- General Terms of Service
- Preliminary Matters
- 1. Definitions
- 2. Data Ownership and Use
- 3. Services
- 4. Payment
- 5. Intellectual Property
- 6. Licensing Matters
- 7. Confidentiality
General Terms of Service
Plain English Summary To help you navigate through our Terms of Service, we’ve provided summaries for each section. These do not, however, replace the legal agreement provided on the right hand side.
This is a legally binding agreement even if you do not become a subscriber.
Please review Article 14, as it explains your legal rights. If you live outside of the United States, this section may not apply to you.
These GENERAL TERMS OF SERVICE (“TOS”) are 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”). Hereafter, MINDBODY and SUBSCRIBER may be collectively referred to as the “PARTIES”.
Article 14 contains a Binding Arbitration Agreement and Class Action Waiver. It affects YOUR legal rights. Please read it. If YOU live outside of the United States, some or all of Article 14 may not apply to YOU.
- Terms used in these TOS beginning with initial capital letters are defined terms which shall have the meanings ascribed to them in Article 1 below or elsewhere in these TOS. Please refer to these definitions in reviewing these TOS.
- These TOS, together with certain supplemental or additional documents referenced in Section 1.11 below constitute the Contract between MINDBODY and SUBSCRIBER.
- MINDBODY provides standard software services that allow Subscribers to manage their business and End Users to schedule and purchase services from Subscribers. These standard software services can be customized or supplemented through optional enhancements in order to support each Subscriber’s specific business needs. All of the standard and optional software services are collectively referred to as the “Services”.
- The Services include Standard Services (as defined in Article 1 below) and Premium Services (as defined in Article 1 below). The Services and are provided through websites, such as www.mindbodyonline.com, https://clients.mindbodyonline.com, https://purchase.mindbodyonline.com, and https://mindbodyexchange.com (the “Associated Websites”) and through mobile applications such as MINDBODY Express Business, MINDBODY Receipt Keeper, MINDBODY Connect (the “Mobile Applications”).
- The MINDBODY Security Policy (“Security Policy”) is incorporated by reference into these TOS. The Security Policy describes the reasonable and appropriate security controls WE take to protect the Services, Associated Websites, and Subscriber Data against foreseeable hazards. The Security Policy also includes the Cardholder Data Recommended Practices, which outline the minimum security practices YOU should have in place to protect Cardholder Data. A copy of the Security Policy is located at www.mindbodyonline.com/security-policy. In the event of a conflict between the terms of these TOS and the Security Policy, the terms of these TOS shall prevail.
- By accessing, viewing or using all or any part of the Digital Properties, whether by downloading any materials, or by completing any registration process, YOU are accepting the terms and conditions of these TOS.
- If YOU are executing these TOS on behalf of a corporation or other legal entity, YOU represent that YOU have the authority to bind such entity and its affiliates to these TOS, in which case the terms “SUBSCRIBER,” “YOU” or “YOUR” shall refer to such legal entity and its affiliates. If YOU do not have such authority YOU do not have the legal capacity or right to agree to these TOS and may not use any of OUR Digital Properties or content.
If your business must meet HIPAA requirements and you plan to use Protected Health Information, you’ll need to contact us to set up a Business Associate Agreement.
If you do not agree to any part of this contract, you will not be able to use our products and services.
- If YOU desire to purchase any of the Services, please complete and submit a Subscriber Order to MINDBODY. If YOU do not receive an Order Acceptance from MINDBODY via a separate email thereafter, please contact the MINDBODY Customer Service Team at (877) 755-4279 before accessing or using any of the Services.
MINDBODY provides products and services to support businesses in the health, wellness and beauty industries. By using our products and services you are agreeing to our Terms of Service.
Having considered the above Preliminary Matters and mutual agreements below, the PARTIES hereby agree as follows:
This section will assist you in understanding the terms used throughout this contract.
These GENERAL TERMS OF SERVICE (“TOS”) are 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”). Hereafter, MINDBODY and SUBSCRIBER may be collectively referred to hereafter as the “PARTIES.”
Article 14 contains a Binding Arbitration Agreement and Class Action Waiver. It affects YOUR legal rights. Please read it. If YOU live outside of the United States, some or all of Article 14 may not apply to YOU.
“Addendum” or “Addenda” means any supplements or additions to these TOS entered into by MINDBODY and SUBSCRIBER, from time to time, for the purpose of modifying or supplementing these TOS. Each Addendum entered into by MINDBODY and SUBSCRIBER is hereby incorporated into the Contract by reference. These Addenda may include, without limitation, one or more of the following:
- “Analytics Service” means a Premium Service provided by MINDBODY, in accordance with the Analytics Service Agreement attached hereto as Addendum D that gives a SUBSCRIBER who purchases the Analytics Service access to Compiled Data in Business Mode.
- “Authorized Persons” has the meaning provided in Section 6.1 below.
- “Automated Clearing House” ("ACH") means the electronic network for financial transactions in the United States, which is used to process End User payments directly from checking accounts. This is referred to outside the United States by other terms, such as "PAP" and "DDA".
- “Billing Period” means the period that is covered by a single Subscription Fee payment. The Billing Period shall be one (1) calendar month unless otherwise agreed to by PARTIES in writing.
- “Business Mode” means YOUR use of the Purchased Services as an administrative user to input, review, and maintain Subscriber Data as provided in these TOS.
- “Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and YOU. Cardholder Data is a subset of End User Data.
- “Compiled Data” means proprietary data about the utilization of OUR Digital Properties by Subscribers and End Users that is created by MINDBODY using proprietary analytical techniques for the purposes of, among other things, producing indices, statistics, summaries, and industry reports for use by Analytics Service subscribers. The Compiled Data will be presented in an anonymous, aggregate manner only and will not reveal proprietary or personally identifying information about YOU or YOUR End Users.
- “Confidential Information” has the meaning given it in Article 7 below.
- “Connect Service” means MINDBODY Connect, a Premium Service provided by MINDBODY, in accordance with the Connect Agreement attached hereto as Addendum C that enables members of the public to search for, find, schedule, and pay for YOUR and other MINDBODY Subscribers’ classes, appointments, and other services. The Connect Service connects Subscribers to End Users and allows End Users to better track and manage purchases and activities scheduled through the Digital Properties.
- “Digital Properties” means and includes the Services, the Associated Websites, the Mobile Applications, and the MINDBODY API.
- “Effective Date” means the date on which SUBSCRIBER becomes obligated to pay the Subscription Fee, plus any other amount(s) payable by Subscriber under the Contract. The Effective Date will be the earlier of (i) the date YOU receive the Order Acceptance or (ii) the first date on which YOU use the Purchased Services, unless separately arranged between the PARTIES in writing.
- “End User” means the business or individual scheduling or purchasing products and/or services from SUBSCRIBER through OUR Digital Properties. In other words, End Users are YOUR customers.
