Software Service Agreement

MINDBODY SOFTWARE SERVICE AGREEMENT (SSA)

EXECUTING THIS AGREEMENT:

This AGREEMENT is entered into as of the EFFECTIVE DATE by and between MINDBODY, INC. ("MINDBODY", "We", "Our" or "Us"), a California corporation, and a business or individual ("SUBSCRIBER", "You" or "Your"), collectively referred hereinafter as the PARTIES. MINDBODY provides its Services to SUBSCRIBERS through its website located at https://clients.mindbodyonline.com (the "User Website"), whose use is subject to these Terms.

BY ACCESSING, VIEWING OR USING ALL OR ANY PART OF THE MINDBODY SERVICES OR SITE, OR DOWNLOADING ANY MATERIALS, OR BY COMPLETING ANY REGISTRATION PROCESS VIA THE USER WEBSITE, YOU ARE ACCEPTING THE TERMS OF THE MINDBODY SOFTWARE SERVICE (SSA) AGREEMENT ("AGREEMENT"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES OR CONTENT.

If you do not receive a RECIEPT from MINDBODY Inc. via a separate email in connection with this AGREEMENT within 15 days, please contact the MINDBODY Customer Service Team at (877) 755-4279 before accessing or using the SOFTWARE SERVICE, defined below.

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

Article I - Definitions

  1. AUTOMATED CLEARING HOUSE ("ACH") shall mean the electronic network for financial transactions in the United States, which is used in BUSINESS MODE to process consumer payments directly from their bank checking accounts. This is referred to outside the United States by other terms, such as "PAP" and "DDA".
  2. BUSINESS MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE as an administrative user to input, review, and maintain SUBSCRIBER DATA, including information for public view by SUBSCRIBER's customers in CONSUMER MODE.
  3. CARDHOLDER DATA shall mean credit card numbers, expiration dates, billing addresses, and cardholder names of SUBSCRIBER's customers.
  4. COMPILED DATA shall mean a portion of SUBSCRIBER DATA, excluding CARDHOLDER DATA, aggregated with data obtained from other MINDBODY subscribers for the purposes of, among other things, producing indices, statistics, summaries, and industry reports for use by MINDBODY subscribers. COMPILED DATA shall not reveal proprietary or identifying information about SUBSCRIBER or SUBSCRIBER's customers.
  5. CONFIDENTIAL INFORMATION shall have the meaning provided in Article VII.
  6. CONSUMER MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE to enable SUBSCRIBER to publicly display SUBSCRIBER PUBLIC DATA, such as class and appointment schedules, and products and services on SUBSCRIBER's website.
  7. EFFECTIVE DATE shall mean the earlier of (i) two (2) weeks from the date of purchase of the SOFTWARE SERVICE or (ii) the first date on which SUBSCRIBER uses SOFTWARE SERVICE, unless separately arranged between the parties in writing.
  8. ENTRY LICENSE shall mean a non-exclusive, non-transferable right to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT.
  9. INTEGRATED MERCHANT ACCOUNT shall mean an optional service that allows the SOFTWARE SERVICE to process credit card and ACH payments.
  10. MINDBODY CONNECT SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit E that enables consumers to search for,  find schedule and pay for SUBSCRIBER classes, appointments, and other services via internet search and mobile devices other than those operated by SUBSCRIBER.
  11. MINDBODY ANALYTICS SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit F that gives MINDBODY SUBSCRIBER's access to COMPILED DATA in BUSINESS MODE.
  12. MONTHLY SUBSCRIPTION FEE shall mean the monthly fee for the SOFTWARE SERVICE as set forth in the RECEIPT.
  13. ONSITE TRAINING shall mean training provided by MINDBODY to SUBSCRIBER at SUBSCRIBER's facilities for an additional fee. ONSITE TRAINING is only available in certain geographical areas, as determined by MINDBODY in its sole discretion. PCI DSS shall mean the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
  14. PRACTITIONER shall mean any service professional whose services are listed by SUBSCRIBER in the SOFTWARE SERVICE. 
  15. PREMIUM ACCOUNT COORDINATOR (PAC) shall mean a member of the MINDBODY Premium Services Team certified by MINDBODY to provide optional Premium Support as defined in Exhibit G of this AGREEMENT.
  16. PREMIUM SERVICES SCREEN shall mean a screen accessible inside BUSINESS MODE that describes optional services that SUBSCRIBER may add onto their SOFTWARE SERVICE, and enables SUBSCRIBER to opt in or out of those services.
  17. RECEIPT shall mean the receipt received by SUBSCRIBER via email at the time SUBSCRIBER received this AGREEMENT describing the SOFTWARE SERVICE and MONTHLY SUBSCRIPTION FEE.
  18. STARTUP TRAINING shall mean live training provided by a MINDBODY professional trainer to SUBSCRIBER while SUBSCRIBER is in the process of implementing the SOFTWARE SERVICE. Such training is delivered via telephone and optional Internet link.
  19. REPRESENTATIVES shall have the meaning provided in Article VII.
  20. SCHEDULED MAINTENANCE shall mean periodic planned SOFTWARE SERVICE as may be necessary from time to time to maintain optimum system performance, and which are announced in advance by MINDBODY.
  21. SERVICES shall mean optional offerings available from MINDBODY such as data imports, supplemental trainings, and other services not required to use SOFTWARE SERVICE.
  22. SOFTWARE SERVICE shall mean the MINDBODY SOFTWARE SERVICE identified in the RECEIPT as the service purchased by SUBSCRIBER subject to this AGREEMENT, and is priced according to the quantity and size of SUBSCRIBER business units and locations. The SOFTWARE SERVICE includes any users guide, multimedia content, and relevant documentation made available through the SOFTWARE SERVICE and MINDBODY's website, and any other materials provided to SUBSCRIBER by MINDBODY pursuant to this AGREEMENT.
  23. SUBSCRIBER'S CUSTOMERS shall mean the businesses or individuals scheduling and purchasing products and services from SUBSCRIBER.
  24. SUBSCRIBER DATA shall mean any data stored by SUBSCRIBER on MINDBODY's host computer system using the SOFTWARE SERVICE, including CARDHOLDER DATA entered by SUBSCRIBER using the SOFTWARE SERVICE. This data is the sole property of SUBSCRIBER and shall be held confidential by MINDBODY in accordance with the terms and conditions of Article VII of this Agreement.
  25. SUBSCRIBER PUBLIC DATA shall mean that portion of SUBSCRIBER DATA that SUBSCRIBER wishes to display in CONSUMER MODE and/or in the MINDBODY CONNECT SERVICE, such as class and appointment schedules, and products and services for sale to consumers.
  26. SUBSCRIPTION TERM means the period for which the SUBSCRIBER uses the SOFTWARE SERVICES until either party   terminates SUBSCRIBER'S right to use the SOFTWARE SERVICES in accordance with Article XI of this Agreement. 

Article II - Description of SOFTWARE SERVICE

1.     Operation, Maintenance, and Security of SOFTWARE SERVICE

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

2.      Ownership, Maintenance and Use of SUBSCRIBER DATA

    1. SUBSCRIBER DATA is owned by the person(s) identified during the acceptance of this AGREEMENT. Further, the person(s) who provides payment for the SOFTWARE SERVICE and other services may or may not be the owner of SUBSCRIBER DATA. In the event of an ownership dispute, MINDBODY, at its sole discretion, reserves the right to restrict access to the SOFTWARE SERVICE solely for the purpose of resolving such ownership dispute. SUBSCRIBER agrees that it is their responsibility to provide proper documentation to MINDBODY in order to resolve any ownership dispute. SUBSCRIBER further agrees that MINDBODY has no responsibility to determine proper ownership in the event of an ownership dispute.
    2. Subject to the provisions of Article II, 5 below, SUBSCRIBER shall own SUBSCRIBER DATA at all times.
    3. SUBSCRIBER is solely responsible for the operation and maintenance of BUSINESS MODE and CONSUMER MODE, including, but not limited to all SUBSCRIBER DATA entered in BUSINESS MODE and SUBSCRIBER PUBLIC DATA that appears publicly in CONSUMER MODE. SUBSCRIBER shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA. SUBSCRIBER warrants to MINDBODY that SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA does not violate applicable law or the rights of any third party.
    4. SUBSCRIBER may enable or disable public access to SUBSCRIBER PUBLIC DATA in CONSUMER MODE and in the MINDBODY CONNECT SERVICE by activating various check box controls in BUSINESS MODE. For assistance in these settings, SUBSCRIBER may contact the MINDBODY Customer Service Team at (877) 755-4279.

3.     Security of CARDHOLDER DATA

    1. MINDBODY expressly disclaims any and all liability for SUBSCRIBER's handling of CARDHOLDER DATA. MINDBODY recommends that when handling CARDHOLDER DATA, SUBSCRIBER follow the requirements of the PCI DSS. In connection with SUBSCRIBER's use of the SOFTWARE SERVICE, SUBSCRIBER shall follow the Cardholder Data Recommended Practices attached hereto as Exhibit B, as may be updated from time to time.
    2. MINDBODY is responsible for storing and protecting the CARDHOLDER DATA within SUBSCRIBER DATA only when:
      1. Such data has been properly entered by SUBSCRIBER in the encrypted fields provided in the SOFTWARE SERVICE in accordance with the PCI DSS in BUSINESS MODE or by SUBSCRIBER'S CUSTOMERS in CONSUMER MODE;
      2. Such data is encrypted and received by MINDBODY's server(s).

4.     Access to SUBSCRIBER DATA

    1. SUBSCRIBER may download portions of the SUBSCRIBER DATA directly from the SOFTWARE SERVICE in Microsoft Excel format by using the reporting and exporting tools provided by MINDBODY within the SOFTWARE SERVICE.
    2. SUBSCRIBER is responsible for maintaining the security of any copy of the SUBSCRIBER DATA received pursuant to this Article II, 4.
    3. SUBSCRIBER, at its option, may grant any trusted third party access to the SUBSCRIBER DATA by delivering to MINDBODY a copy of a signed authorization as provided in Exhibit C.

5.      MINDBODY ANALYTICS - Ownership and Access to COMPILED DATA

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

Article III- Other Services

  1. The following SERVICES are included in the fees set forth in Article IV, 1:
    1. Data Import. SUBSCRIBER may elect in writing to MINDBODY to have MINDBODY import SUBSCRIBER's CUSTOMERS names and contact information upon startup of the SOFTWARE SERVICE. This election must be made within thirty (30) days of the EFFECTIVE DATE. If SUBSCRIBER makes this election, then the following will apply:
      1. MINDBODY will provide a one-time importation of SUBSCRIBER'S CUSTOMERS names, notes and contact information from any single open database format, including, but not limited to .txt, .xls, and .csv.
      2. SUBSCRIBER will provide MINDBODY with its customer names and contact information in an open, unlocked, un-password protected format within thirty (30) days of the EFFECTIVE DATE.
    2. MINDBODY will provide STARTUP TRAINING sessions not to exceed the following durations per business location identified in the RECEIPT:
      1. One (1) Thirty (30) minute Discovery call;
      2. One (1) Fifty (50) minute software setup training;
      3. Unlimited online webinar training sessions;
      4. Two (2) Thirty (30) minute Check in calls;
  2. Additional Fee Based Services. The following services may be available to SUBSCRIBER at an additional fee. SUBSCRIBER may contact MINDBODY for further information.
    1. Data Importation of Transactional Histories

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

    1. Supplemental Training
      1. In the event that SUBSCRIBER wishes to have any STARTUP TRAINING in addition to such training provided pursuant to Article III, 1, b, such additional STARTUP TRAINING may be provided to SUBSCRIBER at an additional charge based on MINDBODY's hourly rates in effect at the time of such additional STARTUP TRAINING. These fees are subject to change at any time.
      2. In the event that SUBSCRIBER wishes to have ONSITE TRAINING at SUBSCRIBER's facility, such training may be provided at MINDBODY's discretion at a fee to be agreed upon at the time of purchase.

Article IV - Payment

  1. Fees & Payment Options
    1. The SUBSCRIBER shall provide to MINDBODY by the  Effective Date, valid, up-to-date and complete  payment information which shall be provided in at least one (1) of the following forms: credit card, checking account, or approved purchase order, all of which must be in a format that is acceptable to MINDBODY, and any other relevant valid, up-to-date and complete contact and billing details.  The following conditions shall apply to each selected payment option:  
      1. Credit card – the SUBSCRIBER hereby authorizes MINDBODY to bill such credit card:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect to the Initial SUBSCRIPTION TERM; and
        2. subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable;
      2. Checking account – the SUBSCRIBER hereby authorizes MINDBODY  to collect the MONTHLY SUBSCRIPTION FEES via automatic ACH payment from SUBSCRIBER's checking account:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and
        2. subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable;
      3. Purchase order -  MINDBODY shall invoice the SUBSCRIBER:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and
        2. subject to Article XI, at least 30 days prior to each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable.

2.     Changes in Fees. MINDBODY reserves the right to change the MONTHLY SUBSCRIPTION FEE if SUBSCRIBER wishes to manage additional business units and/or locations beyond those specified on the RECEIPT.  In addition, if there is an increase in the number of PRACTITIONERS providing services at any location, the subscription fee charged to that location by MB is subject to increase according to the pricing structure in effect at that time and on each anniversary of the EFFECTIVE DATE, provided that MINDBODY shall give SUBSCRIBER at least thirty (30) days advance written notice of any change in such fees.

  1. Payment Terms. All amounts set forth in this article shall be due and payable when specified in this AGREEMENT. Any payment not received within thirty (30) days of the applicable due date shall be considered a breach of this AGREEMENT and MINDBODY shall be entitled to terminate this AGREEMENT as provided below, and to deactivate SUBSCRIBER's account with MINDBODY. In the event that MINDBODY deactivates SUBSCRIBER's account for late payment and MINDBODY decides to reactivate such account at SUBSCRIBER's request, SUBSCRIBER shall pay MINDBODY a one hundred and fifty dollar ($150) reactivation fee per SUBSCRIBER location prior to any such reactivation.
  1. Taxes. MINDBODY 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 whatsoever (collectively, "Taxes"). SUBSCRIBER is responsible for paying all Taxes associated with SUBSCRIBER purchases hereunder. If MINDBODY has the legal obligation to pay or collect Taxes for which SUBSCRIBER is responsible under this Section (IV), MINDBODY will invoice the SUBSCRIBER for payment unless a valid tax exemption certificate authorized by the appropriate taxing authority is provided. For clarity, MINDBODY is solely responsible for taxes assessable against MINDBODY based on income, property and employees.

Article V - Intellectual Property

  1. MINDBODY Intellectual Property. MINDBODY shall have sole and exclusive ownership of all right, title, and interest in and to:
    1. The SOFTWARE SERVICE (including any MINDBODY provided images, photographs, animations, video, audio, music, text, and applets);
    2. All derivatives, modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to SUBSCRIBER herein by MINDBODY;
    3. The COMPILED DATA. This AGREEMENT does not provide SUBSCRIBER with title or ownership of the SOFTWARE SERVICE, the COMPILED DATA, or any components thereof, but only a right of limited use as specified in Article VI.
  2. SUBSCRIBER Intellectual Property. SUBSCRIBER shall have sole and exclusive ownership of all right, title, and interest in all SUBSCRIBER DATA.
  3. The MINDBODY mark, the MINDBODY logo and the MINDBODYONLINE url are trademarks of MINDBODY Inc., Copyright © 2013, all rights reserved.  No part of this Agreement or any content on the MINDBODY website may be copied for any purpose without the express written permission of MINDBODY.
  4. WARNING.  NO TRESPASSING - This SITE is maintained by MINDBODY and is intended for the exclusive use and benefit of MINDBODY, its customers, prospective customers, authorized partners, vendors, prospective vendors, employees and prospective employees (collectively, the "Authorized Persons").  No other persons are authorized to visit or enter the User Website for any purpose.  All information contained on the SOFTWARE SERVICE is proprietary to MINDBODY and usage thereof shall be subject to an ENTRY LICENSE granted by MINDBODY. Persons entering the SOFTWARE SERVICE, whether authorized or not, shall be deemed to have automatically accepted the terms and conditions of the ENTRY LICENSE at the time of initial entry.   If any unauthorized person attempts to visit or enter the SOFTWARE SERIVE, they shall be deemed to be trespassing on the SOFTWARE SERVICE and be liable for damages, etc. resulting therefrom.  Notwithstanding anything in ENTRY LICENSE to the contrary, no person, authorized or not, shall be entitled to copy, extract, "scrape," decompile, or otherwise use information, etc. located on or contained in the SOFTWARE SERVICE unless they  enter into a limited license (the "Limited License").  Violation of the provisions of the foregoing licenses shall constitute, among other offenses, trespass, breach of contract, and entry of a computer without authority with the intent to cause damage.

Article VI - License

  1. Rights Granted. In addition to the limited license granted by MINDBODY to SUBSCRIBER as to the use of the COMPILED DATA provided in Article II, 5 above, MINDBODY grants SUBSCRIBER an ENTRY LICENSE to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT. MINDBODY grants SUBSCRIBER'S CUSTOMERS the right to use the CONSUMER MODE to schedule classes, to make purchases of SUBSCRIBER's products and services, and for any other use that MINDBODY shall make available using the CONSUMER MODE in the future.
    1. SUBSCRIBER acknowledges and agrees that the SOFTWARE SERVICE is licensed on a per SUBSCRIBER basis, and the rights of any licensed user to access and/or utilize the SOFTWARE SERVICE may not be shared between SUBSCRIBER and any third party or used by any third party, except as otherwise authorized by SUBSCRIBER in accordance with the terms and conditions contained in attached Exhibit C.
  2. Limitation on Rights Granted. MINDBODY reserves all rights not expressly granted herein.
  3. Restrictions. SUBSCRIBER shall not, in whole or in part, directly or indirectly: (a) reverse engineer, disassemble, decompile, translate, reproduce, modify, alter or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure or organization of the SOFTWARE SERVICE or reduce the SOFTWARE SERVICE to a human-perceivable form; (b) remove any copyright notices, logos, identification or any other proprietary notices from the SOFTWARE SERVICE; (c) make any change to the SOFTWARE SERVICE or create any derivative works thereof; or (d) publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the SOFTWARE SERVICE or any part thereof.

