Thank you for choosing Mindbody for your business. When you use our products and services you’re agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations. Certain capitalized words below are defined in Section 15 (Definitions).
Mindbody provides online business management software services designed specifically for businesses in the wellness industry (“Software Service”). You can access our Software Service via the client login page on our Websites and through our Apps.
These Terms of Service (“Agreement”) apply to any use of and access to the Services by you and your Affiliates. By accessing or using the Services (or enabling an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.
This Agreement is effective (“Effective Date”) on the earlier of (1) the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement (including through an Order Form), or (2) the date you (or an Affiliate) first access or use the Services.
The English language version of this Agreement and any notice or other document relating to this Agreement shall prevail if there is a conflict.
1. General Terms
1.1 Agreement. This Agreement is a binding legal agreement between you and the applicable Mindbody Entity indicated in Section 14.4 below (“Mindbody”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and Mindbody are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
This Agreement applies to any use of the Services, whether in connection with a paid subscription or a free trial. For clarity, this Agreement does not apply to use of the Mindbody App. That has a separate agreement, which is accessible through the Mindbody App. In addition, if you (or any third party on your behalf) uses our APIs, you will be subject to the applicable API terms set forth at https://developers.mindbodyonline.com/Resources/DeveloperAgreement (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time and/or any other terms designated by Mindbody.
To the extent that Mindbody processes Your Data originating from the European Economic Area, or the United Kingdom, or with respect to Personal Information (defined within the Privacy Annex) that is processed on behalf of you which relates to residents of the State of California, the terms of the Privacy Annex apply between the Parties.
1.2 Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to https://co.mindbodyonline.com/legal/terms-of-service (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by submitting a Support Request. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The legend at the top of the Agreement indicates when it was last changed.
1.3 Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.
2.1 Software Services
- 2.1.1 Access and Service Levels. Mindbody will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term (defined below), the Software Services will meet the service levels specified in the Service Level Agreement (“SLA”).
- 2.1.2 Changes to Services. Notwithstanding Section 2.1.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (1) in connection with a Force Majeure event (as described in Section 14.9), (2) if we believe any malicious software is being used in connection with your account, or (3) during planned downtime as provided in the SLA. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
2.2 Third Party Offerings. Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply Mindbody’s endorsement of or affiliation with the provider. Mindbody does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. Mindbody has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting Mindbody to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
2.3 Support Services. As part of the Services you will have access to Mindbody’s standard support services described at https://support.mindbodyonline.com/s/article/214494348-Standard-Support-Services (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time. For an additional fee, you may purchase Professional Services as described at https://www.mindbodyonline.com/business/professional-services (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.
2.4 Recently Acquired Offerings. As an administrative courtesy to you, we may offer Recently Acquired Offerings to you through this Agreement before fully integrating, testing, and improving such offerings to meet our standards, which may take up to 12 months. All representations and/or warranties made by us in this Agreement do not apply to such Recently Acquired Offerings.
2.5 Marketing Services. As part of the Software Service, your business will be listed on the Mindbody App and on our partner websites and mobile applications (the “Partner Network”). From time to time, Mindbody may offer subscribers the opportunity to participate in certain promotional programs (“Mindbody Promote”), which are designed to promote your business and attract customers. Additional terms specific to the use of these Marketing Services apply and are hereby incorporated by reference into this Agreement as if set forth fully herein. Mindbody reserves the right to charge fees for the Marketing Services. You agree to pay all applicable fees related to the Marketing Services in accordance with Section 4.2 of this Agreement.
2.6 Free, Trial and Beta Services. Mindbody may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (1) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (2) Mindbody may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us. Mindbody will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services.
2.7 Professional Services Terms. Additional terms specific to the procurement of Professional Services apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.8 Branded Mobile App Terms. Additional terms specific to the procurement of the Branded Mobile App apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.9 Hardware Terms. Additional terms specific to the procurement and use of heart rate monitors, receivers, payment enabling, and other similar hardware apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.10 Smart Payment Terminal Terms. Additional terms specific to the use of Smart Payment Terminals apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.11 Payment Processing. Mindbody offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.
