MINDBODY Software Service Agreement

EXECUTING THIS AGREEMENT:

Please carefully review the MINDBODY Software Service Agreement (“AGREEMENT”) below, and consent to the AGREEMENT electronically by either 1) logging into your site with the owner login, scrolling to the bottom of the displayed text, and checking the “I Agree” text box or 2) logging into your account with MINDBODY by clicking here.

If you did not receive a receipt from MINDBODY, Inc. via separate email in connection with this agreement, please contact the MINDBODY Customer Service Team at (877) 755-4279 before accessing or using the SOFTWARE SERVICE, defined below. If you access or use the SOFTWARE SERVICE in any manner whatsoever, then you acknowledge that you are bound by the terms of this agreement.

This AGREEMENT is entered into by and between MINDBODY, INC. (“MINDBODY”), a California corporation, and a business or individual (“SUBSCRIBER”), collectively referred hereinafter as the PARTIES.

Now therefore, in consideration of the mutual covenants set forth herein, the PARTIES agree as follows:

Article I - Definitions

AUTOMATED CLEARING HOUSE (“ACH”) shall mean the electronic network for financial transactions in the United States, which is used in BUSINESS MODE to process consumer payments directly from their bank checking accounts. This is referred to outside the United States by other terms, such as “PAP” and “DDA”.
BUSINESS MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE as an administrative user to input, review, and maintain SUBSCRIBER DATA, including information for public view by SUBSCRIBER's customers in CONSUMER MODE.
CARDHOLDER DATA shall mean credit card numbers, expiration dates, billing addresses, and cardholder names of SUBSCRIBER's customers.
COMPILED DATA shall mean a portion of SUBSCRIBER DATA, excluding CARDHOLDER DATA, aggregated with data obtained from other MINDBODY subscribers for the purposes of, among other things, producing indices, statistics, summaries, and industry reports for use by MINDBODY subscribers. COMPILED DATA shall not reveal proprietary or identifying information about SUBSCRIBER or SUBSCRIBER's customers.
CONFIDENTIAL INFORMATION shall have the meaning provided in Article VII.
CONSUMER FINDER BOOKING shall mean a service scheduled and paid for on a web portal or mobile device using the MINDBODY FINDER SERVICE.
CONSUMER MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE to enable SUBSCRIBER to publicly display SUBSCRIBER PUBLIC DATA, such as class and appointment schedules, and products and services on SUBSCRIBER's website.
EFFECTIVE DATE shall mean the earlier of (i) two (2) weeks from the date of purchase of the SOFTWARE SERVICE or (ii) the first date on which SUBSCRIBER uses SOFTWARE SERVICE, unless separately arranged between the parties in writing.
FINDER BOOKING FEES shall mean those fees payable by SUBSCRIBER to MINDBODY upon delivery of any products or services associated with a CONSUMER FINDER BOOKING.
INTEGRATED MERCHANT ACCOUNT shall mean an optional service that allows the SOFTWARE SERVICE to process credit card and ACH payments.
MINDBODY BOOKER SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit F that enables consumers to schedule and pay for SUBSCRIBER services they have found in the MINDBODY FINDER SERVICE.
MINDBODY FINDER SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit E that enables consumers to search for and find SUBSCRIBER classes, appointments, and other services via internet search and mobile devices other than those operated by SUBSCRIBER.
MINDBODY RESEARCH SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit G, that gives MINDBODY subscribers access to COMPILED DATA in BUSINESS MODE.
MONTHLY SUBSCRIPTION FEE shall mean the monthly fee for the SOFTWARE SERVICE as set forth in the RECEIPT.
ONSITE TRAINING shall mean training provided by MINDBODY to SUBSCRIBER at SUBSCRIBER's facilities for an additional fee. ONSITE TRAINING is only available in certain geographical areas, as determined by MINDBODY in its sole discretion.
PCI DSS shall mean the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
PREMIUM ACCOUNT COORDINATOR (“PAC”) shall mean a senior member of the MINDBODY Management or the Technical Support or Team certified by MINDBODY to provide optional Premium Support as defined in Exhibit H of this AGREEMENT.
PREMIUM SERVICES SCREEN shall mean a screen accessible inside BUSINESS MODE that describes optional services that SUBSCRIBER may add onto their SOFTWARE SERVICE, and enables SUBSCRIBER to opt in or out of those services.
RECEIPT shall mean the receipt received by SUBSCRIBER via email at the time SUBSCRIBER received this AGREEMENT describing the SOFTWARE SERVICE and MONTHLY SUBSCRIPTION FEE.
STARTUP TRAINING shall mean live training provided by a MINDBODY professional trainer to SUBSCRIBER while SUBSCRIBER is in the process of implementing the SOFTWARE SERVICE. Such training is delivered via telephone and optional Internet link.
REPRESENTATIVES shall have the meaning provided in Article VII.
SCHEDULED MAINTENANCE shall mean periodic planned SOFTWARE SERVICE outages of less than three (3) hours in duration, as may be necessary from time to time to maintain optimum system performance, and which are announced in advance by MINDBODY.
SERVICES shall mean optional offerings available from MINDBODY such as data imports, supplemental trainings, and other services not required to use SOFTWARE SERVICE.
SOFTWARE SERVICE shall mean the MINDBODY SOFTWARE SERVICE identified in the RECEIPT as the service purchased by SUBSCRIBER subject to this AGREEMENT, and is priced according to the quantity and size of SUBSCRIBER business units and locations. The SOFTWARE SERVICE includes any users guide, multimedia content, and relevant documentation made available through the SOFTWARE SERVICE and MINDBODY's website, and any other materials provided to SUBSCRIBER by MINDBODY pursuant to this AGREEMENT.
SUBSCRIBER'S CUSTOMERS shall mean the businesses or individuals scheduling and purchasing products and services from SUBSCRIBER. SUBSCRIBER DATA shall mean any data stored by SUBSCRIBER on MINDBODY's host computer system using the SOFTWARE SERVICE, including CARDHOLDER DATA entered by SUBSCRIBER using the SOFTWARE SERVICE. This data is the sole property of SUBSCRIBER and shall be held confidential by MINDBODY in accordance with the terms and conditions of Article VII of this Agreement.
SUBSCRIBER PUBLIC DATA shall mean that portion of SUBSCRIBER DATA that SUBSCRIBER wishes to display in CONSUMER MODE and/or in the MINDBODY FINDER SERVICE, such as class and appointment schedules, and products and services for sale to consumers.

