Mindbody Customer Referral Program Agreement

This Mindbody Customer Referral Program Agreement is entered into between MINDBODY, Inc. (“Mindbody”) and the individual or entity (“Partner” “you” or “your”) that Mindbody has approved for participation in the Mindbody Customer Referral Program (“Customer Referral Program”) in accordance with the terms below. 

This Agreement governs your enrollment and participation in the Mindbody Customer Referral Program. This Agreement is effective as of the first date that a Partner submits a Referral as part of the Customer Referral Program (the “Effective Date”). This Agreement supersedes and replaces any other agreement that you may have previously entered into with Mindbody governing your participation in the Customer Referral Program, previously known as the Customer Advocates Program. Mindbody and Partner are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. 

Definitions

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Agreement” means, collectively (1) this Customer Referral Program Agreement; (2) the Program Addendum; and (3) any terms or policies governing Partner’s participation in the Customer Referral Program that are posted on Mindbody’s main website, as may be updated from time to time. 

“MindbodyCustomer” or “Customer” means a party that has purchased Services for its own internal business purposes or is targeted as an opportunity for sales of Services. 

“ProgramAddendum” means the Addendum attached to this Agreement which describes the Program Type, Program Levels, benefits and other terms and conditions governing Partner’s participation in the Customer Referral Program. 

“ProgramLevel” means the level of Partner’s participation in a Program Type, as set forth in the applicable Program Addendum. 

“ProgramType” means a sub-category of the Customer Referral Program (e.g. Limited Contests or Promotions, Leader Board awardees, etc.) that has a particular set of benefits and associated requirements, terms and conditions, as set forth in the applicable Program Addendum. 

“Services” means Mindbody’s online business management software and related applications, products and services made available by Mindbody, excluding any third party applications. 

“Term” is defined in Section 5.1. 

1. Program Overview

1.1 Enrollment.  Mindbody reserves the right in its sole discretion to accept or reject your participation in the Customer Referral Program. Any Customer that desires to participate in the Customer Referral Program must accept these terms and complete their own enrollment form. 

1.2 Partner Qualifications and Benefits. Upon Mindbody’s acceptance of Partner into the Customer Referral Program, Partner will be required to maintain certain minimum requirements that apply to the Program Type and/or Program Level in which Partner is enrolled, as set forth herein and the Program Addendum. Partner no longer qualifies for the Customer Referral Program upon termination of, or submitting a request to terminate, the Mindbody Services. 

1.3 Opt-in to Marketing. By participating in the Customer Referral Program, Partner agrees to receive marketing emails and other communications from Mindbody and its Affiliates in accordance with Mindbody’s Privacy Policy. Partner acknowledges and agrees that it has, to the extent required by applicable law, provided appropriate notices to and obtained appropriate consents from, any referred friend or other person who Partner refers to Mindbody through the Customer Referral Program.  

2. Compliance with Laws

Partner shall comply, and shall ensure that any third parties performing activities on Partner’s behalf comply, with all applicable foreign and domestic laws, governmental regulations and ordinances, including, but not limited to, data privacy laws, trademark and copyright laws, ICANN policies and procedures governing domain names, the United States Foreign Corrupt Practices Act and applicable export control laws or regulations (collectively “Applicable Laws”) and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Mindbody, its customers or the Services, or to the public. Partner represents and warrants that Partner’s activities and receipt of any referral fees under this Agreement are consistent with Applicable Laws. Partner shall promptly inform Mindbody in writing upon becoming aware of any violations of Applicable Laws in connection with this Agreement. Partner hereby represents and warrants that, no portion of any fees paid or payable by Mindbody to Partner hereunder will be paid to, or accrued directly or indirectly for the benefit of, any person, firm, corporation or other entity, other than Partner. 

3. Licenses

3.1 Services. If Mindbody provides Partner with log-in credentials to another Mindbody platform in connection with this Agreement, Partner is granted a non-exclusive, non-transferable limited right to access and use the Services during the Term for the limited Partner purposes described in this Agreement. Unless otherwise stated in the applicable Program Addendum, Services shall be used solely for: (1) demonstration of the Services to potential Mindbody Customers solely in connection with Partner’s participation in the Customer Referral Program; and (2) training on the use of the Services to Partner’s employees. The Services may not be used for any other purpose without Mindbody’s prior written consent. 

