Mindbody Professional Services Supplemental Terms

These Mindbody Professional Services Supplemental Terms ("Professional Services Terms"), together with any agreement(s) that refers to this supplement as being applicable between the Parties, including but not limited to the Mindbody ToS (the "ToS"), any other underlying agreement, all Order Forms, exhibits, addenda, pricing terms, and online policies and URLs incorporated therein (the "Agreement"), form a binding agreement between you and Mindbody with respect to the applicable Service(s) and/or Third Party Offering(s) to which these Professional Services Terms apply. The ToS are hereby incorporated by reference into these Professional Services Terms and apply as if fully set forth herein. Capitalized terms used in these Professional Services Terms but not otherwise defined have the meanings given to them in the ToS.

Without limitation, any dispute, claim, or controversy arising out of or relating to these Professional Services Terms or the applicable Service(s) and/or Third Party Offering(s) is subject to the arbitration agreement, class action waiver, disclaimers of warranties, limitations and exclusions of liability, indemnification obligations, governing law, and all other applicable provisions set forth in the ToS.

For clarity, nothing in these Professional Services Terms alters or expands Mindbody's obligations, warranties, or liabilities or limits its rights as set forth in the ToS.

Mindbody may modify these Professional Services Terms and/or the ToS from time to time in its sole discretion. The "Changes to the Agreement" section of the ToS applies.

In the event of a conflict between the ToS and these Professional Services Terms, these Professional Services Terms will control solely with respect to the subject matter expressly addressed herein.

1. Services.

Mindbody shall provide the services (the "Professional Services") to you as described in a fully executed Statement of Work ("SOW") in accordance with the Agreement. Professional Services include all work product and deliverables created in connection with the provision of such Professional Services. If the terms and conditions of an SOW conflict with these Professional Services Terms or the ToS, the conditions of these Supplemental Terms or the ToS will apply and supersede the SOW terms, as applicable. You agree that your purchase of Professional Services is not contingent on the delivery of any future services, software functionality, or features or on any oral or written public comments by us regarding future software functionality or features.

2. Website Services.

2.1 Scope; Description. Professional Services provided pursuant to an SOW that expressly identifies website creation, publication, hosting, or maintenance services are "Website Services," Website Services are a subset of Professional Services, and all terms and provisions of this Agreement that apply to Professional Services also apply to Website Services. The specific scope, deliverables, and timelines applicable to each Website Services engagement shall be set forth in an SOW. If you do not execute a separate SOW, the standard SOW to Professional Services Supplemental Terms: Customized Website found at https://www.mindbodyonline.com/company/legal/customized-website will apply to your Website Services.

2.2 Standard Inclusions. If SOW indicates a "Customized Website" is included, this means a website consisting of a homepage, services description page, contact form, and booking functionality enabled by your existing Mindbody subscription utilizing standard Mindbody-supported design templates, configurations, and integrations with Mindbody's core software products and functionality. A "Design Iteration" means an opportunity for you to provide feedback, which we will use commercially reasonably efforts to address, and "Ongoing Updates" are limited to one design revision per calendar quarter following go-live, and ongoing updates for time sensitive business related changes (limited to updating hours, business contact information, location, and other business information that Mindbody reasonably determines requires a change before the next design revision) upon request through the communication channel designated in the SOW.

2.3 Out-of-Scope Exclusions. The following are expressly excluded from Customized Website Services and shall not be considered included in any SOW absent a written reference to this Section 2.3:

(1) custom functionality not enabled by Mindbody's existing core software products;

(2) edits to, or integration work in connection with, other Mindbody products or services not expressly included in the SOW (including, without limitation, the Branded Mobile App);

(3) videos, animations, or motion graphics;

(4) fully bespoke design work (and Mindbody reserves the right, in its sole discretion, to determine that further design customization is not feasible within the scope of Website Services and to decline to perform such work);

(5) e-commerce capabilities, such as the ability to sell physical products;

(6) non-English language Customized Websites; and

(7) any services, features, or deliverables not expressly described in the applicable SOW.

