Mindbody Terms of Service

These Terms of Service ("ToS") (collectively, with any underlying agreement, all Order Forms, exhibits, addenda, pricing terms, and online policies and URLs incorporated herein, the "Agreement") is entered between the Mindbody Entity indicated in Section 14.3 below ("Mindbody", "we", "us" or "our") and the customer legal entity that is party to the Agreement, on behalf of itself and its Affiliates ("you" or "Customer") and is effective ("Effective Date") on the earlier of (1) the date you first execute the Agreement and (2) the date you or an Affiliate first accesses or uses any Mindbody Services or Third Party Services hereunder. Capitalized terms used in this Agreement have the meanings ascribed herein. If you are a franchisee, we may have entered or may enter an agreement with your Franchisor pursuant to which such Franchisor agrees that you will purchase and use services from us as set forth herein. Use of the Services by you and your Affiliates (or enabling an Affiliate to access or use the Services) indicates that you have read this Agreement and agree to be bound by its terms.

THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRE YOU TO ARBITRATE ALL DISPUTES YOU HAVE WITH A MINDBODY PARTY (AS DEFINED BELOW) ON AN INDIVIDUAL BASIS. PLEASE SEE SECTION 15 FOR MORE INFORMATION ABOUT THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND MINDBODY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS WIDE ARBITRATION.

Mindbody provides online business management software services designed for businesses in the fitness, wellness, and other industries ("Software Service"). You can access our Software Service via the client login page on our Websites and through our Apps.

By accessing or using the Services or accessing Third Party Offerings through Mindbody (or enabling an Affiliate to do so), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services or Third Party Offerings through Mindbody. This Agreement applies to any use of the Services, whether in connection with a paid subscription, free trial, or beta use of the Services . For clarity, this Agreement does not apply to use of the Mindbody App (except as stated otherwise). That has a separate agreement, which is accessible through the Mindbody App and available at https://www.mindbodyonline.com/company/legal/consumer-agreement or another URL that Mindbody provides ("Mindbody App Agreement").

1. General Terms

1.1 Agreement. The Agreement is a binding legal agreement between you and Mindbody. If you enter into the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to "you" and "your" in the Agreement include any of those entities. You and Mindbody are also sometimes referred to in this Agreement individually as a "Party" and collectively as the "Parties".

1.2 API Terms of Use. If you or any third party on your behalf or through your account uses a Mindbody API, you and such use is subject to the applicable API terms at https://developers.mindbodyonline.com/Resources/DeveloperAgreement or such other URL as specified by Mindbody, as may be updated by Mindbody from time to time and/or any other terms designated by Mindbody ("API Terms").

1.3 Privacy. Our Privacy Policy explains how we collect and use information that's submitted to the Services. By using the Services, you are indicating that you have read the Privacy Policy and agree to its terms. To the extent that Mindbody processes Your Data originating from the European Economic Area, or the United Kingdom, or with respect to Personal Information (defined within the Privacy Annex) that is processed on behalf of you and relates to residents of the State of California, the terms of the Privacy Annex apply.

1.4 Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to https://www.mindbodyonline.com/company/legal/terms-of-service (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we'll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The legend at the top of the ToS indicates when the ToS were last changed.

1.5 Supplemental Terms. Your use of, and participation in, certain Services and Third Party Offerings may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service, or otherwise communicated to you. If the ToS are inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service to which they apply.

2. Services

2.1 Software Services

2.1.1 Access and Service Levels. Mindbody will make the Services available to you itself or via a Mindbody Affiliate, subject to the terms and conditions of this Agreement. The service levels identified in the Service Level Agreement ("SLA") apply and may be updated by Mindbody from time to time.

2.1.2 Changes to Services. Notwithstanding Section 2.1.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (1) in connection with a Force Majeure event (described in Section 14.9), (2) if we believe any malicious software is being used in connection with your account, or (3) during planned downtime as provided in the SLA. We further reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we'll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.

2.2 Third Party Offerings. We or third-party providers may allow you to access or use Third Party Offerings. Notwithstanding any language to the contrary, Third Party Offerings are not "Services" or services provided by Mindbody or an Affiliate under this Agreement, and we do not warrant or support Third Party Offerings or other non-Mindbody products or services, whether they are provided by a member of our partner network or otherwise designated as "recommended" or "approved" by Mindbody and they are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply Mindbody's endorsement of or affiliation with the provider. Mindbody does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. Mindbody has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. Any procurement by you of a Third Party Offering, and any exchange of data between you and a third-party, is solely between you and the third party. If you enable or install any Third Party Offering for use with the Services, you agree that we may allow the third-party provider to access Your Data as required for the interoperation of that Third Party Offering with the Service, and we are not responsible for any disclosure, modification or deletion of Your Data resulting from such access and you are expressly permitting Mindbody to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS). Third Party Offerings may be suspended or terminated at any time. Additional terms specific for the procurement of the Third Party Offerings available through the Mindbody integrations page apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.3 Support Services. As part of the Services you will have access to Mindbody's standard support services described at https://support.mindbodyonline.com/s/article/Contact-Support (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time. For an additional fee, you may purchase Professional Services, including technical account management services and other custom services as may be provided by Mindbody from time to time.

2.4 Marketing Services. As part of the Software Service, Mindbody and/or Mindbody Affiliates may list, promote, or otherwise make available your business locations, offerings, and related content on Mindbody platforms (for example, the Mindbody App), Mindbody Affiliate platforms, and referral or distribution networks operated by or integrated with Mindbody or Mindbody Affiliates, whether now existing or made available in the future (collectively, the "Affiliate Network")(such listing, promotion, and related services across the Affiliate Network, the "Marketing Services"). Such Marketing Services may allow consumers to locate businesses and evaluate, review, and book their offerings, and are designed to provide visibility, discovery, and lead-generation opportunities. From time to time, you may be offered the opportunity to participate in certain promotional or discount programs offered through the Affiliate Network, which are designed to promote your businesses and attract consumers. Additional terms specific to the use of these Marketing Services that are made available by Mindbody or Mindbody Affiliates (including, without limitation, Mindbody Supplemental Terms for Marketing Services available at https://www.mindbodyonline.com/company/legal/terms-of-service/supplemental-terms-for-the-marketing-services or another URL communicated by Mindbody) are hereby incorporated by reference into this Agreement. Mindbody and Mindbody Affiliates reserve the right to charge fees for the Marketing Services. You agree to pay all applicable fees for the Marketing Services.