- “End User Data” means data about an End User that SUBSCRIBER or an End User furnishes to MINDBODY through data importation or entry. End User Data includes Cardholder Data and such portions of SUBSCRIBER Data that relate to specific End Users.
- “Integrated Merchant Account” means an optional service that allows for processing of credit card and ACH payments. The ability to process ACH payments is optional and not required to use the MINDBODY System. If YOU would like to process ACH payments through OUR Digital Properties, YOU must enter into a separate contract titled “ACH Services Agreement.” For more information see Addendum B.
- “Invoice” means the invoice sent, from time to time, by MINDBODY to YOU to confirm the Purchased Services provided to YOU and the amounts payable by YOU for the period covered by the Invoice.
- “Limited Access Licenses” has the meaning provided in the Grant of Third Party Access to Subscriber Data attached hereto as Addendum A.
- “MINDBODY Exchange” (“MBX”) means the Premium Service provided by MINDBODY, in accordance with the MINDBODY Exchange Agreement attached hereto as Addendum F. MBX enables Employers and Employee Benefit Managers to establish and manage an integrative healthcare program for their employees. MBX allows Employers to manage their integrative healthcare program while providing SUBSCRIBER with additional opportunities to gain customers should SUBSCRIBER participate.
- “MINDBODY Subscribers” mean the Persons who register with MINDBODY to use OUR Services.
- “Onsite Training” means training provided by MINDBODY to YOU at YOUR facilities for an additional fee. Onsite Training is only available in certain geographical areas, as determined by MINDBODY in its sole discretion.
- “Order Acceptance” means the communication that MINDBODY sends to YOU responding to the Subscriber Order. The Order Acceptance shall confirm OUR acceptance of the Subscriber Order, list the Purchased Services to which YOU have subscribed, include links to all applicable agreements, and state the amount of the Subscription Fee payable by YOU to MINDBODY at the beginning of each Billing Period.
- “PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time, at any time.
- “Person” means a natural person, corporation, partnership, or any other legal entity capable of having legal rights and duties.
- “Practitioner” means any service professional whose services are listed by SUBSCRIBER within the Purchased Services.
- “Premium Account Coordinator” (“PAC”) means a member of OUR Premium Services Team certified by MINDBODY to provide optional Premium Support as defined in Addendum F to these TOS.
- “Premium Service” means any optional service WE offer, subject to the terms and conditions of the applicable Addendum, in addition to the Standard Services. This includes the Analytics Service, the Connect Service, MBX, the services discussed in Section 3.3 below, and any new or additional service that is not included in, or required to use the Standard Services.
- “Premium Services Screen” means a screen accessible in Business Mode that describes the Premium Services and that enables YOU to opt-in or out of those Premium Services.
- “Public Services” means OUR Services that End Users may utilize or purchase. The Public Services are publicly accessible through a generally available web browser, mobile device or MINDBODY authorized application. YOU agree that Subscriber Public Data shall be publicly accessible through the Public Services.
- “Purchased Services” means all the Services identified in the Order Acceptance as the services to be provided to YOU by MINDBODY in exchange for the Subscription Fee and any additional fees identified in the Order Acceptance. The Purchased Services are priced according to the number and size of SUBSCRIBER’s business units and locations. The Purchased Services include any user guides, multimedia content, and other relevant documentation made available through the Digital Properties, and any other materials provided to YOU by MINDBODY pursuant to the Contract.
- “Representatives” has the meaning provided in Article 7 below.
- “Standard Services” means the Purchased Services provided to YOU under these TOS. The Standard Services currently consist of MINDBODY Online and the specific services described in Section 3.2 below. WE have the right to amend or modify the Standard Services from time to time, at any time, by giving YOU reasonable notice.
- “Standard Services License” has the meaning given it in Section 6.2 below.
- “Startup Training” means training provided by a MINDBODY professional trainer to YOU while YOU are in the process of implementing the Purchased Services. Such training is a Standard Service described in Section 3.2.b below. Startup Training is delivered via telephone and optional Internet link.
- “Scheduled Maintenance” means periodic planned servicing to OUR Digital Properties as may be necessary from time to time to maintain optimum system performance, and which are announced in advance by MINDBODY.
- “Subscriber Data” means all data entered or stored by YOU on MINDBODY's host computer system using the Purchased Services. Subscriber Data includes Cardholder Data, End User Data, Subscriber Public Data, and Subscriber Private Data. Subscriber Data, excluding Cardholder Data, is the property of SUBSCRIBER as stated in Section 2.2 below. After Subscriber Data is input into the MINDBODY system, the format of Subscriber Data will be transformed using proprietary techniques and know how. In order to comply with HIPAA regulations and to protect MINDBODY trade secrets and other intellectual property rights, SUBSCRIBER shall have no right to obtain from MINDBODY the Subscriber Data in proprietary format. In the event YOU terminate this Agreement, YOU shall be entitled to receive YOUR Subscriber Data in a standard file type as provided in this Section 1.36 and Article 13 below. For clarification, MINDBODY does not restrict or limit SUBSCRIBER’s access to Subscriber Data, but MINDBODY will not provide Subscriber Data in a format that would compromise MINDBODY’s proprietary information nor will MINDBODY provide any SQL or other information which would cause MINDBODY to fail to comply with HIPAA or other applicable laws.
- “Subscriber Private Data” means that portion of Subscriber Data that will not be displayed or made available to the Public through the Public Services. Subscriber Data that YOU do not designate as Subscriber Public Data will be private and confidential in accordance with the terms and conditions of Article 7 below.
- “Subscriber Public Data” means that portion of Subscriber Data that YOU decide to display to the public through the Public Services for the purpose of marketing, promoting, and facilitating the sale or use of YOUR services. Examples of Subscriber Public Data include, without limitation, classes, appointment schedules, and other products and services YOU offer.
- “Subscriber Order” means the initial communication submitted by YOU to US, describing the Services YOU want to purchase.
- “Subscription Fee” means the fee to be paid by the SUBSCRIBER to MINDBODY for the Purchased Services, as set forth in the Order Acceptance.
- “Termination Date” has the meaning provided in Section 13.2 below.
2. Data Ownership and Use
MINDBODY will not be held liable for the integrity of your Subscriber Data. It is your responsibility to ensure that your Subscriber Data does not violate any laws. It is also up to you to notify MINDBODY of, and resolve, any disputes that may arise with third parties.
- Cardholder Data All right, title, and interest in each item of Cardholder Data shall be solely and exclusively owned by the End User who is personally identifiable from such item of Cardholder Data.
Ownership, Maintenance and Use of Subscriber Data
- Subject to the provisions of this Article 2 and Article 6 below, SUBSCRIBER shall have sole ownership of all right, title, and interest in Subscriber Data, excluding Cardholder Data.
- The Person who provides payment for the Purchased Services may or may not be the owner of Subscriber Data.
- YOU shall be solely responsible for resolving any dispute over ownership of Subscriber Data between YOU and a third party. YOU agree that MINDBODY shall have no obligation to be involved in any such dispute. YOU further agree that WE have no responsibility to determine proper ownership of Subscriber Data. WE reserve the right to, at OUR sole discretion; restrict access to the Purchased Services until such ownership dispute is resolved.