Article II - Description of SOFTWARE SERVICE

Operation, Maintenance, and Security of SOFTWARE SERVICE

MINDBODY will operate and maintain the SOFTWARE SERVICE. MINDBODY reserves the right to replace, modify, and/or upgrade the SOFTWARE SERVICE purchased by SUBSCRIBER in its sole discretion, and will notify SUBSCRIBER of any pending user interface changes resulting from such replacements, modifications, and upgrades at least three (3) days in advance of releasing such change. Any replacement or upgrade to such SOFTWARE SERVICE shall be treated as part of the SOFTWARE SERVICE for the purpose of this AGREEMENT.
MINDBODY will provide all equipment, software, and security services necessary for the operation and maintenance of its host computer system, set forth in further detail on Exhibit A and incorporated herein by reference. MINDBODY reserves the right to change the configuration of its host computer system and change or delete equipment or software at any time.
MINDBODY will provide sufficient bandwidth and processor capability to enable SUBSCRIBER and SUBSCRIBER'S CUSTOMERS to use of BUSINESS MODE and CONSUMER MODE, respectively.

Ownership, Maintenance and Use of SUBSCRIBER DATA

Subject to the provisions of Article II, 5 below, SUBSCRIBER shall own SUBSCRIBER DATA at all times.
SUBSCRIBER is solely responsible for the operation and maintenance of BUSINESS MODE and CONSUMER MODE, including, but not limited to all SUBSCRIBER DATA entered in BUSINESS MODE and SUBSCRIBER PUBLIC DATA that appears publicly in CONSUMER MODE. SUBSCRIBER shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA. SUBSCRIBER warrants to MINDBODY that SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA does not violate applicable law or the rights of any third party.
SUBSCRIBER may enable or disable public access to SUBSCRIBER PUBLIC DATA in CONSUMER MODE and in the MINDBODY FINDER SERVICE by activating various check box controls in BUSINESS MODE. For assistance in these settings, SUBSCRIBER may contact the MINDBODY Customer Service Team at (877) 755-4279.

Security of CARDHOLDER DATA

MINDBODY expressly disclaims any and all liability for SUBSCRIBER's handling of CARDHOLDER DATA. MINDBODY recommends that when handling CARDHOLDER DATA, SUBSCRIBER follow the requirements of the PCI DSS. In connection with SUBSCRIBER's use of the SOFTWARE SERVICE, SUBSCRIBER shall follow the Cardholder Data Recommended Practices attached hereto as Exhibit B, as may be updated from time to time.
MINDBODY is responsible for storing and protecting the CARDHOLDER DATA within SUBSCRIBER DATA only when:

Such data has been properly entered by SUBSCRIBER in the encrypted fields provided in the SOFTWARE SERVICE in accordance with the PCI DSS in BUSINESS MODE or by SUBSCRIBER'S CUSTOMERS in CONSUMER MODE;
Such data is encrypted and received by MINDBODY's server(s).

Access to SUBSCRIBER DATA

SUBSCRIBER may download portions of the SUBSCRIBER DATA directly from the SOFTWARE SERVICE in Microsoft Excel format by using the reporting and exporting tools provided by MINDBODY within the SOFTWARE SERVICE.
SUBSCRIBER may request a complete downloaded copy of current SUBSCRIBER DATA, except for CARDHOLDER DATA, stored on MINDBODY's host computer system in Microsoft SQL Server or Microsoft Access format at any time. MINDBODY will provide that copy via Internet secure file transfer protocol (sftp), electronic mail or hard copy CD-ROM within forty-eight (48) business hours of such request. If hard copy CD-ROM is requested, SUBSCRIBER shall pay MINDBODY a fee of fifteen dollars ($15) plus mailing costs.
MINDBODY reserves the right to charge SUBSCRIBER for additional bandwidth usage fees for more than one (1) backup download per month. In addition, for a mutually agreed upon additional recurring fee and schedule specified on RECEIPT, SUBSCRIBER may request services to automatically download a copy of SUBSCRIBER current database stored in Microsoft SQL Server format to a secure internet connected computer belonging to SUBSCRIBER.
SUBSCRIBER is responsible for maintaining the security of any copy of the SUBSCRIBER DATA received pursuant to this Article II, 4.
SUBSCRIBER, at its option, may grant any trusted third party access to the SUBSCRIBER DATA by delivering to MINDBODY a copy of a signed authorization as provided in Exhibit C.

MINDBODY RESEARCH - Ownership and Access to COMPILED DATA

MINDBODY will compile aggregate components of SUBSCRIBER DATA (excluding the CARDHOLDER DATA) together with information received from MINDBODY's other subscribers to create COMPILED DATA.
MINDBODY agrees that COMPILED DATA will be presented in an aggregate manner only and will not reveal proprietary or personal, identifying information about SUBSCRIBER or SUBSCRIBER'S CUSTOMERS.
SUBSCRIBER acknowledges and agrees that COMPILED DATA is owned solely by MINDBODY, and will be used by MINDBODY, in part, in connection with its MINDBODY RESEARCH SERVICE.
If purchased as an additional value added service by SUBSCRIBER via the MINDBODY PREMIUM SERVICES SCREEN found in BUSINESS MODE, MINDBODY shall provide SUBSCRIBER with access to COMPILED DATA for use in connection with SUBSCRIBER's business in accordance with the terms and conditions found in Exhibit G.

Article III – Other Services

The following SERVICES are included in the fees set forth in Article IV, 1:

Data Import. SUBSCRIBER may elect in writing to MINDBODY to have MINDBODY import SUBSCRIBER’S CUSTOMERS names and contact information upon startup of the SOFTWARE SERVICE. This election must be made within thirty (30) days of the EFFECTIVE DATE. If SUBSCRIBER makes this election, then the following will apply:

MINDBODY will provide a one-time importation of SUBSCRIBER'S CUSTOMERS names, notes and contact information from any single open database format, including, but not limited to .txt, .xls., and .csv.
SUBSCRIBER will provide MINDBODY with its customer names and contact information in an open, unlocked, un-password protected format within thirty (30) days of the EFFECTIVE DATE.

MINDBODY will provide STARTUP TRAINING sessions not to exceed the following durations per business location identified in the RECEIPT:

Phase I Training: One fifty (50) minute training;
Phase II Training: Two fifty (50) minute training;
Phase III Training: One fifty (50) minute training;
Advanced Training: One fifty (50) minute training;

Additional Fee Based Services. The following services may be available to SUBSCRIBER at an additional fee. SUBSCRIBER may contact MINDBODY for further information.

Data Importation of Transactional Histories

SUBSCRIBER may be eligible for importation of its transactional histories for an additional fee, as determined by MINDBODY in its sole discretion.

Supplemental Training

In the event that SUBSCRIBER wishes to have any STARTUP TRAINING in addition to such training provided pursuant to Article III, 5, b, such additional STARTUP TRAINING may be provided to SUBSCRIBER at an additional charge based on MINDBODY's hourly rates in effect at the time of such additional STARTUP TRAINING. These fees are subject to change at any time.
In the event that SUBSCRIBER wishes to have ONSITE TRAINING at SUBSCRIBER's facility, such training may be provided at MINDBODY's discretion at a fee to be agreed upon at the time of purchase.