Mindbody may offer special pricing, credits, and/or discounts to you or your Affiliates for the Services contingent upon timely procurement, and continued material usage, of the Payment Processing Services and/or Mindbody Payments. In the event you or your Affiliate stop utilizing the Payment Processing Services and/or Mindbody Payments, Mindbody may, in its sole discretion, revoke the special pricing, credits, and/or discounts being applied to the Services.
2.12 Virtual Wellness Platform. Additional terms specific for the procurement of the Virtual Wellness Platform apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.13 Partner Store. Additional terms specific for the procurement of the Partner Store apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.14 Franchise Fees Tool. Additional terms specific to the use of the Franchise Fees Tool apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.15 Credit Card Updater. As part of the Services, Mindbody will automatically update your End Users’ outdated credit card information for participating payment cards. You hereby grant Mindbody permission to update your End Users’ outdated payment card information using the Credit Card Updater service and agree to pay the associated fees described at https://support.mindbodyonline.com/s/article/Mindbody-Card-Updater (or such other URL as specified by Mindbody). Updates may include, without limitation, new account numbers and new expiration dates. You may choose to opt out of the Credit Card Updater service at any time within your software settings.
2.16 ClassPass Revenue Guarantee. Additional terms specific to the ClassPass Revenue Guarantee apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
3. Your Responsibilities
3.1 Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by Mindbody, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.
3.2 Data; Unauthorized Access; Maintaining Networks. You will: (1) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (2) prevent unauthorized access to, or use of, the Services, and notify Mindbody promptly of any unauthorized access or use; and (3) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
3.3 Restrictions on Use. You and your Affiliates and End Users will not: (1) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (2) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (3) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (4) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (5) restrict or inhibit any other person or entity from using the Services; (6) remove any copyright, trademark or other proprietary rights notice from the Services; (7) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (8) systematically download and store Services content; (9) use the Services to send unsolicited electronic messages (aka spamming); or (10) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (10) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, Mindbody grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Mindbody reserves the right to revoke these permissions at any time and without notice.
3.4 Cardholder Data. You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
3.5 User Names and Passwords. Mindbody may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Mindbody. You, and not Mindbody, are responsible for any use or misuse of user names or passwords associated with your account.
3.6 Consent. You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products.
4. Fees and Payment
4.1 Software Services Fees. Unless otherwise stated on an Order Form, fees for the Software Services (“Subscription Fees”) are set forth on the applicable Website(s).
4.2 Change in Subscription Fees. Unless otherwise specified in an Order Form, the Subscription Fees during a Renewal Term (defined below) will be updated to the pricing set forth on the applicable Website when each Renewal Term begins. If You have an Order Form, Mindbody may increase any fees specified in an Order Form, provided the increase will not become effective until the subsequent Renewal Term. Prices are subject to change for those Services you have elected not to purchase or that are otherwise not identified in the Order Form. Mindbody may also convert any free, trial or beta Service into a Service subject to a Subscription Fee upon notice to you, and your rights to such Service will be suspended if you do not pay the Subscription Fee.
4.3 Payment Terms. You agree to pay the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide Mindbody with valid and updated credit card information or another form of payment acceptable to Mindbody. If you provide credit card information, you represent that you are authorized to use the card and you authorize Mindbody to charge the card for all payments hereunder. By submitting payment information, you authorize Mindbody to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Mindbody for purposes of acknowledging or completing any payment.
4.4 Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at the lesser of either (1) 1.5% of the outstanding balance per month, or (2) the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Mindbody within 30 days after the applicable due date will be deemed a material default under this Agreement, and Mindbody will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 8.2.
4.5 Payment Errors. If you believe a payment has been processed in error, you must provide written notice to Mindbody within 30 days after the date of payment specifying the nature of the error and the amount in dispute ("Payment Error Notice"). If the Payment Error Notice is not received by Mindbody within such 30 day period, the payment will be deemed final.
4.6 Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Mindbody is legally required to pay or collect any Taxes on your behalf, Mindbody will invoice you and you will pay the invoiced amount. You acknowledge and agree that we may make certain reports to tax authorities (e.g., 1099 forms) regarding transactions that we process and merchants to which we provide Payment Processing Services are provided. For clarity, Mindbody will be solely responsible for taxes assessed on Mindbody based on its income.