- YOU agree that it is YOUR sole responsibility to provide proper documentation to MINDBODY in order to resolve any dispute over ownership of Subscriber Data. If the documentation YOU provide is not satisfactory, under MINDBODY’s sole judgment, WE may request further documentation.
MINDBODY takes security seriously and fully backs our products and services as described in our Security Policy. We recommend that you also take precautions to protect yourself and your business.
- YOU may enable or disable public access to Subscriber Public Data by activating various check box controls in Business Mode. For assistance with these settings, YOU may contact OUR Customer Service Team at (877) 755-4279.
Access to Subscriber Data
We have several Subscriber Data reports available to you. If you need a customized report, contact our Customer Service Team at (877) 755-4279.
- YOU may contact OUR Customer Service Team at (877) 755-4279 to request customized Subscriber Data reports. So long as YOU agree to pay all expenses associated with generating such reports, MINDBODY will provide YOU such reports within a reasonable time period. Customized reports will not contain Cardholder Data.
You agree that MINDBODY may use your Subscriber Data to provide your clients with information they request through our products and services, such as your class and/or appointment schedule.
- YOU hereby agree that WE may use any portion of the End User Data associated with an End User for the purposes of displaying such End User’s schedule, purchase history, and visit history to the Employer(s) and Employee Benefit Manager(s) that monitor such End User’s activities through MBX. This End User Data will only be incorporated into MBX upon an Employer’s or Employee Benefit Manager’s request and only after such End User confirms participation in the MBX program.
If you’d like to give a third party access to your Subscriber Data, please fill out Addendum A located at the end of this agreement.
- Any data YOU designate as Subscriber Public Data shall be publicly accessible through the Public Services.
Ownership and Access to Compiled Data
- SUBSCRIBER acknowledges and agrees that title, ownership, intellectual property rights, and all other rights and interests in Compiled Data are owned solely by MINDBODY and will be used by MINDBODY, in part, in connection with its Analytics Service.
MINDBODY will never violate your or your clients' privacy.
- So long as YOU agree to the Analytics Service Agreement attached hereto as Addendum E and comply with the terms and conditions of such Addendum and the Contract, WE will grant YOU a license to access the Compiled Data through the Analytics Service.
MINDBODY agrees to use your Subscriber Data within its legal rights and will immediately inform you of any security breaches.
Disclosure of Security Breach
- Following OUR discovery or notification of any breach of the security of the MINDBODY systems, WE shall disclose such breach to: (i) YOU if WE reasonably believe YOUR unencrypted Subscriber Data has been acquired by an unauthorized person and (ii) any End User whose End User Data WE reasonably believe has been acquired by an unauthorized person. Such disclosure shall be made expediently and without unreasonable delay, consistent with the legitimate needs of law enforcement or any measures reasonably necessary to determine the scope of the breach and restore the reasonable integrity of MINDBODY’s systems.
- All disclosures of security breaches shall be written in plain English and shall identify the types of unencrypted information that WE reasonably believe may have been acquired by an unauthorized person as a result of such breach. A breach disclosure shall include the estimated date of the breach, if it is possible to determine such information at the time the breach disclosure is issued. MINDBODY may communicate any breach disclosure electronically, subject to the terms and conditions of the Contract.
We may make changes to our products and services to better serve your needs. If we do make changes, we’ll notify you.
Operation, Maintenance, and Security of Purchased Services
- WE will operate and maintain the Purchased Services. WE reserve the right to replace, modify, and/or upgrade any of the Purchased Services from time to time and at any time in OUR sole discretion. MINDBODY continuously improves the Purchased Services by regularly releasing updates which modify, improve, and update the Purchased Services. Any replacement, modification, or upgrade to the Purchased Services shall be treated as part of the Purchased Services for the purpose of the Contract.
- WE will provide all equipment, software, and security services necessary for the operation and maintenance of OUR host computer system, set forth in further detail in MINDBODY’s Security Policy. WE reserve the right to change the configuration of OUR host computer system and change or delete equipment or software from time to time and at any time.
- WE will provide sufficient bandwidth and processor capability to enable YOUR use of Purchased Services and End Users use of Public Services.
If you’d like MINDBODY to import your customer contacts upon startup, let us know within 30 days of signing up. We’ll only do this once, so be sure that the information you send us is correct and includes the appropriate column headers.
Standard Services The following Services are Standard Services covered by the Subscription Fees set forth in the Contract:
- Data Importation of Customer Contacts YOU may elect to have MINDBODY import End Users’ names and contact information upon startup of the Purchased Service. This election must be submitted to MINDBODY in writing within thirty (30) days after the Effective Date. If YOU make this election, then the following shall apply:
- YOU shall provide MINDBODY with End Users’ names and contact information in a single, open database format no later than thirty (30) days after the Effective Date. YOU will provide US with all of the information needed to unlock such provided data.
- MINDBODY shall import, on a one-time basis, YOUR End Users’ names, notes, and contact information from any open database format, including, but not limited to .txt, .xls, and .csv.
To help you get started, MINDBODY gives you over 100 minutes of training over the phone and unlimited online training.
- One (1) Thirty (30) minute discovery call;
- One (1) Fifty (50) minute software setup training;
- Unlimited online webinar training sessions; and
- Two (2) Thirty (30) minute check-in calls.
Premium Services are available at an additional charge.
- Transactional Histories SUBSCRIBER may be eligible for importation of its transactional histories for an additional fee, as determined by MINDBODY in its sole discretion.
- Supplemental Training
- In the event that YOU wish to receive supplemental training via telephone and an optional Internet link in addition to the Startup Training provided as a standard service, MINDBODY may provide such supplemental training to YOU at an additional charge based on MINDBODY's hourly rates in effect at the time such Supplemental Training is requested. These fees are subject to change at any time, without prior notice.
- In the event that YOU wish to have Onsite Training, such training may be provided, at MINDBODY's discretion, at a fee to be agreed upon at the time of purchase of such training.
MINDBODY is fully integrated, but not affiliated, with Spafinder, a company that offers gift certificates, gift cards and business listing services.
As part of our service, you are automatically enrolled, but can opt-out at any time.
Because MINDBODY is a separate entity from Spafinder, we are not liable for any issues that may arise while using their services.
- Spafinder Gift Cards are sold at over 70,000 locations worldwide. By participating in the Spafinder gift card program, YOU agree to accept and honor all Spafinder gift cards at full stated value for YOUR products and services on the same basis as cash or credit/debit cards. MINDBODY has integrated Spafinder’s redemption confirmation process into our system to provide substantial time savings to OUR Subscribers. When a Spafinder gift card is used to purchase any of YOUR products or services, Spafinder will pay YOU up to the face value of the gift card, less the applicable redemption fee. MINDBODY has negotiated with Spafinder to obtain a preferred fee structure for OUR Subscribers. For more information on fees associated with Spafinder gift cards please contact Spafinder directly. YOU can choose to terminate YOUR participation in the Spafinder gift card program at any time.