Article VII - Confidentiality

  1. CONFIDENTIAL INFORMATION. For the purposes of this Article VII, CONFIDENTIAL INFORMATION shall include the SOFTWARE SERVICE, the SUBSCRIBER DATA, and any accompanying or related documentation. CONFIDENTIAL INFORMATION does not include information which is:
    1. Developed by the non-disclosing party independently of the disclosing party as supported by the non-disclosing party's written records;
    2. Rightfully obtained without restriction by the non-disclosing party from a third party;
    3. At the time of disclosure or thereafter becomes publicly available other than through the fault or negligence of the non-disclosing party;
    4. Released without restriction by the disclosing party to anyone including the U.S. Government as supported by the non-disclosing party's written records; and
    5. Known to the non-disclosing party at the time of disclosure as supported by the non-disclosing party.
  2. Protection of CONFIDENTIAL INFORMATION
    1. During the term of this AGREEMENT and for a period of five (5) years after its termination or expiration, the PARTIES agree they shall not disclose any of the CONFIDENTIAL INFORMATION in any manner whatsoever, except as provided in subparagraphs (b) and (c) below, and shall hold and maintain the CONFIDENTIAL INFORMATION in strictest confidence.
    2. A party may disclose CONFIDENTIAL INFORMATION to such party's directors, officers, employees, agents; and financial, legal, other advisors and affiliates (collectively, REPRESENTATIVES) with a bona fide need to know such CONFIDENTIAL INFORMATION, but only to the extent necessary to evaluate or carry out the terms of this AGREEMENT and only if such REPRESENTATIVES are advised of the confidential nature of such CONFIDENTIAL INFORMATION and the terms of this AGREEMENT and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such CONFIDENTIAL INFORMATION. Further, the PARTIES acknowledge and agree that nothing in this Article VII shall prohibit the collection, compilation and distribution of any COMPILED DATA by MINDBODY in accordance with Article II, 5 of this AGREEMENT.
    3. A party may disclose CONFIDENTIAL INFORMATION if and to the extent that such disclosure is required by court order, provided that such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
    4. The CONFIDENTIAL INFORMATION is being disclosed to the PARTIES and the PARTIES receive the CONFIDENTIAL INFORMATION solely for the purpose stated herein and specifically agree not to use the CONFIDENTIAL INFORMATION for any other purpose.

Article VIII - Interoperability Requirements

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

2.     Technical Requirements. The communications and network interoperability for the SOFTWARE SERVICE require a high-speed Internet connection, modern web browser, and modern smartphone and modern computer. Click below for the computing requirement details: https://support.mindbodyonline.com/forums/20609782-Computer-Requirements

Article IX - Limited Warranty/Limitation on Liability

  1. SOFTWARE SERVICE Warranty
    1. To qualify for the MINDBODY SOFTWARE SERVICE warranty, SUBSCRIBER must maintain a subscription for a minimum of 12 months. 
    2. MINDBODY warrants that the SOFTWARE SERVICE shall be 99.9% available twenty-four (24) hours per day, seven (7) days per week, three-hundred and sixty-five (365) days per year. This translates to eight (8) hours and forty-five (45) minutes of unplanned outage time as measured over 12 months, and in accordance with Article IX. Our server inventory will be expanded to accommodate the SUBSCRIBER's progressive data expansion. Hardware expansion will keep up with the needs of SUBSCRIBER so that the SUBSCRIBER's site performance will not be slowed by either the SUBSCRIBER's data expansion or the addition of new subscribers to the MINDBODY servers.
    3. If the cumulative service level for the SOFTWARE SERVICE drops below 99.9% for any 12 month period, as measured from the EFECTIVE DATE of service  and revisited on each 12 month anniversary of the EFFECTIVE DATE, MINDBODY will credit SUBSCRIBER with additional complimentary service to be used in the following year of service, according to the following schedule:
      1. 98% - 99.8% availability of SOFTWARE SERVICE - one (1) free month of service;
      2. 95% - 97.9% availability of SOFTWARE SERVICE - two (2) free months of service;
      3. 90% - 94.9% availability of SOFTWARE SERVICE - six (6) free months of service; and
      4. Less than 90% availability of SOFTWARE SERVICE - twelve (12) free months of service.
    4. In order to receive any credit of free service pursuant to this Article IX, SUBSCRIBER shall notify MINDBODY in writing no later thirty (30) days after the end of the 12 month anniversary of the EFFECTIVE DATE in which the availability of the SOFTWARE SERVICE fell below the warranted level of SUBSCRIBER's intent to collect the free service related to such shortcoming in availability during the following year of service. To the extent MINDBODY does not receive timely notice from SUBSCRIBER as provided in this paragraph,
      1. MINDBODY shall have no further obligation to provide SUBSCRIBER any free service; and
      2. SUBSCRIBER shall be deemed to have waived and released MINDBODY as to any and all claims related to its use or non-use of the SOFTWARE SERVICE as to the applicable contract year.
    5. SUBSCRIBER shall not receive any credit or refund under this Article IX in connection with any failure or deficiency caused by or associated with any of the following:
      1. Circumstances beyond MINDBODY's reasonable control, including, but not limited to, war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus, or denial of service attacks;
      2. Major telecommunications or Internet failure outside of MINDBODY's control;
      3. Acts or omissions of SUBSCRIBER, its employees, or its agents, including, without limitation, custom scripting or coding, any negligence, willful misconduct, or use of the SOFTWARE SERVICE outside the scope of this AGREEMENT; and
      4. SCHEDULED MAINTENANCE conducted between the hours of 9 PM and 9 AM in the Pacific Standard Time Zone and SUBSCRIBER is notified at least forty-eight (48) hours in advance of such SCHEDULED MAINTENANCE.
  2. MINDBODY functionality that requires nightly scripts (e.g. automatic e-mails, generation of automatic payments, batch settlement of INTEGRATED MERCHANT ACCOUNT transactions and maintenance on expired series) will finish by midnight of their scheduled date. If any of the MINDBODY nightly scripts do not finish by midnight of their scheduled date, then MINDBODY will notify the SUBSCRIBER of the delay and forecasted completion date of the nightly scripts via email. SUBSCRIBER understands and acknowledges that the timely and successful completion of these scripts is, in part, dependent on third parties including payment processors and that MINDBODY cannot provide any assurances as to the reliability and functionality of any third party processes.
  3. DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE, THE SOFTWARE SERVICE IS PROVIDED AS IS AND WITH ALL FAULTS. NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY MINDBODY WITH RESPECT TO THE SOFTWARE SERVICE OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND MINDBODY EXPRESSLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF MINDBODY.
  4. LIMITATION OF LIABILITY
    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION, OR SECURITY, OR SIMILAR ECONOMIC LOSS, LOSS OF PRIVACY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MINDBODY BE LIABLE FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
    3. IN NO EVENT SHALL MINDBODY'S LIABILITY UNDER ANY CLAIM MADE BY SUBSCRIBER EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY SUBSCRIBER IN THE CURRENT CONTRACT YEAR. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF:
      1. THE TERMINATION OR EXPIRATION OF THIS AGREEMENT; OR
      2. THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
    4. SUBSCRIBER AND SUBSCRIBER'S CUSTOMERS ACKNOWLEDGE AND AGREE THAT:
      1. TRANSMITTING CARDHOLDER DATA ON THE INTERNET MAY INVOLVE CERTAIN SECURITY RISKS; AND
      2. ABIDING BY THE CARDHOLDER DATA BEST PRACTICES STANDARD PROVIDED IN ATTACHED EXHIBIT B MAY REDUCE THESE RISKS. MINDBODY'S SERVER(S) PROVIDE A SECURE, ENCRYPTED ENVIRONMENT FOR CARDHOLDER DATA; PROVIDED, HOWEVER, THAT MINDBODY SHALL ONLY BE RESPONSIBLE FOR THE SECURITY OF CARDHOLDER DATA UPON THE ENCRYPTION AND RECEIPT OF THE CARDHOLDER DATA BY MINDBODY'S SERVER(S). MINDBODY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, AS A RESULT OF THE TRANSMISSION OF THE CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY MINDBODY'S SERVER(S), INCLUDING BUT NOT LIMITED TO DAMAGES, FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT OR INVASION OF PRIVACY.
  5. Use of Trademark
    1. SUBSCRIBER agrees to indemnify and hold MINDBODY, its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of SUBSCRIBER's breach of this AGREEMENT, SUBSCRIBER's violation of any law, or SUBSCRIBER's violation of the rights of a third party, including the infringement by SUBSCRIBER of any intellectual property or other right of any person or entity. These obligations will survive any termination of the terms of this AGREEMENT.
    2. SUBSCRIBER hereby authorizes MINDBODY to list SUBSCRIBER as a subscriber of MINDBODY on MINDBODY'S website, and include SUBSCRIBER's name and trademarks in MINDBODY's public directories and the MINDBODY CONNECT SERVICE. MINDBODY will provide SUBSCRIBER with the ability to remove SUBSCRIBER's name, information, and trademark from these public directories at any time. SUBSCRIBER assumes sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by SUBSCRIBER or which SUBSCRIBER is authorized to use or display. If MINDBODY receives notice or documentation demonstrating that another person or entity contests SUBSCRIBER's right to use or display a name, trademark, service mark or other content, MINDBODY may, in its sole discretion, reject or discontinue listing SUBSCRIBER on the MINDBODY website without liability to SUBSCRIBER or MINDBODY until such time as SUBSCRIBER has resolved that dispute with the other party to MINDBODY's satisfaction.
    3. MINDBODY does not make it its responsibility to monitor the use of trademarks, copyrights or other rights of SUBSCRIBER or third parties. MINDBODY may, however, in appropriate circumstances and in MINDBODY's sole discretion, remove, suspend, terminate access, or take other appropriate action against subscribers who infringe the copyright rights of others. Therefore, if SUBSCRIBER reasonably believes that any materials on MINDBODY's website contain unauthorized reproductions of SUBSCRIBER's copyrighted work or trademarks, and SUBSCRIBER wants MINDBODY to take any action, then SUBSCRIBER must provide the following information to MINDBODY (as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512)):
      1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
      2. Identification of the copyrighted work claimed to have been infringed;
      3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MINDBODY to locate the material;
      4. Information reasonably sufficient to permit MINDBODY to contact SUBSCRIBER, such as an address, telephone number and e-mail address;
      5. A statement that SUBSCRIBER has a good faith belief that the use of the material in the manner complained of is not authorized by the owner, its agent or the law; and
      6. A statement that the information in the notice is accurate, and under penalty of perjury, that SUBSCRIBER is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
      7. Please e-mail this information to privacy@mindbodyonline.com.

Article X - Cancellation and Refund Policy

  1. SUBSCRIBER has thirty (30) days from the date of purchase to determine that the SOFTWARE SERVICE does not meet its needs. If SOFTWARE SERVICE does not meet the SUBSCRIBER's needs, then the SUBSCRIBER must notify MINDBODY in writing within thirty (30) days from the EFFECTIVE DATE that SUBSCRIBER wishes to terminate the SOFTWARE SERVICE provided hereunder and receive a refund of the corresponding fee paid by SUBSCRIBER, less the cost of any SERVICES provided prior to such cancellation based on MINDBODY's fees in effect at the time of such cancellation.
  2. If the SERVICES are provided free of charge during the thirty (30) day evaluation period (described in Article X, 1 above), to allow SUBSCRIBER to evaluate and test it before paying MINDBODY's current fees, MINDBODY enforces a strict no refund policy after the expiration of the initial thirty (30) day period.
  3. Current MINDBODY Fees. For the purposes of this Article X, MINDBODY's current fees may be found at https://purchase.mindbodyonline.com/. These fees are subject to change at any time.

Article XI - Term / Termination

  1. Term. The Term of this agreement commences on the EFFECTIVE DATE and shall continue on a month to month basis until terminated by either party in accordance with the terms contained in Article XI, section 2.  
  2. Termination. SUBSCRIBER may terminate this AGREEMENT for any reason by providing advance written notice via email to ClientCare@mindbodyonline.com at least 30 days prior to the EFFECTIVE DATE of the termination.   MINDBODY may terminate this AGREEMENT for any reason by providing notice to the SUBSCRIBER'S email address on file at the time with at least 30 days notice prior to the termination date.
  3. Termination for Cause. In the event of a data breach or default of this AGREEMENT by SUBSCRIBER, MINDBODY shall have the right to immediately terminate this AGREEMENT without notice. In the event of any breach or default of this AGREEMENT by MINDBODY, SUBSCRIBER shall have the right to terminate this AGREEMENT by giving thirty (30) days written notice to MINDBODY; provided, however, that MINDBODY shall have the right to cure said reason for the termination during the thirty (30) day notice period, and in the event of a cure by MINDBODY, said termination shall be null and void and this AGREEMENT shall remain in full force and effect. SUBSCRIBER will not have the right to cancel any portion of this AGREEMENT and/or receive a refund pursuant to Article X if SUBSCRIBER has breached this AGREEMENT.
  4. Data Portability and Deletion. Upon the termination of this AGREEMENT by either party, the SUBSCRIBER may:
    1. Perform a Free Data Download. Within 30 days after the EFFECTIVE DATE of termination, SUBSCRIBERS are permitted to download a FREE copy of current SUBSCRIBER DATA, except for CARDHOLDER DATA via the reporting feature of the SOFTWARE SERVICE. Support documentation explaining the use of this self-service feature can be found at https://support.mindbodyonline.com/categories/20033412-reports.
    2. Request an Assisted Data Download. For a Fee, the SUBSCRIBER may request MINDBODY provide a copy of SUBSCRIBER DATA, to include CARDHOLDER DATA via a PCI-DSS approved secure file transfer method within five (5) business days of such request.

Upon the 31st day after the EFFECTIVE DATE of the termination, MINDBODY will have no further obligation to maintain or provide SUBSCRIBERS DATA, and will thereafter delete and/or destroy all copies of SUBSCRIBER DATA in MINDODY's systems or otherwise in MINDBODY's possession or control, unless legally prohibited.

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

Article XII - Indemnity

  1. The PARTIES agree to indemnify, defend, and hold each other, their officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from:
    1. The operation, maintenance, and content of the SOFTWARE SERVICE;
    2. SUBSCRIBER's use of the SOFTWARE SERVICE;
    3. Failure by SUBSCRIBER to comply with any applicable privacy laws; and
    4. Any breach of this AGREEMENT by the PARTIES.
  2. SUBSCRIBER shall indemnify, defend, and hold MINDBODY, its officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from access to or use or misuse of the SUBSCRIBER DATA and/or the CARDHOLDER DATA by SUBSCRIBER, its REPRESENTATIVES, or affiliates. This Article XII shall survive the termination of this AGREEMENT.

Article XIII - Miscellaneous

  1. Governing Law. This AGREEMENT will be interpreted in accordance with the laws of the State of California, including all matters of construction, validity, performance, and enforcement, without giving effect to any principles of conflict of laws.
  2. Dispute Resolution. Any action to enforce or interpret this AGREEMENT, or to resolve disputes with respect to this AGREEMENT, shall be settled by arbitration in accordance with California Code of Civil Procedure Sections 1280 through 1294.2 and any successor provisions thereto. The provisions of California Code of Civil Procedure Section 1283.05 regarding the right to take depositions and obtain discovery shall apply to the arbitration. Arbitration shall be the exclusive dispute resolution process. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be in the County of San Luis Obispo, California. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
  3. Assignment and Assumption. This AGREEMENT may not be assigned by SUBSCRIBER without the prior written consent of MINDBODY, which may be withheld at MINDBODY's sole discretion. MINDBODY may require any proposed assignee of this AGREEMENT to enter into a new written agreement with MINDBODY. MINDBODY may assign this AGREEMENT to any person or entity, and thereafter be relieved of all liability hereunder.
  4. Notices
    1. All notices, requests, demands, and other communications shall be validly given if delivered in person, facsimile transmission, sent by electronic mail, or forwarded by registered or certified mail addressed to the other party at the address provided in the signature block of this AGREEMENT, unless such party has notified the other party of a substitute contact information in writing pursuant to this article.
    2. Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
  5. Relationship. The PARTIES shall do business at their own risk and for their own profit. Nothing in this AGREEMENT shall constitute a partnership or agency relationship between SUBSCRIBER and MINDBODY or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.
  6. Government Regulations. SUBSCRIBER shall at its own expense comply with all laws, ordinances, rules, regulations and other requirements of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of this AGREEMENT.
  7. Severability. If any of the provisions of this AGREEMENT shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the other portions of this AGREEMENT shall remain in full force and effect.
  8. Force Majeure. No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, terrorist attack, civil unrest, labor unrest, or shortage of or inability to obtain material as equipment.
  9. The failure of either party to enforce at any time or for any period of time, the provisions hereof in accordance with their terms will not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.
  10. No Third Party Beneficiary. The benefits and protection provided by this AGREEMENT shall inure solely to the benefit of the PARTIES. This AGREEMENT shall not be deemed to create any right in any person or entity who is not a party to this AGREEMENT and shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party unless specified in Exhibit C.
  11. Questions. All questions and requests for customer service and/or technical support should be directed to MINDBODY Customer Service Team at 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401. If SUBSCRIBER is within the US and Canada, call toll free (877) 755-4279. If calling from outside the United States and Canada, SUBSCRIBER may call 1-(805) 476-2700. Email: Support@mindbodyonline.com.