2.5 Attentive Services. Additional terms specific to the procurement and use of the Attentive Services apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.6 Free, Trial and Beta Services. Mindbody may in its sole discretion offer free, trial or beta Services from time to time at no charge. Mindbody may also offer recently acquired offerings ("Recently Acquired Offerings") to you before fully integrating, testing, and improving such offerings, and will constitute a trial or beta Service under this provision. Notwithstanding anything to the contrary herein: (1) any free, trial or beta Services, or Recently Acquired Offerings are provided "AS IS" with no warranties of any kind; and (2) Mindbody may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services may be terminated by us. Mindbody will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services.

2.7 Professional Services Terms. Additional terms specific to the procurement of Professional Services apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.8 Branded Mobile App Terms. Additional terms specific to the procurement of the Branded Mobile App apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.9 Hardware Terms. Additional terms specific to the procurement and use of heart rate monitors, receivers, payment enabling, and other similar hardware apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.10 Smart Payment Terminal Terms. Additional terms specific to the use of Smart Payment Terminals apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.11 Payment Processing

2.11.1 Payment Processing Services Terms. Mindbody offers the ability to process payments ("Payment Processing Services"). Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates may be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.

2.11.2 Mindbody Payments. At Mindbody's sole discretion, you may be offered Payment Processing Services provided by Stripe ("Mindbody Payments"). Mindbody Payments are subject to the Stripe Connected Account Agreement, which includes the Stripe ToS (collectively, the "Stripe Services Agreement") and subject to certain fees, rates (as may be updated from time to time), and surcharges communicated to you during the enrollment process and as may be updated by Mindbody from time to time. By enrolling in Mindbody Payments, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Mindbody enabling Payment Processing Services through Stripe, you agree to provide Mindbody accurate and complete information about you and your business, and you authorize Mindbody to share it and transaction information related to your use of the Payment Processing Services provided by Stripe pursuant to our Privacy Policy. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions.

2.11.3 Additional Payment Services. Mindbody may notify you in the future that additional payments services are available to you and are included as Mindbody Payments and in such event, will share the terms applicable to use of such payments service.

2.12 Virtual Wellness Platform. Additional terms specific for the procurement of the Virtual Wellness Platform apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.13 Franchise Fees Tool. Additional terms specific to the use of the Franchise Fees Tool apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.14 Card Updater. As part of the Services, Mindbody may automatically update your End Users' outdated credit card information for participating payment cards. You hereby grant Mindbody permission to update your End Users' outdated payment card information using the Card Updater service and agree to pay the associated fees described at https://support.mindbodyonline.com/s/article/Mindbody-Card-Updater (or such other URL as specified by Mindbody). Updates may include, without limitation, new account numbers and new expiration dates. You may choose to opt out of the Card Updater service at any time within your software settings.

2.15 Mindbody Revenue Guarantee. Additional terms specific to the Mindbody Revenue Guarantee apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.

2.16 SmartDesk. To the extent you enable or use SmartDesk or any other AI functionality made available by Mindbody or an Affiliate, you acknowledge that automated, AI-generated responses may be provided directly to End Users based on sources such as Your Data, your configured settings, and Mindbody-controlled logic. You remain solely responsible for: (1) the accuracy and completeness of Your Data and other Customer-provided or related-information, including policies, pricing, availability, and custom responses; (2) compliance with all applicable consumer protection, data protection, and communications laws in connection with your use of such functionality; (3) responding to End User inquiries, disputes, or claims arising from or relating to AI-generated responses, including any failure to escalate, route or hand off interactions to a human; and (4) all risks associated with use of AI-generated outputs in End User interactions. Without limiting Section 9, Mindbody does not warrant that AI-generated outputs will be accurate, complete, or error-free and disclaims liability for decisions or actions taken by End Users or third parties in reliance on such outputs. Without limiting the foregoing, you acknowledge and agree that Mindbody Parties may use anonymized, de-identified, or aggregated data derived from your use of SmartDesk, other features, and related interactions to train, improve, test, and develop Mindbody or an Affiliate's artificial intelligence, machine learning, and automated systems without compensation, attribution, or notice to you or any End User, and you waive any claims arising from or relating to such use to the maximum extent permitted by law. AI-generated outputs are informational only and do not constitute legal, financial, medical, or compliance advice. The pricing for these services may be usage-based, will be communicated to you, and may be updated anytime with notice to you.

3. Your Responsibilities

3.1 Migration Requirements. Customer is solely responsible for obtaining from its incumbent service provider and providing to Mindbody a complete exit file containing end user information and other applicable data fields requested by Mindbody. Failure to do so will constitute a material breach of the Agreement and will not be grounds for Customer to terminate.

3.2 Liability for Access and Accounts. You are responsible for all activity occurring under or relating to your accounts (or other use of Mindbody products or Services or Third Party Offerings), including accounts of your Affiliates, and including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users, and you will comply and ensure that each of the foregoing complies with the provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by Mindbody, and any applicable local, state, national and foreign laws, including, but not limited to, those related to data privacy and transmission of personal data, at all times in connection with their use of the Services. Any references in this Agreement to "access" or "use" of any Services (or similar phrase) are deemed to include access or use by you, your Affiliates and End Users, and any act or omission by you or any of them that is in breach of this Agreement will be deemed a breach by you. You are further responsible for your access to and/or use of any other individual's or entity's Mindbody accounts and shall ensure that you and your Affiliates have the appropriate rights to interact with and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.

3.3 Data; Unauthorized Access; Maintaining Networks. You will: (1) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (2) prevent unauthorized access to, or use of, the Services or Third Party Offerings, and notify Mindbody promptly of any unauthorized access or use; and (3) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services or Third Party Offerings.

3.4 Restrictions on Use. You and your Affiliates and End Users will not: (1) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (2) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (3) attempt to gain access to the Services or related systems or networks for the purpose of monitoring the availability, performance or functionality of any Service or for any other benchmarking or competitive purposes or in any other or in any manner not permitted by this Agreement; (4) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (5) restrict or inhibit any other person or entity from using the Services; (6) remove any copyright, trademark or other proprietary rights notice from the Services; (7) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (8) systematically download and store Services content; (9) use the Services to send unsolicited electronic messages (aka spamming); or (10) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (10) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, Mindbody grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Mindbody reserves the right to revoke these permissions at any time and without notice.

3.5 Cardholder Data. You are solely responsible for any liability resulting from your or any Affiliate's handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.

3.6 User Names and Passwords. Mindbody may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Mindbody. You, and not Mindbody, are responsible for any use or misuse of user names or passwords associated with your account.