2.4 Domain Name. Where an SOW provides for the procurement of a domain name, Mindbody shall use commercially reasonable efforts to procure an available domain name reasonably consistent with your requested domain. Mindbody does not guarantee the availability of any specific domain name. All costs associated with the initial domain purchase shall be as set forth in the SOW. Unless we communicate otherwise, Mindbody will purchase the domain name on your behalf and name you as the registrant. You will receive e-mail confirmation from the domain registrar and you are responsible for following confirmation steps in such e-mail to finalize registration. Domain name purchases include basic registration only, and do not include add-ons such as e-mail hosting, domain lock, domain forwarding, or other similar additional services. As a result of domain ownership, you may have access to domain, DNS, nameserver, hosting, or related settings ("Domain Settings") which you agree you will not modify, reconfigure, redirect, or otherwise alter any in a manner that could interfere with Mindbody's ability to host, maintain, publish, or update the Customized Website. Mindbody will confirm the domain name with you prior to finalizing its purchase. Domain names, once purchased, cannot be revised or changed without incurring additional costs, for which you shall be solely responsible. If you cease receiving Website Services for any reason, you will be responsible for any ongoing fees to maintain ownership and registration. Mindbody will have no liability for (1) any lapse in domain registration resulting from your failure to assume ownership and registration fees upon expiration or termination of the Website Service; or (2) any lapse in Website Services resulting from changes you make to Domain Settings.

2.5 Customer Responsibilities for Website Services. In addition to your other obligations under the Agreement, prior to commencement of Website Services you shall: (1) complete all required Mindbody core system configuration (including, without limitation, staff and services setup) to the extent necessary to enable the Website Services described in the SOW; (2) provide all copy, images, branding assets, and other content you wish incorporated into the Customized Website; (3) consolidate all feedback into a single, unified submission at each review stage, within the timeframe specified in the applicable SOW; (4) review the final Customized Website for information accuracy prior to go-live; (5) ensure all content provided by Customer to Mindbody complies with applicable laws and that Customer holds all necessary rights to use such content, as set forth in Section 2.6. Mindbody shall have no obligation to process multiple or sequential rounds of feedback outside of the defined revision process. Any delay caused by you in providing required materials, approvals, or consolidated feedback may result in a corresponding extension of project timelines, reprioritization of resources, and, where applicable, additional fees or a Change Order.

2.6 Content; Accuracy; Legal Compliance. You are solely responsible for all content on your Customized Website, ensuring the accuracy of all information published thereon, and ensuring your Customized Website complies with all applicable laws and regulations. You are solely responsible for preparing, maintaining, and complying with your own terms of use, privacy policy, DMCA policy, trademark policy, and any other applicable legal policies or notices. You are solely responsible for determining whether your Customized Website requires any disclosures, notices, consent mechanisms, cookie banners, accessibility features, or other compliance measures under applicable law. Mindbody makes no representations regarding the legal sufficiency of, or the regulatory or accessibility compliance of any Customized Website deliverable.

2.7 Assumption of Risk; Visitor Claims.

2.7.1 General Assumption of Risk. You acknowledge that the Customized Website will be publicly accessible and may be visited, used, or relied upon by third parties, including prospective and existing customers, members of the general public, and other individuals (collectively, "Visitors"). You assume all risks arising out of or relating to any Visitor's access to, use of, or reliance on the Customized Website, including without limitation any claims arising from:

(1) your failure to fulfill your responsibilities under section 2.6 of these Professional Services Terms;

(2) any claims of false advertising, misrepresentation, deceptive trade practices, or unfair business practices arising from content on or features of the Customized Website;

(3) any privacy or data protection claims arising from Visitors' interactions with the Customized Website;

(4) any claims arising from the unavailability, interruption, or malfunction of the Customized Website;

(5) any claims by Visitors arising from or relating to your business operations, goods, services, facilities, or personnel, regardless of whether such claims are made in connection with the Customized Website; and

(6) any claims by Visitor arising from messaging or other communications you send through the Customized Website that do not comply with your messaging and communications obligations under the Agreement.

2.7.2 Indemnification for Visitor Claim Losses. In addition to and without limiting your indemnification obligations under the ToS, you shall indemnify, defend, and hold harmless the Mindbody Parties from and against any and all claims, demands, suits, proceedings, judgments, losses, damages, fines, penalties, and expenses (including reasonable attorneys' fees and costs) brought by or on behalf of any Visitor (collectively, "Visitor Claim Losses") arising out of or relating to any matter described in Section 2.7.1 above.