3.2 Marketing Services. To the extent applicable under Partner’s Program Type and Program Level, Mindbody grants Partner a nonexclusive, nontransferable, limited license to use those portions of Mindbody’s marketing programs, marketing materials and tools, as further described in the applicable Program Addendum (“Marketing Services”) solely for the purpose of creating, executing, and monitoring marketing campaigns related to Mindbody’s products and services. Partner’s use of the Marketing Services shall be subject to this Agreement and must comply with Mindbody’s branding guidelines available at Mindbody’s main website, as may be updated from time to time. Mindbody may change the usage, branding and press release guidelines and location thereof at any time, and, upon reasonable notice from Mindbody, Partner shall promptly modify Partner’s use of the Marketing Services to conform to any such changed guidelines. If Partner allows any third party to access the Marketing Services for the purpose of creating, executing, and monitoring marketing campaigns related to Mindbody’s products and services on Partner’s behalf, Partner will ensure that all such use complies with this Agreement. Partner agrees to be responsible for any misuse of the Marketing Services by Partner or any third party using the Marketing Services on Partner’s behalf and Partner agrees to use the Marketing Services at Partner’s own risk. Partner shall cooperate with Mindbody to allow for review of Partner’s use of the Marketing Services and compliance with Mindbody’s quality standards. If Mindbody, in its sole discretion, determines that Partner’s use of the Marketing Services does not comply with this Agreement, Partner shall promptly modify or discontinue Partner’s use as directed by Mindbody. 

3.3 Feedback. Partner grants Mindbody a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Partner relating to the operation of the Services, or to the Customer Referral Program. 

3.4 Cross Licenses. To the extent applicable under Partner’s Program Type and Program Level, Mindbody grants Partner a nonexclusive, nontransferable, nonsublicensable, royalty-free license during the Term to use, solely in connection with Partner’s rights, duties and obligations under this Agreement, the marks set forth in Mindbody’s branding guidelines available at Mindbody’s main website, as may be updated from time to time. This License does not grant rights to use any of Mindbody’s trademarks not identified herein. Partner grants Mindbody a nonexclusive, nontransferable, non-sublicensable, royalty-free license during the Term to use, solely in connection with Mindbody’s rights, duties and obligations under this Agreement, Partner’s marks, including Partner’s company name and logos associated therewith. 

Neither Party shall make any express or implied statement or suggestion, or use the other Party's marks identified in this Section 3.4 (“Licensed Marks”) in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the granting Party or its business, products or services. Each Party shall cease, or adjust the manner of, its use of any of the Licensed Marks at the request of the granting Party in its sole discretion. The granting Party may withdraw any approval of any use of its Licensed Marks at any time in its sole discretion upon written notice to the other Party, which withdrawal shall be effective promptly but in no case more than 30 days from the date of the granting Party’s notice sent in accordance with Section 9.5 below. 

3.5 Reservation of Rights. Mindbody expressly reserves all rights not expressly granted to Partner in this Agreement. All goodwill arising out of your use of the Marketing Services and Mindbody’s marks will inure solely to the benefit of Mindbody. 

4. Representations and Warranties

You represent that you have all necessary power and authority to enter into this Agreement and perform your obligations hereunder, and the performance of your obligations hereunder will not require the consent of any third party, give rise to any conflict of interest, or constitute a breach or default under any agreement or obligation to which you are a party or by which you are bound. If you enter into this Agreement on behalf of a legal entity, you represent that you have the authority to bind that entity. You will not make or engage in any false, misleading or deceptive claims or practices with respect to the Services, or directly or indirectly offer, promise, or pay anything of value to referrals, or engage in any behavior that Mindbody determines in its sole discretion is unethical or harmful to Mindbody’s customers or its business. 

5. Term; Termination

5.1 Term. This Agreement is effective from the Effective Date and remains in effect until either Party terminates it as permitted herein (“Term”). 

5.2 Termination for Convenience. Either Party may terminate this Agreement without cause upon 30 days’ prior written notice to the other Party. 

5.3 Termination for Cause. If either Party breaches a material term of this Agreement, the other Party may terminate this Agreement if the breaching Party does not cure such breach within 10 business days after receiving written notice of the breach. 