3.7 Consent and Compliance. You are solely responsible for the content of any messages sent through the Services and Third Party Offerings and for ensuring that all such messages are sent in compliance with all applicable laws, regulations, and industry guidelines, including those relating to privacy, marketing, and electronic communications such as the Telephone Consumer Protection Act, CAN-SPAM Act, GDPR, PECR, and similar regulations. You represent and warrant that you have obtained all necessary consents, authorizations, and permissions from End Users prior to sending any messages, that you will honor all opt-outs, and that you will maintain appropriate evidence of such consents and opt-outs as required by law, including but not limited to when utilizing the automated marketing products. Where you choose to integrate the Services with any third-party application or service, you are solely responsible for ensuring that such integration and any related data sharing or message sending complies with applicable law and End User consents. Mindbody has no obligation to transmit, synchronize, or otherwise communicate End User consent or opt-out information to or from any third-party system. Mindbody acts solely as a technology platform to facilitate message delivery and shall have no responsibility or liability arising from or relating to any messages sent through the Services.

3.8 Non-Disparagement. You, your Affiliates, employees, contractors, or representatives, shall not make, publish, or communicate to any person or entity, in any medium (including social media, online reviews, or other digital platforms), any false, misleading, or disparaging remarks, comments, or statements about Mindbody, its affiliates, or their respective products, services, or personnel. This restriction does not apply to truthful statements required to be made by law, regulation, or valid legal process. You acknowledge that any breach of this Section will cause irreparable harm to Mindbody for which monetary damages may be an insufficient remedy, and that Mindbody will be entitled to seek injunctive relief, in addition to any other rights and remedies available at law or in equity. The remedies set forth in this Section are cumulative and in addition to any other rights or remedies available at law or in equity.

4. Fees and Payment

4.1 Fees

4.1.1 General. You agree to use and pay all applicable fees for services purchased or required under this Agreement, which may be presented when you sign up for a service or communicated thereafter, and may be updated periodically with notice to you as permitted in the Agreement. YOU ARE RESPONSIBLE FOR ALL APPLICABLE FEES FOR THE ENTIRE SUBSCRIPTION TERM. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide Mindbody with valid and updated credit card information or another form of payment acceptable to Mindbody. If you provide credit card information, you represent that you are authorized to use the card and you authorize Mindbody to charge the card for all payments hereunder. By submitting payment information, you authorize Mindbody to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Mindbody for purposes of acknowledging or completing any payment. You agree not to introduce credit card processing fees of your own. All prices are in US Dollars and exclude any applicable taxes. Subject to the terms of the Agreement, subscriptions are non-terminable by you prior to expiration of the Initial Subscription Term, payment obligations are non-cancelable, and fees paid are non-refundable.

4.1.2 Usage Fees. Certain services (such as SmartDesk and other AI tools, Attentive, and payment processing) may have usage-based components or pricing based on usage ("Usage-Based Services"). Mindbody may invoice for usage at the then-current rates, which may be updated from time to time. Mindbody may audit usage remotely through the Services.

4.2 Changes to Fees. Unless otherwise specified in the Agreement, Mindbody may increase Locked fees effective as of your next Renewal Term (defined below). Notwithstanding any language to the contrary, all fees and prices that are not Locked (whether for Mindbody, affiliate, or third party services) are subject to change any time. Additionally, Franchisee pricing is subject to change any time in accordance with the instructions, request, agreement, or approval of the applicable Franchisor.

4.3 Overdue Charges

4.3.1 Recovery Mechanics. Without limiting any other rights or remedies available to Mindbody or any Mindbody Affiliate under this Agreement or at law or in equity, to the extent any amounts are owed or payable to Mindbody under or in connection with this Agreement, Mindbody may, at its election and in its sole discretion, exercise the following settlement and recovery rights and mechanisms (collectively, the "Recovery Mechanics"):

4.3.2 Setoffs; Refunds. Any amounts owed by you may be recovered by Mindbody by (1) charging or debiting the bank account or credit card registered to your account; (2) offsetting such amounts against any current or future amounts owed or payable by Mindbody or any Mindbody Affiliate to you (including, without limitation, any funds arising from the settlement of transactions through the payment processing services (including Mindbody Payments), any other disbursements, or any rebates or royalties collected by Mindbody) under this Agreement or any other agreement between you and Mindbody or a Mindbody Affiliate ("Setoff"); and/or (3) requiring you to refund (or pay) such amounts to Mindbody within thirty (30) days after receipt of Mindbody's written request ("Refund"). You and your Affiliates are jointly and severally liable for all such amounts. If you fail to use any software or service that is required or purchased (a "Required Service") and such Required Service is a Usage-Based Service, you shall owe, and Mindbody may recover, an amount that Mindbody estimates would have been owed if the Usage-Based Service had been used as required ("Usage Fees Owed").

4.3.3 Suspension; Interest; Default. In addition, if you fail to use any Required Service, or any amounts owed or payable to Mindbody under or in connection with this Agreement are not paid when due (including but not limited to Usage Fees Owed), regardless of whether such amounts could be recovered through Setoff or Refund, Mindbody may, in its sole discretion and without limiting any other rights or remedies: (1) suspend or terminate some or all services or terminate the Agreement in whole or part, provided that fees for the services may apply during any such suspension; (2) assess interest on the unpaid amount (or the Usage Fees Owed as applicable) at the lesser of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, from the due date until paid in full; and/or (3) if an unpaid amount (or Usage Fee Owed) is not received by Mindbody within thirty (30) days of the applicable due date, it will be deemed a material default under this Agreement and Mindbody will be entitled a negative accrual fee of $20 (or local currency equivalent) per day for each day that your account balance is negative. Additionally, if Mindbody provided a package or special pricing, credits, and/or discounts in exchange for your use of a Required Service and you do not use it or you default on payment obligations, for any period in which a Required Service was not used after the authorized onboarding period, Mindbody may invoice for or otherwise recover the difference between the full price of all services and the discounted amount you paid in accordance with the Recovery Mechanics.

4.3.4 Collection Costs and Fees. You shall be liable for all reasonable costs and expenses incurred by Mindbody or any Mindbody Affiliate in connection with the collection or recovery of any amounts owed, including, without limitation, attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, payment processor fees, chargeback fees, convenience fees, and any other third-party fees.

4.3.5 General Provisions. Mindbody and Mindbody Affiliates may exercise the Recovery Mechanics without prior notice, without prejudice to any other rights or remedies, and without regard to the source, timing, or characterization of the applicable amounts. You agree that the Recovery Mechanics are reasonable and not a penalty. You represent and warrant that Mindbody and Mindbody Affiliates have all rights, authorizations, and permissions necessary to exercise the Recovery Mechanics. This Section shall survive any expiration or termination of the Agreement.

4.3.6 Communication Regarding Delinquent Accounts. Without limiting any other rights herein, you agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone to an email address or phone number that you or an Affiliate or service provider provided to Mindbody. Such communication may be made by Mindbody, any Mindbody Affiliate, or any third-party service provider, or by anyone on their behalf, including, but not limited to, a third-party collection agent.