Article IV - Payment

Fees & Payment Options

SUBSCRIBER has paid MINDBODY the online software setup fee identified on the RECEIPT.
By executing this agreement, SUBSCRIBER is authorizing MINDBODY to collect the MONTHLY SUBSCRIPTION FEE via automatic ACH payment from SUBSCRIBER's checking account or direct charge to SUBSCRIBER's credit card.

Changes in Fees. The MONTHLY SUBSCRIPTION FEE shall remain unchanged through the first anniversary of the EFFECTIVE DATE, providing the size and quantity of SUBSCRIBER business units and locations remains unchanged. MINDBODY reserves the right to change the MONTHLY SUBSCRIPTION FEE if SUBSCRIBER wishes to manage additional business units and/or locations beyond those specified on the RECEIPT, and on each anniversary of the EFFECTIVE DATE, provided that MINDBODY shall give SUBSCRIBER at least thirty (30) days advance written notice of any change in such fees.
Payment Terms. All amounts set forth in this article shall be due and payable when specified in this AGREEMENT. Any payment not received within thirty (30) days of the applicable due date is a breach of this AGREEMENT and MINDBODY shall be entitled to terminate this AGREEMENT as provided below, and to deactivate SUBSCRIBER's account with MINDBODY. In the event that MINDBODY deactivates SUBSCRIBER's account for late payment and MINDBODY decides to reactivate such account at SUBSCRIBER's request, SUBSCRIBER shall pay MINDBODY a one hundred and fifty dollar ($150) reactivation fee per SUBSCRIBER database prior to any such reactivation.

Article V - Intellectual Property

MINDBODY Intellectual Property. MINDBODY shall have sole and exclusive ownership of all right, title, and interest in and to:

The SOFTWARE SERVICE (including any MINDBODY provided images, photographs, animations, video, audio, music, text, and applets);
All derivatives, modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to SUBSCRIBER herein by MINDBODY;
The COMPILED DATA. This AGREEMENT does not provide SUBSCRIBER with title or ownership of the SOFTWARE SERVICE, the COMPILED DATA, or any components thereof, but only a right of limited use as specified in Article VI.

SUBSCRIBER Intellectual Property. SUBSCRIBER shall have sole and exclusive ownership of all right, title, and interest in all SUBSCRIBER DATA.

Article VI - License

Rights Granted. In addition to the limited license granted by MINDBODY to SUBSCRIBER as to the use of the COMPILED DATA provided in Article II, 5 above, MINDBODY grants SUBSCRIBER a non-exclusive, non-transferable right to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT. MINDBODY grants SUBSCRIBER'S CUSTOMERS the right to use the CONSUMER MODE to schedule classes, to make purchases of SUBSCRIBER's products and services, and for any other use that MINDBODY shall make available using the CONSUMER MODE in the future.

SUBSCRIBER acknowledges and agrees that the SOFTWARE SERVICE is licensed on a per SUBSCRIBER basis, and the rights of any licensed user to access and/or utilize the SOFTWARE SERVICE may not be shared between SUBSCRIBER and any third party or used by any third party, except as otherwise authorized by SUBSCRIBER in accordance with the terms and conditions contained in attached Exhibit C.

Limitation on Rights Granted. MINDBODY reserves all rights not expressly granted herein.
Restrictions. SUBSCRIBER shall not, in whole or in part, directly or indirectly: (a) reverse engineer, disassemble, decompile, translate, reproduce, modify, alter or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure or organization of the SOFTWARE SERVICE or reduce the SOFTWARE SERVICE to a human-perceivable form; (b) remove any copyright notices, logos, identification or any other proprietary notices from the SOFTWARE SERVICE; (c) make any change to the SOFTWARE SERVICE or create any derivative works thereof; or (d) publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the SOFTWARE SERVICE or any part thereof.

Article VII - Confidentiality

CONFIDENTIAL INFORMATION. For the purposes of this Article VII, CONFIDENTIAL INFORMATION shall include the SOFTWARE SERVICE, the SUBSCRIBER DATA, and any accompanying or related documentation. CONFIDENTIAL INFORMATION does not include information which is:

Developed by the non-disclosing party independently of the disclosing party as supported by the non-disclosing party's written records;
Rightfully obtained without restriction by the non-disclosing party from a third party;
At the time of disclosure or thereafter becomes publicly available other than through the fault or negligence of the non-disclosing party;
Released without restriction by the disclosing party to anyone including the U.S. Government as supported by the non-disclosing party's written records; and
Known to the non-disclosing party at the time of disclosure as supported by the non-disclosing party.

Protection of CONFIDENTIAL INFORMATION

During the term of this AGREEMENT and for a period of five (5) years after its termination or expiration, the PARTIES agree they shall not disclose any of the CONFIDENTIAL INFORMATION in any manner whatsoever, except as provided in subparagraphs (b) and (c) below, and shall hold and maintain the CONFIDENTIAL INFORMATION in strictest confidence.
A party may disclose CONFIDENTIAL INFORMATION to such party's directors, officers, employees, agents; and financial, legal, other advisors and affiliates (collectively, REPRESENTATIVES) with a bona fide need to know such CONFIDENTIAL INFORMATION, but only to the extent necessary to evaluate or carry out the terms of this AGREEMENT and only if such REPRESENTATIVES are advised of the confidential nature of such CONFIDENTIAL INFORMATION and the terms of this AGREEMENT and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such CONFIDENTIAL INFORMATION. Further, the PARTIES acknowledge and agree that nothing in this Article VII shall prohibit the collection, compilation and distribution of any COMPILED DATA by MINDBODY in accordance with Article II, 5 of this AGREEMENT.
A party may disclose CONFIDENTIAL INFORMATION if and to the extent that such disclosure is required by court order, provided that such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
The CONFIDENTIAL INFORMATION is being disclosed to the PARTIES and the PARTIES receive the CONFIDENTIAL INFORMATION solely for the purpose stated herein and specifically agree not to use the CONFIDENTIAL INFORMATION for any other purpose.

Article VIII - Interoperability Requirements

SUBSCRIBER Responsibilities

SUBSCRIBER will maintain the functional operation of all of its workstations, networks, and Internet connections necessary to ensure proper operation of the SOFTWARE SERVICE, including installation and operation of any associated operating system and web browser according to applicable manufacturer specifications and recommendations.
Prior to contacting MINDBODY concerning connectivity problems, SUBSCRIBER shall verify that it is able to properly connect to the Internet by verifying navigation through common sites, such as www.cnn.com or www.google.com, and verify that it is running the most recent release of Internet Explorer, Mozilla Firefox, or Safari.