Exhibit A - Maintenance and Security of SUBSCRIBER DATA

  1. MINDBODY hosts SUBSCRIBER DATA at multiple secure and redundant data centers in geographically diverse locations. Each data center is secured and monitored 24x7x365 by a staff of highly trained data center facility experts. The primary data center features:
    1. SSAE 16 Type II, Type III Compliant systems and processes
      1. Zone 4 earthquake-rated reinforced structure
      2. Multiple redundant, enterprise switching hardware at every stage;
      3. A monitoring system providing real-time data on equipment operation, enabling instant identification of problems.
      4. Multiple paralleled N+1 UPS modules configured in redundant systems allow for A/B power configuration.
      5. 20 megawatts of expandable N+1 power backup utilizing Caterpillar diesel generators.
      6. Very Early Smoke Detection Alarm (VESDA) early smoke detection with pre-action dry pipe fire suppression systems.
      7. Multiple fiber route entrances to building.
      8. Access control systems leveraging biometric scan and personal identification number (PIN), with separate locks for all MINDBODY server cabinets, and
      9. The backup data center features the same facility specifications as the primary data center. The backup data center receives a backup of subscriber data at least once per rolling 24 hour period. During normal conditions, this data is available for read only access and report downloading by SUBSCRIBER, via the URL https://backup.mindbodyonline.com.
  1. Security Provisions
    1. Personal Security
      1. MINDBODY technical or management personnel with access to SUBSCRIBER DATA are subjected to background checks prior to hiring, and must sign non-disclosure and data security agreements that protect both MINDBODY and SUBSCRIBER DATA.
      2. Physical access to the primary data center and the backup data center is restricted by 24x7 on-site security and Network Operations Center (NOC) staff. The facility is controlled by alarm systems with cameras on perimeter points of the building along with video and camera surveillance within facility. Multi-level access authorization with man trap, biometric verification and security controlled access level assignments are used to verify a limited number of MINDBODY authorized personnel who have been granted access.
      3. MINDBODY personnel are not permitted to transfer SUBSCRIBER DATA onto any hard drive or storage device, except those contained within either the primary data center or backup data center. SUBSCRIBER DATA is not transferred to MINDBODY corporate workstations.
    2. Data Security
      1. All SUBSCRIBER DATA is located on secure servers, or backup directories that require access authentication.
      2. All secure servers are protected by multiple, redundant firewalls and intrusion detection and prevention systems that are regularly monitored and tested (details of firewall configuration are not shared publicly for maximum security).
      3. 256-bit Secure Sockets Layer (SSL) data encryption is employed to protect all data access across the Internet.
    3. PCI-DSS

MINDBODY complies with the PCI DSS tier 1 standard, and MINDBODY has continued to maintain Level 1 service provider designation since 2007. MINDBODY is dedicated to the six (6) PCI DSS best security practices for credit card protection:

      1. Maintaining a Secure network;
        1. Protecting the Cardholder data;
        2. Maintaining a Vulnerability Management Program;
        3. Implementing Strong Access Control Measures;
      2. Monitoring and Testing Production and Development Networks;
      3. Maintaining an Information Security Program and Policies
      4. McAfee SECURE PCI Certification Service - Delivers accurate vulnerability scanning and actionable reporting, that enables the MINDBODY NOC to quickly rank risks and gauge compliance against industry standards such as PCI. Vulnerability Assessment monitors the MINDBODY network perimeter against daily threats to help protect MINDBODYONLINE and MINDBODY CONNECT, our brand, and our customers from hackers, data breaches, adware, spyware, pop-ups, browser exploits, and phishing attempts.
    1. Data Privacy

MINDBODY is committed to protecting the privacy of individuals who visit MINDBODY's websites ("Visitors"), individuals who register to use the Services as defined in Article I- Definitions ("Subscribers"), and individuals who register to attend the Company's corporate events ("Attendees"). The MINDBODY Privacy Policy, a copy of which is located at www.mindbodyonline.com/privacy-policy, covers our collection, use and disclosure of information we collect through our websites, www.mindbodyfinder.com and www.mindbodyonline.com, our software as a service MINDBODY and our mobile applications MINDBODY Connect and Express Business, (collectively referred to in this Policy as our "Digital Properties"). The use of information collected through our Digital Properties shall be limited to the purpose of providing the service(s) for which you have engaged MINDBODY. We will share your personal information with third parties only in the ways that are described in this privacy statement.

MINDBODY's full Privacy Policy contains more information about MINDBODY's Site privacy practices.

MINDBODY is a certified licensee of the TRUSTe Web Privacy Seal. The Company is also a certified licensee of the TRUSTe EU Safe Harbor Seal and abides by the EU Safe Harbor Framework.

    1. HIPAA

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

MINDBODY will not disclose Protected Health Information, as defined by applicable law, other than as permitted or required by the AGREEMENT or as required by law;

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

Exhibit B - CARDHOLDER DATA Best Practices

  1. Any merchant who accepts Visa, MasterCard, American Express, or Discover credit cards for payment is subject to the Payment Card Industry Data Security Standard (PCI DSS), which outlines credit card processing merchants' responsibilities for the protection of CARDHOLDER DATA. If SUBSCRIBER uses MINDBODY's integrated merchant account processing service, MINDBODY is responsible for protecting CARDHOLDER DATA only after it is properly uploaded and encrypted into SUBSCRIBER DATA by the SOFTWARE SERVICE. SUBSCRIBER remains responsible for the proper handling and protection of CARDHOLDER DATA up to the point that it is properly uploaded and encrypted by the SOFTWARE SERVICE.
  2. MINDBODY hereby refers SUBSCRIBER to the PCI DSS website, for a complete list of all rules and restrictions that may apply: https://www.pcisecuritystandards.org/.
  3. At a minimum, MINDBODY recommends that SUBSCRIBER implement the practices set forth below:
    1. SUBSCRIBER should do the following:
      1. Maintain updated anti-virus software on all workstations engaged in credit card processing and remove any programs that the anti-virus software flags as potentially malicious.
      2. Restrict permission to install software on those computers to SUBSCRIBER business owner and/or trusted senior staff.
      3. Maintain up-to-date versions of operating systems (e.g., Microsoft Windows or Macintosh OS) and web browsers (e.g., Internet Explorer, Safari or Firefox), with all security updates and patches installed.
      4. Ensure that every individual that logs into the SOFTWARE SERVICE has a unique username and password that is known only by that individual.
      5. Only store credit card account numbers in encrypted credit card fields designed for that purpose in the SOFTWARE SERVICE system.
      6. Destroy any hard copy documents that have CARDHOLDER DATA written on them.
    2. SUBSCRIBER should not do the following:
      1. Record CARDHOLDER DATA in notes, contact logs, or other unencrypted text fields within the SOFTWARE SERVICE;
      2. Record CARDHOLDER DATA in any locally installed software program, unless that program and SUBSCRIBER's computer network meet all PCI requirements;
      3. Email SUBSCRIBER'S CUSTOMERS credit card numbers, or ask them to email their credit card numbers to SUBSCRIBER; or
      4. Record credit card track data.

Exhibit C - Granting Third Party Access of SUBSCRIBER DATA

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

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

Exhibit D - ACH Services

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

Exhibit E - MINDBODY CONNECT SERVICE Agreement

  1. The use of information collected through the MINDBODY CONNECT SERVICE shall be limited to the purpose of providing the service(s) for which was engaged and is detailed in the MINDBODY Privacy Policy.
  2. The MINDBODY CONNECT SERVICE aggregates SUBSCRIBER PUBLIC DATA, including schedules, availabilities, descriptions and pricing, thereby enabling consumers to find SUBSCRIBER services via internet search and mobile devices.
  3. SUBSCRIBER's agreement to participate in this service is assumed at the time of execution of this Agreement.
  4. SUBSCRIBER may opt out of the MINDBODY CONNECT SERVICE at any time during the duration of this AGREEMENT by accessing the business information page under the MINDBODY CONNECT tab.
  5. If SUBSCRIBER opts out of the MINDBODY CONNECT SERVICE, they may not participate in the MINDBODY CONNECT SERVICE detailed in Exhibit F.

Exhibit F - MINDBODY ANALYTICS SERVICE Agreement

  1. MINDBODY ANALYTICS SERVICE grants SUBSCRIBER access to COMPILED DATA.
  2. To subscribe to MINDBODY ANALYTICS, SUBSCRIBER shall:
    1. Agree to conditions found in this exhibit, and indicate such agreement in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
    2. Agree to the payment options found in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
  3. SUBSCRIBER understands that MINDBODY ANALYTICS has been developed with the investment of significant time, effort, materials, and expense by MINDBODY and that MINDBODY ANALYTICS provides SUBSCRIBER and other MINDBODY subscribers with significant, unique competitive business advantage.
  4. Nondisclosure
    1. SUBSCRIBER agrees to cite MINDBODY as the source anytime SUBSCRIBER discloses MINDBODY ANALYTICS data or analysis in reports, articles, or other derivative works authored by SUBSCRIBER. For instructions on how to cite MINDBODY ANALYTICS contact MINDBODY ANALYTICS Department at 1 (877) 755-4279. For SUBSCRIBERS outside the US and Canada, call 1 (805) 476-2700.
    2. SUBSCRIBER will not sell, lease, rent, license, copy, alter, modify, disassemble, reverse engineer or decompile MINDBODY ANALYTICS without the prior written consent of a duly authorized representative from MINDBODY. Any violation of this confidentiality can result in instant termination of MINDBODY SOFTWARE SERVICE or MINDBODY ANALYTICS.

Exhibit G - "PREMIUM SUPPORT"

  1. SUBSCRIBER may OPT-IN for PREMIUM SUPPORT by accessing the PREMIUM SERVICES SCREEN in BUSINESS MODE.
  2. If SUBSCRIBER OPTS-IN for PREMIUM SUPPORT, then the RECEIPT emailed to SUBSCRIBER will specify the premium support level purchased, and SUBSCRIBER and SUBSCRIBER's employees may continue to receive SERVICES listed in Article II and Article III, 2.
  3. PREMIUM SUPPORT consists of account management, project management and software configuration consultation to deploy MINDBODY software and related services provided by an assigned Premium Account Coordinator ("PAC"), who coordinates services provided at option levels detailed on this website page: https://www.mindbodyonline.com/professional-services/premium-services.

MINDBODY Premium Account Coordinator ("PAC")

    1. A PAC is a senior and highly certified member of the MINDBODY Premium Services team assigned to SUBSCRIBER, if SUBSCRIBER has OPTED-IN for PREMIUM SUPPORT.
    2. The PAC is provided a direct business line and a MINDBODY internal instant messaging account, which may be used by SUBSCRIBER to communicate with PAC in lieu of telephone and email.
    3. If SUBSCRIBER opts for Gold Level Premium Support, then the PAC will also be provided with a MINDBODY mobile phone, enabling after hours communication.
    4. Premium Support SUBSCRIBER will designate a single point of contact to provide consistent communications and direction to the PAC.
    5. When the designated Single Point of Contact is not available, other SUBSCRIBER employees may contact the MINDBODY PAC for urgent matters, if previously arranged.
    6. The PAC is obligated only to provide support to SUBSCRIBER and SUBSCRIBER's regular employees. The scope of any desired PAC consultation to third parties (e.g., SUBSCRIBER's consultants, accountants, developers, etc.) must be specified in writing and be arranged for in advance with the PAC.
  1. SUBSCRIBERS dissatisfied with their PAC may request a new PAC at any time by contacting MINDBODY Premium Services, who will provide a new PAC within thirty (30) days.
  2. PREMIUM SUPPORT Contracts
    1. PREMIUM SUPPORT Contracts will be a minimum of three (3) month duration, and are paid monthly. PREMIUM SUPPORT will continue month-to-month until SUBSCRIBER provides a 30 day notice to their PAC of their desire to discontinue PREMIUM SUPPORT.
    2. Only one premium support fee per business entity applies. Premium Support does not vary according to the number or size of active SUBSCRIBER business locations served.
  3. Receiving Premium Support
    1. Business Hours Support shall be that support provided during the assigned PAC's normal working hours (e.g., 8 AM - 5 PM Pacific Time), and shall be accrued in fifteen (15) minute increments. For Gold PREMIUM SUPPORT Contracts, after hours support shall be accrued in thirty (30) minute increments. If SUBSCRIBER's allocation of PAC Support Hours is exceeded in any billing month, additional hours will be billed in sixty (60) minute increments.
    2. Allocated Premium Support hours depicted in the matrix above are per rolling month, and must be expended during that month. Unused hours do not roll over to subsequent months.
    3. Instant Message Support counts towards the monthly support in fifteen (15) minute increments. SUBSCRIBER will see the entire MINDBODY Premium Account Coordinators Group and will be asked to only contact their assigned PAC for non-urgent questions. However, they may instant message any available PAC to request Premium Support for urgent matters.

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

MINDBODY SOFTWARE SERVICE AGREEMENT (SSA)

EXECUTING THIS AGREEMENT:

This AGREEMENT is entered into as of the EFFECTIVE DATE by and between MINDBODY AUSTRALIA PTY Ltd. ("MINDBODY", "We", "Our" or "Us"), and a business or individual ("SUBSCRIBER", "You" or "Your"), collectively referred hereinafter as the PARTIES. MINDBODY provides its Services to SUBSCRIBERS through its website located at https://clients.mindbodyonline.com (the "User Website"), whose use is subject to these Terms.

BY ACCESSING, VIEWING OR USING ALL OR ANY PART OF THE MINDBODY SERVICES OR SITE, OR DOWNLOADING ANY MATERIALS, OR BY COMPLETING ANY REGISTRATION PROCESS VIA THE USER WEBSITE, YOU ARE ACCEPTING THE TERMS OF THE MINDBODY SOFTWARE SERVICE (SSA) AGREEMENT ("AGREEMENT"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES OR CONTENT.

If you do not receive a RECIEPT from MINDBODY AUSTRALIA PTY Ltd. via a separate email in connection with this AGREEMENT within 15 days, please contact the MINDBODY Customer Service Team at (877) 755-4279 before accessing or using the SOFTWARE SERVICE, defined below.

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

Article I - Definitions

  1. AUTOMATED CLEARING HOUSE ("ACH") shall mean the electronic network for financial transactions in the United States, which is used in BUSINESS MODE to process consumer payments directly from their bank checking accounts. This is referred to outside the United States by other terms, such as "PAP" and "DDA".
  2. BUSINESS MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE as an administrative user to input, review, and maintain SUBSCRIBER DATA, including information for public view by SUBSCRIBER's customers in CONSUMER MODE.
  3. CARDHOLDER DATA shall mean credit card numbers, expiration dates, billing addresses, and cardholder names of SUBSCRIBER's customers.
  4. COMPILED DATA shall mean a portion of SUBSCRIBER DATA, excluding CARDHOLDER DATA, aggregated with data obtained from other MINDBODY subscribers for the purposes of, among other things, producing indices, statistics, summaries, and industry reports for use by MINDBODY subscribers. COMPILED DATA shall not reveal proprietary or identifying information about SUBSCRIBER or SUBSCRIBER's customers.
  5. CONFIDENTIAL INFORMATION shall have the meaning provided in Article VII.
  6. CONSUMER MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE to enable SUBSCRIBER to publicly display SUBSCRIBER PUBLIC DATA, such as class and appointment schedules, and products and services on SUBSCRIBER's website.
  7. EFFECTIVE DATE shall mean the earlier of (i) two (2) weeks from the date of purchase of the SOFTWARE SERVICE or (ii) the first date on which SUBSCRIBER uses SOFTWARE SERVICE, unless separately arranged between the parties in writing.
  8. ENTRY LICENSE shall mean a non-exclusive, non-transferable right to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT.
  9. INTEGRATED MERCHANT ACCOUNT shall mean an optional service that allows the SOFTWARE SERVICE to process credit card and ACH payments.
  10. MINDBODY CONNECT SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit E that enables consumers to search for,  find schedule and pay for SUBSCRIBER classes, appointments, and other services via internet search and mobile devices other than those operated by SUBSCRIBER.
  11. MINDBODY ANALYTICS SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit F that gives MINDBODY SUBSCRIBER's access to COMPILED DATA in BUSINESS MODE.
  12. MONTHLY SUBSCRIPTION FEE shall mean the monthly fee for the SOFTWARE SERVICE as set forth in the RECEIPT.
  13. ONSITE TRAINING shall mean training provided by MINDBODY to SUBSCRIBER at SUBSCRIBER's facilities for an additional fee. ONSITE TRAINING is only available in certain geographical areas, as determined by MINDBODY in its sole discretion. PCI DSS shall mean the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
  14. PRACTITIONER shall mean any service professional whose services are listed by SUBSCRIBER in the SOFTWARE SERVICE. 
  15. PREMIUM ACCOUNT COORDINATOR (PAC) shall mean a member of the MINDBODY Premium Services Team certified by MINDBODY to provide optional Premium Support as defined in Exhibit G of this AGREEMENT.
  16. PREMIUM SERVICES SCREEN shall mean a screen accessible inside BUSINESS MODE that describes optional services that SUBSCRIBER may add onto their SOFTWARE SERVICE, and enables SUBSCRIBER to opt in or out of those services.
  17. RECEIPT shall mean the receipt received by SUBSCRIBER via email at the time SUBSCRIBER received this AGREEMENT describing the SOFTWARE SERVICE and MONTHLY SUBSCRIPTION FEE.
  18. STARTUP TRAINING shall mean live training provided by a MINDBODY professional trainer to SUBSCRIBER while SUBSCRIBER is in the process of implementing the SOFTWARE SERVICE. Such training is delivered via telephone and optional Internet link.
  19. REPRESENTATIVES shall have the meaning provided in Article VII.
  20. SCHEDULED MAINTENANCE shall mean periodic planned SOFTWARE SERVICE as may be necessary from time to time to maintain optimum system performance, and which are announced in advance by MINDBODY.
  21. SERVICES shall mean optional offerings available from MINDBODY such as data imports, supplemental trainings, and other services not required to use SOFTWARE SERVICE.
  22. SOFTWARE SERVICE shall mean the MINDBODY SOFTWARE SERVICE identified in the RECEIPT as the service purchased by SUBSCRIBER subject to this AGREEMENT, and is priced according to the quantity and size of SUBSCRIBER business units and locations. The SOFTWARE SERVICE includes any users guide, multimedia content, and relevant documentation made available through the SOFTWARE SERVICE and MINDBODY's website, and any other materials provided to SUBSCRIBER by MINDBODY pursuant to this AGREEMENT.
  23. SUBSCRIBER'S CUSTOMERS shall mean the businesses or individuals scheduling and purchasing products and services from SUBSCRIBER.
  24. SUBSCRIBER DATA shall mean any data stored by SUBSCRIBER on MINDBODY's host computer system using the SOFTWARE SERVICE, including CARDHOLDER DATA entered by SUBSCRIBER using the SOFTWARE SERVICE. This data is the sole property of SUBSCRIBER and shall be held confidential by MINDBODY in accordance with the terms and conditions of Article VII of this Agreement.
  25. SUBSCRIBER PUBLIC DATA shall mean that portion of SUBSCRIBER DATA that SUBSCRIBER wishes to display in CONSUMER MODE and/or in the MINDBODY CONNECT SERVICE, such as class and appointment schedules, and products and services for sale to consumers.
  26. SUBSCRIPTION TERM means the period for which the SUBSCRIBER uses the SOFTWARE SERVICES until either party   terminates SUBSCRIBER'S right to use the SOFTWARE SERVICES in accordance with Article XI of this Agreement. 