4.3.7 Personal Guarantee. We may require a personal guaranty from a principal of a business for funds owed under this Agreement. If we require a personal guarantee we will specifically inform you.

4.4 Payment Errors. If you believe a payment has been processed in error, you must provide written notice to Mindbody within 30 days after the date of payment specifying the nature of the error and the amount in dispute ("Payment Error Notice"). If the Payment Error Notice is not received by Mindbody within such 30 day period, the payment will be deemed final.

4.5 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Mindbody is legally required to pay or collect any Taxes on your behalf, Mindbody will invoice you and you will pay the invoiced amount. You acknowledge and agree that we may make certain reports to tax authorities (e.g., 1099 forms) regarding transactions that we process and merchants to which we provide Payment Processing Services. For clarity, Mindbody will be solely responsible for taxes assessed on Mindbody based on its income.

5. Intellectual Property Rights

5.1 Mindbody Intellectual Property. Mindbody or its affiliates own all right, title and interest in and to the Services, Mindbody Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Mindbody and its affiliates reserve all rights, title and interest in and to the Services, the Mindbody Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and Mindbody, all Mindbody Marks are owned by Mindbody or its affiliates. You agree not to display or use any Mindbody Marks in any manner without Mindbody's express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.

5.2 License Grant to You. Subject to the terms and conditions of this Agreement, Mindbody hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not: (1) modify, copy or create any derivative works based on the Services; (2) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the 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 Services, including but not limited to, any software utilized by Mindbody in the provision of the Services; (4) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (5) copy any features, functions, integrations, interfaces or graphics of the Services; or (6) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

5.3 License Grant to Mindbody. You hereby grant to Mindbody and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (1) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or Mindbody's or its affiliates' business(es); and (2) to access, use, modify, reproduce, publicly display, bid on, distribute, transmit, stream, publish, publicly perform, sublicense, and create derivative data of the Materials in connection with: (i) providing or improving the services of Mindbody or its affiliates, (ii) for marketing and promotional purposes in connection with your, Mindbody's, and/or its affiliates' business, and (iii) for Marketing Services. Mindbody agrees that any use by Mindbody of any Customer IP will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to Mindbody or its affiliates herein, all right, title and interest in and to Customer IP are expressly reserved by you. "Materials" means "Customer IP" and "Third-Party IP". "Customer IP" means your name, logos, trademarks, service marks, and domain names, and any audiovisual content, video or recordings, photographs, graphics, artwork, text, information, schedules and availability, offering descriptions, reviews, and any other content: provided, specified, recommended, directed, authorized, or approved for use by Customer; displayed on or in a Customer-related website, webpage, mobile app, or venue; or that otherwise relates to your venues; and "Third-Party IP" means any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video or recordings, photographs, graphics, artwork, text, information, schedules, offering descriptions, reviews, and any other content: provided, specified, recommended, directed, authorized, or approved for use by Customer; displayed on or in a Customer-related website, webpage, mobile app, or venue; or that otherwise relates to your venues. You will take steps as needed to effectuate Mindbody's and its affiliates' rights hereunder, including obtaining any necessary consents to permit Mindbody and its affiliates to use the Materials as contemplated in the ToS. You represent and warrant to Mindbody and its affiliates that you own all interest in and to the Customer IP and have all rights necessary to grant the licenses in this Section 5.3, and that the provision and use of the Materials as set forth herein does not violate any applicable laws or rights of any third party.

6. Data Ownership and Use

6.1 Your Data. As between you and Mindbody, you own all right, title and interest in Your Data. Notwithstanding any language to the contrary, you hereby grant to Mindbody and its affiliates a nonexclusive, worldwide, assignable, sublicensable, fully paid-up, royalty-free, perpetual and irrevocable license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving, promoting and developing Mindbody's or its affiliates' businesses, products and services and/or complementary businesses, products and services of our partners. You represent and warrant to Mindbody that you have all rights necessary to grant the licenses in this Section 6.1, and that the provision and use of Your Data as set forth herein does not violate any applicable laws or rights of any third party.

6.2 Mindbody Data. Notwithstanding Section 6.1, all right, title and interest in any data or information collected by Mindbody independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information Mindbody obtains about End Users through the Mindbody App or any other Mindbody product or service directed at or made available for use by consumers (whether the same as Your Data or otherwise) as well as any data or information associated with a user-verified Mindbody Account and agreement terms will be solely owned by Mindbody (collectively, "Mindbody Data").

6.3 Aggregated Data. You agree Mindbody owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit Mindbody or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.

6.4 Personal Information. Our Privacy Policy and Privacy Annex govern how we collect and use Personal Information. By accessing or using the Services, you agree that you have read and accept our Privacy Policy and Privacy Annex. Without limitation, you acknowledge and agree that Mindbody may process Your Data for the purpose of providing the Services and related functions, such as billing and customer or End User support, as well as to send direct marketing communications to your representatives' or End Users, data science and product or service improvement and reporting. You represent and warrant that You are authorized to process Your Data and make such data available to Mindbody for uses as set out in the Agreement, Privacy Policy and Privacy Annex, including through appropriate notice, consent and by your referring individuals, such as End Users, to our Privacy Policy (notwithstanding Mindbody's ability and right, to which you agree, to request consent, and provide notice and its Privacy Policy separately to individuals). As more fully described in the Privacy Annex, you acknowledge that Mindbody acts as an independent Controller of Personal Information associated with Mindbody Accounts.

6.5 HIPAA. The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") imposes rules to protect certain personal health information or "PHI" as that term is defined under HIPAA. If you or any Affiliate is subject to HIPAA and providing or processing any PHI in connection with the Services, prior to accessing or using the Services you must notify Mindbody and enter into a Business Associate Agreement ("BAA") in the form provided by Mindbody. You are solely responsible for determining whether you or any Affiliates are subject to HIPAA. You must send notice and request a BAA by submitting a Support Request.

6.6 Protection and Security. During the Subscription Term, Mindbody will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data as detailed in the Mindbody Security Policy. Mindbody will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data. Additional information about Mindbody's security practices can be found here.

6.7 Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that Mindbody has no obligation whatsoever to resolve or intervene in such disputes, and you release Mindbody Parties from claims related thereto.

7. Confidential Information

A Party will not disclose or use any Confidential Information of the other Party except: (1) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (2) with the other Party's prior written permission; or (3) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party's Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (A) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (B) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (C) was independently developed by a Party without breach of any obligation owed to the other Party; or (D) was or is received from a third party without breach of any obligation owed to the other Party. Notwithstanding the foregoing, nothing in this Section 7 will restrict Mindbody and its affiliates with respect to Mindbody Data or Aggregated Data.