Technical Requirements. The communications and network interoperability for the SOFTWARE SERVICE require a high-speed Internet connection and the following web browsers only:

For Personal Computers/Windows: Internet Explorer version 7.0 or greater; and
For Macintosh Computers: MAC OS X running Safari.

Article IX - Limited Warranty/Limitation on Liability

SOFTWARE SERVICE Warranty

MINDBODY warrants that the SOFTWARE SERVICE shall be 99.9% available twenty-four (24) hours per day, seven (7) days per week, three-hundred and sixty-five (365) days per year. This translates to eight (8) hours and forty-five (45) minutes of unplanned outage time per contract year. Our server inventory will be expanded to accommodate the SUBSCRIBER's progressive data expansion. Hardware expansion will keep up with the needs of SUBSCRIBER so that the SUBSCRIBER's site performance will not be slowed by either the SUBSCRIBER's data expansion or the addition of new subscribers to the MINDBODY servers.
If the cumulative service level for the SOFTWARE SERVICE drops below 99.9% for any contract year of service, as determined on each anniversary of the EFFECTIVE DATE, MINDBODY will credit SUBSCRIBER with additional complimentary service to be used in the following year of service, according to the following schedule:

98% - 99.8% availability of SOFTWARE SERVICE - one (1) free month of service;
95% - 97.9% availability of SOFTWARE SERVICE - two (2) free months of service;
90% - 94.9% availability of SOFTWARE SERVICE - six (6) free months of service; and
Less than 90% availability of SOFTWARE SERVICE - twelve (12) free months of service.

In order to receive any credit of free service pursuant to this Article IX, SUBSCRIBER shall notify MINDBODY in writing no later thirty (30) days after the end of the contract year in which the availability of the SOFTWARE SERVICE fell below the warranted level of SUBSCRIBER's intent to collect the free service related to such shortcoming in availability during the following year of service. To the extent MINDBODY does not receive timely notice from SUBSCRIBER as provided in this paragraph,

MINDBODY shall have no further obligation to provide SUBSCRIBER any free service; and
SUBSCRIBER shall be deemed to have waived and released MINDBODY as to any and all claims related to its use or non-use of the SOFTWARE SERVICE as to the applicable contract year.

SUBSCRIBER shall not receive any credit or refund under this Article IX in connection with any failure or deficiency caused by or associated with any of the following:

Circumstances beyond MINDBODY's reasonable control, including, but not limited to, war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus, or denial of service attacks;
Major telecommunications or Internet failure outside of MINDBODY's control;
Acts or omissions of SUBSCRIBER, its employees, or its agents, including, without limitation, custom scripting or coding, any negligence, willful misconduct, or use of the SOFTWARE SERVICE outside the scope of this AGREEMENT; and
SCHEDULED MAINTENANCE conducted between the hours of 9 PM and 9 AM in the Pacific Standard Time Zone and SUBSCRIBER is notified at least forty-eight (48) hours in advance of such SCHEDULED MAINTENANCE.

DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE, THE SOFTWARE SERVICE IS PROVIDED AS IS AND WITH ALL FAULTS. NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY MINDBODY WITH RESPECT TO THE SOFTWARE SERVICE OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND MINDBODY EXPRESSLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF MINDBODY.
LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION, OR SECURITY, OR SIMILAR ECONOMIC LOSS, LOSS OF PRIVACY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MINDBODY BE LIABLE FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
IN NO EVENT SHALL MINDBODY'S LIABILITY UNDER ANY CLAIM MADE BY SUBSCRIBER EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY SUBSCRIBER IN THE CURRENT CONTRACT YEAR. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF:

THE TERMINATION OR EXPIRATION OF THIS AGREEMENT; OR
THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.

SUBSCRIBER AND SUBSCRIBER'S CUSTOMERS ACKNOWLEDGE AND AGREE THAT:

TRANSMITTING CARDHOLDER DATA ON THE INTERNET MAY INVOLVE CERTAIN SECURITY RISKS; AND
ABIDING BY THE CARDHOLDER DATA BEST PRACTICES STANDARD PROVIDED IN ATTACHED EXHIBIT B MAY REDUCE THESE RISKS. MINDBODY'S SERVER(S) PROVIDE A SECURE, ENCRYPTED ENVIRONMENT FOR CARDHOLDER DATA; PROVIDED, HOWEVER, THAT MINDBODY SHALL ONLY BE RESPONSIBLE FOR THE SECURITY OF CARDHOLDER DATA UPON THE ENCRYPTION AND RECEIPT OF THE CARDHOLDER DATA BY MINDBODY'S SERVER(S). MINDBODY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, AS A RESULT OF THE TRANSMISSION OF THE CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY MINDBODY'S SERVER(S), INCLUDING BUT NOT LIMITED TO DAMAGES, FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT OR INVASION OF PRIVACY.

Use of Trademark

SUBSCRIBER agrees to indemnify and hold MINDBODY, its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of SUBSCRIBER's breach of this AGREEMENT, SUBSCRIBER's violation of any law, or SUBSCRIBER's violation of the rights of a third party, including the infringement by SUBSCRIBER of any intellectual property or other right of any person or entity. These obligations will survive any termination of the terms of this AGREEMENT.
SUBSCRIBER hereby authorizes MINDBODY to list SUBSCRIBER as a subscriber of MINDBODY on MINDBODY'S website, and include SUBSCRIBER's name and trademarks in MINDBODY's public directories and the MINDBODY FINDER SERVICE. MINDBODY will provide SUBSCRIBER with the ability to remove SUBSCRIBER's name, information, and trademark from these public directories at any time. SUBSCRIBER assumes sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by SUBSCRIBER or which SUBSCRIBER is authorized to use or display. If MINDBODY receives notice or documentation demonstrating that another person or entity contests SUBSCRIBER's right to use or display a name, trademark, service mark or other content, MINDBODY may, in its sole discretion, reject or discontinue listing SUBSCRIBER on the MINDBODY website without liability to SUBSCRIBER or MINDBODY until such time as SUBSCRIBER has resolved that dispute with the other party to MINDBODY's satisfaction.
MINDBODY does not make it its responsibility to monitor the use of trademarks, copyrights or other rights of SUBSCRIBER or third parties. MINDBODY may, however, in appropriate circumstances and in MINDBODY's sole discretion, remove, suspend, terminate access, or take other appropriate action against subscribers who infringe the copyright rights of others. Therefore, if SUBSCRIBER reasonably believes that any materials on MINDBODY's website contain unauthorized reproductions of SUBSCRIBER's copyrighted work or trademarks, and SUBSCRIBER wants MINDBODY to take any action, then SUBSCRIBER must provide the following information to MINDBODY (as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512)):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MINDBODY to locate the material;
Information reasonably sufficient to permit MINDBODY to contact SUBSCRIBER, such as an address, telephone number and e-mail address;
A statement that SUBSCRIBER has a good faith belief that the use of the material in the manner complained of is not authorized by the owner, its agent or the law; and
A statement that the information in the notice is accurate, and under penalty of perjury, that SUBSCRIBER is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please e-mail this information to finact@mindbodyonline.com.