Article II - Description of SOFTWARE SERVICE

1.     Operation, Maintenance, and Security of SOFTWARE SERVICE

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

2.      Ownership, Maintenance and Use of SUBSCRIBER DATA

    1. SUBSCRIBER DATA is owned by the person(s) identified during the acceptance of this AGREEMENT. Further, the person(s) who provides payment for the SOFTWARE SERVICE and other services may or may not be the owner of SUBSCRIBER DATA. In the event of an ownership dispute, MINDBODY, at its sole discretion, reserves the right to restrict access to the SOFTWARE SERVICE solely for the purpose of resolving such ownership dispute. SUBSCRIBER agrees that it is their responsibility to provide proper documentation to MINDBODY in order to resolve any ownership dispute. SUBSCRIBER further agrees that MINDBODY has no responsibility to determine proper ownership in the event of an ownership dispute.
    2. Subject to the provisions of Article II, 5 below, SUBSCRIBER shall own SUBSCRIBER DATA at all times.
    3. SUBSCRIBER is solely responsible for the operation and maintenance of BUSINESS MODE and CONSUMER MODE, including, but not limited to all SUBSCRIBER DATA entered in BUSINESS MODE and SUBSCRIBER PUBLIC DATA that appears publicly in CONSUMER MODE. SUBSCRIBER shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA. SUBSCRIBER warrants to MINDBODY that SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA does not violate applicable law or the rights of any third party.
    4. SUBSCRIBER may enable or disable public access to SUBSCRIBER PUBLIC DATA in CONSUMER MODE and in the MINDBODY CONNECT SERVICE by activating various check box controls in BUSINESS MODE. For assistance in these settings, SUBSCRIBER may contact the MINDBODY Customer Service Team at (877) 755-4279.

3.     Security of CARDHOLDER DATA

    1. MINDBODY expressly disclaims any and all liability for SUBSCRIBER's handling of CARDHOLDER DATA. MINDBODY recommends that when handling CARDHOLDER DATA, SUBSCRIBER follow the requirements of the PCI DSS. In connection with SUBSCRIBER's use of the SOFTWARE SERVICE, SUBSCRIBER shall follow the Cardholder Data Recommended Practices attached hereto as Exhibit B, as may be updated from time to time.
    2. MINDBODY is responsible for storing and protecting the CARDHOLDER DATA within SUBSCRIBER DATA only when:
      1. Such data has been properly entered by SUBSCRIBER in the encrypted fields provided in the SOFTWARE SERVICE in accordance with the PCI DSS in BUSINESS MODE or by SUBSCRIBER'S CUSTOMERS in CONSUMER MODE;
      2. Such data is encrypted and received by MINDBODY's server(s).

4.     Access to SUBSCRIBER DATA

    1. SUBSCRIBER may download portions of the SUBSCRIBER DATA directly from the SOFTWARE SERVICE in Microsoft Excel format by using the reporting and exporting tools provided by MINDBODY within the SOFTWARE SERVICE.
    2. SUBSCRIBER is responsible for maintaining the security of any copy of the SUBSCRIBER DATA received pursuant to this Article II, 4.
    3. SUBSCRIBER, at its option, may grant any trusted third party access to the SUBSCRIBER DATA by delivering to MINDBODY a copy of a signed authorization as provided in Exhibit C.

5.      MINDBODY ANALYTICS - Ownership and Access to COMPILED DATA

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

Article III- Other Services

  1. The following SERVICES are included in the fees set forth in Article IV, 1:
    1. Data Import. SUBSCRIBER may elect in writing to MINDBODY to have MINDBODY import SUBSCRIBER's CUSTOMERS names and contact information upon startup of the SOFTWARE SERVICE. This election must be made within thirty (30) days of the EFFECTIVE DATE. If SUBSCRIBER makes this election, then the following will apply:
      1. MINDBODY will provide a one-time importation of SUBSCRIBER'S CUSTOMERS names, notes and contact information from any single open database format, including, but not limited to .txt, .xls, and .csv.
      2. SUBSCRIBER will provide MINDBODY with its customer names and contact information in an open, unlocked, un-password protected format within thirty (30) days of the EFFECTIVE DATE.
    2. MINDBODY will provide STARTUP TRAINING sessions not to exceed the following durations per business location identified in the RECEIPT:
      1. One (1) Thirty (30) minute Discovery call;
      2. One (1) Fifty (50) minute software setup training;
      3. Unlimited online webinar training sessions;
      4. Two (2) Thirty (30) minute Check in calls;
  2. Additional Fee Based Services. The following services may be available to SUBSCRIBER at an additional fee. SUBSCRIBER may contact MINDBODY for further information.
    1. Data Importation of Transactional Histories

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

    1. Supplemental Training
      1. In the event that SUBSCRIBER wishes to have any STARTUP TRAINING in addition to such training provided pursuant to Article III, 1, b, such additional STARTUP TRAINING may be provided to SUBSCRIBER at an additional charge based on MINDBODY's hourly rates in effect at the time of such additional STARTUP TRAINING. These fees are subject to change at any time.
      2. In the event that SUBSCRIBER wishes to have ONSITE TRAINING at SUBSCRIBER's facility, such training may be provided at MINDBODY's discretion at a fee to be agreed upon at the time of purchase.

Article IV - Payment

  1. Fees & Payment Options
    1. The SUBSCRIBER shall provide to MINDBODY by the  Effective Date, valid, up-to-date and complete  payment information which shall be provided in at least one (1) of the following forms: credit card, checking account, or approved purchase order, all of which must be in a format that is acceptable to MINDBODY, and any other relevant valid, up-to-date and complete contact and billing details.  The following conditions shall apply to each selected payment option:  
      1. Credit card – the SUBSCRIBER hereby authorizes MINDBODY to bill such credit card:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect to the Initial SUBSCRIPTION TERM; and
        2. subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable;
      2. Checking account – the SUBSCRIBER hereby authorizes MINDBODY  to collect the MONTHLY SUBSCRIPTION FEES via automatic ACH payment from SUBSCRIBER's checking account:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and
        2. subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable;
      3. Purchase order -  MINDBODY shall invoice the SUBSCRIBER:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and
        2. subject to Article XI, at least 30 days prior to each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable.

2.     Changes in Fees. MINDBODY reserves the right to change the MONTHLY SUBSCRIPTION FEE if SUBSCRIBER wishes to manage additional business units and/or locations beyond those specified on the RECEIPT.  In addition, if there is an increase in the number of PRACTITIONERS providing services at any location, the subscription fee charged to that location by MB is subject to increase according to the pricing structure in effect at that time and on each anniversary of the EFFECTIVE DATE, provided that MINDBODY shall give SUBSCRIBER at least thirty (30) days advance written notice of any change in such fees.

  1. Payment Terms. All amounts set forth in this article shall be due and payable when specified in this AGREEMENT. Any payment not received within thirty (30) days of the applicable due date shall be considered a breach of this AGREEMENT and MINDBODY shall be entitled to terminate this AGREEMENT as provided below, and to deactivate SUBSCRIBER's account with MINDBODY. In the event that MINDBODY deactivates SUBSCRIBER's account for late payment and MINDBODY decides to reactivate such account at SUBSCRIBER's request, SUBSCRIBER shall pay MINDBODY a one hundred and fifty dollar ($150) reactivation fee per SUBSCRIBER location prior to any such reactivation.
  1. Taxes. MINDBODY 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 whatsoever (collectively, "Taxes"). SUBSCRIBER is responsible for paying all Taxes associated with SUBSCRIBER purchases hereunder. If MINDBODY has the legal obligation to pay or collect Taxes for which SUBSCRIBER is responsible under this Section (IV), MINDBODY will invoice the SUBSCRIBER for payment unless a valid tax exemption certificate authorized by the appropriate taxing authority is provided. For clarity, MINDBODY is solely responsible for taxes assessable against MINDBODY based on income, property and employees.

Article V - Intellectual Property

  1. MINDBODY Intellectual Property. MINDBODY shall have sole and exclusive ownership of all right, title, and interest in and to:
    1. The SOFTWARE SERVICE (including any MINDBODY provided images, photographs, animations, video, audio, music, text, and applets);
    2. All derivatives, modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to SUBSCRIBER herein by MINDBODY;
    3. The COMPILED DATA. This AGREEMENT does not provide SUBSCRIBER with title or ownership of the SOFTWARE SERVICE, the COMPILED DATA, or any components thereof, but only a right of limited use as specified in Article VI.
  2. SUBSCRIBER Intellectual Property. SUBSCRIBER shall have sole and exclusive ownership of all right, title, and interest in all SUBSCRIBER DATA.
  3. The MINDBODY mark, the MINDBODY logo and the MINDBODYONLINE url are trademarks of MINDBODY Inc., Copyright © 2013, all rights reserved.  No part of this Agreement or any content on the MINDBODY website may be copied for any purpose without the express written permission of MINDBODY.
  4. WARNING.  NO TRESPASSING - This SITE is maintained by MINDBODY and is intended for the exclusive use and benefit of MINDBODY, its customers, prospective customers, authorized partners, vendors, prospective vendors, employees and prospective employees (collectively, the "Authorized Persons").  No other persons are authorized to visit or enter the User Website for any purpose.  All information contained on the SOFTWARE SERVICE is proprietary to MINDBODY and usage thereof shall be subject to an ENTRY LICENSE granted by MINDBODY. Persons entering the SOFTWARE SERVICE, whether authorized or not, shall be deemed to have automatically accepted the terms and conditions of the ENTRY LICENSE at the time of initial entry.   If any unauthorized person attempts to visit or enter the SOFTWARE SERIVE, they shall be deemed to be trespassing on the SOFTWARE SERVICE and be liable for damages, etc. resulting therefrom.  Notwithstanding anything in ENTRY LICENSE to the contrary, no person, authorized or not, shall be entitled to copy, extract, "scrape," decompile, or otherwise use information, etc. located on or contained in the SOFTWARE SERVICE unless they  enter into a limited license (the "Limited License").  Violation of the provisions of the foregoing licenses shall constitute, among other offenses, trespass, breach of contract, and entry of a computer without authority with the intent to cause damage.

Article VI - License

  1. Rights Granted. In addition to the limited license granted by MINDBODY to SUBSCRIBER as to the use of the COMPILED DATA provided in Article II, 5 above, MINDBODY grants SUBSCRIBER an ENTRY LICENSE to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT. MINDBODY grants SUBSCRIBER'S CUSTOMERS the right to use the CONSUMER MODE to schedule classes, to make purchases of SUBSCRIBER's products and services, and for any other use that MINDBODY shall make available using the CONSUMER MODE in the future.
    1. SUBSCRIBER acknowledges and agrees that the SOFTWARE SERVICE is licensed on a per SUBSCRIBER basis, and the rights of any licensed user to access and/or utilize the SOFTWARE SERVICE may not be shared between SUBSCRIBER and any third party or used by any third party, except as otherwise authorized by SUBSCRIBER in accordance with the terms and conditions contained in attached Exhibit C.
  2. Limitation on Rights Granted. MINDBODY reserves all rights not expressly granted herein.
  3. Restrictions. SUBSCRIBER shall not, in whole or in part, directly or indirectly: (a) reverse engineer, disassemble, decompile, translate, reproduce, modify, alter or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure or organization of the SOFTWARE SERVICE or reduce the SOFTWARE SERVICE to a human-perceivable form; (b) remove any copyright notices, logos, identification or any other proprietary notices from the SOFTWARE SERVICE; (c) make any change to the SOFTWARE SERVICE or create any derivative works thereof; or (d) publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the SOFTWARE SERVICE or any part thereof.

Article VII - Confidentiality

  1. CONFIDENTIAL INFORMATION. For the purposes of this Article VII, CONFIDENTIAL INFORMATION shall include the SOFTWARE SERVICE, the SUBSCRIBER DATA, and any accompanying or related documentation. CONFIDENTIAL INFORMATION does not include information which is:
    1. Developed by the non-disclosing party independently of the disclosing party as supported by the non-disclosing party's written records;
    2. Rightfully obtained without restriction by the non-disclosing party from a third party;
    3. At the time of disclosure or thereafter becomes publicly available other than through the fault or negligence of the non-disclosing party;
    4. Released without restriction by the disclosing party to anyone including the U.S. Government as supported by the non-disclosing party's written records; and
    5. Known to the non-disclosing party at the time of disclosure as supported by the non-disclosing party.
  2. Protection of CONFIDENTIAL INFORMATION
    1. During the term of this AGREEMENT and for a period of five (5) years after its termination or expiration, the PARTIES agree they shall not disclose any of the CONFIDENTIAL INFORMATION in any manner whatsoever, except as provided in subparagraphs (b) and (c) below, and shall hold and maintain the CONFIDENTIAL INFORMATION in strictest confidence.
    2. A party may disclose CONFIDENTIAL INFORMATION to such party's directors, officers, employees, agents; and financial, legal, other advisors and affiliates (collectively, REPRESENTATIVES) with a bona fide need to know such CONFIDENTIAL INFORMATION, but only to the extent necessary to evaluate or carry out the terms of this AGREEMENT and only if such REPRESENTATIVES are advised of the confidential nature of such CONFIDENTIAL INFORMATION and the terms of this AGREEMENT and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such CONFIDENTIAL INFORMATION. Further, the PARTIES acknowledge and agree that nothing in this Article VII shall prohibit the collection, compilation and distribution of any COMPILED DATA by MINDBODY in accordance with Article II, 5 of this AGREEMENT.
    3. A party may disclose CONFIDENTIAL INFORMATION if and to the extent that such disclosure is required by court order, provided that such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
    4. The CONFIDENTIAL INFORMATION is being disclosed to the PARTIES and the PARTIES receive the CONFIDENTIAL INFORMATION solely for the purpose stated herein and specifically agree not to use the CONFIDENTIAL INFORMATION for any other purpose.

Article VIII - Interoperability Requirements

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

2.     Technical Requirements. The communications and network interoperability for the SOFTWARE SERVICE require a high-speed Internet connection, modern web browser, and modern smartphone and modern computer. Click below for the computing requirement details: https://support.mindbodyonline.com/forums/20609782-Computer-Requirements