8. Term, Termination and Suspension

8.1 Term. Unless otherwise specified in the Agreement, the initial term of this Agreement is 90 days ("Initial Term"). The Initial Term begins on the Effective Date and, unless otherwise specified in the Agreement, automatically renews in successive and consecutive 30-day periods (each a "Renewal Term" and collectively with the Initial Term, the "Subscription Term") until this Agreement is properly terminated. Either Party may terminate this Agreement for any reason or no reason, by giving the other Party at least 30 days' notice before the end of the relevant term. If you elect to terminate this Agreement early, you will remain responsible for payment of all fees owed for the entire Subscription Term and will continue to be charged each month for the remainder of the Subscription Term.

8.2 Termination for Cause. Mindbody may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe Mindbody, you must immediately pay any unpaid fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to Mindbody for the period prior to the effective date of termination.

8.3 Rights on Termination or Expiration. Upon termination or expiration of this Agreement (1) all Order Forms will automatically terminate and be of no force or effect; (2) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (3) except as specified in the following paragraph, Mindbody will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.

For a period of no greater than 30 days following a notice of termination, Mindbody will make Your Data (except Cardholder Data and Content (as defined in Section 2.12)) available to you through Mindbody's standard web services. Upon request by you within 30 days following the termination date of this Agreement, and provided that: (1) you have paid Mindbody all amounts owed under this Agreement; and (2) the Parties have an agreed upon a SOW (as defined in Section 2.7), Mindbody will make Your Data in its possession or control available to you through Mindbody's data export service. After such 30 day period, Mindbody will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require Mindbody's assistance in retrieving Your Data, additional fees may apply. The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.3, 2.4, 3, 4, 5, 6, 7, 8.3, 8.4, 9.1, 9.3, 10, 11, 12, 13, 14, 15, 16, 17, 18 and any other provisions intended by their nature to survive.

8.4 Right to Terminate or Suspend Services. We may suspend or terminate your access to and use of the services (or any portion thereof) at any time without notice if we believe (1) that any activity or use of services in connection by you or your Affiliates or in connection with your accounts violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Mindbody or any third party, (2) that we are required to do so by law, or (3) where the Parties do not agree on the use of a sub-processor. Mindbody shall have no liability whatsoever for any Losses arising from or relating to any suspension or termination of services permitted under this Agreement.

9. Warranties and Disclaimer

9.1 Accuracy of Your Account Information. You agree to provide Mindbody with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by Mindbody (collectively, "Account Information"). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify Mindbody in writing if any Account Information changes. You agree that Mindbody has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.

9.2 Warranty of Functionality. Mindbody warrants to you that during a Subscription Term: (1) the subscribed Software Service will, in the aggregate, perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (2) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that Mindbody will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. Mindbody will have no obligation with respect to a warranty claim under this Section 9.2 unless notified by you in writing no later than 30 days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services.

9.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDBODY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. MINDBODY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 9.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH MINDBODY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE "MINDBODY PARTIES").

10. Indemnification

10.1 You agree to indemnify, defend, and hold harmless the Mindbody Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (1) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement or any matters for which you are responsible under the Agreement; (2) any access to or use of the Services by you, an Affiliate or End User; (3) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; (4) any dispute between you and another party regarding ownership of or access to Your Data; (5) goods and services provided by you or any of your Affiliates, or as to any of your facilities, including but not limited to any claims for false advertising, personal injury, death, or property damages; (6) Materials; or (7) actual or alleged violation of laws governing marketing, messaging, privacy, or electronic communications, including without limitation the Telephone Consumer Protection Act (TCPA), CAN-SPAM Act, GDPR, PECR, or similar laws, in connection with any messages, calls, emails, or other communications sent by you or on your behalf.

10.2 Indemnification Process. You agree to reasonably cooperate with Mindbody Parties in the defense of any indemnified claim, including by providing access to relevant information and personnel. You may not settle any indemnified claim without Mindbody's prior written consent if such settlement imposes any obligation or admission of liability on a Mindbody Party.

11. Limitations and Exclusions of Liability

MINDBODY PARTIES EXPRESSLY DISCLAIM ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY MINDBODY. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY. MINDBODY PARTIES SHALL HAVE NO LIABILITY TO YOU, YOUR AFFILIATES, OR ANY THIRD PARTY, INCLUDING ANY END USER, FOR ANY LOSSES ARISING FROM OR RELATING TO: (1) YOUR GOODS OR SERVICES; (2) YOUR PRICING, PROMOTIONS, POLICIES, OR BUSINESS PRACTICES; (3) YOUR COMMUNICATIONS, MARKETING, OR MESSAGING; (4) YOUR ACTS OR OMISSIONS; OR (5) END USER CLAIMS OR ANY DISPUTE BETWEEN YOU AND AN END USER OR THIRD PARTY. YOU ACKNOWLEDGE THAT MINDBODY PARTIES DO NOT PROVIDE THE UNDERLYING SERVICES OFFERED BY YOU AND DO NOT ASSUME ANY DUTY OR RESPONSIBILITY TO END USERS WITH RESPECT THERETO.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MINDBODY PARTIES' AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR ARISING UNDER STATUTORY OR REGULATORY REGIMES SUCH AS THOSE GOVERNING DATA PROCESSING, SECURITY INCIDENTS, AI-GENERATED OUTPUTS, MESSAGING OR MARKETING COMPLIANCE, OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO THE CLAIM OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO ALL OF THE MINDBODY PARTIES.

IN NO EVENT WILL ANY MINDBODY PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF MINDBODY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. Export Controls

You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to Mindbody that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction. If Mindbody determines in its sole discretion, that you are operating locations in a restricted country, Mindbody may cease to provide services to any locations in any restricted countries upon written notice to you.

13. Intellectual Property Policy

Mindbody respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property Policy accessible at https://www.mindbodyonline.com/company/legal/terms-of-service/intellectual-property-policy (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy.

14. Miscellaneous

14.1 Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of New York without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply.

14.2 Mandatory Informal Dispute Resolution. If you have any dispute with Mindbody arising out of or relating to this Agreement, you agree to notify Mindbody in writing with a brief, written description of the dispute and your contact information, and Mindbody will have 30 days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such 30 day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.

14.3 Mindbody Entity. The information below sets forth the Mindbody entity you have entered into this Agreement with ("Mindbody Entity") depending on where you are domiciled:

14.3.1 If you are domiciled in Australia or New Zealand and their respective territories, the Mindbody Entity is MINDBODY Australia Pty Ltd, an Australian proprietary limited company.