Article X - Cancellation and Refund Policy

SUBSCRIBER has thirty (30) days from the date of purchase, as noted on the RECEIPT, to evaluate the SOFTWARE SERVICE for suitability to SUBSCRIBER's purposes. During that thirty (30) day period, MINDBODY will make a good faith effort to resolve any issues or difficulties SUBSCRIBER may have in using the SOFTWARE SERVICE. If during the thirty (30) day period SUBSCRIBER determines that the SOFTWARE SERVICE does not meet its needs, SUBSCRIBER may notify MINDBODY that it wishes to terminate the SOFTWARE SERVICE provided hereunder and receive a refund of the corresponding fee paid by SUBSCRIBER, less the cost of any SERVICES provided prior to such cancellation based on MINDBODY's fees in effect at the time of such cancellation.
If the SERVICES are provided free of charge during the thirty (30) day evaluation period (described in Article X, 1 above), to allow SUBSCRIBER to evaluate and test it before paying MINDBODY's current fees, MINDBODY enforces a strict no refund policy after the expiration of the initial thirty (30) day period.
Current MINDBODY Fees. For the purposes of this Article X, MINDBODY's current fees may be found at http://purchase.mindbodyonline.com/. These fees are subject to change at any time.

Article XI - Term / Termination

Term. The term of this AGREEMENT shall be for one (1) year from the EFFECTIVE DATE. The term of this AGREEMENT shall automatically renew for an additional one (1) year term on each anniversary of the EFFECTIVE DATE until terminated by either party pursuant to Article XI, 2.
Termination

Termination at Time of Renewal. Either party may terminate this AGREEMENT on any anniversary of the EFFECTIVE DATE by providing at least thirty (30) days advance written notice to the other party of its intent to terminate this AGREEMENT on such anniversary of the EFFECTIVE DATE.
Breach. In the event of any breach or default of this AGREEMENT by SUBSCRIBER, MINDBODY shall have the right to immediately terminate this AGREEMENT without notice from MINDBODY. In the event of any breach or default of this AGREEMENT by MINDBODY, SUBSCRIBER shall have the right to terminate this AGREEMENT by giving thirty (30) days notice to MINDBODY; provided, however, that MINDBODY may effect cure during such thirty (30) day notice period, in which case this AGREEMENT will remain in effect. SUBSCRIBER will not have the right to cancel any portion of this AGREEMENT and/or receive a refund pursuant to Article X if SUBSCRIBER has breached this AGREEMENT.

Effect of Termination. Upon termination of this AGREEMENT for any reason, all fees set forth in Article IV shall become immediately due and payable.

Article XII - Indemnity

The PARTIES agree to indemnify, defend, and hold each other, their officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from:

The operation, maintenance, and content of the SOFTWARE SERVICE;
SUBSCRIBER's use of the SOFTWARE SERVICE;
Failure by SUBSCRIBER to comply with any applicable privacy laws; and
Any breach of this AGREEMENT by the PARTIES.

SUBSCRIBER shall indemnify, defend, and hold MINDBODY, its officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from access to or use or misuse of the SUBSCRIBER DATA and/or the CARDHOLDER DATA by SUBSCRIBER, its REPRESENTATIVES, or affiliates. This Article XII shall survive the termination of this AGREEMENT.

Article XIII - Miscellaneous

Governing Law. This AGREEMENT will be interpreted in accordance with the laws of the State of California, including all matters of construction, validity, performance, and enforcement, without giving effect to any principles of conflict of laws.
Dispute Resolution. Any action to enforce or interpret this AGREEMENT, or to resolve disputes with respect to this AGREEMENT, shall be settled by arbitration in accordance with California Code of Civil Procedure Sections 1280 through 1294.2 and any successor provisions thereto. The provisions of California Code of Civil Procedure Section 1283.05 regarding the right to take depositions and obtain discovery shall apply to the arbitration. Arbitration shall be the exclusive dispute resolution process. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be in the County of San Luis Obispo, California. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
Assignment and Assumption. This AGREEMENT may not be assigned by SUBSCRIBER without the prior written consent of MINDBODY, which may be withheld at MINDBODY's sole discretion. MINDBODY may require any proposed assignee of this AGREEMENT to enter into a new written agreement with MINDBODY. MINDBODY may assign this AGREEMENT to any person or entity, and thereafter be relieved of all liability hereunder.
Notices

All notices, requests, demands, and other communications shall be validly given if delivered in person, facsimile transmission, sent by electronic mail, or forwarded by registered or certified mail addressed to the other party at the address provided in the signature block of this AGREEMENT, unless such party has notified the other party of a substitute contact information in writing pursuant to this article.
Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.

Relationship. The PARTIES shall do business at their own risk and for their own profit. Nothing in this AGREEMENT shall constitute a partnership or agency relationship between SUBSCRIBER and MINDBODY or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.
Government Regulations. SUBSCRIBER shall at its own expense comply with all laws, ordinances, rules, regulations and other requirements of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of this AGREEMENT.
Severability. If any of the provisions of this AGREEMENT shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the other portions of this AGREEMENT shall remain in full force and effect.
Force Majeure. No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, terrorist attack, civil unrest, labor unrest, or shortage of or inability to obtain material as equipment.
The failure of either party to enforce at any time or for any period of time, the provisions hereof in accordance with their terms will not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.
No Third Party Beneficiary. The benefits and protection provided by this AGREEMENT shall inure solely to the benefit of the PARTIES. This AGREEMENT shall not be deemed to create any right in any person or entity who is not a party to this AGREEMENT and shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party unless specified in Exhibit C.
Questions. All questions and requests for customer service and/or technical support should be directed to MINDBODY Customer Service Team at 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401. If SUBSCRIBER is within the US and Canada, call toll free (877) 755-4279 . If calling from outside the United States and Canada, SUBSCRIBER may call 1-(805) 476-2700. Email: Support@mindbodyonline.com.

Exhibit A - Maintenance and Security of SUBSCRIBER DATA

Provisions for Service Reliability. MINDBODY hosts SUBSCRIBER DATA at two redundant secure data centers in California.