Article IX - Limited Warranty/Limitation on Liability

  1. SOFTWARE SERVICE Warranty
    1. To qualify for the MINDBODY SOFTWARE SERVICE warranty, SUBSCRIBER must maintain a subscription for a minimum of 12 months. 
    2. MINDBODY warrants that the SOFTWARE SERVICE shall be 99.9% available twenty-four (24) hours per day, seven (7) days per week, three-hundred and sixty-five (365) days per year. This translates to eight (8) hours and forty-five (45) minutes of unplanned outage time as measured over 12 months, and in accordance with Article IX. Our server inventory will be expanded to accommodate the SUBSCRIBER's progressive data expansion. Hardware expansion will keep up with the needs of SUBSCRIBER so that the SUBSCRIBER's site performance will not be slowed by either the SUBSCRIBER's data expansion or the addition of new subscribers to the MINDBODY servers.
    3. If the cumulative service level for the SOFTWARE SERVICE drops below 99.9% for any 12 month period, as measured from the EFECTIVE DATE of service  and revisited on each 12 month anniversary of the EFFECTIVE DATE, MINDBODY will credit SUBSCRIBER with additional complimentary service to be used in the following year of service, according to the following schedule:
      1. 98% - 99.8% availability of SOFTWARE SERVICE - one (1) free month of service;
      2. 95% - 97.9% availability of SOFTWARE SERVICE - two (2) free months of service;
      3. 90% - 94.9% availability of SOFTWARE SERVICE - six (6) free months of service; and
      4. Less than 90% availability of SOFTWARE SERVICE - twelve (12) free months of service.
    4. In order to receive any credit of free service pursuant to this Article IX, SUBSCRIBER shall notify MINDBODY in writing no later thirty (30) days after the end of the 12 month anniversary of the EFFECTIVE DATE in which the availability of the SOFTWARE SERVICE fell below the warranted level of SUBSCRIBER's intent to collect the free service related to such shortcoming in availability during the following year of service. To the extent MINDBODY does not receive timely notice from SUBSCRIBER as provided in this paragraph,
      1. MINDBODY shall have no further obligation to provide SUBSCRIBER any free service; and
      2. SUBSCRIBER shall be deemed to have waived and released MINDBODY as to any and all claims related to its use or non-use of the SOFTWARE SERVICE as to the applicable contract year.
    5. SUBSCRIBER shall not receive any credit or refund under this Article IX in connection with any failure or deficiency caused by or associated with any of the following:
      1. Circumstances beyond MINDBODY's reasonable control, including, but not limited to, war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus, or denial of service attacks;
      2. Major telecommunications or Internet failure outside of MINDBODY's control;
      3. Acts or omissions of SUBSCRIBER, its employees, or its agents, including, without limitation, custom scripting or coding, any negligence, willful misconduct, or use of the SOFTWARE SERVICE outside the scope of this AGREEMENT; and
      4. SCHEDULED MAINTENANCE conducted between the hours of 9 PM and 9 AM in the Pacific Standard Time Zone and SUBSCRIBER is notified at least forty-eight (48) hours in advance of such SCHEDULED MAINTENANCE.
  2. MINDBODY functionality that requires nightly scripts (e.g. automatic e-mails, generation of automatic payments, batch settlement of INTEGRATED MERCHANT ACCOUNT transactions and maintenance on expired series) will finish by midnight of their scheduled date. If any of the MINDBODY nightly scripts do not finish by midnight of their scheduled date, then MINDBODY will notify the SUBSCRIBER of the delay and forecasted completion date of the nightly scripts via email. SUBSCRIBER understands and acknowledges that the timely and successful completion of these scripts is, in part, dependent on third parties including payment processors and that MINDBODY cannot provide any assurances as to the reliability and functionality of any third party processes.
  3. DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE, THE SOFTWARE SERVICE IS PROVIDED AS IS AND WITH ALL FAULTS. NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY MINDBODY WITH RESPECT TO THE SOFTWARE SERVICE OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND MINDBODY EXPRESSLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF MINDBODY.
  4. LIMITATION OF LIABILITY
    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION, OR SECURITY, OR SIMILAR ECONOMIC LOSS, LOSS OF PRIVACY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MINDBODY BE LIABLE FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
    3. IN NO EVENT SHALL MINDBODY'S LIABILITY UNDER ANY CLAIM MADE BY SUBSCRIBER EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY SUBSCRIBER IN THE CURRENT CONTRACT YEAR. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF:
      1. THE TERMINATION OR EXPIRATION OF THIS AGREEMENT; OR
      2. THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
    4. SUBSCRIBER AND SUBSCRIBER'S CUSTOMERS ACKNOWLEDGE AND AGREE THAT:
      1. TRANSMITTING CARDHOLDER DATA ON THE INTERNET MAY INVOLVE CERTAIN SECURITY RISKS; AND
      2. ABIDING BY THE CARDHOLDER DATA BEST PRACTICES STANDARD PROVIDED IN ATTACHED EXHIBIT B MAY REDUCE THESE RISKS. MINDBODY'S SERVER(S) PROVIDE A SECURE, ENCRYPTED ENVIRONMENT FOR CARDHOLDER DATA; PROVIDED, HOWEVER, THAT MINDBODY SHALL ONLY BE RESPONSIBLE FOR THE SECURITY OF CARDHOLDER DATA UPON THE ENCRYPTION AND RECEIPT OF THE CARDHOLDER DATA BY MINDBODY'S SERVER(S). MINDBODY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, AS A RESULT OF THE TRANSMISSION OF THE CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY MINDBODY'S SERVER(S), INCLUDING BUT NOT LIMITED TO DAMAGES, FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT OR INVASION OF PRIVACY.
  5. Use of Trademark
    1. SUBSCRIBER agrees to indemnify and hold MINDBODY, its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of SUBSCRIBER's breach of this AGREEMENT, SUBSCRIBER's violation of any law, or SUBSCRIBER's violation of the rights of a third party, including the infringement by SUBSCRIBER of any intellectual property or other right of any person or entity. These obligations will survive any termination of the terms of this AGREEMENT.
    2. SUBSCRIBER hereby authorizes MINDBODY to list SUBSCRIBER as a subscriber of MINDBODY on MINDBODY'S website, and include SUBSCRIBER's name and trademarks in MINDBODY's public directories and the MINDBODY CONNECT SERVICE. MINDBODY will provide SUBSCRIBER with the ability to remove SUBSCRIBER's name, information, and trademark from these public directories at any time. SUBSCRIBER assumes sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by SUBSCRIBER or which SUBSCRIBER is authorized to use or display. If MINDBODY receives notice or documentation demonstrating that another person or entity contests SUBSCRIBER's right to use or display a name, trademark, service mark or other content, MINDBODY may, in its sole discretion, reject or discontinue listing SUBSCRIBER on the MINDBODY website without liability to SUBSCRIBER or MINDBODY until such time as SUBSCRIBER has resolved that dispute with the other party to MINDBODY's satisfaction.
    3. MINDBODY does not make it its responsibility to monitor the use of trademarks, copyrights or other rights of SUBSCRIBER or third parties. MINDBODY may, however, in appropriate circumstances and in MINDBODY's sole discretion, remove, suspend, terminate access, or take other appropriate action against subscribers who infringe the copyright rights of others. Therefore, if SUBSCRIBER reasonably believes that any materials on MINDBODY's website contain unauthorized reproductions of SUBSCRIBER's copyrighted work or trademarks, and SUBSCRIBER wants MINDBODY to take any action, then SUBSCRIBER must provide the following information to MINDBODY (as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512)):
      1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
      2. Identification of the copyrighted work claimed to have been infringed;
      3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MINDBODY to locate the material;
      4. Information reasonably sufficient to permit MINDBODY to contact SUBSCRIBER, such as an address, telephone number and e-mail address;
      5. A statement that SUBSCRIBER has a good faith belief that the use of the material in the manner complained of is not authorized by the owner, its agent or the law; and
      6. A statement that the information in the notice is accurate, and under penalty of perjury, that SUBSCRIBER is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
      7. Please e-mail this information to privacy@mindbodyonline.com.

Article X - Cancellation and Refund Policy

  1. SUBSCRIBER has thirty (30) days from the date of purchase to determine that the SOFTWARE SERVICE does not meet its needs. If SOFTWARE SERVICE does not meet the SUBSCRIBER's needs, then the SUBSCRIBER must notify MINDBODY in writing within thirty (30) days from the EFFECTIVE DATE that SUBSCRIBER wishes to terminate the SOFTWARE SERVICE provided hereunder and receive a refund of the corresponding fee paid by SUBSCRIBER, less the cost of any SERVICES provided prior to such cancellation based on MINDBODY's fees in effect at the time of such cancellation.
  2. If the SERVICES are provided free of charge during the thirty (30) day evaluation period (described in Article X, 1 above), to allow SUBSCRIBER to evaluate and test it before paying MINDBODY's current fees, MINDBODY enforces a strict no refund policy after the expiration of the initial thirty (30) day period.
  3. Current MINDBODY Fees. For the purposes of this Article X, MINDBODY's current fees may be found at https://purchase.mindbodyonline.com/. These fees are subject to change at any time.

Article XI - Term / Termination

  1. Term. The Term of this agreement commences on the EFFECTIVE DATE and shall continue on a month to month basis until terminated by either party in accordance with the terms contained in Article XI, section 2.  
  2. Termination. SUBSCRIBER may terminate this AGREEMENT for any reason by providing advance written notice via email to ClientCare@mindbodyonline.com at least 30 days prior to the EFFECTIVE DATE of the termination.   MINDBODY may terminate this AGREEMENT for any reason by providing notice to the SUBSCRIBER'S email address on file at the time with at least 30 days notice prior to the termination date.
  3. Termination for Cause. In the event of a data breach or default of this AGREEMENT by SUBSCRIBER, MINDBODY shall have the right to immediately terminate this AGREEMENT without notice. In the event of any breach or default of this AGREEMENT by MINDBODY, SUBSCRIBER shall have the right to terminate this AGREEMENT by giving thirty (30) days written notice to MINDBODY; provided, however, that MINDBODY shall have the right to cure said reason for the termination during the thirty (30) day notice period, and in the event of a cure by MINDBODY, said termination shall be null and void and this AGREEMENT shall remain in full force and effect. SUBSCRIBER will not have the right to cancel any portion of this AGREEMENT and/or receive a refund pursuant to Article X if SUBSCRIBER has breached this AGREEMENT.
  4. Data Portability and Deletion. Upon the termination of this AGREEMENT by either party, the SUBSCRIBER may:
    1. Perform a Free Data Download. Within 30 days after the EFFECTIVE DATE of termination, SUBSCRIBERS are permitted to download a FREE copy of current SUBSCRIBER DATA, except for CARDHOLDER DATA via the reporting feature of the SOFTWARE SERVICE. Support documentation explaining the use of this self-service feature can be found at https://support.mindbodyonline.com/categories/20033412-reports.
    2. Request an Assisted Data Download. For a Fee, the SUBSCRIBER may request MINDBODY provide a copy of SUBSCRIBER DATA, to include CARDHOLDER DATA via a PCI-DSS approved secure file transfer method within five (5) business days of such request.

Upon the 31st day after the EFFECTIVE DATE of the termination, MINDBODY will have no further obligation to maintain or provide SUBSCRIBERS DATA, and will thereafter delete and/or destroy all copies of SUBSCRIBER DATA in MINDODY's systems or otherwise in MINDBODY's possession or control, unless legally prohibited.

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

Article XII - Indemnity

  1. The PARTIES agree to indemnify, defend, and hold each other, their officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from:
    1. The operation, maintenance, and content of the SOFTWARE SERVICE;
    2. SUBSCRIBER's use of the SOFTWARE SERVICE;
    3. Failure by SUBSCRIBER to comply with any applicable privacy laws; and
    4. Any breach of this AGREEMENT by the PARTIES.
  2. SUBSCRIBER shall indemnify, defend, and hold MINDBODY, its officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from access to or use or misuse of the SUBSCRIBER DATA and/or the CARDHOLDER DATA by SUBSCRIBER, its REPRESENTATIVES, or affiliates. This Article XII shall survive the termination of this AGREEMENT.

Article XIII - Miscellaneous

  1. Governing Law. This AGREEMENT will be interpreted in accordance with the laws of the State of California, including all matters of construction, validity, performance, and enforcement, without giving effect to any principles of conflict of laws.
  2. Dispute Resolution. Any action to enforce or interpret this AGREEMENT, or to resolve disputes with respect to this AGREEMENT, shall be settled by arbitration in accordance with California Code of Civil Procedure Sections 1280 through 1294.2 and any successor provisions thereto. The provisions of California Code of Civil Procedure Section 1283.05 regarding the right to take depositions and obtain discovery shall apply to the arbitration. Arbitration shall be the exclusive dispute resolution process. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be in the County of San Luis Obispo, California. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
  3. Assignment and Assumption. This AGREEMENT may not be assigned by SUBSCRIBER without the prior written consent of MINDBODY, which may be withheld at MINDBODY's sole discretion. MINDBODY may require any proposed assignee of this AGREEMENT to enter into a new written agreement with MINDBODY. MINDBODY may assign this AGREEMENT to any person or entity, and thereafter be relieved of all liability hereunder.
  4. Notices
    1. All notices, requests, demands, and other communications shall be validly given if delivered in person, facsimile transmission, sent by electronic mail, or forwarded by registered or certified mail addressed to the other party at the address provided in the signature block of this AGREEMENT, unless such party has notified the other party of a substitute contact information in writing pursuant to this article.
    2. Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
  5. Relationship. The PARTIES shall do business at their own risk and for their own profit. Nothing in this AGREEMENT shall constitute a partnership or agency relationship between SUBSCRIBER and MINDBODY or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.
  6. Government Regulations. SUBSCRIBER shall at its own expense comply with all laws, ordinances, rules, regulations and other requirements of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of this AGREEMENT.
  7. Severability. If any of the provisions of this AGREEMENT shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the other portions of this AGREEMENT shall remain in full force and effect.
  8. Force Majeure. No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, terrorist attack, civil unrest, labor unrest, or shortage of or inability to obtain material as equipment.
  9. The failure of either party to enforce at any time or for any period of time, the provisions hereof in accordance with their terms will not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.
  10. No Third Party Beneficiary. The benefits and protection provided by this AGREEMENT shall inure solely to the benefit of the PARTIES. This AGREEMENT shall not be deemed to create any right in any person or entity who is not a party to this AGREEMENT and shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party unless specified in Exhibit C.
  11. Questions. All questions and requests for customer service and/or technical support should be directed to MINDBODY Customer Service Team at 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401. If SUBSCRIBER is within the US and Canada, call toll free (877) 755-4279. If calling from outside the United States and Canada, SUBSCRIBER may call 1-(805) 476-2700. Email: Support@mindbodyonline.com.

Exhibit A - Maintenance and Security of SUBSCRIBER DATA

  1. MINDBODY hosts SUBSCRIBER DATA at multiple secure and redundant data centers in geographically diverse locations. Each data center is secured and monitored 24x7x365 by a staff of highly trained data center facility experts. The primary data center features:
    1. SSAE 16 Type II, Type III Compliant systems and processes
      1. Zone 4 earthquake-rated reinforced structure
      2. Multiple redundant, enterprise switching hardware at every stage;
      3. A monitoring system providing real-time data on equipment operation, enabling instant identification of problems.
      4. Multiple paralleled N+1 UPS modules configured in redundant systems allow for A/B power configuration.
      5. 20 megawatts of expandable N+1 power backup utilizing Caterpillar diesel generators.
      6. Very Early Smoke Detection Alarm (VESDA) early smoke detection with pre-action dry pipe fire suppression systems.
      7. Multiple fiber route entrances to building.
      8. Access control systems leveraging biometric scan and personal identification number (PIN), with separate locks for all MINDBODY server cabinets, and
      9. The backup data center features the same facility specifications as the primary data center. The backup data center receives a backup of subscriber data at least once per rolling 24 hour period. During normal conditions, this data is available for read only access and report downloading by SUBSCRIBER, via the URL https://backup.mindbodyonline.com.
  1. Security Provisions
    1. Personal Security
      1. MINDBODY technical or management personnel with access to SUBSCRIBER DATA are subjected to background checks prior to hiring, and must sign non-disclosure and data security agreements that protect both MINDBODY and SUBSCRIBER DATA.
      2. Physical access to the primary data center and the backup data center is restricted by 24x7 on-site security and Network Operations Center (NOC) staff. The facility is controlled by alarm systems with cameras on perimeter points of the building along with video and camera surveillance within facility. Multi-level access authorization with man trap, biometric verification and security controlled access level assignments are used to verify a limited number of MINDBODY authorized personnel who have been granted access.
      3. MINDBODY personnel are not permitted to transfer SUBSCRIBER DATA onto any hard drive or storage device, except those contained within either the primary data center or backup data center. SUBSCRIBER DATA is not transferred to MINDBODY corporate workstations.
    2. Data Security
      1. All SUBSCRIBER DATA is located on secure servers, or backup directories that require access authentication.
      2. All secure servers are protected by multiple, redundant firewalls and intrusion detection and prevention systems that are regularly monitored and tested (details of firewall configuration are not shared publicly for maximum security).
      3. 256-bit Secure Sockets Layer (SSL) data encryption is employed to protect all data access across the Internet.
    3. PCI-DSS

MINDBODY complies with the PCI DSS tier 1 standard, and MINDBODY has continued to maintain Level 1 service provider designation since 2007. MINDBODY is dedicated to the six (6) PCI DSS best security practices for credit card protection:

      1. Maintaining a Secure network;
        1. Protecting the Cardholder data;
        2. Maintaining a Vulnerability Management Program;
        3. Implementing Strong Access Control Measures;
      2. Monitoring and Testing Production and Development Networks;
      3. Maintaining an Information Security Program and Policies
      4. McAfee SECURE PCI Certification Service - Delivers accurate vulnerability scanning and actionable reporting, that enables the MINDBODY NOC to quickly rank risks and gauge compliance against industry standards such as PCI. Vulnerability Assessment monitors the MINDBODY network perimeter against daily threats to help protect MINDBODYONLINE and MINDBODY CONNECT, our brand, and our customers from hackers, data breaches, adware, spyware, pop-ups, browser exploits, and phishing attempts.
    1. Data Privacy

MINDBODY is committed to protecting the privacy of individuals who visit MINDBODY's websites ("Visitors"), individuals who register to use the Services as defined in Article I- Definitions ("Subscribers"), and individuals who register to attend the Company's corporate events ("Attendees"). The MINDBODY Privacy Policy, a copy of which is located at www.mindbodyonline.com/privacy-policy, covers our collection, use and disclosure of information we collect through our websites, www.mindbodyfinder.com and www.mindbodyonline.com, our software as a service MINDBODY and our mobile applications MINDBODY Connect and Express Business, (collectively referred to in this Policy as our "Digital Properties"). The use of information collected through our Digital Properties shall be limited to the purpose of providing the service(s) for which you have engaged MINDBODY. We will share your personal information with third parties only in the ways that are described in this privacy statement.

MINDBODY's full Privacy Policy contains more information about MINDBODY's Site privacy practices.

MINDBODY is a certified licensee of the TRUSTe Web Privacy Seal. The Company is also a certified licensee of the TRUSTe EU Safe Harbor Seal and abides by the EU Safe Harbor Framework.

    1. HIPAA

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

MINDBODY will not disclose Protected Health Information, as defined by applicable law, other than as permitted or required by the AGREEMENT or as required by law;

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

Exhibit B - CARDHOLDER DATA Best Practices

  1. Any merchant who accepts Visa, MasterCard, American Express, or Discover credit cards for payment is subject to the Payment Card Industry Data Security Standard (PCI DSS), which outlines credit card processing merchants' responsibilities for the protection of CARDHOLDER DATA. If SUBSCRIBER uses MINDBODY's integrated merchant account processing service, MINDBODY is responsible for protecting CARDHOLDER DATA only after it is properly uploaded and encrypted into SUBSCRIBER DATA by the SOFTWARE SERVICE. SUBSCRIBER remains responsible for the proper handling and protection of CARDHOLDER DATA up to the point that it is properly uploaded and encrypted by the SOFTWARE SERVICE.
  2. MINDBODY hereby refers SUBSCRIBER to the PCI DSS website, for a complete list of all rules and restrictions that may apply: https://www.pcisecuritystandards.org/.
  3. At a minimum, MINDBODY recommends that SUBSCRIBER implement the practices set forth below:
    1. SUBSCRIBER should do the following:
      1. Maintain updated anti-virus software on all workstations engaged in credit card processing and remove any programs that the anti-virus software flags as potentially malicious.
      2. Restrict permission to install software on those computers to SUBSCRIBER business owner and/or trusted senior staff.
      3. Maintain up-to-date versions of operating systems (e.g., Microsoft Windows or Macintosh OS) and web browsers (e.g., Internet Explorer, Safari or Firefox), with all security updates and patches installed.
      4. Ensure that every individual that logs into the SOFTWARE SERVICE has a unique username and password that is known only by that individual.
      5. Only store credit card account numbers in encrypted credit card fields designed for that purpose in the SOFTWARE SERVICE system.
      6. Destroy any hard copy documents that have CARDHOLDER DATA written on them.
    2. SUBSCRIBER should not do the following:
      1. Record CARDHOLDER DATA in notes, contact logs, or other unencrypted text fields within the SOFTWARE SERVICE;
      2. Record CARDHOLDER DATA in any locally installed software program, unless that program and SUBSCRIBER's computer network meet all PCI requirements;
      3. Email SUBSCRIBER'S CUSTOMERS credit card numbers, or ask them to email their credit card numbers to SUBSCRIBER; or
      4. Record credit card track data.