14.3.2 If you are domiciled in the United Kingdom or Isle of Man, the Mindbody Entity is MINDBODY, Ltd., a private limited company registered in England and Wales.

14.3.3 If you are domiciled in the United States and its territories, and all other countries, your Mindbody Entity is MINDBODY, Inc., a Delaware corporation.

14.4 Entire Agreement. This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and Mindbody with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between Mindbody, on the one hand, and you or any Affiliate, on the other hand. The English language version of this Agreement and any notice or other document relating to this Agreement shall prevail if there is a conflict.

14.5 Waiver and Severability. No waiver of any provision of this Agreement by Mindbody will be effective unless in writing and signed by Mindbody. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, void, invalid, or unfair under the applicable law, the provision will be modified by the court and interpreted or severed to the extent necessary so that it is fair and enforceable and so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

14.6 Dissolution. If you or your Affiliate dissolves, liquidates, ceases operations, or sells substantially all of its assets, all amounts owed to Mindbody or its Affiliates shall become immediately due and payable. We retain the right to pursue and collect all such outstanding amounts directly from your successors, assigns, purchasers of your assets, or estate, notwithstanding any dissolution, liquidation, cessation of operations, or asset sale. You agree to provide prompt written notice to Mindbody of any actual or anticipated event of dissolution, liquidation, or asset sale.

14.7 Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without Mindbody's prior written consent. This Agreement shall be binding upon you and your successors, assigns, and, in the event of a corporate transaction, any acquiring entity or surviving entity. Any assignment of this Agreement by you in violation of its terms shall be null and void, and you will remain responsible for the financial commitments hereunder. As a condition of any sale or transfer of a location you own or operate, you shall, prior to such transfer and as a condition of such transfer, cause the transferee to execute an Order Form to be provided by Mindbody (governed by Mindbody's standard Terms of Service at the time, available at such URL as may be provided by Mindbody and updated from time to time) between the transferee and Mindbody. For avoidance of doubt, until a new Order Form with Mindbody is signed by the new owner, the existing Order Form will continue in full force and effect, and you and the new owner shall be jointly and severally liable for your obligations under the Agreement.

Mindbody may assign, transfer or sublicense any or all of Mindbody's rights or obligations under this Agreement without restriction.

14.8 Notices. Any notices provided by Mindbody under this Agreement may be delivered to a Customer entity within the Services or to the email address(es) we have on file for your account. Any notice given by Mindbody under this Agreement to a Customer entity shall be deemed effective notice to, and binding upon you and your Affiliates. You hereby consent to receive notice from Mindbody through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to Mindbody under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to MINDBODY, Inc., Attn: Mindbody Customer Support, 689 Tank Farm Road, Suite 230, San Luis Obispo, CA 93401, with a copy to MINDBODY, Inc., Attn: Mindbody Legal Department, 689 Tank Farm Road, Suite 230, San Luis Obispo, CA 93401 (or such other address we provide) with a copy to [email protected].

14.9 Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party's reasonable control and occurring without that Party's fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Mindbody's or your employees, respectively), outbreaks of disease, pandemics, computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

14.10 Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

14.11 Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency, franchisor-franchisee, or fiduciary relationship between you and Mindbody.

15. Arbitration Agreement

15.1 WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED IN SECTION 15.2 BELOW, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

15.2 Definitions. The term "Dispute" means any dispute, claim, or controversy between you and Mindbody Parties regarding any aspect of your relationship with Mindbody Parties, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced.

15.3 Pre-Arbitration Dispute Resolution. Before initiating any Dispute, whether in court or arbitration, you must first give Mindbody Parties an opportunity to resolve the Dispute by mailing written notification (hereinafter, a "Pre-Arbitration Demand") to Mindbody, Legal Department, 689 Tank Farm Road, Suite 230, San Luis Obispo, CA 93401. A Pre-Arbitration Demand is valid only if it pertains to, and is on behalf of, a single individual or entity. A Pre-Arbitration Demand brought on behalf of multiple individuals and/or entities is invalid as to all. That Pre-Arbitration Demand must include (1) your name, (2) your telephone number, email address (including the email address you provide to us during the registration process and, if applicable, any new email address through which you may be contacted, if different), physical address, and mailing address, if different than your physical address (the address(es) provided must include the address provided during the registration process), (3) a written description of the Dispute, (4) a description of the specific relief you seek, including whatever amount of money is demanded and the means by which you calculated the claimed damages, and (5) the signature of an individual authorized to represent you.

Following your Pre-Arbitration Demand, before you submit a dispute to arbitration, you must engage in good faith in an informal negotiation process, as specified in this paragraph. This informal negotiation must include an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the Dispute between you and Mindbody Parties (the "Conference"). If you are represented by counsel, your counsel may participate in the Conference, but an individual representative for you (other than, or in addition to, outside counsel) will also need to attend and participate. Mindbody Parties will participate in the Conference through one or more representatives, which may include our counsel. Following the informal negotiation, if Mindbody Parties do not resolve the Dispute to your satisfaction within 60 days after it receives your written notification, you may pursue your Dispute in arbitration.

You agree that compliance with this subsection is a condition precedent to commencing arbitration, and that the arbitration administrator or arbitrator shall dismiss any arbitration filed that does not strictly comply with these informal dispute resolution procedures. Notwithstanding any other provision of this Agreement, the party against whom an arbitration has been filed has the right to seek a judicial declaration in court regarding whether the arbitration should be dismissed for failure to comply with the informal dispute resolution process set forth in this subsection.

15.4 Arbitration Procedure. If the Dispute is not resolved as provided above in the Pre-Arbitration Claim Resolution section, either you or Mindbody Parties may initiate arbitration proceedings. The Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-15, including its procedural provisions, and not state law, governs the interpretation and enforcement of this arbitration agreement. JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.

For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. For Disputes brought as part of mass arbitration, the JAMS Mass Arbitration Procedures and Guidelines will apply. In the event that this Arbitration Agreement conflicts with the applicable arbitration rules, this Arbitration Agreement shall govern. Under no circumstances will class action procedures or rules apply to the arbitration. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

15.5 Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing. Such award by the arbitrator will be final and binding on the parties and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

15.6 Authority of Arbitrator. Except as expressly provided herein, the arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Mindbody Parties. Other than as expressly provided in this Arbitration Agreement and the applicable arbitration rules, the Dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum's rules, and the Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator shall award the prevailing party its costs of arbitration, including reasonable attorneys' fees. The award of the arbitrator is final and binding upon you and Mindbody Parties.

15.7 Place of Arbitration. The place of arbitration shall be New York County, New York.

15.8 Settlement Offers and Offers of Judgment. At least ten (10) calendar days before the date set for an arbitration hearing with respect to a Dispute, you or we may serve a written offer of judgment on the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitrator, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days after it is made, whichever is first, it shall be deemed withdrawn and cannot be given as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover its post-offer costs and shall pay the offering party's costs (including all fees paid to the arbitral forum) from the time of the offer.