The primary data center is located at Digital West Networks in San Luis Obispo, California (PRIMARY DATA CENTER). It features:

Multiple redundant, enterprise switching hardware at every stage;
Multiple active firewalls protecting against unauthorized access;
Web and data servers clustered into a redundant network configuration that prevents any single component failure from causing loss of service;
Battery powered uninterruptible power supplies (UPS) that ensure continuous power to all servers and network components until backup generators start and are brought online;
Emergency backup generators, which start automatically within one (1) minute of a detected loss of utility power. These generators are tested regularly to industry standards and are capable of running all server loads for an extended period of time until normal utilities are restored;
Raised floor and redundant environmental control to maintain proper temperature and humidity for optimum component reliability;
Precaution automatic fire sprinklers so that fires and the subsequent water are isolated to one region of the server facility;
Remote monitoring, so that technical personnel are alerted at any time at the first sign of abnormal conditions (e.g., loss of temperature control, server failure, or loss of normal power);
Access at any time for select technicians employed by MINDBODY, controlled by biometric scan and personal identification number (PIN), with separate locks for all MINDBODY server cabinets, so that problems can be responded to rapidly and unauthorized access prevented; and
Nightly backup of all SUBSCRIBER DATA to the BACKUP DATA CENTER, defined below.

The backup data center is located at One Wilshire in Los Angeles, California (BACKUP DATA CENTER). The BACKUP DATA CENTER receives nightly backup of all SUBSCRIBER DATA, current through close of business that day. During normal conditions, this server is available at all times for read only access and report downloading by SUBSCRIBER, via the URL http//backup.mindbodyonline.com.

Security Provisions

Personal Security

All MINDBODY technical or management personnel with access to SUBSCRIBER DATA are subjected to background checks prior to hiring, and must sign non-disclosure and data security agreements that protect both MINDBODY and SUBSCRIBER DATA.
Physical access to the PRIMARY DATA CENTER and the BACKUP DATA CENTER is restricted by lock and key, security cameras, and alarm systems, with limited number of authorized personnel granted access.
No MINDBODY personnel are permitted to transfer SUBSCRIBER DATA onto any hard drive or storage device, except those contained within either the PRIMARY DATA CENTER or BACKUP DATA CENTER. SUBSCRIBER DATA is never transferred to MINDBODY office workstations.

Data Security

All SUBSCRIBER DATA is located on secure servers, or backup directories that require access authentication.
All secure servers are protected by multiple, redundant firewalls and intrusion detection and prevention systems that are regularly monitored and tested (details of firewall configuration are not shared publicly for maximum security).
128-bit Secure Sockets Layer (SSL) data encryption is employed to protect all data access across the Internet.
Credit card numbers are stored in 128-bit encrypted format.

Obligations and Activities for Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. MINDBODY maintains the following HIPAA compliance standards, sufficient for any SUBSCRIBER who may be a HIPAA covered entity, as defined by United States regulations pursuant to 45 CFR §164.524, as amended from time to time, or any other applicable law:

MINDBODY will not disclose Protected Health Information, as defined by applicable law, other than as permitted or required by the AGREEMENT or as required by law;
MINDBODY uses appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by the AGREEMENT;
MINDBODY will mitigate, to the extent practicable, any harmful effect that is known to MINDBODY of a use or disclosure of Protected Health Information by MINDBODY in violation of the requirements of the AGREEMENT;
MINDBODY will report to SUBSCRIBER any use or disclosure of the Protected Health Information not provided for by the AGREEMENT of which it becomes aware;
MINDBODY will not disclose Protected Health Information to any agent or subcontractor;
MINDBODY will document any disclosures of Protected Health information and information related to such disclosures as would be required for SUBSCRIBER to respond to a request by an individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR §164.528; and
MINDBODY will make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by MINDBODY on behalf of SUBSCRIBER available to SUBSCRIBER, or to the U.S. Secretary of Health and Human Services, in a mutually agreed upon time and manner, or as designated by the Secretary, for purposes of the Secretary verifying MINDBODY compliance to United States regulations pursuant to 45 CFR §164.524.

Exhibit B - CARDHOLDER DATA Best Practices

Any merchant who accepts Visa, MasterCard, American Express, or Discover credit cards for payment is subject to the Payment Card Industry Data Security Standard (PCI DSS), which outlines credit card processing merchants' responsibilities for the protection of CARDHOLDER DATA. If SUBSCRIBER uses MINDBODY's integrated merchant account processing service, MINDBODY is responsible for protecting CARDHOLDER DATA only after it is properly uploaded and encrypted into SUBSCRIBER DATA by the SOFTWARE SERVICE. SUBSCRIBER remains responsible for the proper handling and protection of CARDHOLDER DATA up to the point that it is properly uploaded and encrypted by the SOFTWARE SERVICE.
MINDBODY hereby refers SUBSCRIBER to the PCI DSS website, for a complete list of all rules and restrictions that may apply: https://www.pcisecuritystandards.org/.
At a minimum, MINDBODY recommends that SUBSCRIBER implement the practices set forth below:

SUBSCRIBER should do the following:

Maintain updated anti-virus software on all workstations engaged in credit card processing and remove any programs that the anti-virus software flags as potentially malicious.
Restrict permission to install software on those computers to SUBSCRIBER business owner and/or trusted senior staff.
Maintain up-to-date versions of operating systems (e.g., Microsoft Windows or Macintosh OS) and web browsers (e.g., Internet Explorer, Safari or Firefox), with all security updates and patches installed.
Ensure that every individual that logs into the SOFTWARE SERVICE has a unique username and password that is known only by that individual.
Only store credit card account numbers in encrypted credit card fields designed for that purpose in the SOFTWARE SERVICE system.
Destroy any hard copy documents that have CARDHOLDER DATA written on them. b) SUBSCRIBER should not do the following:
Record CARDHOLDER DATA in notes, contact logs, or other unencrypted text fields within the SOFTWARE SERVICE;
Record CARDHOLDER DATA in any locally installed software program, unless that program and SUBSCRIBER's computer network meet all PCI requirements;
Email SUBSCRIBER'S CUSTOMERS credit card numbers, or ask them to email their credit card numbers to SUBSCRIBER; or
Record credit card track data.