- Spafinder Directories allow members of the public to find businesses that accept Spafinder gift cards. YOU must participate in the Spafinder gift card program to be listed in the Spafinder business directories. As long as YOU subscribe to this optional service, MINDBODY will automatically create a listing for YOUR business after YOU have effectively completed a Subscriber Order. YOU can choose to remove YOUR listing at any time.
- Opting-out YOU can terminate YOUR participation in Spafinder programs by: (1) using the tools located in Business Mode of MINDBODY Online to opt-out of the programs, (2) contacting Spafinder directly to notify them that YOU wish to terminate YOUR participation, or (3) refusing to accept and honor Spafinder gift cards. Should YOU opt-out by refusing to accept Spafinder gift cards, YOU will not be able to reenroll in the Spafinder programs without first contacting Spafinder and receiving their approval.
MINDBODY submits invoices on a monthly basis. If a payment isn’t received, a late fee will be assessed. Nonpayment may result in us suspension or deactivation of your account.
- Payment Terms MINDBODY calculates and bills its charges and fees on a monthly basis. Commencing on the Effective Date and continuing on the same calendar day of the month as the Effective Date for each calendar month thereafter until the Termination Date, Subscriber shall pay MINDBODY, in advance, the Subscription Fees, plus any other amount(s) payable by Subscriber under the Contract for the upcoming Billing Period The Subscription Fees shall be prorated for any partial monthly period that occurs during the Subscription Term.
- WE may charge YOU interest on all late payments at the lower of 1.5% per month or such maximum interest rate as may be imposed by applicable law in the jurisdiction in which YOU are located. Any payment not received within thirty (30) days after the applicable due date shall be considered a default under the Contract. Thereupon, MINDBODY shall be entitled to suspend or deactivate YOUR account and use of the Digital Properties. WE may not provide advanced notice of suspension or deactivation of YOUR account for late payment.
- In the event that WE suspend or deactivate YOUR account for late payment of Subscription Fees and WE later decide to reactivate such account at YOUR request, YOU shall pay MINDBODY a one hundred and fifty dollar ($150) reactivation fee per business location prior to any such reactivation. This reactivation fee is not intended to be a penalty but an estimate of actual costs to be incurred by MINDBODY in reactivating suspended accounts. MINDBODY reserves the right to change the amount of the reactivation fee, from time to time, at any time. MINDBODY will notify you at least thirty (30) days before any such change takes effect.
If we have not received payment after 90 days, we may terminate your contract with us.
We accept three forms of payment: credit cards, checking accounts, and approved purchase orders. By agreeing to these Terms of Service and providing complete payment information, you authorize us to bill you using the payment information you provided.
Fees and Payment Options YOU shall provide to US 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 US and include any other relevant, valid, up-to-date and complete contact and billing details. The following conditions shall apply to each payment option:
Credit Card The SUBSCRIBER hereby authorizes MINDBODY to bill SUBSCRIBER’s credit card on file with MINDBODY:
- On the Effective Date for the Subscription Fees payable for the initial Billing Period; and
- Subject to Article 13, on each monthly anniversary of the Effective Date for the Subscription Fees then payable;
Checking Account The SUBSCRIBER hereby authorizes MINDBODY to collect the Subscription Fees via automatic ACH payment from SUBSCRIBER's checking account on file with MINDBODY:
- On the Effective Date for the Subscription Fees payable for the initial Billing Period; and
- Subject to Article 13, on each monthly anniversary of the Effective Date for the Subscription Fees then payable;
Purchase Order. If you elect to pay by purchase order, MINDBODY shall invoice the SUBSCRIBER:
- On the Effective Date for the Subscription Fees payable for the initial Billing Period; and
- Subject to Article 13, at least 30 days prior to each monthly anniversary of the Effective Date for the Subscription Fees payable upon such date.
- Changes in Fees WE reserve the right to change the amount of the the Subscription Fees if YOU wish to acquire and/or operate additional business units and/or locations in excess of those specified on the Order Acceptance. In addition, if the number of Practitioners working at a single location is increased, the Subscription Fees charged for that location shall be subject to increase according to the pricing structure in effect at that time. MINDBODY shall give YOU at least thirty (30) days advance written notice of any change in such fees.
- Taxes OUR 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”). YOU are responsible for paying all Taxes associated with YOUR purchases under the Contract. If WE have the legal obligation to pay or collect Taxes for which YOU are responsible under this Section 4.5, WE will invoice YOU for payment unless YOU provide a valid tax exemption certificate issued by the appropriate taxing authority. For clarity, it is understood that MINDBODY is solely responsible for all taxes assessable against MINDBODY based on its income, property and employees.
5. Intellectual Property
Using MINDBODY’s products and services does not give you ownership of our intellectual property. Everything MINDBODY creates belongs to MINDBODY.
If you misuse any of our property, we may suspend or terminate your contract and take legal action.
MINDBODY Intellectual Property
The Contract does not provide YOU with title or ownership of any of the Digital Properties, the Compiled Data, or any components thereof, but only a right of limited use, as specifically provided in Article 6 and applicable Addenda to these TOS. MINDBODY shall have sole and exclusive ownership of all right, title, interest, copyright, and other intellectual property rights in and to:
- The Compiled Data and any portion thereof;
- The Services (including but not limited to any code, images, photographs, animations, video, audio, music, text, and applets that WE provide);
- The Associated Websites (including but not limited to any code, images, photographs, animations, video, audio, music, text, and applets that WE provide);
- The Mobile Applications (including but not limited to any code, images, photographs, animations, video, audio, music, text, and applets that WE provide);
- All derivatives, modifications, and enhancements of such intellectual property (including ownership of all patents, trade secrets, trademarks and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to SUBSCRIBER in Article 6 below and applicable Addenda to these TOS.
- MINDBODY, the MINDBODY mark, the MINDBODY logo, the MINDBODYONLINE url, and the names, logos and icons of all of OUR Digital Properties are trademarks or registered trademarks of MINDBODY in the U.S. and/or other countries. Except for the limited licenses granted to YOU in Article 6 and applicable Addenda to these TOS, MINDBODY reserves all of OUR intellectual property rights in the Digital Properties. No part of the Contract, the Digital Properties, or any content on the Digital Properties may be copied for any purpose without the express written permission of MINDBODY.
- SUBSCRIBER’s Intellectual Property YOU assume sole responsibility for the protection of any patents, copyrights, trade secrets, trademarks, service marks, trade names and other intellectual property wholly or partially owned by YOU or which YOU are authorized to use or display.