2.7.3 Notice of Visitor Claims. If Mindbody receives any complaint, demand, claim, legal process, regulatory inquiry, or other communication from or on behalf of a Visitor arising out of or relating to a Customized Website produced under Website Services (each, a "Visitor Claim"), Mindbody shall provide you with written notice thereof. Mindbody's failure to provide timely notice shall not relieve you of your indemnification obligations under Section 2.7.2. Nothing in this Section limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

2.7.4 Control of Visitor Claims. Upon receipt of notice of a Visitor Claim:

(1) You shall have the right, upon written notice to Mindbody delivered within ten (10) business days of receipt of Mindbody's notice of a Visitor Claim, to assume control of the defense and resolution of the Visitor Claim at your sole cost and expense, using counsel reasonably acceptable to Mindbody;

(2) If you assume control of a Visitor Claim, you shall: (i) keep Mindbody reasonably informed of the status and material developments of the Visitor Claim; (ii) not make any admission of liability on behalf of any Mindbody Party; (iii) not agree to any settlement, consent order, or other resolution that imposes any obligation, restriction, liability, or admission of wrongdoing on any Mindbody Party without Mindbody's prior written consent, which may be withheld in Mindbody's sole discretion; and (iv) promptly comply with any reasonable request by Mindbody for information or documentation related to the Visitor Claim;

(3) If you do not timely assume control of a Visitor Claim, or if you fail to diligently prosecute the defense thereof, Mindbody may, in its sole discretion, assume control of the defense and resolution of the Visitor Claim, and all reasonable costs and expenses incurred by Mindbody in connection therewith shall be recoverable from you pursuant to Section 2.7.5 below; and

(4) Mindbody reserves the right, at its own expense, to participate in the defense of any Visitor Claim with counsel of its choosing, regardless of which party has assumed control of the defense. Nothing in this Section limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

2.7.5 Recovery of Mindbody's Costs. Without limiting any other rights or remedies available to Mindbody under the Agreement, you agree that Mindbody may recover from you or your Affiliates all reasonable costs, fees, and expenses incurred by Mindbody or any Mindbody Party in connection with any Visitor Claim, including, without limitation, reasonable attorneys' fees and legal costs incurred.

2.8 Post-Termination Treatment.

Upon expiration or termination of your Mindbody subscription, or upon termination of the applicable Website Services SOW for any reason, Mindbody shall have no further obligation to maintain, update, or host your Customized Website. Mindbody will take commercially reasonable steps to allow use Customized Website materials to establish a similar website itself or with a new provider if Customer requests such assistance within the 30 days following the expiration or termination of the Website Services. Customer acknowledges that Mindbody's proprietary software, code, integrations and Work Product will not transfer and will remain the sole property of Mindbody. If Customer does not request such assistance within 30 days of the expiration or termination of the Website Services, Mindbody shall have the right to permanently delete the Customized Website and all associated content and data, with no further obligation to you. Mindbody may delete the Customized Website and all associated content and data with no further obligation to you 60 days after the expiration or termination of the Website Services, regardless of such assistance request. You are solely responsible for ensuring you have obtained and retained copies of any content, assets, or materials you wish to preserve prior to the expiration. Mindbody shall have no liability for any loss of content or data following deletion pursuant to this Section 2.8. Nothing in this Section limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

3. Performance Dates; Acceptance.

3.1 Mindbody shall use commercially reasonable efforts to meet any performance dates or timelines specified in the SOW, and any such dates and targets shall be estimates only.

3.2 All Professional Services (including, without limitation, deliverables identified in the SOW) shall be deemed accepted upon the earlier of: (a) your written acknowledgment of acceptance; (b) your use of the applicable deliverable in production or go-live Customized Website; or (c) ten (10) days after delivery without written notice to Mindbody describing any material non-conformity with the applicable written SOW requirements, subject to the Agreement. If you timely notify Mindbody of such a material non-conformity related to the Professional Services, Mindbody will use commercially reasonable efforts to correct it. After such correction, the applicable deliverable will again be subject to the acceptance procedure set forth in this Section. Once accepted or deemed accepted, any additional revisions shall require a Change Order.

4. Your Professional Services Obligations.

In addition to your other obligations under the Agreement, which also apply to Professional Services, you shall:

4.1 Cooperate with us in all matters relating to the Professional Services and provide such access to your premises, and such office accommodation and other facilities as may reasonably be requested by us, for the purposes of performing the Professional Services;

4.2 Respond promptly to any Mindbody request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Mindbody to perform the Professional Services in accordance with the requirements of this Agreement;

4.3 Provide such materials or information as Mindbody may reasonably request to carry out the Professional Services in a timely manner;

4.4 Ensure that any materials or information you provide are complete and accurate in all material respects; and

4.5 Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to your business and the Professional Services.