Exhibit C - Granting Third Party Access of SUBSCRIBER DATA

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

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

Exhibit D - ACH Services

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

Exhibit E - MINDBODY CONNECT SERVICE Agreement

  1. The use of information collected through the MINDBODY CONNECT SERVICE shall be limited to the purpose of providing the service(s) for which was engaged and is detailed in the MINDBODY Privacy Policy.
  2. The MINDBODY CONNECT SERVICE aggregates SUBSCRIBER PUBLIC DATA, including schedules, availabilities, descriptions and pricing, thereby enabling consumers to find SUBSCRIBER services via internet search and mobile devices.
  3. SUBSCRIBER's agreement to participate in this service is assumed at the time of execution of this Agreement.
  4. SUBSCRIBER may opt out of the MINDBODY CONNECT SERVICE at any time during the duration of this AGREEMENT by accessing the business information page under the MINDBODY CONNECT tab.
  5. If SUBSCRIBER opts out of the MINDBODY CONNECT SERVICE, they may not participate in the MINDBODY CONNECT SERVICE detailed in Exhibit F.

Exhibit F - MINDBODY ANALYTICS SERVICE Agreement

  1. MINDBODY ANALYTICS SERVICE grants SUBSCRIBER access to COMPILED DATA.
  2. To subscribe to MINDBODY ANALYTICS, SUBSCRIBER shall:
    1. Agree to conditions found in this exhibit, and indicate such agreement in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
    2. Agree to the payment options found in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
  3. SUBSCRIBER understands that MINDBODY ANALYTICS has been developed with the investment of significant time, effort, materials, and expense by MINDBODY and that MINDBODY ANALYTICS provides SUBSCRIBER and other MINDBODY subscribers with significant, unique competitive business advantage.
  4. Nondisclosure
    1. SUBSCRIBER agrees to cite MINDBODY as the source anytime SUBSCRIBER discloses MINDBODY ANALYTICS data or analysis in reports, articles, or other derivative works authored by SUBSCRIBER. For instructions on how to cite MINDBODY ANALYTICS contact MINDBODY ANALYTICS Department at 1 (877) 755-4279. For SUBSCRIBERS outside the US and Canada, call 1 (805) 476-2700.
    2. SUBSCRIBER will not sell, lease, rent, license, copy, alter, modify, disassemble, reverse engineer or decompile MINDBODY ANALYTICS without the prior written consent of a duly authorized representative from MINDBODY. Any violation of this confidentiality can result in instant termination of MINDBODY SOFTWARE SERVICE or MINDBODY ANALYTICS.

Exhibit G - "PREMIUM SUPPORT"

  1. SUBSCRIBER may OPT-IN for PREMIUM SUPPORT by accessing the PREMIUM SERVICES SCREEN in BUSINESS MODE.
  2. If SUBSCRIBER OPTS-IN for PREMIUM SUPPORT, then the RECEIPT emailed to SUBSCRIBER will specify the premium support level purchased, and SUBSCRIBER and SUBSCRIBER's employees may continue to receive SERVICES listed in Article II and Article III, 2.
  3. PREMIUM SUPPORT consists of account management, project management and software configuration consultation to deploy MINDBODY software and related services provided by an assigned Premium Account Coordinator ("PAC"), who coordinates services provided at option levels detailed on this website page: https://www.mindbodyonline.com/professional-services/premium-services.

MINDBODY Premium Account Coordinator ("PAC")

    1. A PAC is a senior and highly certified member of the MINDBODY Premium Services team assigned to SUBSCRIBER, if SUBSCRIBER has OPTED-IN for PREMIUM SUPPORT.
    2. The PAC is provided a direct business line and a MINDBODY internal instant messaging account, which may be used by SUBSCRIBER to communicate with PAC in lieu of telephone and email.
    3. If SUBSCRIBER opts for Gold Level Premium Support, then the PAC will also be provided with a MINDBODY mobile phone, enabling after hours communication.
    4. Premium Support SUBSCRIBER will designate a single point of contact to provide consistent communications and direction to the PAC.
    5. When the designated Single Point of Contact is not available, other SUBSCRIBER employees may contact the MINDBODY PAC for urgent matters, if previously arranged.
    6. The PAC is obligated only to provide support to SUBSCRIBER and SUBSCRIBER's regular employees. The scope of any desired PAC consultation to third parties (e.g., SUBSCRIBER's consultants, accountants, developers, etc.) must be specified in writing and be arranged for in advance with the PAC.
  1. SUBSCRIBERS dissatisfied with their PAC may request a new PAC at any time by contacting MINDBODY Premium Services, who will provide a new PAC within thirty (30) days.
  2. PREMIUM SUPPORT Contracts
    1. PREMIUM SUPPORT Contracts will be a minimum of three (3) month duration, and are paid monthly. PREMIUM SUPPORT will continue month-to-month until SUBSCRIBER provides a 30 day notice to their PAC of their desire to discontinue PREMIUM SUPPORT.
    2. Only one premium support fee per business entity applies. Premium Support does not vary according to the number or size of active SUBSCRIBER business locations served.
  3. Receiving Premium Support
    1. Business Hours Support shall be that support provided during the assigned PAC's normal working hours (e.g., 8 AM - 5 PM Pacific Time), and shall be accrued in fifteen (15) minute increments. For Gold PREMIUM SUPPORT Contracts, after hours support shall be accrued in thirty (30) minute increments. If SUBSCRIBER's allocation of PAC Support Hours is exceeded in any billing month, additional hours will be billed in sixty (60) minute increments.
    2. Allocated Premium Support hours depicted in the matrix above are per rolling month, and must be expended during that month. Unused hours do not roll over to subsequent months.
    3. Instant Message Support counts towards the monthly support in fifteen (15) minute increments. SUBSCRIBER will see the entire MINDBODY Premium Account Coordinators Group and will be asked to only contact their assigned PAC for non-urgent questions. However, they may instant message any available PAC to request Premium Support for urgent matters.

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

MINDBODY SOFTWARE SERVICE AGREEMENT (SSA)

EXECUTING THIS AGREEMENT:

This AGREEMENT is entered into as of the EFFECTIVE DATE by and between MINDBODY Ltd. ("MINDBODY", "We", "Our" or "Us"), a company formed under the laws of the United Kingdom, and a business or individual ("SUBSCRIBER", "You" or "Your"), collectively referred hereinafter as the PARTIES. MINDBODY provides its Services to SUBSCRIBERS through its website located at https://clients.mindbodyonline.com (the "User Website"), whose use is subject to these Terms.

BY ACCESSING, VIEWING OR USING ALL OR ANY PART OF THE MINDBODY SERVICES OR SITE, OR DOWNLOADING ANY MATERIALS, OR BY COMPLETING ANY REGISTRATION PROCESS VIA THE USER WEBSITE, YOU ARE ACCEPTING THE TERMS OF THE MINDBODY SOFTWARE SERVICE (SSA) AGREEMENT ("AGREEMENT"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES OR CONTENT.

If you do not receive a RECIEPT from MINDBODY Ltd. via a separate email in connection with this AGREEMENT within 15 days, please contact the MINDBODY Customer Service Team at (877) 755-4279 before accessing or using the SOFTWARE SERVICE, defined below.

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

Article I - Definitions

  1. AUTOMATED CLEARING HOUSE ("ACH") shall mean the electronic network for financial transactions in the United States, which is used in BUSINESS MODE to process consumer payments directly from their bank checking accounts. This is referred to outside the United States by other terms, such as "PAP" and "DDA".
  2. BUSINESS MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE as an administrative user to input, review, and maintain SUBSCRIBER DATA, including information for public view by SUBSCRIBER's customers in CONSUMER MODE.
  3. CARDHOLDER DATA shall mean credit card numbers, expiration dates, billing addresses, and cardholder names of SUBSCRIBER's customers.
  4. COMPILED DATA shall mean a portion of SUBSCRIBER DATA, excluding CARDHOLDER DATA, aggregated with data obtained from other MINDBODY subscribers for the purposes of, among other things, producing indices, statistics, summaries, and industry reports for use by MINDBODY subscribers. COMPILED DATA shall not reveal proprietary or identifying information about SUBSCRIBER or SUBSCRIBER's customers.
  5. CONFIDENTIAL INFORMATION shall have the meaning provided in Article VII.
  6. CONSUMER MODE shall mean SUBSCRIBER's use of the SOFTWARE SERVICE to enable SUBSCRIBER to publicly display SUBSCRIBER PUBLIC DATA, such as class and appointment schedules, and products and services on SUBSCRIBER's website.
  7. EFFECTIVE DATE shall mean the earlier of (i) two (2) weeks from the date of purchase of the SOFTWARE SERVICE or (ii) the first date on which SUBSCRIBER uses SOFTWARE SERVICE, unless separately arranged between the parties in writing.
  8. ENTRY LICENSE shall mean a non-exclusive, non-transferable right to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT.
  9. INTEGRATED MERCHANT ACCOUNT shall mean an optional service that allows the SOFTWARE SERVICE to process credit card and ACH payments.
  10. MINDBODY CONNECT SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit E that enables consumers to search for,  find schedule and pay for SUBSCRIBER classes, appointments, and other services via internet search and mobile devices other than those operated by SUBSCRIBER.
  11. MINDBODY ANALYTICS SERVICE shall mean an optional service provided by MINDBODY, in accordance with the terms and conditions of Exhibit F that gives MINDBODY SUBSCRIBER's access to COMPILED DATA in BUSINESS MODE.
  12. MONTHLY SUBSCRIPTION FEE shall mean the monthly fee for the SOFTWARE SERVICE as set forth in the RECEIPT.
  13. ONSITE TRAINING shall mean training provided by MINDBODY to SUBSCRIBER at SUBSCRIBER's facilities for an additional fee. ONSITE TRAINING is only available in certain geographical areas, as determined by MINDBODY in its sole discretion. PCI DSS shall mean the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
  14. PRACTITIONER shall mean any service professional whose services are listed by SUBSCRIBER in the SOFTWARE SERVICE. 
  15. PREMIUM ACCOUNT COORDINATOR (PAC) shall mean a member of the MINDBODY Premium Services Team certified by MINDBODY to provide optional Premium Support as defined in Exhibit G of this AGREEMENT.
  16. PREMIUM SERVICES SCREEN shall mean a screen accessible inside BUSINESS MODE that describes optional services that SUBSCRIBER may add onto their SOFTWARE SERVICE, and enables SUBSCRIBER to opt in or out of those services.
  17. RECEIPT shall mean the receipt received by SUBSCRIBER via email at the time SUBSCRIBER received this AGREEMENT describing the SOFTWARE SERVICE and MONTHLY SUBSCRIPTION FEE.
  18. STARTUP TRAINING shall mean live training provided by a MINDBODY professional trainer to SUBSCRIBER while SUBSCRIBER is in the process of implementing the SOFTWARE SERVICE. Such training is delivered via telephone and optional Internet link.
  19. REPRESENTATIVES shall have the meaning provided in Article VII.
  20. SCHEDULED MAINTENANCE shall mean periodic planned SOFTWARE SERVICE as may be necessary from time to time to maintain optimum system performance, and which are announced in advance by MINDBODY.
  21. SERVICES shall mean optional offerings available from MINDBODY such as data imports, supplemental trainings, and other services not required to use SOFTWARE SERVICE.
  22. SOFTWARE SERVICE shall mean the MINDBODY SOFTWARE SERVICE identified in the RECEIPT as the service purchased by SUBSCRIBER subject to this AGREEMENT, and is priced according to the quantity and size of SUBSCRIBER business units and locations. The SOFTWARE SERVICE includes any users guide, multimedia content, and relevant documentation made available through the SOFTWARE SERVICE and MINDBODY's website, and any other materials provided to SUBSCRIBER by MINDBODY pursuant to this AGREEMENT.
  23. SUBSCRIBER'S CUSTOMERS shall mean the businesses or individuals scheduling and purchasing products and services from SUBSCRIBER.
  24. SUBSCRIBER DATA shall mean any data stored by SUBSCRIBER on MINDBODY's host computer system using the SOFTWARE SERVICE, including CARDHOLDER DATA entered by SUBSCRIBER using the SOFTWARE SERVICE. This data is the sole property of SUBSCRIBER and shall be held confidential by MINDBODY in accordance with the terms and conditions of Article VII of this Agreement.
  25. SUBSCRIBER PUBLIC DATA shall mean that portion of SUBSCRIBER DATA that SUBSCRIBER wishes to display in CONSUMER MODE and/or in the MINDBODY CONNECT SERVICE, such as class and appointment schedules, and products and services for sale to consumers.
  26. SUBSCRIPTION TERM means the period for which the SUBSCRIBER uses the SOFTWARE SERVICES until either party   terminates SUBSCRIBER'S right to use the SOFTWARE SERVICES in accordance with Article XI of this Agreement. 

Article II - Description of SOFTWARE SERVICE

1.     Operation, Maintenance, and Security of SOFTWARE SERVICE

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

2.      Ownership, Maintenance and Use of SUBSCRIBER DATA

    1. SUBSCRIBER DATA is owned by the person(s) identified during the acceptance of this AGREEMENT. Further, the person(s) who provides payment for the SOFTWARE SERVICE and other services may or may not be the owner of SUBSCRIBER DATA. In the event of an ownership dispute, MINDBODY, at its sole discretion, reserves the right to restrict access to the SOFTWARE SERVICE solely for the purpose of resolving such ownership dispute. SUBSCRIBER agrees that it is their responsibility to provide proper documentation to MINDBODY in order to resolve any ownership dispute. SUBSCRIBER further agrees that MINDBODY has no responsibility to determine proper ownership in the event of an ownership dispute.
    2. Subject to the provisions of Article II, 5 below, SUBSCRIBER shall own SUBSCRIBER DATA at all times.
    3. SUBSCRIBER is solely responsible for the operation and maintenance of BUSINESS MODE and CONSUMER MODE, including, but not limited to all SUBSCRIBER DATA entered in BUSINESS MODE and SUBSCRIBER PUBLIC DATA that appears publicly in CONSUMER MODE. SUBSCRIBER shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA. SUBSCRIBER warrants to MINDBODY that SUBSCRIBER DATA and SUBSCRIBER PUBLIC DATA does not violate applicable law or the rights of any third party.
    4. SUBSCRIBER may enable or disable public access to SUBSCRIBER PUBLIC DATA in CONSUMER MODE and in the MINDBODY CONNECT SERVICE by activating various check box controls in BUSINESS MODE. For assistance in these settings, SUBSCRIBER may contact the MINDBODY Customer Service Team at (877) 755-4279.

3.     Security of CARDHOLDER DATA

    1. MINDBODY expressly disclaims any and all liability for SUBSCRIBER's handling of CARDHOLDER DATA. MINDBODY recommends that when handling CARDHOLDER DATA, SUBSCRIBER follow the requirements of the PCI DSS. In connection with SUBSCRIBER's use of the SOFTWARE SERVICE, SUBSCRIBER shall follow the Cardholder Data Recommended Practices attached hereto as Exhibit B, as may be updated from time to time.
    2. MINDBODY is responsible for storing and protecting the CARDHOLDER DATA within SUBSCRIBER DATA only when:
      1. Such data has been properly entered by SUBSCRIBER in the encrypted fields provided in the SOFTWARE SERVICE in accordance with the PCI DSS in BUSINESS MODE or by SUBSCRIBER'S CUSTOMERS in CONSUMER MODE;
      2. Such data is encrypted and received by MINDBODY's server(s).

4.     Access to SUBSCRIBER DATA

    1. SUBSCRIBER may download portions of the SUBSCRIBER DATA directly from the SOFTWARE SERVICE in Microsoft Excel format by using the reporting and exporting tools provided by MINDBODY within the SOFTWARE SERVICE.
    2. SUBSCRIBER is responsible for maintaining the security of any copy of the SUBSCRIBER DATA received pursuant to this Article II, 4.
    3. SUBSCRIBER, at its option, may grant any trusted third party access to the SUBSCRIBER DATA by delivering to MINDBODY a copy of a signed authorization as provided in Exhibit C.

5.      MINDBODY ANALYTICS - Ownership and Access to COMPILED DATA

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

Article III- Other Services

  1. The following SERVICES are included in the fees set forth in Article IV, 1:
    1. Data Import. SUBSCRIBER may elect in writing to MINDBODY to have MINDBODY import SUBSCRIBER's CUSTOMERS names and contact information upon startup of the SOFTWARE SERVICE. This election must be made within thirty (30) days of the EFFECTIVE DATE. If SUBSCRIBER makes this election, then the following will apply:
      1. MINDBODY will provide a one-time importation of SUBSCRIBER'S CUSTOMERS names, notes and contact information from any single open database format, including, but not limited to .txt, .xls, and .csv.
      2. SUBSCRIBER will provide MINDBODY with its customer names and contact information in an open, unlocked, un-password protected format within thirty (30) days of the EFFECTIVE DATE.
    2. MINDBODY will provide STARTUP TRAINING sessions not to exceed the following durations per business location identified in the RECEIPT:
      1. One (1) Thirty (30) minute Discovery call;
      2. One (1) Fifty (50) minute software setup training;
      3. Unlimited online webinar training sessions;
      4. Two (2) Thirty (30) minute Check in calls;
  2. Additional Fee Based Services. The following services may be available to SUBSCRIBER at an additional fee. SUBSCRIBER may contact MINDBODY for further information.
    1. Data Importation of Transactional Histories

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

    1. Supplemental Training
      1. In the event that SUBSCRIBER wishes to have any STARTUP TRAINING in addition to such training provided pursuant to Article III, 1, b, such additional STARTUP TRAINING may be provided to SUBSCRIBER at an additional charge based on MINDBODY's hourly rates in effect at the time of such additional STARTUP TRAINING. These fees are subject to change at any time.
      2. In the event that SUBSCRIBER wishes to have ONSITE TRAINING at SUBSCRIBER's facility, such training may be provided at MINDBODY's discretion at a fee to be agreed upon at the time of purchase.

Article IV - Payment

  1. Fees & Payment Options
    1. The SUBSCRIBER shall provide to MINDBODY by the  Effective Date, valid, up-to-date and complete  payment information which shall be provided in at least one (1) of the following forms: credit card, checking account, or approved purchase order, all of which must be in a format that is acceptable to MINDBODY, and any other relevant valid, up-to-date and complete contact and billing details.  The following conditions shall apply to each selected payment option:  
      1. Credit card – the SUBSCRIBER hereby authorizes MINDBODY to bill such credit card:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect to the Initial SUBSCRIPTION TERM; and
        2. subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable;
      2. Checking account – the SUBSCRIBER hereby authorizes MINDBODY  to collect the MONTHLY SUBSCRIPTION FEES via automatic ACH payment from SUBSCRIBER's checking account:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and
        2. subject to clause Article XI, on each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable;
      3. Purchase order -  MINDBODY shall invoice the SUBSCRIBER:
        1. on the EFFECTIVE DATE for the SUBSCRIPTION FEES payable in respect of the Initial SUBSCRIPTION TERM; and
        2. subject to Article XI, at least 30 days prior to each anniversary of the EFFECTIVE DATE for the SUBSCRIPTION FEES payable.