- Use of SUBSCRIBER’s Trademarks YOU hereby grant US authorization to list YOU as a MINDBODY Subscriber, and include YOUR name and trademarks in the Public Services, OUR public directories, the Associated Sites, and the Mobile Applications. WE will, however, provide YOU with the ability to remove YOUR name, information, and trademark from public display at any time. If WE receive notice or documentation demonstrating that another person or entity contests YOUR right to use or display a name, trademark, service mark, or other content, WE may, at OUR sole discretion, discontinue listing YOU in OUR public directories and OUR Digital Properties without liability to YOU until such time as YOU have resolved any such dispute to OUR satisfaction.
- Third Party Intellectual Property Other trademarks and logos used in connection with the Digital Properties may be the trademarks or registered trademarks of their respective owners. These TOS and applicable Addenda do not grant YOU any right or license with respect to any such trademarks or logos. All trademarks used within the Digital Properties are property of their respective owners in the U.S. and other countries.
DMCA Notice Procedures WE respect the intellectual property of others. However, we shall have no obligation to monitor the use of trademarks, copyrights, or other rights of Subscriber or third parties. If YOU are the owner of the exclusive rights in any intellectual property, or are authorized to act on behalf of an owner of any such exclusive rights and YOU want to send US a notification of claimed infringement, YOU must submit a notification containing the following information (as required under the Digital Millennium Copyright Act (17 U.S.C. § 512)):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that has allegedly been infringed;
- Identification of the copyrighted work or trademark claimed to have been infringed;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MINDBODY to locate such material;
- Information reasonably sufficient to permit MINDBODY to contact YOU, such as an address, telephone number, and e-mail address;
- A statement that SUBSCRIBER has a good faith belief that the use of the subject material in the manner complained of is not authorized by the owner, its agent, or the law; and
- A statement, under penalty of perjury, that (i) the information in the notice is accurate and (ii) that YOU are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Please e-mail the foregoing information to firstname.lastname@example.org.
- Repeat Infringer Policy YOUR use of infringing content in connection with OUR Digital Properties shall constitute a breach of the Contract. WE may, in appropriate circumstances and in OUR sole discretion, remove, suspend, terminate access or take other appropriate action against MINDBODY Subscribers who infringe the intellectual property or other rights of others on a single occasion. WE have a policy which, in appropriate circumstances and in OUR sole discretion, provides for the termination of MINDBODY Subscribers who repeatedly infringe upon the intellectual property or other rights of others. MINDBODY Subscribers who repeatedly infringe are those for whom WE have received more than two valid notices of infringement, absent exceptional circumstances.
6. Licensing Matters
MINDBODY provides products and services to help businesses meet their goals. If this relationship is abused in any way or repeatedly, we reserve the right to cancel your subscription and take legal action to protect our interests.
- WARNING: NO TRESPASSING OUR Digital Properties are maintained by US and are 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 of OUR Digital Properties for any purpose. All information contained in the Digital Properties is OUR proprietary information and usage thereof shall be subject to the Standard Services License granted by MINDBODY in Section 6.2 below. Persons entering the Associated Websites, whether authorized or not, shall be deemed to have automatically accepted the terms and conditions of the Standard Services License at the time of initial entry. If any unauthorized person attempts to visit or enter the Digital Properties, they shall be deemed to be accessing a computer without authorization and trespassing on the Digital Properties and they shall be liable for damages, etc. resulting therefrom. No Person, authorized or not, shall be entitled to copy, extract, decompile, or otherwise use OUR proprietary information, through scraping, spidering, crawling or any other technology or software used to access data located on or contained in the Digital Properties without the express written consent of MINDBODY. YOUR violation of the provisions of any license granted by MINDBODY under these TOS or other portion of the Contract shall constitute, among other offenses, trespass, breach of contract, and access of a computer without authorization with the intent to cause damage.
Standard Services License
- On the condition that YOU comply with all of YOUR obligations under the Contract and subject to all the terms and conditions of Contract, WE grant YOU a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license, and right to access, use, display, and run the Associated Websites and Purchased Services (excluding the Connect Service, MBX, and Premium Services) through a generally available web browser, mobile device or MINDBODY authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of MINDBODY) for use in connection with YOUR business in accordance with the terms and conditions found in the Contract.
- This Standard Services License is in addition to other licenses WE may grant in these TOS and Addenda hereto. Such additional licenses include but are not limited to the Limited Access Licenses granted in Addendum A.
- YOU agree that OUR Services are licensed on a per SUBSCRIBER basis. YOUR rights to access and/or utilize OUR Digital Properties may not be shared between YOU and any third party or used by any third party, except as otherwise authorized by YOU in accordance with the terms and conditions contained in these TOS and the Grant of Third Party Access to Subscriber Data attached hereto as Addendum A.
- End Users’ License On the condition that an End User complies with all of the terms and conditions of the Contract and subject to all the terms and conditions of the Contract, WE grant such End User a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access, use, display, and run the Public Services through a generally available web browser, mobile device, or MINDBODY authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of MINDBODY) to schedule classes, make purchases, and for any other use that MINDBODY currently makes available or may make available in the future through the Public Services.
- Limitation on Rights Granted MINDBODY reserves all rights not expressly granted in these TOS, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in OUR Digital Properties and all related items, including any and all copies made of the Digital Properties.
- Grant of License to End User Data An End User, Employer, or Employee Benefit Manager may request, pursuant to Sections 2.3.c. and 2.3.d. above, access to the End User Data stored by YOU on MINDBODY’s host computer system that is associated with such End User. On the condition that such request is made, YOU hereby grant MINDBODY a nonexclusive, irrevocable, worldwide, perpetual, assignable, sublicensable, fully paid-up and royalty-free license and right to use, copy, distribute, publish, improve, add to, prepare derivative works of, process, analyze, use and commercialize the subject End User Data without any further consent, notice and/or compensation to YOU or to any third party. By submitting End User Data YOU represent and warrant that YOU are entitled to use the End User Data and that YOUR submission of End User Data is not in violation of any contractual restrictions or third party intellectual property rights.
Restrictions SUBSCRIBER shall not, in whole or in part, directly or indirectly:
- 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 Digital Properties or reduce the Digital Properties to a human-perceivable format;
- Remove any copyright notices, logos, identification, or any other proprietary notices from the Digital Properties;
- Make any change to the Digital Properties or create any derivative works thereof; or
- Publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the Digital Properties or any part thereof.
MINDBODY’s subscriber data is confidential information and not to be shared with anyone unless there is a legitimate reason to do so (i.e., they are a MINDBODY employee, a subpoena, etc.).
Confidential Information For the purposes of the Contract, “Confidential Information” shall include the Services, the Subscriber Private Data, and any accompanying or related documentation. Confidential Information does not include information which is:
- Independently developed by the receiving party without the use of Confidential Information;
- Rightfully obtained by the receiving party from a third party without restriction;
- Publicly known at the time of disclosure or which becomes publicly known thereafter by any means other than through the fault or negligence of the receiving party;
- Disclosed without restriction by the disclosing party to anyone, including the U.S. Government as supported by written records;
- Known to the receiving party at the time of disclosure, as supported by competent proof; or
- End User Data that is requested by an End User, Employer, or Employee Benefit Manager, as provided in Sections 2.3.c. and 2.3.d. above.