4.6 Mindbody may rely on the accuracy and completeness of any information, instructions, approvals, or materials you provide in connection with the Professional Services and has no obligation to independently verify them.

5. Third-Party Systems; Dependencies.

5.1 Mindbody's performance of the Professional Services may depend on your timely cooperation, including provision of access, information, and approvals, as well as the availability and performance of third-party platforms, services, systems, software, and APIs ("Third-Party Systems").

5.2 Mindbody shall have no responsibility or liability for, and shall not be deemed in breach of this Agreement or any SOW as a result of, any failure, delay, or inability to perform arising from (a) your acts or omissions, (b) Third-Party Systems, or (c) other causes beyond Mindbody's reasonable control.

5.3 Any milestones, timelines, or delivery dates impacted by the foregoing shall be equitably adjusted. Mindbody shall have no obligation to modify, re-architect, or provide alternative implementations unless expressly agreed in a Change Order.

5.4 If you request a suspension of Professional Services, or if Mindbody is unable to proceed due to your failure to provide required cooperation, access, approvals, or materials, Mindbody may suspend all work under the applicable SOW with no impact on applicable fees or payment milestones. If a suspension attributable to you or your Affiliates exceeds thirty (30) days, Mindbody may, in its sole discretion, terminate the applicable SOW upon written notice, and all fees for work performed through the suspension date, together with any non-cancellable commitments made by Mindbody in connection therewith, shall become immediately due and payable. Following any suspension attributable to you or your Affiliates exceeding thirty (30) days, Mindbody may require reasonable adjustment to the scope, schedule, and/or pricing of the applicable SOW as a condition to resuming work.

6. Change Orders.

6.1 Any changes to an SOW will require a written change order ("Change Order") signed by the parties prior to implementation of the changes.

6.2 Notwithstanding Section 6.1, Mindbody may, from time to time, change the Professional Services without the consent of you provided that such changes do not materially affect the nature or scope of the Professional Services, or the fees or any performance dates set forth in the SOW. Nothing in this Section limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

6.3 Mindbody may charge for the time it spends assessing and documenting a change request from you on a time and materials basis in accordance with the SOW.

6.4 If you request Professional Services, tasks, or deliverables that Mindbody reasonably determines are outside the scope of an applicable SOW, Mindbody may, in its sole discretion, decline to perform such out-of-scope work or agree to perform it pursuant to a Change Order or new SOW at its then-current rates. Mindbody's commencement of any out-of-scope work shall not be construed as a waiver of the requirement for a Change Order or new SOW, nor shall it create any obligation on the part of Mindbody to complete such work absent such documentation.

7. Fees and Expenses; Payment Terms; Interest on Late Payments.

7.1 In consideration of the provision of the Professional Services by Mindbody and the rights granted to you under this Agreement, you shall pay the fees set forth in the SOW.

7.2 You agree to reimburse Mindbody for all reasonable travel and out-of-pocket expenses incurred by Mindbody in connection with the performance of the Professional Services.

7.3 You shall pay all invoiced amounts due to Mindbody within 30 days' of receipt of the applicable invoice unless otherwise specified in an SOW. You shall make all payments hereunder in US dollars by credit card, wire transfer or check. All payments are non-refundable and non-cancelable.

7.4 Except as expressly set forth in Section 10, upon any termination or expiration of this Agreement or any SOW for any reason, all fees for Professional Services performed through the effective date of termination or expiration, together with any non-cancellable expenses incurred by Mindbody in connection therewith, shall become immediately due and payable.

8. Intellectual Property.

8.1 Mindbody or its affiliates own all right, title and interest in and to all intellectual property rights together with all of the goodwill associated therewith, of all derivative works, documents, Customized Website designs, code, work product, deliverables, and other materials that are delivered to you as part of the Professional Services or are prepared by or on behalf of Mindbody Parties in the course of performing the Professional Services, including any items identified as such in the SOW ("Work Product"), except with respect to Materials included in such Work Product which remain subject to the intellectual property ownership provisions of the ToS. Mindbody may reuse all Work Product, excluding Materials, in connection with Services for other customers.

