DAP Terms of Service
Franchise Focused Marketing, LLC Digital Advertising Program (DAP) Terms of Service
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY. These terms of service only apply to Xponential Fitness locations that have opted-in to the Digital Advertising Program (DAP).
This is a contract between you (the Customer) and us (Franchise Focused Marketing, LLC, or "FFM"). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessary “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Marketing Service you are agreeing to these terms.
We periodically update these terms. If you have an active FFM account, we will let you know when we do via an email.
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
A. DEFINITIONS. This is where we provide the detail on what the key defined terms in the Agreement mean. You can think of this kind of like a contractual dictionary.
B. GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Marketing Services work.
C. PAYMENT TERMS. Customers of the DAP program use our services a little bit different than our normal subscribers, and there are some fundamental terms that apply to each campaign.
D. GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected the many of the remaining legal terms that make up our Customer Terms of Service.
E. Jurisdiction
A. DEFINITIONS
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Contact Information" means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Marketing Service.
“Marketing Service(s)” means the professional services and monetary investment provided to you by us as part of the DAP program. FFM will cover advertising costs of social media marketing. The amount covered is at FFM’s discretion and may vary month-to-month, and studio-by-studio.
"Customer Data" means all information that you submit or collect via the Marketing Service.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Marketing Service.
"Order" or "Order Form" means the FFM approved form used to sign up the Marketing Service All Orders are completed through our website.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
"Service Fee" means the amount you pay for the Marketing Service.
“Service Term" means the initial term of your signup to the applicable Marketing Service, as specified on your Order Form(s), and each subsequent renewal term (if any).
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Marketing Service.
"Third-Party Sites" means third-party websites linked to from within the Marketing Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Marketing Service for your benefit and have unique user identifications and passwords for the Marketing Service.
“FFM”, "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Marketing Service and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Access. During the Service Term, we will provide you access to use the Marketing Service as described in this Agreement and the applicable Order.
2. Service Fees and Payment.
a. Fees and Payments - We will collect membership EFT revenue directly attributable to the DAP campaign for the first three (3) months of membership. By accepting these terms of service you authorize ClubReady, LLC to automatically withdraw funds every month to reimburse us directly.
b. Service Fees. The Service Fee will remain fixed during the Service Term.
2. Sensitive Information. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE MARKETING SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
3. Service Term, Termination, Suspension
a. Term and Renewal. Your initial Service Term will be for one month, and your service will automatically renew each month afterwards. To prevent renewal of the service, the required notice must be provided within the timeframe as specified in the ‘Service Types’ section below.
b. No Early Termination; No Refunds. The Service Term will end on the expiration date and the service cannot be cancelled early. We do not provide refunds if you decide to stop using FFM during your Service Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Marketing Services: (i) upon seven (7) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on seven (7) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Service Term.
d. Our Right to Terminate. FFM has the right to evaluate and determine the viability of a DAP campaign. Should we determine your campaign not be successful and we won't recoup our costs, we will terminate the campaign. We will notify you of this termination.
C. GENERAL LEGAL TERMS
1. Customer Data
a. Limits on FFM. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Marketing Service to you and only as permitted by applicable law, and this Agreement. We will not use Contact Information for our own marketing purposes.
b. Aggregate Data. We may monitor use of the Marketing Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
2. FFM’s Proprietary Rights. This is an Agreement for access to and use of the Marketing Service, and you are not granted a license to any software by this Agreement. The Marketing Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based the Marketing Services in whole or in part, by any means, except as expressly authorized in writing by us.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Marketing Services to you and as permitted by this Agreement. If you are using the Marketing Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5. Trademarks.
a. By agreeing to these terms of service, you are representing that you have the right to grant us use of your service marks, trademark, and trade names used by you for the purposes of our services and publicity.
b. We recognize your right, title and interest in and to all service marks, trademarks, and trade names used by you, and we agree not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair your right, title, and interest therein, nor shall we cause diminishment of the value of said trademarks or trade names through any act or representation. We will not apply for, acquire, or claim any tight title, or interest in or to any such service marks, trademarks, or trade names, or other that may be confusingly similar to any of them, through advertising or otherwise. Upon the termination of your service, we shall cease to use all of your trademarks, marks, and trade names.
6. Publicity. You grant us the right to add your name and company logo to our customer list and website.
7. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Marketing Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Marketing Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
8. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE MARKETING SERVICE, DATA MADE AVAILABLE FROM THE MARKETING SERVICE, FFM CONTENT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE MARKETING SERVICE, AND FFM CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE MARKETING SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE MARKETING SERVICE TO YOU.
9. Miscellaneous
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Marketing Service (but, your fees and charges won’t change during the Service Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at http://franchisefocusedmarketing.com and we will let you know via email. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. For the Product Disclosures page, if we make updates or changes we will provide notice of those changes at our discretion. The updated Product Disclosures page will be effective upon posting. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your service will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, or employment relationship exists between us.
e. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Marketing Services, and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Marketing Service, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Marketing Services to prohibited countries or individuals or permit use of the Marketing Services by prohibited countries or individuals.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Franchise Focused Marketing, LLC, 313 N. Birch St. Ste. 200, Santa Ana, CA 92701. Attention: General Counsel.
To you: your address as provided in our FFM account information for you. We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
h. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy, is the entire agreement between us for the Marketing Service and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Marketing Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Marketing Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘Crowdsourced Data’, ‘Alpha/Beta Services’, ‘FFM’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
n. Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.
E. JURISDICTION
This Agreement shall be governed by the laws of the state of California, without regard to its conflicts of law provisions.