Exhibit C - Granting Third Party Access of SUBSCRIBER DATA

SUBSCRIBER has the option to grant a third party access to SUBSCRIBER DATA by specifying the third party below. The THIRD PARTY shall mean a business or individual that does not have direct ownership of the SUBSCRIBER DATA maintained by MINDBODY. If SUBSCRIBER chooses, Exhibit C can grant THIRD PARTY access to the SUBSCRIBER's data that is hosted and maintained by MINDBODY.
By entering a THIRD PARTY's name below, SUBSCRIBER hereby gives consent to MINDBODY to grant access to SUBSCRIBER DATA via MINDBODY's API services or web interface.
SUBSCRIBER also hereby agrees that the THIRD PARTY's usage of SUBSCRIBER DATA is governed by a separate agreement between SUBSCRIBER and the THIRD PARTY, and that MINDBODY will not be held liable for the THIRD PARTY's usage of SUBSCRIBER DATA. SUBSCRIBER shall ensure that THIRD PARTY at all times maintains the confidentiality of the SUBSCRIBER DATA, SOFTWARE SERVICE, and any accompanying or related documentation as required in Article VII of the AGREEMENT.
SUBSCRIBER shall indemnify, defend, and hold MINDBODY, its officers, directors, shareholders, employees and authorized agents, harmless from and against any and all claims, damages and expenses (including, without limitation, attorney's fees) resulting directly or indirectly from the THIRD PARTY's access to or use of the SUBSCRIBER DATA or SOFTWARE SERVICE. This indemnification obligation shall survive the termination of the AGREEMENT.
THIRD PARTY access to SUBSCRIBER DATA shall continue until SUBSCRIBER notifies MINDBODY in writing to cease THIRD PARTY access. If this AGREEMENT is only agreed to via electronic confirmation, then the THIRD PARTY will not be granted access to SUBSCRIBER DATA, because electronic confirmation does not allow for entering a THIRD PARTY's name on the lines below. To contractually grant the THIRD PARTY access to SUBSCRIBER DATA, this AGREEMENT must be printed and signed by SUBSCRIBER, then faxed to (866) 759-7958, or scanned and emailed to finact@mindbodyonline.com.
SUBSCRIBER should only complete this exhibit if granting a THIRD PARTY access to SUBSCRIBER DATA.

____________________________________________________ THIRD PARTY DBA Name ____________________________________________________ THIRD PARTY Legal Name ______________________________________________________ THIRD PARTY Contact Name ____________________________________________________ THIRD PARTY Phone Number ____________________________________________________ Authorized by (Printed Name) ___________________________________________________ Authorized by (Title) ___________________________________________________ Authorized by (Signature) ________________________________ Date

Exhibit D - ACH Services

Automated Clearing House (ACH) Service is an optional service available for the SUBSCRIBER that incurs an extra monthly fee, which is stated in a separate ACH contract titled ACH Services Agreement. This ACH service is optional and not required to use the MINDBODY System or use other services such as credit card processing. SUBSCRIBER's monthly ACH services and fees will not end unless SUBSCRIBER sends a written termination of ACH services request to MINDBODY. The services can be cancelled at anytime. SUBSCRIBER should refer to the ACH Services Agreement for full details about terms, obligations, fees, privacy, and other details concerning ACH services.

Exhibit E - MINDBODY FINDER SERVICE Agreement

The MINDBODY FINDER SERVICE aggregates SUBSCRIBER PUBLIC DATA, including schedules, availabilities, descriptions and pricing, thereby enabling consumers to find SUBSCRIBER services via internet search and mobile devices.
SUBSCRIBER's agreement to participate in this service is assumed at the time of execution of this Agreement.
SUBSCRIBER may opt out of the MINDBODY FINDER SERVICE at any time during the duration of this AGREEMENT by accessing the MINDBODY PREMIUM SERVICES SCREEN in BUSINESS MODE.
If SUBSCRIBER opts out of the MINDBODY FINDER SERVICE, they may not participate in the MINDBODY BOOKER SERVICE detailed in Exhibit F.

Exhibit F - MINDBODY BOOKER SERVICE Agreement

The MINDBODY BOOKER SERVICE enables SUBSCRIBER to schedule and preauthorize consumer credit card payment for SUBSCRIBER SERVICES via the MINDBODY FINDER SERVICE. Such scheduled, prepaid services are referred to as CONSUMER FINDER BOOKINGS.
To accept CONSUMER FINDER BOOKINGS, SUBSCRIBER shall:

Obtain an INTEGRATED MERCHANT ACCOUNT. This may be the same INTEGRATED MERCHANT ACCOUNT SUBSCRIBER has implemented to process credit card and ACH transactions via BUSINESS MODE.
Agree to the terms, conditions and fees found in this Exhibit, and indicate such agreement in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
Make SUBSCRIBER PUBLIC DATA available to the MINDBODY FINDER SERVICE via various BUSINESS MODE settings.

Booking and Payment

When SUBSCRIBER receives payment for a CONSUMER FINDER BOOKING and delivers the associated service to the consumer, SUBSCRIBER agrees to pay BOOKING FEES to MINDBODY as follows:

For each unique consumer in a rolling one-hundred-eighty (180) day period

First CONSUMER FINDER BOOKING = 10% of amount paid by consumer to SUBSCRIBER for the service booked.
Second CONSUMER FINDER BOOKING = 5% of amount paid by consumer to SUBSCRIBER for the service booked.
Third and Subsequent CONSUMER FINDER BOOKINGs = 2% of amount paid by consumer to SUBSCRIBER for the service booked.

By executing the MINDBODY BOOKER SERVICE Agreement found in the PREMIUM SERVICES SCREEN, SUBSCRIBER is authorizing MINDBODY to collect the sum total of all FINDER BOOKING FEEs accrued during the previous calendar month, by either processing an electronic ACH payment from SUBSCRIBER's checking account or direct charge to SUBSCRIBER's credit card.

When a CONSUMER FINDER BOOKING occurs, MINDBODY agrees to:

Populate a temporary consumer profile record in SUBSCRIBER DATA that consists of consumer’s first name, last name, email address, and phone number. When SUBSCRIBER delivers the associated service to consumer, the consumer will be considered to have become a customer of SUBSCRIBER, and their record will become a permanent profile record in SUBSCRIBER DATA.
Populate the CONSUMER FINDER BOOKING in BUSINESS MODE.
Denote in BUSINESS MODE that the customer record and CONSUMER FINDER BOOKING were populated by MINDBODY FINDER SERVICE.

When a CONSUMER FINDER BOOKING occurs, SUBSCRIBER agrees to accept the CONSUMER FINDER BOOKING and deliver the service(s) scheduled and paid for by the consumer at the price listed in SUBSCRIBER PUBLIC DATA and at the date and time of booking, unless cancelled by consumer.
Cancellation and Refund of CONSUMER FINDER BOOKING.

SUBSCRIBER agrees to refund to consumer the amount paid for any CONSUMER FINDER BOOKING that is cancelled and not rescheduled.
If a CONSUMER FINDER BOOKING is cancelled, and rescheduled by SUBSCRIBER or consumer, SUBSCRIBER agrees that the associated FINDER BOOKING FEE is unchanged and remains due and payable to MINDBODY.
If a CONSUMER FINDER BOOKING is cancelled and the amount paid by consumer is refunded by SUBSCRIBER, then the associated FINDER BOOKING FEE will not be due and payable to MINDBODY, unless the same consumer reschedules with SUBSCRIBER and receives services within thirty (30) days of original CONSUMER FINDER BOOKING.