8.2 Subject to your compliance with these Professional Services Terms, Mindbody grants you a nonexclusive, nontransferable, non-sublicensable (except with respect to your Franchisees to the extent applicable and required for Franchisees to receive Professional Services or associated deliverables produced by the Professional Services for which you have contracted on such Franchisees' behalf), revocable, royalty-free license to use the deliverables solely for your internal business operations and external, public facing business use in connection with the applicable Website Services and your permitted use of the Services. You will not: (1) modify, copy or create any derivative works based on the deliverables from Professional Services; (2) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the deliverables from Professional Services available to any third party, other than to Affiliates and End Users as permitted herein; (3) reverse engineer or decompile any portion of the deliverables from Professional Services; (4) access or use (or allow a third party to access or use) the deliverables from Professional Services for competitive analysis or to build any competing products or services; (5) copy any features, functions, integrations, interfaces or graphics of the deliverables from Professional Services; or (6) otherwise use or exploit the deliverables from Professional Services in any manner not expressly permitted by this Agreement.

8.3 Mindbody may freely use any general knowledge, skills, experience, ideas, concepts, know-how, or techniques retained by its personnel from performing the Professional Services, provided that Mindbody does not disclose your Confidential Information.

8.4 Nothing in this Section 8 limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

9. Warranty.

Mindbody represents and warrants that it shall perform the Professional Services in a professional and workmanlike manner. Your sole and exclusive remedy for a breach of this Section 9 shall be re-performance of the materially non-conforming Professional Services, subject to the limitations and exclusions set forth in the ToS and these Professional Services Terms. Nothing in this Section limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

10. SOW Termination.

Mindbody may terminate an SOW for convenience upon thirty (30) days' prior written notice to you. In the event of such termination, Mindbody's sole obligation with respect to the termination of such SOW shall be to refund any prepaid fees attributable to Professional Services described in the SOW not yet performed as of the effective date of termination, less any non-cancellable commitments or costs incurred by Mindbody in connection with the applicable SOW, and Mindbody shall have no further liability arising from such termination. Nothing in this Section limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

11. Limitations of Liability.

11.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MINDBODY'S AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE PROFESSIONAL SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY YOU UNDER AN APPLICABLE SOW FOR THE APPLICABLE PROFESSIONAL SERVICES DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT.

11.2 The limitation of liability set forth in Section 11.1 above shall not apply to: (1) liability resulting from Mindbody's gross negligence or willful misconduct and (2) death or bodily injury resulting from Mindbody's negligent acts or omissions. Liabilities limited by Section 11.1 above will also decrement the limitation of liability established under the ToS. Nothing in this Section 11 limits or reduces any other right, remedy, or protection available to Mindbody or any Mindbody Party under the Agreement.

12. Survival.

Provisions of these Professional Services Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of these Professional Services Terms.

13. Nature of Relationship.

13.1 Mindbody's Manner of Performance. Mindbody shall determine the manner, means, methods, tools, and techniques by which it performs the Professional Services, subject only to the requirements expressly set forth in the applicable SOW. Mindbody shall not be required to perform the Professional Services at any particular time of day or on any particular schedule, except as may be mutually agreed in an SOW.

13.2 Mindbody's Personnel. Mindbody's personnel performing the Professional Services are employees or contractors of Mindbody Companies. Mindbody is solely responsible for: (1) the supervision, direction, and control of its personnel; (2) the payment of all compensation owed to its personnel; (3) withholding and remitting all applicable taxes and similar obligations; and (4) providing all insurance and any other benefits or coverage required by applicable law. You shall have no obligation or authority with respect to any of the foregoing, and you shall not direct, discipline, or terminate any Mindbody personnel. Mindbody's personnel shall not be treated as your employees for any purpose, including, without limitation, providing Mindbody personnel with benefits, providing Mindbody personnel with tax or employment forms, or presenting Mindbody personnel to any third party as your employees, agents or representatives.

13.3 Mindbody's Independent Business. Mindbody is engaged in an independently established business that provides professional services to multiple clients. Mindbody's performance of Professional Services for you does not constitute the whole or primary source of Mindbody's business income, and Mindbody is not economically dependent on you. Mindbody may perform the same or similar services for other parties during the term of any SOW.

13.4 Tools, Equipment, and Resources. Mindbody shall supply its own resources necessary to perform the Professional Services, unless otherwise expressly agreed in an SOW. Your provision of access to specific platforms, systems, or accounts as contemplated in Section 5 of these Professional Services Terms does not constitute the provision of tools or equipment of employment.

13.5 No Authority to Bind. Specifically with respect to the Professional Services Mindbody provides to you, neither party shall have the authority to enter into any legally binding obligation on behalf of the other.