2.     Changes in Fees. MINDBODY reserves the right to change the MONTHLY SUBSCRIPTION FEE if SUBSCRIBER wishes to manage additional business units and/or locations beyond those specified on the RECEIPT.  In addition, if there is an increase in the number of PRACTITIONERS providing services at any location, the subscription fee charged to that location by MB is subject to increase according to the pricing structure in effect at that time and on each anniversary of the EFFECTIVE DATE, provided that MINDBODY shall give SUBSCRIBER at least thirty (30) days advance written notice of any change in such fees.

  1. Payment Terms. All amounts set forth in this article shall be due and payable when specified in this AGREEMENT. Any payment not received within thirty (30) days of the applicable due date shall be considered a breach of this AGREEMENT and MINDBODY shall be entitled to terminate this AGREEMENT as provided below, and to deactivate SUBSCRIBER's account with MINDBODY. In the event that MINDBODY deactivates SUBSCRIBER's account for late payment and MINDBODY decides to reactivate such account at SUBSCRIBER's request, SUBSCRIBER shall pay MINDBODY a one hundred and fifty dollar ($150) reactivation fee per SUBSCRIBER location prior to any such reactivation.
  1. Taxes. MINDBODY 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 whatsoever (collectively, "Taxes"). SUBSCRIBER is responsible for paying all Taxes associated with SUBSCRIBER purchases hereunder. If MINDBODY has the legal obligation to pay or collect Taxes for which SUBSCRIBER is responsible under this Section (IV), MINDBODY will invoice the SUBSCRIBER for payment unless a valid tax exemption certificate authorized by the appropriate taxing authority is provided. For clarity, MINDBODY is solely responsible for taxes assessable against MINDBODY based on income, property and employees.

Article V - Intellectual Property

  1. MINDBODY Intellectual Property. MINDBODY shall have sole and exclusive ownership of all right, title, and interest in and to:
    1. The SOFTWARE SERVICE (including any MINDBODY provided images, photographs, animations, video, audio, music, text, and applets);
    2. All derivatives, modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to SUBSCRIBER herein by MINDBODY;
    3. The COMPILED DATA. This AGREEMENT does not provide SUBSCRIBER with title or ownership of the SOFTWARE SERVICE, the COMPILED DATA, or any components thereof, but only a right of limited use as specified in Article VI.
  2. SUBSCRIBER Intellectual Property. SUBSCRIBER shall have sole and exclusive ownership of all right, title, and interest in all SUBSCRIBER DATA.
  3. The MINDBODY mark, the MINDBODY logo and the MINDBODYONLINE url are trademarks of MINDBODY Inc., Copyright © 2013, all rights reserved.  No part of this Agreement or any content on the MINDBODY website may be copied for any purpose without the express written permission of MINDBODY.
  4. WARNING.  NO TRESPASSING - This SITE is maintained by MINDBODY and is intended for the exclusive use and benefit of MINDBODY, its customers, prospective customers, authorized partners, vendors, prospective vendors, employees and prospective employees (collectively, the "Authorized Persons").  No other persons are authorized to visit or enter the User Website for any purpose.  All information contained on the SOFTWARE SERVICE is proprietary to MINDBODY and usage thereof shall be subject to an ENTRY LICENSE granted by MINDBODY. Persons entering the SOFTWARE SERVICE, whether authorized or not, shall be deemed to have automatically accepted the terms and conditions of the ENTRY LICENSE at the time of initial entry.   If any unauthorized person attempts to visit or enter the SOFTWARE SERIVE, they shall be deemed to be trespassing on the SOFTWARE SERVICE and be liable for damages, etc. resulting therefrom.  Notwithstanding anything in ENTRY LICENSE to the contrary, no person, authorized or not, shall be entitled to copy, extract, "scrape," decompile, or otherwise use information, etc. located on or contained in the SOFTWARE SERVICE unless they  enter into a limited license (the "Limited License").  Violation of the provisions of the foregoing licenses shall constitute, among other offenses, trespass, breach of contract, and entry of a computer without authority with the intent to cause damage.

Article VI - License

  1. Rights Granted. In addition to the limited license granted by MINDBODY to SUBSCRIBER as to the use of the COMPILED DATA provided in Article II, 5 above, MINDBODY grants SUBSCRIBER an ENTRY LICENSE to access, use, display, run, or otherwise interact with the SOFTWARE SERVICE subject to the terms and conditions set forth in this AGREEMENT. MINDBODY grants SUBSCRIBER'S CUSTOMERS the right to use the CONSUMER MODE to schedule classes, to make purchases of SUBSCRIBER's products and services, and for any other use that MINDBODY shall make available using the CONSUMER MODE in the future.
    1. SUBSCRIBER acknowledges and agrees that the SOFTWARE SERVICE is licensed on a per SUBSCRIBER basis, and the rights of any licensed user to access and/or utilize the SOFTWARE SERVICE may not be shared between SUBSCRIBER and any third party or used by any third party, except as otherwise authorized by SUBSCRIBER in accordance with the terms and conditions contained in attached Exhibit C.
  2. Limitation on Rights Granted. MINDBODY reserves all rights not expressly granted herein.
  3. Restrictions. SUBSCRIBER shall not, in whole or in part, directly or indirectly: (a) reverse engineer, disassemble, decompile, translate, reproduce, modify, alter or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure or organization of the SOFTWARE SERVICE or reduce the SOFTWARE SERVICE to a human-perceivable form; (b) remove any copyright notices, logos, identification or any other proprietary notices from the SOFTWARE SERVICE; (c) make any change to the SOFTWARE SERVICE or create any derivative works thereof; or (d) publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the SOFTWARE SERVICE or any part thereof.

Article VII - Confidentiality

  1. CONFIDENTIAL INFORMATION. For the purposes of this Article VII, CONFIDENTIAL INFORMATION shall include the SOFTWARE SERVICE, the SUBSCRIBER DATA, and any accompanying or related documentation. CONFIDENTIAL INFORMATION does not include information which is:
    1. Developed by the non-disclosing party independently of the disclosing party as supported by the non-disclosing party's written records;
    2. Rightfully obtained without restriction by the non-disclosing party from a third party;
    3. At the time of disclosure or thereafter becomes publicly available other than through the fault or negligence of the non-disclosing party;
    4. Released without restriction by the disclosing party to anyone including the U.S. Government as supported by the non-disclosing party's written records; and
    5. Known to the non-disclosing party at the time of disclosure as supported by the non-disclosing party.
  2. Protection of CONFIDENTIAL INFORMATION
    1. During the term of this AGREEMENT and for a period of five (5) years after its termination or expiration, the PARTIES agree they shall not disclose any of the CONFIDENTIAL INFORMATION in any manner whatsoever, except as provided in subparagraphs (b) and (c) below, and shall hold and maintain the CONFIDENTIAL INFORMATION in strictest confidence.
    2. A party may disclose CONFIDENTIAL INFORMATION to such party's directors, officers, employees, agents; and financial, legal, other advisors and affiliates (collectively, REPRESENTATIVES) with a bona fide need to know such CONFIDENTIAL INFORMATION, but only to the extent necessary to evaluate or carry out the terms of this AGREEMENT and only if such REPRESENTATIVES are advised of the confidential nature of such CONFIDENTIAL INFORMATION and the terms of this AGREEMENT and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such CONFIDENTIAL INFORMATION. Further, the PARTIES acknowledge and agree that nothing in this Article VII shall prohibit the collection, compilation and distribution of any COMPILED DATA by MINDBODY in accordance with Article II, 5 of this AGREEMENT.
    3. A party may disclose CONFIDENTIAL INFORMATION if and to the extent that such disclosure is required by court order, provided that such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
    4. The CONFIDENTIAL INFORMATION is being disclosed to the PARTIES and the PARTIES receive the CONFIDENTIAL INFORMATION solely for the purpose stated herein and specifically agree not to use the CONFIDENTIAL INFORMATION for any other purpose.

Article VIII - Interoperability Requirements

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

2.     Technical Requirements. The communications and network interoperability for the SOFTWARE SERVICE require a high-speed Internet connection, modern web browser, and modern smartphone and modern computer. Click below for the computing requirement details: https://support.mindbodyonline.com/forums/20609782-Computer-Requirements

Article IX - Limited Warranty/Limitation on Liability

  1. SOFTWARE SERVICE Warranty
    1. To qualify for the MINDBODY SOFTWARE SERVICE warranty, SUBSCRIBER must maintain a subscription for a minimum of 12 months. 
    2. MINDBODY warrants that the SOFTWARE SERVICE shall be 99.9% available twenty-four (24) hours per day, seven (7) days per week, three-hundred and sixty-five (365) days per year. This translates to eight (8) hours and forty-five (45) minutes of unplanned outage time as measured over 12 months, and in accordance with Article IX. Our server inventory will be expanded to accommodate the SUBSCRIBER's progressive data expansion. Hardware expansion will keep up with the needs of SUBSCRIBER so that the SUBSCRIBER's site performance will not be slowed by either the SUBSCRIBER's data expansion or the addition of new subscribers to the MINDBODY servers.
    3. If the cumulative service level for the SOFTWARE SERVICE drops below 99.9% for any 12 month period, as measured from the EFECTIVE DATE of service  and revisited on each 12 month anniversary of the EFFECTIVE DATE, MINDBODY will credit SUBSCRIBER with additional complimentary service to be used in the following year of service, according to the following schedule:
      1. 98% - 99.8% availability of SOFTWARE SERVICE - one (1) free month of service;
      2. 95% - 97.9% availability of SOFTWARE SERVICE - two (2) free months of service;
      3. 90% - 94.9% availability of SOFTWARE SERVICE - six (6) free months of service; and
      4. Less than 90% availability of SOFTWARE SERVICE - twelve (12) free months of service.
    4. In order to receive any credit of free service pursuant to this Article IX, SUBSCRIBER shall notify MINDBODY in writing no later thirty (30) days after the end of the 12 month anniversary of the EFFECTIVE DATE in which the availability of the SOFTWARE SERVICE fell below the warranted level of SUBSCRIBER's intent to collect the free service related to such shortcoming in availability during the following year of service. To the extent MINDBODY does not receive timely notice from SUBSCRIBER as provided in this paragraph,
      1. MINDBODY shall have no further obligation to provide SUBSCRIBER any free service; and
      2. SUBSCRIBER shall be deemed to have waived and released MINDBODY as to any and all claims related to its use or non-use of the SOFTWARE SERVICE as to the applicable contract year.
    5. SUBSCRIBER shall not receive any credit or refund under this Article IX in connection with any failure or deficiency caused by or associated with any of the following:
      1. Circumstances beyond MINDBODY's reasonable control, including, but not limited to, war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus, or denial of service attacks;
      2. Major telecommunications or Internet failure outside of MINDBODY's control;
      3. Acts or omissions of SUBSCRIBER, its employees, or its agents, including, without limitation, custom scripting or coding, any negligence, willful misconduct, or use of the SOFTWARE SERVICE outside the scope of this AGREEMENT; and
      4. SCHEDULED MAINTENANCE conducted between the hours of 9 PM and 9 AM in the Pacific Standard Time Zone and SUBSCRIBER is notified at least forty-eight (48) hours in advance of such SCHEDULED MAINTENANCE.
  2. MINDBODY functionality that requires nightly scripts (e.g. automatic e-mails, generation of automatic payments, batch settlement of INTEGRATED MERCHANT ACCOUNT transactions and maintenance on expired series) will finish by midnight of their scheduled date. If any of the MINDBODY nightly scripts do not finish by midnight of their scheduled date, then MINDBODY will notify the SUBSCRIBER of the delay and forecasted completion date of the nightly scripts via email. SUBSCRIBER understands and acknowledges that the timely and successful completion of these scripts is, in part, dependent on third parties including payment processors and that MINDBODY cannot provide any assurances as to the reliability and functionality of any third party processes.
  3. DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE, THE SOFTWARE SERVICE IS PROVIDED AS IS AND WITH ALL FAULTS. NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY MINDBODY WITH RESPECT TO THE SOFTWARE SERVICE OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND MINDBODY EXPRESSLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF MINDBODY.
  4. LIMITATION OF LIABILITY
    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE, WHETHER IN CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION, OR SECURITY, OR SIMILAR ECONOMIC LOSS, LOSS OF PRIVACY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MINDBODY BE LIABLE FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
    3. IN NO EVENT SHALL MINDBODY'S LIABILITY UNDER ANY CLAIM MADE BY SUBSCRIBER EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY SUBSCRIBER IN THE CURRENT CONTRACT YEAR. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF:
      1. THE TERMINATION OR EXPIRATION OF THIS AGREEMENT; OR
      2. THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
    4. SUBSCRIBER AND SUBSCRIBER'S CUSTOMERS ACKNOWLEDGE AND AGREE THAT:
      1. TRANSMITTING CARDHOLDER DATA ON THE INTERNET MAY INVOLVE CERTAIN SECURITY RISKS; AND
      2. ABIDING BY THE CARDHOLDER DATA BEST PRACTICES STANDARD PROVIDED IN ATTACHED EXHIBIT B MAY REDUCE THESE RISKS. MINDBODY'S SERVER(S) PROVIDE A SECURE, ENCRYPTED ENVIRONMENT FOR CARDHOLDER DATA; PROVIDED, HOWEVER, THAT MINDBODY SHALL ONLY BE RESPONSIBLE FOR THE SECURITY OF CARDHOLDER DATA UPON THE ENCRYPTION AND RECEIPT OF THE CARDHOLDER DATA BY MINDBODY'S SERVER(S). MINDBODY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, AS A RESULT OF THE TRANSMISSION OF THE CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY MINDBODY'S SERVER(S), INCLUDING BUT NOT LIMITED TO DAMAGES, FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT OR INVASION OF PRIVACY.
  5. Use of Trademark
    1. SUBSCRIBER agrees to indemnify and hold MINDBODY, its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of SUBSCRIBER's breach of this AGREEMENT, SUBSCRIBER's violation of any law, or SUBSCRIBER's violation of the rights of a third party, including the infringement by SUBSCRIBER of any intellectual property or other right of any person or entity. These obligations will survive any termination of the terms of this AGREEMENT.
    2. SUBSCRIBER hereby authorizes MINDBODY to list SUBSCRIBER as a subscriber of MINDBODY on MINDBODY'S website, and include SUBSCRIBER's name and trademarks in MINDBODY's public directories and the MINDBODY CONNECT SERVICE. MINDBODY will provide SUBSCRIBER with the ability to remove SUBSCRIBER's name, information, and trademark from these public directories at any time. SUBSCRIBER assumes sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by SUBSCRIBER or which SUBSCRIBER is authorized to use or display. If MINDBODY receives notice or documentation demonstrating that another person or entity contests SUBSCRIBER's right to use or display a name, trademark, service mark or other content, MINDBODY may, in its sole discretion, reject or discontinue listing SUBSCRIBER on the MINDBODY website without liability to SUBSCRIBER or MINDBODY until such time as SUBSCRIBER has resolved that dispute with the other party to MINDBODY's satisfaction.
    3. MINDBODY does not make it its responsibility to monitor the use of trademarks, copyrights or other rights of SUBSCRIBER or third parties. MINDBODY may, however, in appropriate circumstances and in MINDBODY's sole discretion, remove, suspend, terminate access, or take other appropriate action against subscribers who infringe the copyright rights of others. Therefore, if SUBSCRIBER reasonably believes that any materials on MINDBODY's website contain unauthorized reproductions of SUBSCRIBER's copyrighted work or trademarks, and SUBSCRIBER wants MINDBODY to take any action, then SUBSCRIBER must provide the following information to MINDBODY (as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512)):
      1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
      2. Identification of the copyrighted work claimed to have been infringed;
      3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MINDBODY to locate the material;
      4. Information reasonably sufficient to permit MINDBODY to contact SUBSCRIBER, such as an address, telephone number and e-mail address;
      5. A statement that SUBSCRIBER has a good faith belief that the use of the material in the manner complained of is not authorized by the owner, its agent or the law; and
      6. A statement that the information in the notice is accurate, and under penalty of perjury, that SUBSCRIBER is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
      7. Please e-mail this information to privacy@mindbodyonline.com.

Article X - Cancellation and Refund Policy

  1. SUBSCRIBER has thirty (30) days from the date of purchase to determine that the SOFTWARE SERVICE does not meet its needs. If SOFTWARE SERVICE does not meet the SUBSCRIBER's needs, then the SUBSCRIBER must notify MINDBODY in writing within thirty (30) days from the EFFECTIVE DATE that SUBSCRIBER wishes to terminate the SOFTWARE SERVICE provided hereunder and receive a refund of the corresponding fee paid by SUBSCRIBER, less the cost of any SERVICES provided prior to such cancellation based on MINDBODY's fees in effect at the time of such cancellation.
  2. If the SERVICES are provided free of charge during the thirty (30) day evaluation period (described in Article X, 1 above), to allow SUBSCRIBER to evaluate and test it before paying MINDBODY's current fees, MINDBODY enforces a strict no refund policy after the expiration of the initial thirty (30) day period.
  3. Current MINDBODY Fees. For the purposes of this Article X, MINDBODY's current fees may be found at https://purchase.mindbodyonline.com/. These fees are subject to change at any time.