15.9 Class Action Waiver. Any Disputes arising out of or relating to your use of Mindbody Parties' services, Third Party Offerings, and/or Customer status, End Users, your Order Forms (if any), and/or this Agreement (including the formation, performance, or alleged breach), shall be submitted individually by you and will not be subject to any class action or representative status. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action). Neither you, nor any other member of Mindbody Parties and/or user of Mindbody Parties' services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding with respect to the matters set forth in the first sentence of this paragraph. You agree that this Class Action Waiver is material and essential to the arbitration of any dispute between you and Mindbody Parties and is non-severable from the Arbitration Agreement. If any portion of this Class Action Waiver is limited, voided, or cannot be enforced, then the Arbitration Agreement shall be null and void. You understand that by agreeing to this Class Action Waiver, you may only pursue Disputes against Mindbody Parties in an individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.

15.10 Arbitration Agreement Severability. If any clause within this Arbitration Agreement, other than the Class Action Waiver clause above, is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable and the Dispute will be decided by a court of competent jurisdiction.

15.11 Continuation. This Arbitration Agreement shall survive the termination or cessation of your use of Mindbody Parties' services, your Customer status, your Order Forms (if any), and/or your use of the Website.

16. Supplemental Terms for Franchisors

If you are a Franchisor, notwithstanding any language to the contrary, the following additional terms apply to you:

16.1 Specific Franchisor Representations, Warranties, and Covenants. You represent, warrant, and covenant that: (1) you have and will maintain all necessary rights, consents, and approvals from your Affiliates, Franchisees, and any other applicable third parties, to enter into and perform your obligations under this Agreement and to authorize Mindbody to do so; (2) you have the full right and authority to mandate Franchisee acquisition and use of the applicable services on the pricing and other terms herein; and (3) no provision of this Agreement conflicts with or violates any agreement between you and any Franchisee, Affiliate, or third party, or violates franchise or other applicable law. You and each Affiliate shall be jointly and severally liable to Mindbody Parties for all acts, omissions, and obligations of you, Franchisees, and Affiliates under the Agreement, as if such acts, omissions, or obligations were your own. Without limiting the foregoing, you assume and guarantee the full and timely performance of all obligations arising under the Agreement with respect to all Franchisees and Affiliates, including, without limitation, any breach of the Agreement, violation of applicable law, or misuse of any services. We may enforce the Agreement directly against you and/or the applicable Affiliate without any requirement to first pursue or join any Franchisee or Affiliate. For avoidance of doubt, "you" as used throughout this Agreement includes you and each Affiliate unless specifically noted otherwise.

16.2 Franchisee Information. We may share certain Franchisee information with you and Franchisees, including by granting you access to Franchisee accounts or other Mindbody systems or tools through which Franchisee information is displayed or accessible. You represent, warrant, and covenant that: (1) you will only use the Franchisee information to the extent authorized in the agreements between you and Franchisees setting forth your right to use the Franchisee information and under applicable law; (2) you have and will maintain all necessary rights and consents from Franchisees to receive Franchisee information as provided under this Agreement (including, without limitation, via any account or system access we provide); and (3) we are authorized, pursuant to your agreements with Franchisees, to provide the Franchisee information directly to Franchisees and to you on behalf of all Franchisees as set forth herein. You are solely responsible for all actions taken by you or your personnel within any Mindbody account, system, or tool to which we grant you access. You acknowledge that we have no obligation to review, validate, or prevent such actions.

16.3 Specific Indemnification. You agree to resolve directly with Franchisees and Affiliates, and shall release, defend, indemnify, and hold harmless the Mindbody Parties from and against, all claims, lawsuits, investigations, actions, penalties, damages, losses, and expenses (including reasonable attorneys' fees) (collectively, "Losses") arising out of or relating to: (1) our provision of any Franchisee information to you or Franchisees, or your or Franchisees' use of such Franchisee information; (2) our provision of any payment to you or your use of such funds; (3) any other claim brought by any Franchisee or Affiliate (including its affiliated and related entities, or its successor entities); (4) any allegation that this Agreement or any obligation, term, or provision herein (or performance thereof) violates, conflicts with, or is otherwise inconsistent with or not authorized under an applicable franchise agreement between you and any Franchisee(s), or violates franchise or other applicable law; (5) your agreements with, or policies or practices with respect to, Franchisees, your affiliated and related entities, or your successor entities; (6) any action taken by us pursuant to the terms of this Agreement; (7) our actions or omissions in accordance with your instructions, requests, or approvals; (8) any withholding, offset, deduction, delay, adjustment, allocation, or other treatment of amounts payable to or for the benefit of any Franchisee, or any setting of or adjustment to Franchisee pricing, rates, fees, or charges, or any rebate, credit, or other financial benefit provided to you, to the extent undertaken at your direction, request, or approval, or as required or permitted under this Agreement or any other agreement between us and you; and/or (9) your breach of any representation, warranty, or covenant hereunder. Our rights and your duties with respect to indemnification, defense, and process shall be as set forth in this Agreement. Your obligations under this section will continue in full force and effect after any termination or expiration of this Agreement. The Mindbody Parties make no representations or warranties and have no indemnification responsibilities to you or any other entity or individual in relation to the items that are within the scope of your indemnification obligations, and/or your, a Franchisee's, or any third party's noncompliance with applicable law, acts or omissions, goods, services, materials, or facilities.

16.4 Franchisee and End User Communications. You must notify all Affiliates and Franchisees that Mindbody is the exclusive supplier of the Services and ensure that each Franchisee signs the relevant Payment Services Addendum(s) and completes other required onboarding for their location(s). You shall have primary responsibility for communicating all relevant details of this Agreement to your Affiliates and Franchisees, including but not limited to, information about the Services, fees and other charges, pricing, rebates, custom development work, and policies and procedures. You will ensure the utilization of and payment for Mindbody's Services outlined in this Agreement. Mindbody shall have no limitations in communicating with Franchisees and their End Users about updates to Mindbody systems, platforms, the Services, changes in Mindbody policy or procedures, or actions intended to seek to prevent or limit potential Mindbody liability under this Agreement or applicable law.

