TERMS OF USE

Last Updated: October 1, 2016

These Terms of Use (this “Agreement”) govern the use of the online member portal and mobile application services (including any and all ancillary services, software and documentation, collectively, the “Application”) provided by Daxko, LLC d/b/a Club Automation (“COMPANY” or “Club Automation”). This Agreement is a binding agreement between (i) COMPANY, (ii) you, the individual end user of the Application (“Customer User”) and (iii) each owner and/or operator of a club, gym or other entity that has been authorized by COMPANY to provide services to the Customer User with respect to the Application (“Customer”). The Application is licensed, not sold, to Customer and each Customer User.

BY DOWNLOADING, INSTALLING, USING OR ACCESSING THE APPLICATION, EACH OF CUSTOMER AND EACH CUSTOMER USER (A) ACKNOWLEDGES THAT SUCH CUSTOMER OR CUSTOMER USER HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS THAT CUSTOMER AND/OR SUCH CUSTOMER USER ARE OF LEGAL AGE AND CAPACITY OR HAS REQUISITE LEGAL AUTHORITY, AS APPLICABLE, TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER OR CUSTOMER USER IS LEGALLY BOUND BY ITS TERMS. IF CUSTOMER OR CUSTOMER USER DOES NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, USE OR ACCESS THE APPLICATION AND DELETE IT FROM CUSTOMER USER’S MOBILE DEVICE.

Customer User understands that Customer has been authorized by COMPANY to provide services to Customer User in the Application and Customer has a separate agreement with COMPANY that also governs Customer User’s use of the Application (the “Subscription Agreement”). In the event of a conflict between this Agreement and the Subscription Agreement, the Subscription Agreement shall control. Customer User acknowledges that Customer User is only being provided access to the Application at the request of Customer pursuant to the terms and conditions of the Subscription Agreement.

To access and use certain features, functions and services in the Application, Customer User must have an account (a “Customer User Account”). In consideration of Customer User’s access to, and use of, the features, functions and services in the Application, Customer User agrees to (a) provide accurate, current and complete information about Customer User as may be prompted by any registration forms in the Application or otherwise requested by COMPANY or Customer (“Registration Data”); (b) maintain the security of Customer User’s user identification and password (collectively, “Customer User’s Login Information”); (c) maintain and promptly update the Registration Data, and any other information Customer User provides to COMPANY or Customer; and (d) be fully responsible for all use of Customer User’s Account and for any actions that take place using Customer User’s Login Information.

COMPANY may update or amend this Agreement from time-to-time and at any time to incorporate additional or different rules, policies, procedures and other instructions concerning access to and use of the Application or additional features, materials, products, opportunities, or services that COMPANY may make available on or through the Application. All such updates and amendments are effective immediately upon notice thereof, which COMPANY may give by any means, including by posting a revised version of this Agreement on www.clubautomation.com/[mobileterms] or other notice in the Application or by sending Customer and Customer User a copy of the revised Agreement by email.

Please be advised that COMPANY may monitor Customer’s and Customer User’s use of and access to the Application to ensure compliance with this Agreement and any other applicable rules, policies, deadlines and instructions. By using the Application, each of Customer and Customer User expressly consents to such monitoring.

Subject to the terms of this Agreement, COMPANY grants Customer and Customer User a limited, non-exclusive and nontransferable license to download, install, access and use the Application for Customer User’s personal, non-commercial use on a single mobile device owned or otherwise controlled by Customer User (“Mobile Device”) strictly in accordance with the Application’s documentation.

Customer and Customer User shall not: (a) copy the Application, except as expressly permitted by this license; (b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or (f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.

Customer and Customer User acknowledge and agree that the Application is provided under license, and not sold, to either Customer or Customer User. Each of Customer and Customer User does not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. COMPANY reserves and shall retain its entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to Customer and Customer User in this Agreement.

Each of Customer and Customer User acknowledges that when such party download, install or use the Application, COMPANY may use automatic means (including, for example, cookies and web beacons) to collect information about Customer User’s Mobile Device and about Customer User’s use of the Application. Customer and Customer User also may be required to provide certain information about Customer User as a condition to downloading, installing or using the Application or certain of its features or functionality. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using and providing information to or through this Application, Customer User’s consent to all actions taken by us with respect to Customer User’s information in compliance with the Privacy Policy.

CA may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Customer and Customer User agrees that COMPANY has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on Customer or Customer User’s Mobile Device settings, when such Mobile Device is connected to the internet either:

(a) the Application will automatically download and install all available Updates; or

(b) Customer and/or Customer User may receive notice of or be prompted to download and install available Updates.

Customer and Customer User shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should Customer and Customer User fail to do so. Customer and Customer User further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

The Application may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). Customer and Customer User acknowledge and agree that COMPANY is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. COMPANY does not assume and will not have any liability or responsibility to Customer and Customer User or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to Customer and Customer User and access and use of them are at entirely at Customer User’s own risk and subject to such third parties’ terms and conditions.

(a) The term of Agreement commences when Customer or Customer User downloads or installs the Application and will continue in effect until terminated by you or COMPANY as set forth in this Section 11.

(b) Customer and Customer User may terminate this Agreement by deleting the Application and all copies thereof from Customer User’s Mobile Device.

(a) COMPANY or Customer may terminate this Agreement at any time without notice if it ceases to support the Application, which COMPANY may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if Customer or Customer User violates any of the terms and conditions of this Agreement.

(b) Upon termination:

– i. All rights granted to Customer and/or Customer User under this Agreement will also terminate; and

– ii. Customer and/or Customer User must cease all use of the Application and delete all copies of the Application from Customer User’s Mobile Device and account.

– iii. Termination will not limit any of COMPANY’s rights or remedies at law or in equity.

COMPANY may, at any time, suspend the Services and/or Customer and Customer User’s access to the Services if COMPANY reasonably believes that such a suspension is necessary to maintain the security or integrity of the Application, or to prevent misuse of the Application by any person, including Customer and/or Customer User.

The Application allows you to make payments by automated clearing house processing services and those card-based methods accepted by the Customer. These may include card-based payments initiated with cards bearing the trademarks of Visa Inc., MasterCard International Inc., Discover Inc., and American Express Inc. (Collectively, the “Networks”). Please note that not all Customers accept all card based payment methods. We are not a bank, and do not offer banking services as defined by the United States Department of Treasury. We also do not offer money service business (“MSB”) services as defined by the United States Department of Treasury. Customer User can associate with Customer User’s Account any US-issued and most non-US issued credit, debit, pre-paid, or gift cards with a Visa, MasterCard, American Express, or Discover logo. Customer may update at any time the list of card types that Customer User may associate with an Customer User Account.

THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES

(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

(a) Customer User agrees to indemnify, defend and hold harmless COMPANY and Customer and their respective officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to Customer User’s use or misuse of the Application or Customer User’s breach of this Agreement.

(b) Customer agrees to indemnify, defend and hold harmless COMPANY and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to Customer’s use or misuse of the Application or Customer’s breach of this Agreement.

If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States located in Chicago, Illinois or the courts of the State of Illinois located in Lake County, Illinois. Customer and Customer User waive any and all objections to the exercise of jurisdiction over Customer User by such courts and to venue in such courts.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

This Agreement, the Subscription Agreement (for COMPANY and Customer only) and our Privacy Policy constitute the entire agreements between Customer User, Customer and COMPANY with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.