Article XI - Term / Termination

  1. Term. The Term of this agreement commences on the EFFECTIVE DATE and shall continue on a month to month basis until terminated by either party in accordance with the terms contained in Article XI, section 2.  
  2. Termination. SUBSCRIBER may terminate this AGREEMENT for any reason by providing advance written notice via email to ClientCare@mindbodyonline.com at least 30 days prior to the EFFECTIVE DATE of the termination.   MINDBODY may terminate this AGREEMENT for any reason by providing notice to the SUBSCRIBER'S email address on file at the time with at least 30 days notice prior to the termination date.
  3. Termination for Cause. In the event of a data breach or default of this AGREEMENT by SUBSCRIBER, MINDBODY shall have the right to immediately terminate this AGREEMENT without notice. In the event of any breach or default of this AGREEMENT by MINDBODY, SUBSCRIBER shall have the right to terminate this AGREEMENT by giving thirty (30) days written notice to MINDBODY; provided, however, that MINDBODY shall have the right to cure said reason for the termination during the thirty (30) day notice period, and in the event of a cure by MINDBODY, said termination shall be null and void and this AGREEMENT shall remain in full force and effect. SUBSCRIBER will not have the right to cancel any portion of this AGREEMENT and/or receive a refund pursuant to Article X if SUBSCRIBER has breached this AGREEMENT.
  4. Data Portability and Deletion. Upon the termination of this AGREEMENT by either party, the SUBSCRIBER may:
    1. Perform a Free Data Download. Within 30 days after the EFFECTIVE DATE of termination, SUBSCRIBERS are permitted to download a FREE copy of current SUBSCRIBER DATA, except for CARDHOLDER DATA via the reporting feature of the SOFTWARE SERVICE. Support documentation explaining the use of this self-service feature can be found at https://support.mindbodyonline.com/categories/20033412-reports.
    2. Request an Assisted Data Download. For a Fee, the SUBSCRIBER may request MINDBODY provide a copy of SUBSCRIBER DATA, to include CARDHOLDER DATA via a PCI-DSS approved secure file transfer method within five (5) business days of such request.

Upon the 31st day after the EFFECTIVE DATE of the termination, MINDBODY will have no further obligation to maintain or provide SUBSCRIBERS DATA, and will thereafter delete and/or destroy all copies of SUBSCRIBER DATA in MINDODY's systems or otherwise in MINDBODY's possession or control, unless legally prohibited.

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

Article XII - Indemnity

  1. The PARTIES agree to indemnify, defend, and hold each other, their officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from:
    1. The operation, maintenance, and content of the SOFTWARE SERVICE;
    2. SUBSCRIBER's use of the SOFTWARE SERVICE;
    3. Failure by SUBSCRIBER to comply with any applicable privacy laws; and
    4. Any breach of this AGREEMENT by the PARTIES.
  2. SUBSCRIBER shall indemnify, defend, and hold MINDBODY, its officers, directors, shareholders, employees, and authorized agents harmless from and against any and all claims, damages and expenses (including, without limitation, attorneys' fees) resulting directly or indirectly from access to or use or misuse of the SUBSCRIBER DATA and/or the CARDHOLDER DATA by SUBSCRIBER, its REPRESENTATIVES, or affiliates. This Article XII shall survive the termination of this AGREEMENT.

Article XIII - Miscellaneous

  1. Governing Law. This AGREEMENT will be interpreted in accordance with the laws of the State of California, including all matters of construction, validity, performance, and enforcement, without giving effect to any principles of conflict of laws.
  2. Dispute Resolution. Any action to enforce or interpret this AGREEMENT, or to resolve disputes with respect to this AGREEMENT, shall be settled by arbitration in accordance with California Code of Civil Procedure Sections 1280 through 1294.2 and any successor provisions thereto. The provisions of California Code of Civil Procedure Section 1283.05 regarding the right to take depositions and obtain discovery shall apply to the arbitration. Arbitration shall be the exclusive dispute resolution process. Any party may commence arbitration by sending a written demand for arbitration to the other parties. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of arbitration shall be in the County of San Luis Obispo, California. The substantive law of the State of California shall be applied by the arbitrator to the resolution of the dispute. The parties shall share equally all initial costs of arbitration. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
  3. Assignment and Assumption. This AGREEMENT may not be assigned by SUBSCRIBER without the prior written consent of MINDBODY, which may be withheld at MINDBODY's sole discretion. MINDBODY may require any proposed assignee of this AGREEMENT to enter into a new written agreement with MINDBODY. MINDBODY may assign this AGREEMENT to any person or entity, and thereafter be relieved of all liability hereunder.
  4. Notices
    1. All notices, requests, demands, and other communications shall be validly given if delivered in person, facsimile transmission, sent by electronic mail, or forwarded by registered or certified mail addressed to the other party at the address provided in the signature block of this AGREEMENT, unless such party has notified the other party of a substitute contact information in writing pursuant to this article.
    2. Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
  5. Relationship. The PARTIES shall do business at their own risk and for their own profit. Nothing in this AGREEMENT shall constitute a partnership or agency relationship between SUBSCRIBER and MINDBODY or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.
  6. Government Regulations. SUBSCRIBER shall at its own expense comply with all laws, ordinances, rules, regulations and other requirements of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of this AGREEMENT.
  7. Severability. If any of the provisions of this AGREEMENT shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the other portions of this AGREEMENT shall remain in full force and effect.
  8. Force Majeure. No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including, without limitation, acts of God, fire, flood, war, terrorist attack, civil unrest, labor unrest, or shortage of or inability to obtain material as equipment.
  9. The failure of either party to enforce at any time or for any period of time, the provisions hereof in accordance with their terms will not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.
  10. No Third Party Beneficiary. The benefits and protection provided by this AGREEMENT shall inure solely to the benefit of the PARTIES. This AGREEMENT shall not be deemed to create any right in any person or entity who is not a party to this AGREEMENT and shall not be construed in any respect to be a contract in whole or in part for the benefit of any third party unless specified in Exhibit C.
  11. Questions. All questions and requests for customer service and/or technical support should be directed to MINDBODY Customer Service Team at 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401. If SUBSCRIBER is within the US and Canada, call toll free (877) 755-4279. If calling from outside the United States and Canada, SUBSCRIBER may call 1-(805) 476-2700. Email: Support@mindbodyonline.com.

Exhibit A - Maintenance and Security of SUBSCRIBER DATA

  1. MINDBODY hosts SUBSCRIBER DATA at multiple secure and redundant data centers in geographically diverse locations. Each data center is secured and monitored 24x7x365 by a staff of highly trained data center facility experts. The primary data center features:
    1. SSAE 16 Type II, Type III Compliant systems and processes
      1. Zone 4 earthquake-rated reinforced structure
      2. Multiple redundant, enterprise switching hardware at every stage;
      3. A monitoring system providing real-time data on equipment operation, enabling instant identification of problems.
      4. Multiple paralleled N+1 UPS modules configured in redundant systems allow for A/B power configuration.
      5. 20 megawatts of expandable N+1 power backup utilizing Caterpillar diesel generators.
      6. Very Early Smoke Detection Alarm (VESDA) early smoke detection with pre-action dry pipe fire suppression systems.
      7. Multiple fiber route entrances to building.
      8. Access control systems leveraging biometric scan and personal identification number (PIN), with separate locks for all MINDBODY server cabinets, and
      9. The backup data center features the same facility specifications as the primary data center. The backup data center receives a backup of subscriber data at least once per rolling 24 hour period. During normal conditions, this data is available for read only access and report downloading by SUBSCRIBER, via the URL https://backup.mindbodyonline.com.
  1. Security Provisions
    1. Personal Security
      1. MINDBODY technical or management personnel with access to SUBSCRIBER DATA are subjected to background checks prior to hiring, and must sign non-disclosure and data security agreements that protect both MINDBODY and SUBSCRIBER DATA.
      2. Physical access to the primary data center and the backup data center is restricted by 24x7 on-site security and Network Operations Center (NOC) staff. The facility is controlled by alarm systems with cameras on perimeter points of the building along with video and camera surveillance within facility. Multi-level access authorization with man trap, biometric verification and security controlled access level assignments are used to verify a limited number of MINDBODY authorized personnel who have been granted access.
      3. MINDBODY personnel are not permitted to transfer SUBSCRIBER DATA onto any hard drive or storage device, except those contained within either the primary data center or backup data center. SUBSCRIBER DATA is not transferred to MINDBODY corporate workstations.
    2. Data Security
      1. All SUBSCRIBER DATA is located on secure servers, or backup directories that require access authentication.
      2. All secure servers are protected by multiple, redundant firewalls and intrusion detection and prevention systems that are regularly monitored and tested (details of firewall configuration are not shared publicly for maximum security).
      3. 256-bit Secure Sockets Layer (SSL) data encryption is employed to protect all data access across the Internet.
    3. PCI-DSS

MINDBODY complies with the PCI DSS tier 1 standard, and MINDBODY has continued to maintain Level 1 service provider designation since 2007. MINDBODY is dedicated to the six (6) PCI DSS best security practices for credit card protection:

      1. Maintaining a Secure network;
        1. Protecting the Cardholder data;
        2. Maintaining a Vulnerability Management Program;
        3. Implementing Strong Access Control Measures;
      2. Monitoring and Testing Production and Development Networks;
      3. Maintaining an Information Security Program and Policies
      4. McAfee SECURE PCI Certification Service - Delivers accurate vulnerability scanning and actionable reporting, that enables the MINDBODY NOC to quickly rank risks and gauge compliance against industry standards such as PCI. Vulnerability Assessment monitors the MINDBODY network perimeter against daily threats to help protect MINDBODYONLINE and MINDBODY CONNECT, our brand, and our customers from hackers, data breaches, adware, spyware, pop-ups, browser exploits, and phishing attempts.
    1. Data Privacy

MINDBODY is committed to protecting the privacy of individuals who visit MINDBODY's websites ("Visitors"), individuals who register to use the Services as defined in Article I- Definitions ("Subscribers"), and individuals who register to attend the Company's corporate events ("Attendees"). The MINDBODY Privacy Policy, a copy of which is located at www.mindbodyonline.com/privacy-policy, covers our collection, use and disclosure of information we collect through our websites, www.mindbodyfinder.com and www.mindbodyonline.com, our software as a service MINDBODY and our mobile applications MINDBODY Connect and Express Business, (collectively referred to in this Policy as our "Digital Properties"). The use of information collected through our Digital Properties shall be limited to the purpose of providing the service(s) for which you have engaged MINDBODY. We will share your personal information with third parties only in the ways that are described in this privacy statement.

MINDBODY's full Privacy Policy contains more information about MINDBODY's Site privacy practices.

MINDBODY is a certified licensee of the TRUSTe Web Privacy Seal. The Company is also a certified licensee of the TRUSTe EU Safe Harbor Seal and abides by the EU Safe Harbor Framework.

    1. HIPAA

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

MINDBODY will not disclose Protected Health Information, as defined by applicable law, other than as permitted or required by the AGREEMENT or as required by law;

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

Exhibit B - CARDHOLDER DATA Best Practices

  1. Any merchant who accepts Visa, MasterCard, American Express, or Discover credit cards for payment is subject to the Payment Card Industry Data Security Standard (PCI DSS), which outlines credit card processing merchants' responsibilities for the protection of CARDHOLDER DATA. If SUBSCRIBER uses MINDBODY's integrated merchant account processing service, MINDBODY is responsible for protecting CARDHOLDER DATA only after it is properly uploaded and encrypted into SUBSCRIBER DATA by the SOFTWARE SERVICE. SUBSCRIBER remains responsible for the proper handling and protection of CARDHOLDER DATA up to the point that it is properly uploaded and encrypted by the SOFTWARE SERVICE.
  2. MINDBODY hereby refers SUBSCRIBER to the PCI DSS website, for a complete list of all rules and restrictions that may apply: https://www.pcisecuritystandards.org/.
  3. At a minimum, MINDBODY recommends that SUBSCRIBER implement the practices set forth below:
    1. SUBSCRIBER should do the following:
      1. Maintain updated anti-virus software on all workstations engaged in credit card processing and remove any programs that the anti-virus software flags as potentially malicious.
      2. Restrict permission to install software on those computers to SUBSCRIBER business owner and/or trusted senior staff.
      3. Maintain up-to-date versions of operating systems (e.g., Microsoft Windows or Macintosh OS) and web browsers (e.g., Internet Explorer, Safari or Firefox), with all security updates and patches installed.
      4. Ensure that every individual that logs into the SOFTWARE SERVICE has a unique username and password that is known only by that individual.
      5. Only store credit card account numbers in encrypted credit card fields designed for that purpose in the SOFTWARE SERVICE system.
      6. Destroy any hard copy documents that have CARDHOLDER DATA written on them.
    2. SUBSCRIBER should not do the following:
      1. Record CARDHOLDER DATA in notes, contact logs, or other unencrypted text fields within the SOFTWARE SERVICE;
      2. Record CARDHOLDER DATA in any locally installed software program, unless that program and SUBSCRIBER's computer network meet all PCI requirements;
      3. Email SUBSCRIBER'S CUSTOMERS credit card numbers, or ask them to email their credit card numbers to SUBSCRIBER; or
      4. Record credit card track data.

Exhibit C - Granting Third Party Access of SUBSCRIBER DATA

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

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

Exhibit D - ACH Services

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

Exhibit E - MINDBODY CONNECT SERVICE Agreement

  1. The use of information collected through the MINDBODY CONNECT SERVICE shall be limited to the purpose of providing the service(s) for which was engaged and is detailed in the MINDBODY Privacy Policy.
  2. The MINDBODY CONNECT SERVICE aggregates SUBSCRIBER PUBLIC DATA, including schedules, availabilities, descriptions and pricing, thereby enabling consumers to find SUBSCRIBER services via internet search and mobile devices.
  3. SUBSCRIBER's agreement to participate in this service is assumed at the time of execution of this Agreement.
  4. SUBSCRIBER may opt out of the MINDBODY CONNECT SERVICE at any time during the duration of this AGREEMENT by accessing the business information page under the MINDBODY CONNECT tab.
  5. If SUBSCRIBER opts out of the MINDBODY CONNECT SERVICE, they may not participate in the MINDBODY CONNECT SERVICE detailed in Exhibit F.

Exhibit F - MINDBODY ANALYTICS SERVICE Agreement

  1. MINDBODY ANALYTICS SERVICE grants SUBSCRIBER access to COMPILED DATA.
  2. To subscribe to MINDBODY ANALYTICS, SUBSCRIBER shall:
    1. Agree to conditions found in this exhibit, and indicate such agreement in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
    2. Agree to the payment options found in the PREMIUM SERVICES SCREEN found in BUSINESS MODE.
  3. SUBSCRIBER understands that MINDBODY ANALYTICS has been developed with the investment of significant time, effort, materials, and expense by MINDBODY and that MINDBODY ANALYTICS provides SUBSCRIBER and other MINDBODY subscribers with significant, unique competitive business advantage.
  4. Nondisclosure
    1. SUBSCRIBER agrees to cite MINDBODY as the source anytime SUBSCRIBER discloses MINDBODY ANALYTICS data or analysis in reports, articles, or other derivative works authored by SUBSCRIBER. For instructions on how to cite MINDBODY ANALYTICS contact MINDBODY ANALYTICS Department at 1 (877) 755-4279. For SUBSCRIBERS outside the US and Canada, call 1 (805) 476-2700.
    2. SUBSCRIBER will not sell, lease, rent, license, copy, alter, modify, disassemble, reverse engineer or decompile MINDBODY ANALYTICS without the prior written consent of a duly authorized representative from MINDBODY. Any violation of this confidentiality can result in instant termination of MINDBODY SOFTWARE SERVICE or MINDBODY ANALYTICS.

Exhibit G - "PREMIUM SUPPORT"

  1. SUBSCRIBER may OPT-IN for PREMIUM SUPPORT by accessing the PREMIUM SERVICES SCREEN in BUSINESS MODE.
  2. If SUBSCRIBER OPTS-IN for PREMIUM SUPPORT, then the RECEIPT emailed to SUBSCRIBER will specify the premium support level purchased, and SUBSCRIBER and SUBSCRIBER's employees may continue to receive SERVICES listed in Article II and Article III, 2.
  3. PREMIUM SUPPORT consists of account management, project management and software configuration consultation to deploy MINDBODY software and related services provided by an assigned Premium Account Coordinator ("PAC"), who coordinates services provided at option levels detailed on this website page: https://www.mindbodyonline.com/professional-services/premium-services.

MINDBODY Premium Account Coordinator ("PAC")

    1. A PAC is a senior and highly certified member of the MINDBODY Premium Services team assigned to SUBSCRIBER, if SUBSCRIBER has OPTED-IN for PREMIUM SUPPORT.
    2. The PAC is provided a direct business line and a MINDBODY internal instant messaging account, which may be used by SUBSCRIBER to communicate with PAC in lieu of telephone and email.
    3. If SUBSCRIBER opts for Gold Level Premium Support, then the PAC will also be provided with a MINDBODY mobile phone, enabling after hours communication.
    4. Premium Support SUBSCRIBER will designate a single point of contact to provide consistent communications and direction to the PAC.
    5. When the designated Single Point of Contact is not available, other SUBSCRIBER employees may contact the MINDBODY PAC for urgent matters, if previously arranged.
    6. The PAC is obligated only to provide support to SUBSCRIBER and SUBSCRIBER's regular employees. The scope of any desired PAC consultation to third parties (e.g., SUBSCRIBER's consultants, accountants, developers, etc.) must be specified in writing and be arranged for in advance with the PAC.
  1. SUBSCRIBERS dissatisfied with their PAC may request a new PAC at any time by contacting MINDBODY Premium Services, who will provide a new PAC within thirty (30) days.
  2. PREMIUM SUPPORT Contracts
    1. PREMIUM SUPPORT Contracts will be a minimum of three (3) month duration, and are paid monthly. PREMIUM SUPPORT will continue month-to-month until SUBSCRIBER provides a 30 day notice to their PAC of their desire to discontinue PREMIUM SUPPORT.
    2. Only one premium support fee per business entity applies. Premium Support does not vary according to the number or size of active SUBSCRIBER business locations served.
  3. Receiving Premium Support
    1. Business Hours Support shall be that support provided during the assigned PAC's normal working hours (e.g., 8 AM - 5 PM Pacific Time), and shall be accrued in fifteen (15) minute increments. For Gold PREMIUM SUPPORT Contracts, after hours support shall be accrued in thirty (30) minute increments. If SUBSCRIBER's allocation of PAC Support Hours is exceeded in any billing month, additional hours will be billed in sixty (60) minute increments.
    2. Allocated Premium Support hours depicted in the matrix above are per rolling month, and must be expended during that month. Unused hours do not roll over to subsequent months.
    3. Instant Message Support counts towards the monthly support in fifteen (15) minute increments. SUBSCRIBER will see the entire MINDBODY Premium Account Coordinators Group and will be asked to only contact their assigned PAC for non-urgent questions. However, they may instant message any available PAC to request Premium Support for urgent matters.

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