5. Intellectual Property Rights
5.1 Mindbody Intellectual Property. Mindbody or its affiliates own all right, title and interest in and to the Services, the Mindbody Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Mindbody and its affiliates reserve all rights, title and interest in and to the Services, the Mindbody Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and Mindbody, all Mindbody Marks are owned by Mindbody or its affiliates. You agree not to display or use any Mindbody Marks in any manner without Mindbody’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
5.2 License Grant to You. Subject to the terms and conditions of this Agreement, Mindbody hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not: (1) modify, copy or create any derivative works based on the Services; (2) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (3) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Mindbody in the provision of the Services; (4) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (5) copy any features, functions, integrations, interfaces or graphics of the Services; or (6) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
5.3 License Grant to Mindbody. You hereby grant to Mindbody and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (1) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or Mindbody’s or its affiliates’ business(es); and (2) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, (y) for marketing and promotional purposes in connection with Mindbody’s business, and (z) for Marketing Services. Mindbody agrees that any use by Mindbody of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to Mindbody or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
6. Data Ownership and Use
6.1 Your Data. As between you and Mindbody, you own all right, title and interest in Your Data. You hereby grant to Mindbody a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing Mindbody’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to Mindbody that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
6.2 Mindbody Data. Notwithstanding Section 6.1, all right, title and interest in any data or information collected by Mindbody independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information Mindbody obtains about End Users through the Mindbody App (whether the same as Your Data or otherwise), will be solely owned by Mindbody (collectively, “Mindbody Data”).
6.3 Aggregated Data. You agree Mindbody owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit Mindbody or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
6.5 HIPAA. The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") imposes rules to protect certain personal health information or “PHI” as that term is defined under HIPAA. If you or any Affiliate is subject to HIPAA and providing or processing any PHI in connection with the Services, prior to accessing or using the Services you must notify Mindbody and enter into a Business Associate Agreement (“BAA”) in the form provided by Mindbody. You are solely responsible for determining whether you or any Affiliates are subject to HIPAA. You may send notice and request a BAA by submitting a Support Request.
6.6 Protection and Security. During the Subscription Term, Mindbody will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data as detailed in the Mindbody Security Policy. Mindbody will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data. Additional information about Mindbody’s security practices can be found here.
6.7 Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
6.8 Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that Mindbody has no obligation whatsoever to resolve or intervene in such disputes.
7. Confidential Information
7.1 A Party will not disclose or use any Confidential Information of the other Party except: (1) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (2) with the other Party's prior written permission; or (3) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (2) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (3) was independently developed by a Party without breach of any obligation owed to the other Party; or (4) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict Mindbody with respect to Mindbody Data or Aggregated Data.
8. Term, Termination and Suspension
8.1 Term. Unless otherwise specified in an Order Form, the initial term of this Agreement is 90 days (“Initial Term”). The Initial Term begins on the Effective Date and, unless otherwise specified in an Order Form, automatically renews in successive and consecutive 30 day periods (each a “Renewal Term” and collectively with the Initial Term, the “Subscription Term”) until this Agreement is properly terminated. Either Party may terminate this Agreement for any reason or no reason, by giving the other Party at least 30 days’ notice before the end of the relevant Subscription Term. If you elect to terminate this Agreement early, you will remain responsible for payment of all fees owed for the entire Subscription Term and will continue to be charged each month for the remainder of the Subscription Term.
8.2 Termination for Cause. Mindbody may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe Mindbody, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to Mindbody for the period prior to the effective date of termination.
8.3 Rights on Termination or Expiration. Upon termination or expiration of this Agreement (1) all Order Forms will automatically terminate and be of no force or effect; (2) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (3) except as specified in the following paragraph, Mindbody will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
For a period of no greater than 30 days following a notice of termination, Mindbody will make Your Data (except Cardholder Data and Content (as defined in §2.12)) available to you through Mindbody’s standard web services. Upon request by you within 30 days following the termination date of this Agreement, and provided that: (1) you have paid Mindbody all amounts owed under this Agreement; and (2) the Parties have an agreed upon a SOW (as defined in Section 2.7), Mindbody will make Your Data in its possession or control available to you through Mindbody’s data export service. After such 30 day period, Mindbody will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require Mindbody’s assistance in retrieving Your Data, additional fees may apply.