5.4 Immediate Termination by Mindbody. Mindbody may terminate this Agreement immediately upon written notice to Partner if: (1) Partner becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors; (2) Mindbody determines, based on one or more Mindbody Customer or prospective Mindbody Customer complaints, that Partner’s actions or statements have created or may create a significant risk of harm to Mindbody's reputation or customer relationships; or (3) Partner has committed fraud or misrepresentation with respect to entering into and/or the performance of this Agreement; or (iv) Partner terminates or requests to terminate their Mindbody software subscription, including vertical platforms, i.e., Booker by Mindbody, etc. 

5.5 Effect of Termination. From and following the date of termination of this Agreement: (1) Partner will immediately cease using all Marketing Services and Mindbody marks and all rights and licenses granted under this Agreement will immediately terminate; (2) Partner shall not be entitled to receive any benefits, referral fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to the date of termination; and (3) all provisions of this Agreement which by their nature are intended to survive termination shall survive, including without limitation Sections 3.3, 3.5, 5.5, 6, 7, 8 and 9. 

6. Indemnification

Partner agrees to indemnify, defend, and hold harmless Mindbody and its affiliates, officers, directors, employees, contractors and agents from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, fines, costs and expenses of any kind (including reasonable attorneys’ fees) arising from or relating to any claim of a third party: (1) relating to Partner’s operation of its business; (2) relating to a breach of any provision of this Agreement by Partner or its representatives, including without limitation Section 2 (Compliance with Laws); or (3) alleging or relating to any act or omission of Partner or its representatives in connection with the performance of its obligations under this Agreement. 

7. DISCLAIMERS; LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, MINDBODY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, ARISING UNDER ANY LAW, WITH RESPECT TO THE SERVICES, THE MARKETING SERVICES, AND ANY OTHER MINDBODY PRODUCT OR SERVICE MADE AVAILABLE, ACCESSED OR USED AS PART OF PARTNER’S PARTICIPATION IN THE CUSTOMER REFERRAL PROGRAM, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MINDBODY MAKES NO WARRANTY THAT ANY REFERRAL URLS, MINDBODY WEBSITES OR SERVICES WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MINDBODY BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, STATUTE OR ANY OTHER BASIS, AND EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MINDBODY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE CUSTOMER REFERRAL PROGRAM WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).

8. Confidentiality

8.1 Confidential Information. As used herein, “ConfidentialInformation” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Mindbody shall include any Customer data (including personally identifiable information) to which Partner has access by virtue of participating in the Customer Referral Program. Confidential Information shall not include any information that (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (3) is received from a third party without breach of any obligation owed to the Disclosing Party, or (4) was independently developed by the Receiving Party without breach of an obligations owed to the Disclosing Party. 

8.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (1) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (2) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, including under SEC disclosure requirements. 

9. Miscellaneous

9.1 Relationship of Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between Partner and Mindbody. Partner will not represent that it has any authority to assume or create any obligation, express or implied, on behalf of Mindbody, nor to represent Mindbody as agent, employee, franchisee, or in any other capacity. There are no third-party beneficiaries to this Agreement. Partner shall not make any proposals, promises, warranties, guarantees, or representations on Mindbody’s behalf or in Mindbody’s name. 

9.2 Entire Agreement. Partner agrees that this Agreement, including the Program Addendum and any information which is incorporated into this Agreement by written reference (including reference to any terms, policies and/or guidelines on our website and/or information contained in a URL), constitutes the complete agreement between the Parties relating to Partner’s participation in the Customer Referral Program. This Agreement supersedes and replaces any other agreement that Partner may have previously entered into with Mindbody governing Partner’s participation in the Customer Referral Program. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum hereto, the terms of such addendum shall prevail. 

9.3 Changes to Agreement. Mindbody may change this Agreement at any time by providing notice to you in a manner that Mindbody deems reasonable in its sole discretion. If Partner objects to any such change, Partner may terminate this Agreement for cause. Partner’s continued participation in the Customer Referral Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended. No other amendment, modification or waiver of this Agreement will be binding upon Mindbody except pursuant to separate written agreement signed by an authorized representative of Mindbody. 

9.4 Assignment. Partner may not assign or transfer its rights or obligations under this Agreement or participation in the Customer Referral Program, whether by operation of law or otherwise, without prior written approval from Mindbody. 