17. Supplemental Terms for Franchisees

If you are a franchisee, notwithstanding any language to the contrary, we may have or enter an agreement with your Franchisor, the following additional terms shall apply to you, and we shall have the following rights in addition to any other rights stated in the Agreement:

17.1 If applicable per your Franchisor instructions, approval, or an agreement between us and your Franchisor, you authorize Mindbody to make payments owed to you hereunder to your Franchisor. You agree that Mindbody is not liable for payouts paid to your Franchisor, including any amounts withheld by (or on behalf of) your Franchisor from payments owed to you or pricing agreed by your Franchisor, rebates, credits, or other financial benefits provided to your Franchisor, delays in your receipt of payment from your Franchisor, or any other issues relating to such payments;

17.2 If applicable per your Franchisor instructions or an agreement between us and your Franchisor, you authorize Mindbody to adjust your pricing, rates, fees, and/or other charges anytime without prior notice to you (in addition to any other adjustment rights set forth in the applicable agreements);

17.3 You authorize Mindbody to provide Franchisor with information, for example, relating to your venues' use of Mindbody's services and Your Data (the "Franchisee Information"). Mindbody makes no commitment with respect to Franchisor's use of the Franchisee Information and does not control any such use;

17.4 You authorize us to comply with other policies and instructions of your Franchisor; and

17.5 You agree to resolve directly with your Franchisor and release and waive any and all claims and Losses against Mindbody Parties that arise out of or relate to: this Section; your Franchisor; amounts paid to your Franchisor (including any amounts withheld by or on behalf of your Franchisor from payments owed to you, your pricing, or rebates or other financial benefits provided to your Franchisor, delays in your receipt of payment from your Franchisor, or any other issues relating to such payments); any setting or adjustment of your pricing, rates, fees, or charges, to the extent undertaken at your Franchisor's direction, request, or approval, or as required or permitted under any agreement between us and your Franchisor; any agreement between you and your Franchisor or practice or policy of your Franchisor; sharing of Franchisee Information with your Franchisor; violation of franchise law; and/or the agreement between Mindbody and your Franchisor.

18. Definitions

For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:

18.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with you or that has been designated to receive Services under this Agreement. "Control" for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. Your "Affiliates" also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.

18.2 "Aggregated Data" means anonymized, de-identified, or aggregated data derived by or through the operation of the Services that is created by or on behalf of Mindbody in compliance with applicable laws and that does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.

18.3 "API" means Mindbody's application programming interface that is described at https://developers.mindbodyonline.com/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time, and any subsequent application programming interfaces that are developed and made available by Mindbody to interact with or otherwise be used in connection with the Services.

18.4 "Apps" means any mobile applications through which Mindbody makes the Software Service available, including, but not limited to, the Mindbody business app and the Mindbody branded mobile app. "Apps" excludes the Mindbody App.

18.5 "Booker" means the various products and/or services described at https://www.mindbodyonline.com/business/booker (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.

18.6 "Cardholder Data" means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.

18.7 "Card Updater" means the Software Service feature that facilitates automatic updates to outdated credit card information for participating payment cards.

18.8 "Mindbody Revenue Guarantee" means our guarantee relating to the revenue you earn from Mindbody as defined more fully in the Mindbody Revenue Guarantee Terms.

18.9 "Confidential Information" means (1) any software utilized by Mindbody in the provision of the Services and its respective source code; (2) each Party's business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as "confidential" or "proprietary" or the receiving Party knows or should reasonably know is confidential or proprietary; and (3) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document.

18.10 "Documentation" means online user guides, documentation, and help and training materials, as may be updated by Mindbody from time to time, accessible at the applicable Website(s), and any other materials provided by Mindbody as part of the Services.

18.11 "End User" means a business or individual that schedules or purchases products or services from you through the Services, that you market to, communicate with, or target through the Services, or that otherwise interacts with you through the Services, or that you authorize to use the Services in connection with your business.

18.12 "End User Data" means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users.

18.13 "FitMetrix" means the various products and/or services described at https://www.fitmetrix.io/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.

18.14 "Franchise Fees Tool" means the Service which enables you to collect funds from a Franchisee and/or Affiliate.

18.15 "Franchisee" means any entity that is bound by a franchise agreement with a franchisor. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.

18.16 "Franchisor" means a franchisor, an Affiliate thereof, or an entity designated by a franchisor or its Affiliate to act on its behalf.

18.17 "HIPAA" means the Health Insurance Portability and Accountability Act, as amended and supplemented.

18.18 "Locked" means prices for services that you purchase in your Order Form and are specifically designated as "Locked" therein. Prices for services you have elected not to purchase or that are not identified in the Order Form; prices for free, trial, or beta services; and interchange rates, regulatory costs, and third-party fees (such as telecommunications/SMS carrier fees and surcharges, app store fees, cloud, bandwidth, storage costs, and regulatory assessments) are not Locked.

18.19 "Mindbody Account" means a universal End User account managed by Mindbody that may be used by an End User as a single-sign-on option to authenticate and transact across multiple businesses using the Services, and across Services provided by Mindbody directly to End Users.

18.20 "Mindbody App" means https://www.mindbodyonline.com/explore/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time as well as the consumer-facing, downloadable mobile app made available by Mindbody and known as the "Mindbody App" (and its successor products), which allows consumers to use their mobile devices to find, book and pay for the services of participating Mindbody subscribing businesses.

18.21 "Mindbody Marks" means all service marks, logos and product and service names used, applied for, registered, or otherwise owned by Mindbody and its affiliates.

18.22 "Order Form" means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable Software fees (or if the Services are free), and other terms as agreed to between the Parties. If the Agreement indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.

18.23 "Partner Store" means the Mindbody partner store which provides you the ability to search Third Party Offerings. The Mindbody Partner Store is accessible at https://integrations.mindbodyonline.com/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.

18.24 "PCI DSS" means 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.

18.25 "Professional Services" means Mindbody's supplemental, fee-based technical support services described at https://www.mindbodyonline.com/business/technical-account-management (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.

18.26 "Privacy Policy" means the Mindbody Privacy Policy accessible at https://www.mindbodyonline.com/company/legal/privacy-policy (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.

18.27 "Services" means the Software Service, FitMetrix, Website, Apps, hardware and other services. "Services" excludes Third Party Offerings and our Mindbody App.

18.28 "Software Service" is defined in the Introduction.

18.29 "Third Party Offerings" means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.

18.30 "Virtual Wellness Platform" or "VWP" means the Mindbody virtual wellness platform which provides you the ability to upload video on demand and live stream video offerings for use by consumers using the Mindbody App, Branded Mobile App, and/or such other platforms as designated by Mindbody.

18.31 "Website" means https://www.mindbodyonline.com/; or https://www.fitmetrix.io/; or https://www.mindbodyonline.com/business/booker, (or such other URLs as specified or provided by Mindbody), as may be updated by Mindbody from time to time and any other websites through which Mindbody makes the Software Service available.

18.32 "Your Data" means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data (and your or their representative's data), but excludes Aggregated Data.