The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.3, 2.5, 3, 4 (other than Section 4.1), 5, 6, 7, 8.3, 8.4, 9.1, 9.3, 10, 11, 12, 13, 14 and 15.
8.4 Right to Terminate or Suspend Services. We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe (1) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Mindbody or any third party, (2) that we are required to do so by law, or (3) where the Parties do not agree on the use of a sub-processor.
9. Warranties & Disclaimer
9.1 Accuracy of Your Account Information. You agree to provide Mindbody with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by Mindbody (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify Mindbody in writing if any Account Information changes. You agree that Mindbody has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.
9.2 Warranty of Functionality. Mindbody warrants to you that during a Subscription Term: (1) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (2) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that Mindbody will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If Mindbody is unable to restore such functionality, you may terminate the Agreement by providing written notice to Mindbody, and you will be entitled to receive a pro-rata refund of any pre-paid fees. Mindbody will have no obligation with respect to a warranty claim under this Section 9.2 unless notified by you in writing no later than 30 days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services.
9.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MINDBODY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. MINDBODY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 9.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH MINDBODY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “MINDBODY PARTIES”).
10.1 You agree to indemnify, defend, and hold harmless the Mindbody Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (1) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (2) any access to or use of the Services by you, an Affiliate or End User; (3) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (4) any dispute between you and another party regarding ownership of or access to Your Data.
11. Limitations and Exclusions of Liability
11.1 MINDBODY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY MINDBODY. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MINDBODY PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH MINDBODY AND THE MINDBODY PARTIES.
IN NO EVENT WILL ANY MINDBODY PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF MINDBODY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Export Controls
12.1 You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to Mindbody that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction.
13. Intellectual Property Policy
13.1 Mindbody respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property Policy accessible at https://co.mindbodyonline.com/legal/terms-of-service/intellectual-property-policy (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy.
14.1 Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of California without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply.
14.2 Mandatory Informal Dispute Resolution. If you have any dispute with Mindbody arising out of or relating to this Agreement, you agree to notify Mindbody in writing with a brief, written description of the dispute and your contact information, and Mindbody will have 30 days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such 30 day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.
14.3 Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND MINDBODY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 14.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND MINDBODY AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at https://www.adr.org/sites/default/files/Commercial-Rules-Web.pdf) as amended by this Agreement. Any arbitration hearing will be held in San Luis Obispo County, California. The applicable governing law will be as set forth in Section 14.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
14.4 Mindbody Entity. The information below sets forth the Mindbody entity you have entered into this Agreement with (“Mindbody Entity”) depending on where you are domiciled:
- If you are domiciled in Australia or New Zealand and their respective territories, the Mindbody Entity is MINDBODY Australia Pty Ltd, an Australian proprietary limited company.
- If you are domiciled in the United Kingdom or Isle of Man, the Mindbody Entity is MINDBODY, Ltd., a private limited company registered in England and Wales.
- If you are domiciled in the United States and its territories, and all other countries, your Mindbody Entity is MINDBODY, Inc., a Delaware corporation.
14.5 Entire Agreement. This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and Mindbody with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between Mindbody, on the one hand, and you or any Affiliate, on the other hand.
14.4 Waiver and Severability. No waiver of any provision of this Agreement by Mindbody will be effective unless in writing and signed by Mindbody. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
14.5 Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without Mindbody’s prior written consent. Mindbody may assign, transfer or sublicense any or all of Mindbody’s rights or obligations under this Agreement without restriction.
14.6 Notices. Any notices provided by Mindbody under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from Mindbody through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to Mindbody under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to MINDBODY, Inc., Attn: Mindbody Customer Support, 651 Tank Farm Road, San Luis Obispo, CA 93401, with a copy to MINDBODY, Inc., Attn: Mindbody Legal Department, 651 Tank Farm Road, San Luis Obispo, CA 93401.