Protection of Confidential Information
- During the term of the Contract 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 Sections 7.2.c. and 7.2.d. below, and shall hold and maintain the Confidential Information in strictest confidence.
- A party may disclose Confidential Information to such party's directors, officers, employees, agents and financial, legal, other advisors and affiliates (collectively, “Representatives”) with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out the terms of the Contract and only if such Representatives are advised of the confidential nature of such Confidential Information and the terms of the Contract and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information.
- The PARTIES acknowledge and agree that nothing in this Article 7 shall prohibit the collection, compilation, and distribution of any Compiled Data by MINDBODY in accordance with Section 2.4 above, or of any End User Data that is requested by an End User, Employer, or Employee Benefit Manager, as described in Sections 2.3.c. and 2.3.d. above.
- A party may disclose Confidential Information to the extent that such disclosure is required by court order, provided that such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
- The Confidential Information is being disclosed by the PARTIES solely for the purpose stated herein. The PARTIES specifically agree not to use the Confidential Information for any other purpose.
8. Interoperability Requirements
You are responsible for maintaining your services and devices (i.e., internet, computers, etc.) and for meeting the technical requirements for using our software.
- YOU shall maintain the functional operation of all of YOUR mobile devices, workstations, networks, and Internet connections necessary to ensure proper operation of the Purchased Services, including installation and operation of any associated operating system and web browser according to applicable manufacturer specifications and recommendations.
- Prior to contacting MINDBODY concerning connectivity problems, YOU shall verify that YOU are able to properly connect to the Internet by verifying navigation through common websites such as www.cnn.com or www.google.com, and YOU shall verify that YOU are running an up-to-date version of Internet Explorer, Mozilla Firefox or Safari.
- Technical Requirements The communications and network interoperability for the Purchased Services require a high-speed Internet connection, modern web browser, modern smartphone and modern computer. See computing requirement details.
9. Limited Warranty
If you’ve been a subscriber for at least 12 consecutive months we guarantee that our services will be 99.9% available 24 hours a day, 7 days a week. If we can’t deliver on that promise within your contract year, you’ll receive up to one year of free service.
Purchased Services Warranty
- To qualify for the Purchased Services warranty, YOU must maintain a subscription for a minimum of twelve (12) consecutive months, as measured in accordance with Section 9.1.d. below.
- MINDBODY warrants that the Purchased Services shall be 99.9% available twenty-four (24) hours per day, seven (7) days per week, three-hundred and sixty-five (365) days a year. This translates to eight (8) hours and forty-five (45) minutes of unplanned outage time as measured over twelve (12) months, subject to all the provisions of this Article 9.
- Our server inventory will be expanded as required to accommodate YOUR progressive data expansion. OUR hardware expansion will keep up with YOUR needs so that OUR website performance will not be slowed by either YOUR data expansion or the addition of new MINDBODY Subscribers.
If the cumulative service level for the Purchased Services drops below 99.9% for a twelve (12) month period, as measured from the Effective Date and revisited on each twelve (12) month anniversary of the Effective Date, WE will credit YOU with complimentary service to be used in the following twelve (12) months, according to the following schedule:
- 98% - 99.8% availability of the Purchased Services: one (1) free month of service;
- 95% - 97.9% availability of the Purchased Services: two (2) free months of service;
- 90% - 94.9% availability of the Purchased Services: six (6) free months of service; and
- Less than 90% availability of the Purchased Services: twelve (12) free months of service.
- To receive any credit of complimentary service pursuant to this Article 9, YOU shall notify US in writing of YOUR intent to collect the complimentary service in a timely manner. Any such written notice shall be delivered to US no later thirty (30) days after the twelve (12) month anniversary of the Effective Date which concludes the twelve (12) months in which the availability of the Purchased Services fell below the warranted level.
To the extent that WE do not receive timely notice from YOU as provided in Section 9.1.e. above,
- WE shall have no further obligation to provide YOU with any free service; and
- YOU shall be deemed to have waived and released US from any and all claims related to YOUR use or non-use of the Purchased Services during the applicable 12-month period.
YOU shall not receive any credit or refund under this Article 9 in connection with any failure or deficiency caused by or associated with any of the following:
- Circumstances beyond OUR reasonable control, including, but not limited to, war, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, labor disputes or strikes, power outage, Internet virus, or denial of service attacks;
- Major telecommunications or Internet failure outside of OUR control;
- YOUR acts or omissions, those of YOUR employees, or those of YOUR Representatives, including but without limitation to, custom scripting or coding, any negligence, willful misconduct, or use of the Purchased Services outside the scope of the Contract; and
- Scheduled Maintenance conducted between the hours of 9:00 PM and 9:00 AM in the Pacific Time Zone for which SUBSCRIBER receives at least forty-eight (48) hours prior notice.
- MINDBODY Nightly Scripts For 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) the nightly scripts will be finished within twenty-four (24) hours of their scheduled date. If any of the MINDBODY nightly scripts do not finish within twenty-four (24) hours of their scheduled date, MINDBODY will notify YOU of the delay and forecasted completion date of the nightly scripts via email. YOU understand and acknowledge that the timely and successful completion of these scripts is, in part, dependent on third parties (including payment processors) and that WE cannot provide any warranties or assurances as to the reliability and functionality of any third party processes.
DISCLAIMER OF FURTHER WARRANTIES
- EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 9, THE SERVICES AND ANY APPLICATIONS, OR THIRD-PARTY CONTENT MADE AVAILABLE ON OR THROUGH THE DIGITAL PROPOERTIES ARE PROVIDED ON AN AS IS BASIS, WITH ALL FAULTS. MINDBODY MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES OR ANY OTHER MATTERS.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDBODY HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ABSENCE OF VIRUS OR OTHER HARMFUL COMPONENTS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF MINDBODY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MINDBODY, REPRESENTATIVES OF MINDBODY, OR THROUGH OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS ARTICLE 9.
- YOU UNDERSTAND AND AGREE THAT YOU WILL USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICES OR ANY ASSOCIATED WEBSITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH INFORMATION, MATERIAL, OR DATA.
10. Limitation of Liability
MINDBODY will not be held liable for any damages or loss of information caused by you or a third party.
LIMITED LIABILITY FOR CARDHOLDER DATA
- MINDBODY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY OUR SERVER(S). THE EXCLUDED DAMAGES SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY. THIS SECTION 10.1 SHALL BE INTERPRETED AND APPLIED SUBJECT TO THE LIMITATION OF MINDBODY’S LIABILITY SET FORTH IN SECTION 10.2 BELOW.
- MINDBODY expressly disclaims any and all liability resulting directly or indirectly from YOUR or End Users’ handling of Cardholder Data. WE strongly recommend that YOU follow the requirements of the PCI DSS when handling Cardholder Data. In connection with YOUR use of the Purchased Services, YOU shall follow the Cardholder Data Recommended Practices (Article 1 of the Security Policy), as same may be updated from time to time, at any time.