Exhibit G - MINDBODY RESEARCH SERVICE Agreement

MINDBODY RESEARCH SERVICE grants SUBSCRIBER access to COMPILED DATA.
To subscribe to MINDBODY RESEARCH, SUBSCRIBER shall:

Agree to conditions found in this exhibit, and indicate such agreement in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
Agree to the payment options found in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.

SUBSCRIBER understands that MINDBODY RESEARCH has been developed with the investment of significant time, effort, materials, and expense by MINDBODY and that MINDBODY RESEARCH provides SUBSCRIBER and other MINDBODY subscribers with significant, unique competitive business advantage.
Nondisclosure

SUBSCRIBER agrees to cite MINDBODY as the source anytime SUBSCRIBER discloses MINDBODY RESEARCH data or analysis in reports, articles, or other derivative works authored by SUBSCRIBER. For instructions on how to cite MINDBODY RESEARCH contact MINDBODY Research Department at 1 (877) 755-4279. For SUBSCRIBERS outside the US and Canada, call 1 (805) 476-2700.
SUBSCRIBER will not sell, lease, rent, license, copy, alter, modify, disassemble, reverse engineer or decompile MINDBODY RESEARCH without the prior written consent of a duly authorized representative from MINDBODY. Any violation of this confidentiality can result in instant termination of MINDBODY SOFTWARE SERVICE or MINDBODY RESEARCH.

Exhibit H – PREMIUM SUPPORT

SUBSCRIBER may opt for PREMIUM SUPPORT by accessing the PREMIUM SERVICES SCREEN in BUSINESS MODE.
If SUBSCRIBER opts for PREMIUM SUPPORT, then the RECEIPT emailed to SUBSCRIBER will specify the premium support level purchased, and SUBSCRIBER and SUBSCRIBER's employees may continue to receive SERVICES listed in Article II and Article III, 2.
PREMIUM SUPPORT consists of supplementary technical support and related services provided by an assigned Premium Account Coordinator (“PAC”), who coordinates services provided at three optional levels: “Bronze,” “Silver,” and “Gold.” These are summarized in the table below:

MINDBODY PREMIUM SUPPORT

SERVICES PROVIDED BY MINDBODY	SUPPORT LEVEL
	BRONZE	SILVER	GOLD
Assigned PAC	Yes	Yes	Yes
Subscriber Directed Software Development	Yes	Yes	Yes
MINDBODY Instant Messaging Account	Yes	Yes	Yes
Total PAC Support Included (Hours/Month)	5	14	32
PAC Available Outside Normal Business Hours	No	No	Yes
Billing Rate for Additional PAC Support (per hour)	$60	$57	$53

MINDBODY Premium Account Coordinator (“PAC”)

A PAC is a senior and highly certified member of the MINDBODY Technical Support team assigned to SUBSCRIBER, if SUBSCRIBER has opted for PREMIUM SUPPORT.
The PAC is provided a direct business line and a MINDBODY internal instant messaging account, which may be used by SUBSCRIBER to communicate with PAC in lieu of telephone and email.
If SUBSCRIBER opts for Gold Level Premium Support, then the PAC will also be provided with a MINDBODY mobile phone, enabling after hours communication.
Premium Support SUBSCRIBER will designate a single point of contact to provide consistent communications and direction to the PAC.
When the designated Single Point of Contact is not available, other SUBSCRIBER employees may contact the MINDBODY PAC for urgent matters.
The PAC is obligated only to provide support to SUBSCRIBER and SUBSCRIBER's regular employees. The scope of any desired PAC consultation to third parties (e.g., SUBSCRIBER's consultants, accountants, developers, etc.) must be specified in writing and be arranged for in advance with the PAC.

SUBSCRIBERS dissatisfied with their PAC may request a new PAC at any time by contacting MINDBODY Customer Service, who will provide a new PAC within thirty (30) days.
PREMIUM SUPPORT Contracts

PREMIUM SUPPORT Contracts will be a minimum of three (3) month duration, and will continue until SUBSCRIBER informs the PAC of their desire to discontinue PREMIUM SUPPORT.
PREMIUM SUPPORT Fees will be paid month-to-month and will be collected at the same time as the SUBSCRIBER's software subscription. If SUBSCRIBER opts for PREMIUM SUPPORT in the middle of a software subscription month, then their first month’s PREMIUM SUPPORT fees will be prorated, so that subsequent collections are on the same day as SUBSCRIPTION FEES.
Only one premium support fee per business entity applies. Premium Support does not vary according to the number or size of active SUBSCRIBER business locations served.

Receiving Premium Support

Business Hours Support shall be that support provided during the assigned PAC's normal working hours (e.g., 8 AM - 5 PM Pacific Time), and shall be accrued in thirty (30) minute increments. If SUBSCRIBER’s allocation of PAC Support Hours is exceeded in any billing month, additional hours will be billed in sixty (60) minute increments at the rates detailed in Exhibit G, 4.
Allocated Premium Support hours depicted in the matrix above are per calendar month, and must be expended during that month. Unused hours do not roll over to subsequent months.
Instant Message Support counts towards the monthly support. SUBSCRIBER will see the entire MINDBODY PAC Group and will be asked to only contact their assigned PAC for non-urgent questions. However, they may instant message any available PAC to request Premium Support for urgent matters.

DIRECTED DEVELOPMENT

DIRECTED DEVELOPMENT shall mean MINDBODY development of SUBSCRIBER requested new features or refinements that, in the judgment of MINDBODY management, support best business practices of MINDBODY subscribers at large and align with MINDBODY's strategic business direction. MINDBODY is not obligated to deliver SUBSCRIBER requested new features or software improvements that fall outside of these criteria, unless agreed to separately by MINDBODY and SUBSCRIBER in writing.
DIRECTED DEVELOPMENT is a value added service provided by MINDBODY as a courtesy to subscribers paying for Premium Support. It does not constitute custom software development or work for hire.
SUBSCRIBER acknowledges that their Premium Support fees are paying for PAC project management, and not paying for the actual costs of DIRECTED DEVELOPMENT.
SUBSCRIBER acknowledges that the actual costs of software development far exceed the combined value of Premium Support and subscription fees paid by SUBSCRIBER.
SUBSCRIBER acknowledges that any software features and improvements resulting from DIRECTED DEVELOPMENT are the sole intellectual property of MINDBODY, subject to the terms and conditions of Article V of this Agreement.
Because the outcome of software development and quality assurance testing is never certain, it is impossible to promise delivery of specific DIRECTED DEVELOPMENT items on an exact date. Therefore, SUBSCRIBER acknowledges that projected DIRECTED DEVELOPMENT release dates communicated between the PAC and SUBSCRIBER are not contractual commitments, unless agreed to separately by MINDBODY and SUBSCRIBER in writing.

In witness whereof, the PARTIES hereto have electronically signed this AGREEMENT as of the date and time stamp stored inside MINDBODY's internal database.

Navigation

有问题? 请在线咨询