14.7 Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Mindbody’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
14.8 Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
14.9 Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Mindbody.
For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:
15.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
15.2 “Aggregated Data” means anonymized, de-identified, or aggregated data derived by or through the operation of the Services that is created by or on behalf of Mindbody in compliance with applicable laws and that does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
15.3 “API” means Mindbody’s application programming interface that is described at https://developers.mindbodyonline.com (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time, and any subsequent application programming interfaces that are developed and made available by Mindbody to interact with or otherwise be used in connection with the Services.
15.4 “Apps” means any mobile applications through which Mindbody makes the Software Service available, including, but not limited to, the Mindbody business app and the Mindbody branded mobile app. “Apps” excludes the Mindbody App.
15.5 “Booker” means the various products and/or services described at https://www.booker.com/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.
15.6 “Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.
15.7 “Card Updater” means the Software Service feature that facilitates automatic updates to outdated credit card information for participating payment cards.
15.8 “ClassPass Revenue Guarantee” means our guarantee relating to the revenue you earn from ClassPass as defined more fully in the ClassPass Revenue Guarantee Terms.
15.9 "Confidential Information" means (1) any software utilized by Mindbody in the provision of the Services and its respective source code; (2) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document.
15.10 “Documentation" means online user guides, documentation, and help and training materials, as may be updated by Mindbody from time to time, accessible at the applicable Website(s), and any other materials provided by Mindbody as part of the Services.
15.11 “End User” means a business or individual that schedules or purchases products or services from you through the Services, that you market to, communicate with, or target through the Services, or that otherwise interacts with you through the Services, or that you authorize to use the Services in connection with your business.
15.12 “End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users.
15.13 “FitMetrix” means the various products and/or services described at https://www.fitmetrix.io/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.
15.14 “Franchise Fees Tool” means the Service which enables you to collect funds from a Franchisee and/or Affiliate.
15.15 “Franchisee” means any party that is bound by a franchise agreement with you, and that you have designated to receive Services under this Agreement. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.
15.16 “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
15.17 “Marketing Services” means Mindbody’s online marketing platform, which allows consumers to locate Mindbody subscribers and evaluate, review and book their services, directly through the Mindbody App and through our partner applications.
15.18 “Mindbody App” means https://mindbody.io/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time as well as the consumer-facing, downloadable mobile app made available by Mindbody and known as the “Mindbody App” (and its successor products), which allows consumers to use their mobile devices to find, book and pay for the services of participating Mindbody subscribing businesses.
15.19 “Mindbody Marks” means all service marks, logos and product and service names used, applied for, registered, or otherwise owned by Mindbody and its affiliates.
15.20 “Order Form” means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable Software Fees (or if the Services are free), and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
15.21 “Partner Store” means the Mindbody partner store which provides you the ability to search Third Party Offerings. The Mindbody Partner Store is accessible at https://partnerstore.mindbodyonline.com/ (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.
15.22 “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.
15.23 “Professional Services” means Mindbody’s supplemental, fee-based technical support services described at https://www.mindbodyonline.com/business/professional-services (or such other URL as specified by Mindbody), as may be updated by Mindbody from time to time.
15.25 “Recently Acquired Offerings” currently include those from, or branded with, Zeezor, LLC, and other applicably designated acquisitions which we make you aware.
15.26 “Services” means the Software Services, FitMetrix, Website, Apps, hardware and other services. “Services” excludes Third Party Offerings and our Mindbody App.
15.27 “Software Service” is defined in the Introduction.
15.28 “Third Party Offerings” means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.
15.29 “Virtual Wellness Platform” or “VWP” means the Mindbody virtual wellness platform which provides you the ability to upload video on demand and live stream video offerings for use by consumers using the Mindbody App, Branded Mobile App, and/or such other platforms as designated by Mindbody.
15.30 “Website” means https://www.mindbodyonline.com; or https://www.fitmetrix.io/; or https://www.booker.com/, (or such other URLs as specified by Mindbody), as may be updated by Mindbody from time to time and any other websites through which Mindbody makes the Software Service available.
15.31 “Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data (and your or their representative’s data), but excludes Aggregated Data.