Sworkit Engagement Portal Terms and Conditions

TERMS AND CONDITIONS

1. Definitions. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
   1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Engagement Portal.
   2. “Authorized User”means each of Customer’s employees and/or students who access the Sworkit App.
   3. “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users through the Sworkit App.
   4. “Engagement Portal” means the software-as-a-service platform accessible via web that allows Customer to access the usage statistics relating to Authorized Users’ use of the Sworkit App (“Usage Data”), which for purposes of clarity, excludes any Customer Content.
   5. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
   6. “Order Form” means an order form that is based on the template in Exhibit A, is signed by both parties and references this Agreement.
   7. “Professional Services” means professional services provided by Nexercise to Customer as described in any Order Form (as may be further elaborated in any statement of work).
   8. “Services” means any services provided by Nexercise to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Engagement Portal and Professional Services.
   9. “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Nexercise as required for access to the Engagement Portal. 
   10. “Sworkit App” means the Sworkit workout mobile application and web application.
2. Provision of Services
   1. Access. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Nexercise will provide Customer with access to the Engagement Portal, subject to any additional restrictions set forth on the Order Form. On or as soon as reasonably practicable after the Effective Date, Nexercise will provide to Customer the necessary Access Protocols to allow Customer to access the Engagement Portal. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Engagement Portal, and notify Nexercise promptly of any such unauthorized use known to Customer.
   2. Hosting. Nexercise will, at its own expense, provide for the hosting of the Engagement Portal, provided that nothing herein will be construed to require Nexercise to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Engagement Portal.
3. Intellectual Property
   1. Grant of Rights. Subject to the terms and conditions of this Agreement, Nexercise grants to Customer a non-exclusive, non-transferable (except as permitted under Section 12.5) right during the Term (as defined below), for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form to access the Engagement Portal solely within the Supported Environment. 
   2. Restrictions. Customer will not, and will not permit any other party to: (a) allow any third party to access the Engagement Portal, except as expressly allowed herein; (b) modify, adapt, alter or translate the Engagement Portal; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Engagement Portal for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Engagement Portal, except as permitted by law; (e) interfere in any manner with the operation of the Engagement Portal or the hardware and network used to operate the Engagement Portal; (f) modify, copy or make derivative works based on any part of the Engagement Portal; (g) access or use the Engagement Portal to build a similar or competitive product or service; (h) attempt to access the Engagement Portal through any unapproved interface; or (i) otherwise use the Engagement Portal in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, or this Agreement. 
   3. Ownership. The Engagement Portal, Sworkit App, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Nexercise and its suppliers. All rights in and to the Engagement Portal not expressly granted to Customer in this Agreement are reserved by Nexercise and its suppliers.  No right or license to the Sworkit App is provided to Customer under this Agreement. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Engagement Portal, Sworkit App, or any part thereof.
   4. Feedback. Customer hereby grants to Nexercise a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Sworkit App or Services. Nexercise will not identify Customer as the source of any such feedback.
4. Fees and Expenses; payments
   1. Fees. In consideration for the access rights granted to Customer and the Services performed by Nexercise under this Agreement, Customer will pay to Nexercise the Fees. Except as otherwise provided in the Order Form, all Fees are payable on an annual basis, in advance, within thirty (30) days of receipt of invoice. Nexercise reserves the right to modify the Fees payable hereunder upon written notice to Customer at least sixty (60) days prior to the end of the then-current term. Nexercise will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Nexercise has furnished such documentation for authorized expenses as Customer may reasonably request.  Nexercise reserves the right (in addition to any other rights or remedies Nexercise may have) to discontinue the Sworkit App and suspend all Authorized Users’ and Customer’s access to the Premium Subscription and/or Sworkit App, or any other Services, if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
   2. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Nexercise’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the provision of the Engagement Portal to Customer. Customer will make all payments of Fees to Nexercise free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Nexercise will be Customer’s sole responsibility, and Customer will provide Nexercise with official receipts issued by the appropriate taxing authority, or such other evidence as the Nexercise may reasonably request, to establish that such taxes have been paid. 
5. USAGE DATA.  Customer acknowledges and agrees that Usage Data is owned solely by Nexercise.  Nexercise grants Customer a non-exclusive, worldwide, royalty-free and fully paid license during the Term to use the Usage Data for its internal business purposes. Customer acknowledges and agrees that no Customer Content will be provided to Customer through the Engagement Portal or otherwise under this Agreement and Customer will have no access to personally identifiable information through the Engagement Portal. 
6. professional services. Where the parties have agreed to Nexercise’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”).  The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement.  To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.  
7. Warranties and Disclaimers
   1. Limited Warranty. Nexercise represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Nexercise in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Nexercise will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Nexercise’s option, refund the fees paid by Customer for the Services which gave rise to the breach. 
   2. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Services ARE PROVIDED “AS IS,” AND NEXERCISE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NEXERCISE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE ENGAGEMENT PORTAL WILL BE UNINTERRUPTED OR ERROR-FREE. nexercise does not warrant or GUARANTEE any results will be achieved through use of the sworkit app. 
8. Limitation of Liability
   1. Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  
   2. Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY customer TO NEXERCISE DURING THE twelve (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL Nexercise’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
   3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 
9. Confidentiality
   1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services and Usage Data, and all enhancements and improvements thereto will be considered Confidential Information of Nexercise.
   2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Nexercise). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence. 
   3. Exceptions. The confidentiality obligations set forth in Section 9.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10. Indemnification
    1. By Nexercise. Nexercise will defend at its expense any suit brought against Customer, and will pay any settlement Nexercise makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Engagement Portal infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Engagement Portal becomes, or in Nexercise’s opinion is likely to become, the subject of a claim of infringement, Nexercise may, at Nexercise’s option: (a) procure for Customer the right to continue using the Engagement Portal; (b) replace the Engagement Portal with non-infringing software or services which do not materially impair the functionality of the Engagement Portal; (c) modify the Engagement Portal so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Engagement Portal. Notwithstanding the foregoing, Nexercise will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) any use of the Engagement Portal not in accordance with this Agreement; (ii) any use of the Engagement Portal in combination with other products, equipment, software or data not supplied by Nexercise; or (iii) any modification of the Engagement Portal by any person other than Nexercise or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of Nexercise, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
    2. By Customer. Customer will defend at its expense any suit brought against Nexercise, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s violation of the license granted in Section 5. This Section 10.2 states the sole and exclusive remedy of Nexercise and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
    3. Procedure. The indemnifying party’s obligations as set forth aboveare expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. 
11. Term And Termination
    1. Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
    2. Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. 
    3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9;and (c) any amounts owed to Nexercise under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 3.5, 4, 7.2, 8, 9, 10, 11.3, and 12 will survive expiration or termination of this Agreement for any reason.
12. Miscellaneous
    1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Prince George’s County, Maryland for any lawsuit filed there against Customer by Nexercise arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 
    2. Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Nexercise, or any products utilizing such data, in violation of the United States export laws or regulations.
    3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 
    4. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    5. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Nexercise may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. 
    6. Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its access to and use of the Services.
    7. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
    8. Independent Contractors. Customer’s relationship to Nexercise is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Nexercise.
    9. Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Nexercise, by emailing portal@sworkit.com and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
    10. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
    11. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Nexercise.