Program during the term of this Agreement unless the Instructor opts out of the REFIT All Access Membership Program.
(e) Instructors not part of the REFIT All Access Membership Program will agree to be subject to the terms of this Agreement for a period of one year from the Effective Date.
Section 6. Indemnification. Instructor will, for itself and its assigns, indemnify, defend and hold the Company, and its officers, directors, employees, and agents, harmless from and against all demands, claims actions, judgments, losses, costs, damages or expenses, including reasonable attorneys’ fees and related expenses, which in any manner are caused by, arise from, or are incident to (i) the services performed under this Agreement, (ii) the marketing of Classes, and (iii) use of the Marks or Program Information by Instructor.
Section 7. Confidentiality; Non-Completion Covenant; Non-Solicitation Covenant.
(a) You agree to hold in confidence all confidential information (e.g., compilations of choreography, marketing and financial information, and information designated as such by REFIT) not publicly disseminated by REFIT except in a manner authorized by REFIT. Instructor will neither use nor disclose the confidential information of the Company to any third party. Instructor may use the confidential information solely to perform its obligation under this Agreement. Instructor agrees that Instructor will treat all confidential information of the Company with the same degree of care as Instructor accords to Instructor’s own confidential information, but in no case less than reasonable care.
(b) The Instructor agrees during the Term of this Agreement and for one year thereafter, Instructor will not (y) engage within the county in which Instructor is offering the REFIT program, directly or indirectly, alone or as a shareholder (other than as a holder of less than one percent (1%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical to the business of REFIT, or is directly competitive with any business activity of REFIT or (z) solicit any employee or other instructor of REFIT to change such relationship with REFIT.
Section 8. Assignment; Transfer. Except as provided herein, neither party may assign or transfer any or all its rights or obligations under this Agreement, directly or indirectly, without the express written consent of the other party.
Section 9. Costs and Expenses. Each party agrees to be responsible for its respective costs and expenses arising from their entry into this Agreement.
Section 10. Governing Law. This Agreement is entered into in the State of Texas and the validity, construction and effect of this Agreement (and all performance related thereto) shall be governed, enforced and interpreted under the laws of the State of Texas relating to contracts entered into and to be fully performed therein.
Section 11. Miscellaneous. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person other than REFIT or Instructor any rights or remedies under this Agreement.
(a) The failure of either party to insist on compliance with any provision hereof shall not constitute a waiver or modification of such provision or any other provision nor shall resort to a remedy constitute a waiver of the right to resort to another remedy provided for under this Agreement.
(b) If any provision hereof is held to be invalid or unenforceable by any court of competent jurisdiction or any other authority vested with jurisdiction, such holding shall not affect the validity or enforceability of any other provision hereto.
(c) The section order and headings are for convenience only and shall not be deemed to affect in any way the language, obligations or the provisions to which they refer.
(d) This Agreement, including this provision of the Agreement, may be amended or modified only in writing and when executed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.