9.5 Notices. All notices from you to Mindbody must be in writing and addressed to: MINDBODY, Inc., 651 Tank Farm Road, San Luis Obispo, CA 93401, Attn: Legal, and will be sent by personal or overnight courier and deemed given when verified by written confirmation of delivery. Notices from Mindbody to you may be sent to the email or physical address we have on file for you and will be deemed given when verified by electronic log or written confirmation of delivery. 

9.6 Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of California, without regard to its choice or conflicts of law rules. For any dispute arising out of or relating to this Agreement, you consent to personal jurisdiction in, and the exclusive venue of, the courts in Santa Clara County, California. 

Addendum A 

This Addendum is subject to and made part of the Mindbody Customer Referral Program Agreement (“Agreement”) to which it is attached. Capitalized terms not defined in this Addendum have the meaning given to them in the Agreement. 

1. Program Requirements 

At a given time, the Customer Referral Program benefits and requirements will correspond to Partner’s Program incentives listed in the table below. 

If Partner submits five (5) incompatible prospects (i.e., businesses that do not overlap with Mindbody’s market offering/prospects that are immediately disqualified from the sales process/non-endemic businesses) in one calendar month, Partner may be disqualified from participation at the discretion of Mindbody. In such event, Mindbody will notify Partner to afford the opportunity to improve lead quality prior to disqualification. 

2. Referral Fees 

Mindbody will apply referral fees (“Referral Fees”) for each Qualified Referral at the rate set forth in Section 6 below. 

“QualifiedReferrals” means net new Mindbody Customers: (1) referred by Partner in accordance with the Referral Procedures described below; (2) for whom Mindbody has no record in connection with the Services, who have not had any interaction with Mindbody for the past 60 days, and who are not, at the time referred, in any part of a sales cycle, contractual relations or ongoing negotiations with Mindbody; (3) who are not Affiliates or franchisees of Partner; and (4) who purchase a subscription for Services no more than 90 days from the date of referral by Partner. 

Any referred Customer who does not become a Qualified Referral within 90 days after the initial referral date will be deemed rejected by Mindbody; if such referred Customer becomes a Mindbody Customer more than 90 days after Partner’s referral date, Partner will not be entitled to receive any Referral Fee for such referral. To be eligible for Referral Fees, Partner must be in good standing with Mindbody at the time of processing payment. Mindbody does not pay Referral Fees to partners based on renewal orders, add-on or upgrade orders. Partner may refer an unlimited number of potential Customers (subject to the limitations described herein), but for each individual referral, Partner may receive a maximum of $5,000.00 for all referred locations. For example, if Partner refers a Customer with ten locations, Partner may receive a Referral Fee for a maximum of five locations, up to $5,000.00.  

3. Payments 

Referral Fees are in Partners local currency, to be awarded by individually referred Mindbody customer subscription in the form of a credit application to Partner’s Mindbody account. Partner may apply the Referral Fee(s) to future payments owed by Partner to Mindbody, up to the total amount of the Referral Fee(s).  Any payment applications made to Partner will be made only in the name as listed in the Agreement. Any other payment arrangements must be pre-approved in writing by Mindbody. If either Party determines an error was made in the calculation of the Referral Fee, each Party agrees to work diligently and in good faith to establish, and if established, resolve, the error. 

4. Refund of Referral Fee Payments 

In the event that (1) Mindbody makes some or all of a Referral Fee to Partner in error; (2) a referred Customer fails to maintain its subscription in good standing for at least 90 days from the date of initial purchase; or (3) the applicable Mindbody agreement with the Customer is terminated before the expiration of the agreed subscription term, Mindbody is entitled to a refund of the associated payments made to Partner, and may , in its sole discretion, offset such refundable amounts against any fees Mindbody owes to Partner hereunder, or invoice Partner for the refundable amounts. Any invoiced amounts are due and payable by Partner within 30 days after the invoice date. 

5. Referral Procedure 

Mindbody will provide Partner with a unique referral URL (“Referral URL”) that links to a Mindbody website for the purpose of referring prospective Customers. Each Partner referral must come to Mindbody through Partner’s Referral URL in order for Partner to receive credit. 

6. Customer Referral Program Levels 

Referral Fees. $1,000.00 USD (or local equivalent) Mindbody account credit to Partner’s account per Qualified Referral, subject to any limitations set forth herein. 

Program Benefits. Dedicated referral form, Mindbody Support Team resources. 

Requirements. Referrer must be an existing Mindbody client in good standing, i.e., current account owner or account user.