YOU and End Users understand and agree that:
- Transmitting Cardholder Data on the Internet may involve certain security risks;
- Abiding by the Cardholder Data Recommended Practices may reduce such risks;
- OUR server(s) provide a secure, encrypted environment for storing Cardholder Data; and
- MINDBODY shall be responsible for the security of Cardholder Data only after the encryption and receipt of the Cardholder Data by MINDBODY’s server(s).
LIMITATION OF MINDBODY’S LIABILITY THIS SECTION 10.2 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME OR ALL OF THE LIMITATIONS OR EXCLUSIONS CONTAINED IN THIS SECTION 10.2 MAY NOT APPLY TO YOU IF YOUR STATE, PROVINCE, OR COUNTRY DOES NOT ALLOW ANY SUCH EXCLUSION OR LIMITATION.
- IN NO EVENT SHALL MINDBODY BE LIABLE FOR ANY CLAIM ASSERTED AGAINST YOU BY ANY THIRD PARTY, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
- YOU AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY CLAIM ASSERTED AGAINST MINDBODY SHALL BE TO RECOVER DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO THE AMOUNT OF SUBSCRIPTION FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
- YOU AGREE THAT IN NO EVENT SHALL MINDBODY BE LIABLE TO YOU FOR ANY OTHER DAMAGES OR LOSSES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF FORM OR THEORY OF LIABILITY, EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF:
- THE TERMINATION OR EXPIRATION OF THE CONTRACT; OR
- THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
- THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 10.2 APPLY EVEN IF THE REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE OR DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 10.2 APPLY TO ANY CAUSE OF ACTION RELATED TO THE CONTRACT, INCLUDING, WITHOUT LIMTIATION, DELAYS OR FAILURES IN STARTING OR COMPLETING TRANSMISSIONS OR TRANSACTIONS; CLAIMS FOR BREACH OF CONTRACT, WARRANTY, GUARANTEE, OR CONDITION; STRICT LIABILITY; NEGLIGENCE; MISREPRESENTATION OR OMISSION; TRESPASS; VIOLATION OF STATUTE OR REGULATION; OR UNJUST ENRICHMENT.
If a third party breaches our security, your business will not be held accountable. If you violate anyone's rights (i.e., our clients, your clients, etc.), misuse confidential data or just flat out break the law—MINDBODY will not be held accountable.
Indemnification by SUBSCRIBER YOU agree to indemnify, defend, and hold MINDBODY, its subsidiaries, and Representatives harmless from and against any and all claims, charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) based upon, arising out of, or otherwise related to:
- YOUR violation of the rights of a third party, including infringement by YOU of any intellectual property or other property rights of any such third party;
- Access to, use, or misuse of any part of OUR Digital Properties, the Subscriber Data, and/or the Cardholder Data by YOU or YOUR Representatives;
- YOUR or YOUR Representatives’ failure to comply with any applicable privacy law and/or any other applicable law or regulation;
- Any ownership dispute between YOU and a third party; and/or
- Any dispute or conflict of ownership between constituent members or owners of SUBSCRIBER with regard to ownership of intellectual property and/or equity interests in the legal entity that constitutes SUBSCRIBER.
Indemnification by MINDBODY WE agree to indemnify, defend, and hold YOU, YOUR subsidiaries, affiliates, and Representatives harmless from and against any and all claims, charges, damages, and expenses (including, but not limited to, reasonable attorneys' fees and costs) based upon, arising out of, or otherwise related to:
- Any breach by US of the Security Policy materially affecting YOUR Subscriber Data;
- Any infringement by US of a third party’s intellectual property rights; or
MINDBODY’s storage and protection of Cardholder Data, provided:
- Such Cardholder Data has been properly entered into the encrypted fields provided in the Services in accordance with the PCI DSS; and
- Such Cardholder Data is encrypted and received by MINDBODY’s server(s).
12. Cancellation and Refund Policy
If for any reason our services do not meet your needs, let us know within 30 days of your purchase and we will issue you a refund.
- Cancellation and Refund YOU shall have thirty (30) days from the date of purchase to determine whether the Purchased Services do not meet YOUR needs. If the Purchased Services do not meet YOUR needs, then YOU must notify MINDBODY in writing within thirty (30) days after the Effective Date that YOU wish to terminate the Purchased Services and receive a refund of the corresponding subscription fees paid by YOU, less the cost of any Services provided prior to such cancellation based on MINDBODY's subscription fees in effect at the time of such cancellation.
- Current SUBSCRIPTION Fees For the purposes of this Article 12, MINDBODY's current subscription fees may be found at https://purchase.mindbodyonline.com/. These fees are subject to change from time to time, at any time, without notice.
13. Term and Termination
You can submit a Client Care request Client Care to end your subscription at any time, for any reason. If you cancel, all fees owed will be immediately due.
- Term The term of the Contract commences on the Effective Date and shall continue on a month to month basis until terminated by either party in accordance with Section 13.2 below.
- Termination The date on which the Contract is terminated shall be the “Termination Date.” YOU may terminate the Contract for any reason by providing advance written notice via email to ClientCare@mindbodyonline.com at least thirty (30) days prior YOUR chosen Termination Date. WE may terminate the Contract for any reason by providing notice to YOUR email address on file at the time at least thirty (30) days prior to the Termination Date that WE select.
- Termination for Cause In the event of a breach or default of the Contract by YOU, WE shall have the right to immediately terminate the Contract without notice. In the event of any breach or default of the Contract by MINDBODY, YOU shall have the right to terminate the Contract by giving thirty (30) days written notice to US; provided, however, that WE shall have the right to cure said reason for the termination during the thirty (30) day notice period. In the event WE cure the breach, the Contract shall remain in full force and effect. YOU will not have the right to cancel any portion of the Contract and/or receive a refund pursuant to Article 12 above if YOU breach the Contract.
Data Portability and Deletion
Upon the termination of the Contract by either party, YOU may:
- Perform One Free Data Download Within 30 days after the Termination Date, YOU will be permitted to download, without charge, a copy of the then current Subscriber Data, except for Cardholder Data, via the reporting feature of the Purchased Services. Such Subscriber Data will be provided in a standard file type and will not contain MINDBODY’s proprietary information. Support documentation explaining the use of this self-service feature can be found here.
- Request an Assisted Data Download For an additional fee, YOU may request that WE provide YOU a copy of the then current Subscriber Data, including Cardholder Data via a PCI-DSS approved secure file transfer method, within five (5) business days of such request. Such file transfer will not contain MINDBODY proprietary information.
- Effective as of 12:01 am on the thirty-first (31st) day after the Termination Date, WE will have no further obligation to maintain or provide Subscriber Data and will thereafter delete and/or destroy all copies of Subscriber Data stored on YOUR behalf that are in OUR systems or otherwise in OUR possession or control, unless legally prohibited from doing so.
