Mindbody Professional Services Agreement

These professional services terms (“Professional Services Terms”), together with the overhead agreement which refers to this supplement as being applicable between the Parties (the “Agreement”) govern the procurement of certain services provided to you by Mindbody. Capitalized terms used in these Professional Services Terms but not otherwise defined herein will have the meaning given to them in the Agreement.

1. Services.

Mindbody shall provide the services to you as described in a fully executed Statement of Work (“SOW”) (the "Professional Services") in accordance with this Agreement. You agree that your purchase of Professional Services is not contingent on the delivery of any future service software functionality or features or on any oral or written public comments by us regarding future software functionality or features.

2. Performance Dates.

Mindbody shall use reasonable efforts to meet any performance dates specified in the SOW, and any such dates shall be estimates only.

3. Your Obligations.

You shall:

3.1 Cooperate with us in all matters relating to the Professional Services and provide such access to your premises, and such office accommodation and other facilities as may reasonably be requested by us, for the purposes of performing the Professional Services;

3.2 Respond promptly to any Mindbody request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Mindbody to perform the Professional Services in accordance with the requirements of this Agreement;

3.3 Provide such materials or information as Mindbody may reasonably request to carry out the Professional Services in a timely manner;

3.4 Ensure that any materials or information you provide are complete and accurate in all material respects; and

3.5 Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to your business and the Professional Services.

4. Your Acts or Omissions.

If Mindbody's performance of its obligations under this Agreement is prevented or delayed by any act or omission by you or your agents, subcontractors, consultants or employees, Mindbody shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay.

5. Change Orders.

5.1 Any changes to a SOW will require a written change order signed by the parties prior to implementation of the changes.

5.2 Notwithstanding Section 5.1, Mindbody may, from time to time change the Professional Services without the consent of you provided that such changes do not materially affect the nature or scope of the Professional Services, or the fees or any performance dates set forth in the SOW.

5.3 Mindbody may charge for the time it spends assessing and documenting a change request from you on a time and materials basis in accordance with the SOW.

6. Fees and Expenses; Payment Terms; Interest on Late Payments.

6.1 In consideration of the provision of the Professional Services by Mindbody and the rights granted to you under this Agreement, you shall pay the fees set forth in the SOW.

6.2 You agree to reimburse Mindbody for all reasonable travel and out-of-pocket expenses incurred by Mindbody in connection with the performance of the Professional Services.

6.3 You shall pay all invoiced amounts due to Mindbody upon receipt of the invoice. You shall make all payments hereunder in US dollars by credit card, wire transfer or check. All payments are non-refundable and non-cancelable.

6.4 In the event payments are not received by Mindbody within 5 days after becoming due, Mindbody may:

• 6.4.1 charge interest on any such unpaid amounts at a rate of one and a half percent (1.5%) or the maximum interest permitted by applicable law, whichever is less, plus costs of collection, from the date such payment was due until the date paid; and
• 6.4.2 suspend performance for all Professional Services until payment has been made in full.

7. Taxes.

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, except for taxes based on Mindbody’s income. 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.

8. Intellectual Property.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights in and to all documents, work product and other materials that are delivered to you under this Agreement or prepared by or on behalf of Mindbody in the course of performing the Professional Services, including any items identified as such in the SOW (collectively, the "Mindbody Intellectual Property”) shall be owned by Mindbody.

9. Warranty.

Mindbody represents and warrants to you that it shall perform the Professional Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

10. Disclaimer of Warranties.

EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9 ABOVE, MINDBODY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PROFESSIONAL SERVICES, INCLUDING ANY (1) WARRANTY OF MERCHANTABILITY; OR (2) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (3) WARRANTY OF TITLE; OR (4) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. 

11. Limitations and Exclusions of Liability.

11.1 IN NO EVENT SHALL MINDBODY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

11.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MINDBODY’S AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY YOU DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT. 

11.3 The limitation of liability set forth in Section 11.2 above shall not apply to (1) liability resulting from Mindbody’s gross negligence or willful misconduct and (2) death or bodily injury resulting from Mindbody’s negligent acts or omissions.

12. Indemnification.

You agree to indemnify, defend, and hold harmless Mindbody from and against any and all third party claims alleged or asserted 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 of any provisions of this Agreement; (2) any actual or alleged violation by you of the intellectual property rights or other rights of any third party; and (3) any negligent or intentional misconduct by you.

13. Termination.

In addition to any remedies that may be provided under this Agreement, Mindbody may terminate this Agreement with immediate effect, if you:

13.1 Fail to pay any amount when due under this Agreement and such failure continues for 10 days after your receipt of written notice of nonpayment;

13.2 Have not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or

13.3 become insolvent, file a petition for bankruptcy or commence or have commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

14. Survival.

Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following Sections: 8, 9, 10, 11, 12, 14, and 15.

15. Incorporation of Terms.

You acknowledge that the Professional Services Terms are hereby incorporated into and made part of the Agreement. Except as expressly provided herein, any dispute or claim arising from or relating to these Professional Services Terms or the Professional Services is subject to the terms in the Agreement. In the event of any conflict between the Agreement, and these Professional Services Terms, the Professional Services Terms will apply with respect to the provision and use of the Professional Services.