- Effect of Termination Upon termination of the Contract for any reason, all fees set forth in Article 4 above shall become immediately due and payable.
14. Governing Law and Dispute Resolution
You agree that all disputes will be resolved by binding arbitration and will be handled in the county of San Luis Obispo, California.
- Governing Law and Jurisdiction PARTIES agree that the Contract shall be deemed to have been made and executed in the State of California, U.S. Any Dispute (as defined below) arising under the Contract shall be resolved in accordance with U.S. federal law and the laws of the State of California, without giving effect to the principles of conflicts of laws of any jurisdiction. PARTIES agree if Section 14.2 below is deemed to be null and void, all Disputes arising between PARTIES under the Contract shall be subject to the exclusive jurisdiction of the San Luis Obispo Superior Court and the western division of the U.S. District Court for the Central District of California. PARTIES hereby consent to the exclusive jurisdiction of such courts and submit to the personal jurisdiction and venue of such courts.
Binding Arbitration Agreement Both PARTIES and each of their respective subsidiaries, affiliates, and Representatives agree that any dispute, action, or other controversy (“Dispute”) with respect to the Contract shall be resolved by binding arbitration. PARTIES acknowledge that these TOS and YOUR use of the Digital Properties evidence a transaction involving interstate commerce. The Federal Arbitration Act (“FAA”), 9 U.S.C. §1, et seq., shall control any arbitration proceedings commenced under this Section 14.2. Arbitration shall be the exclusive dispute resolution process. YOU understand that YOU and MINDBODY are giving up the right to sue in court and to have a trial before a judge or jury.
- Either YOU or MINDBODY may commence arbitration by sending a written notice of intent to arbitrate to the other party. Such notice shall (i) describe the nature and basis of the matter and (ii) set forth the specific relief sought.
- The arbitrator shall apply the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes, both of which are available at http://www.adr.org. The Contract shall control to the extent it conflicts with the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes. The arbitrator shall comply with the terms of the Contract.
- All arbitrations shall take place in the County of San Luis Obispo, California. YOU may request a telephonic hearing pursuant to the AAA rules. In a Dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead.
- 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 of competent jurisdiction. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
- The PARTIES shall share equally all initial costs of arbitration. All arbitration proceedings shall be closed to the public and confidential. All records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
- This Section 14.2 does not prevent YOU from bringing YOUR Dispute to the attention of any federal, state, or local government consumer protection agencies that can, if the law allows, seek relief from MINDBODY on your behalf.
- Class Action Waiver PARTIES agree that any proceedings to resolve or litigate any Dispute will be conducted solely on an individual basis. PARTIES agree that they shall not bring or participate in any class action, private attorney general action, collective arbitration, or any other proceeding in which either party acts in a representative capacity, even if AAA’s procedures or rules would otherwise allow such action. PARTIES also agree that if this Section 14.3 is found to be unenforceable, then Section 14.2 above and any other provision of the Contract concerning mandatory arbitration shall not apply to any action involving a purported class or representative proceeding, and such actions between PARTIES shall proceed, if at all, in accordance with Section 14.1 above.
15. General Terms and Conditions
Using our products and services does not infer a partnership or joint venture between MINDBODY and you or your business.
- Disclaimer SUBSCRIBER understands and agrees that MINDBODY provides references to various personal services, including health, wellness, and fitness services provided by third parties. MINDBODY does not evaluate, and is not responsible for, any services provided by any third party. NOTHING IN THIS AGREEMENT SHALL RESULT IN MINDBODY BEING LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM A REFERRAL TO ANY THIRD PARTY SERVICE PROVIDER.
- Survivability The parties’ rights and obligations under Articles 7 (Confidentiality), 10 (Limitation of Liability), 11 (Indemnity), and 14 (Governing Law and Dispute Resolution), as well as any obligations to pay Subscription Fees and other amounts owing that accrued prior to termination, shall survive any expiration or termination of this Agreement.
- Assignment and Assumption YOU may not assign or delegate any right or obligation under the Contract without OUR prior written consent, which WE may withhold at OUR sole discretion. WE may require any proposed assignee of the Contract to enter into a new written agreement with US. WE may assign or delegate any of OUR rights or obligations under the Contract to any Person or entity, and thereafter be relieved of all liability hereunder.
- Severability and Construction If any provision of the Contract shall be held by a court, arbitrator, or other tribunal of competent jurisdiction to be unenforceable, the other portions of the Contract shall remain in full force and effect. The Contract shall be interpreted without regard to any presumption or rule requiring construction against the party that caused the Contract to be drafted. Within these TOS, except where the context clearly otherwise requires, the singular shall include the plural and vice versa, and the words “include”, “includes” and “including” are deemed to be followed by the phrase “but not limited to”, “without limitation” or words of similar import.
- All notices, requests, demands, and other communications shall be validly given if delivered in person, by facsimile transmission, by electronic mail, or by registered or certified mail addressed to the other party at the address provided in the Subscriber Order or in the signature block of these TOS, unless such party has notified the other party of a substitute contact information in writing pursuant to this Section 15.5.
- Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
- Relationship The PARTIES will be doing business at their own risk and for their own profit. Nothing in the Contract shall constitute a joint venture, 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.
- Compliance with Laws YOU shall, at YOUR expense, comply with all laws, ordinances, rules, regulations and other requirements, including HIPAA and laws relating to the privacy, transmission and use of personal or confidential information and data, of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of the Contract.
- Export Compliance The Services, related software components, other technology, and derivatives thereof may be subject to the export laws and regulations of the United States and other jurisdictions. YOU shall not use the Services in violation of any export law or regulation including the Export Administration Act of 1979, as amended (the “Act”), any successor legislation and the Export Administration Regulations issued by the Department of Commerce under the Act. YOU represent that YOU are not named on any U.S. government denied-party list. YOU shall not access or use the Services if YOU are located in a U.S.-embargoed country. YOU shall not provide access to the Digital Properties to any government, Person, or entity located in any such jurisdiction.
If something out of our control happens (i.e., flood, terrorist attack, etc.), neither MINDBODY nor you will be held accountable for the damage caused.
- No Informal Waivers The failure of either party to exercise any right or enforce any provision of the Contract, at any time or for any period of time, shall not be construed to be a waiver of that right or provision, or of the right of such party thereafter to enforce that right or provision.
- No Third Party Beneficiary The benefits and protections provided by the Contract shall inure solely to the benefit of the PARTIES. The Contract shall not be deemed to create any right in any Person or entity who is not a party to the Contract 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 Addendum A to these TOS.
Please contact our Customer Service Team with any questions about our products and services at (877) 755-4279.
- Questions All questions and requests for customer service or technical support should be directed to the MINDBODY Customer Service Team at 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401. If YOU are in the U.S. or Canada call toll free at (877) 755-4279. If calling from outside the U.S. or Canada, YOU may call +1 (805) 476-2700. Email questions to email@example.com.
Addendums for the Terms of Service can be downloaded in PDF format.