COACHING SERVICES AGREEMENT

Last updated: January 25, 2017.

This Coaching Services Agreement (“Agreement”) constitutes a legal agreement between you, an individual, (“you”, “your”, or “Coach”), and PumpUp Inc. (“PumpUp”, “our”, “us” or “we”).

PumpUp operates an online service that provides tools and certain support to users of its mobile community to help them achieve a healthy lifestyle. PumpUp Services (as defined below) enable authorized fitness instructors, coaches, trainers  and other fitness professionals to receive and fulfill requests for personalized workout and fitness recommendations and planning and online interaction and motivation from authorized users of the PumpUp Services (“Users”).

You desire to enter into this Agreement for the purpose of being connected with Users that indicate a desire to have you provide Coaching Services (as defined below) to them.

In order to provide Coaching Services, you must agree to the terms and conditions of this Agreement. Upon your execution (electronic or otherwise) of this Agreement, you and PumpUp shall be bound by this Agreement.

THEREFORE in consideration of the mutual promises and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1.              Definitions. In this Agreement, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

(a)            Application” means the application form that you submitted to PumpUp as part of the application and approval process for providing Coaching Services.

(b)            Applicable Law” means all applicable laws, rules and regulations, including those applicable to your use of the PumpUp Services, the PumpUp Software, the provision of Coaching Services and each party’s performance of this Agreement.

(c)            Coaching Services” means the provision of personalized workout plans, fitness recommendations and daily interactions with Users through, and using, the PumpUp Services and includes fulfilling the following requirements for each User whose request for Coaching Services that you accept:

(i)              developing a personalized fitness plan using the PumpUp Services to help each such User progress in their fitness goals, which must be comprised of both a high level exercise plan that is at least twelve (12) weeks in duration and a detailed weekly workout routine for each of the those twelve (12) or more weeks;

(ii)            promptly responding all inquiries from each such User and doing so within twenty-four (24) hours of each such User’s inquiry; and

(iii)           interacting with each such User via the PumpUp Services to, among other things, discuss how they are performing their workouts, measure their progress, provide motivation, discuss their concerns, answer questions or such other interactions that a fitness professional would have with their clients.

(d)            PumpUp Data” means all data and information related to the access and use of the PumpUp Services under this Agreement, including all data related to Users (including User Information), all data related to the provision Coaching Services and all Confidential Information (as defined below).

(e)            PumpUp Services” means PumpUp’s services provided from time to time via its digital technology platform, including, (i) enabling fitness instructors, coaches, trainers and other professionals to receive and fulfill requests for personalized workout, training and online accountability and motivation services from Users seeking such services; (ii) matching Users with fitness instructors, coaches trainers and other professionals who are willing to offer personalized workout, training and online accountability and motivation services through the PumpUp Services; and (iii) providing Users with the ability to create personalized workouts, taking into account their fitness level, available facilities, and desired goals, by providing graduated workout plans through the PumpUp Software; such PumpUp Services include access to the PumpUp Software and PumpUp’s websites and related support services systems, as may be updated or modified from time to time.

(f)              PumpUp Software” means the PumpUp software application that can be used on a computer or supported mobile device in order to access and use the PumpUp Services; the PumpUp Software may be downloaded or accessed via the Internet.

(g)            User Information” means, individually and collectively, all information, including personal information, regarding Users that is made available by PumpUp or Users in connection with your provision of Coaching Services, which may include a User’s name, age, location, photo, height, weight and workout preferences.

2.              Certain Rules of Interpretation. In this Agreement, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. Every use of the words “including” or “includes” in this Agreement is to be construed as meaning “including, without limitation” or “includes, without limitation”, respectively. The division of this Agreement into Sections and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement.

3.              Modification of Agreement. PumpUp reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement on the online portal available to you on the PumpUp Services. PumpUp reserves the right to modify any information referenced at the webpages or websites available through the hyperlinks in this Agreement from time to time. You hereby acknowledge and agree that, by using the PumpUp Services, you are bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to changes to Service Fee (as defined in Section 10(d)). Continued use of the PumpUp Services or PumpUp Software, other than expressly to terminate your account for use of the PumpUp Services and this Agreement, after any such changes shall constitute your consent to such changes.

4.              Supplemental Terms. Supplemental terms may apply to your use of the PumpUp Services or PumpUp Software, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.

5.              Your Relationship With PumpUp and Our Relationship with You.

(a)            Except as otherwise expressly provided herein with respect to PumpUp acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contractors.

(b)            The parties expressly agree that: (i) this Agreement is not an employment agreement, nor does it create an employment relationship (including from a labour law, tax law or social insurance or social security or pension law perspective), between PumpUp and you; and (ii) no joint venture, partnership, or agency relationship exists between PumpUp and you.

(c)            You have no authority to bind PumpUp and you agree to not to hold yourself out as an employee, agent or authorized representative of PumpUp. Where, by implication of mandatory law or otherwise, you may be deemed an employee, agent or representative of PumpUp, you undertake and agree to indemnify, defend (at PumpUp’s option) and hold PumpUp harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.

6.              Coaching Services and Your Obligations.

(a)            From time to time we may provide you with requests from Users for Coaching Services based on the information that you provide to us in your Application and a User’s preferences and fineness goals. You retain the option to attempt to accept or to decline or ignore a User’s request for Coaching Services. If you accept a User’s request for Coaching Services, the PumpUp Services will provide you with certain User Information via the PumpUp Software.

(b)            You shall not contact any Users or use any User Information for any reason or purpose other than for the sole purposes of fulfilling Coaching Services.

(c)            As between PumpUp and you, you acknowledge and agree that: (i) you shall be solely responsible for providing Coaching Services and for determining the most effective and safe manner to perform each instance of Coaching Services; and (ii) except for the PumpUp Services and the PumpUp Software, you shall provide all necessary insurance, on-going education, equipment, tools, other materials, at your own expense, necessary to perform Coaching Services.

(d)            You acknowledge and agree that all fitness and workout plans that you provide to a User: (i) must be developed using the PumpUp Services and personalized and tailored to that User’s goals, lifestyle, wellbeing and abilities; and (ii) will not infringe upon or violate any patent, copyright, trade secret or other property right of any third party.

(e)            You will at all times when using the PumpUp Services or otherwise interacting Users, including, when providing Coaching Services, conduct yourself in a professional, respectful and courteous manner consistent with the highest standards of the fitness training and instruction industries.

(f)              You will at all times comply with Applicable Law in your performance of this Agreement and for the provision of Coaching Services, including holding and complying with all permits, licenses, registrations and other governmental authorizations and their related requirements necessary to provide Coaching Services and personal fitness training or instruction generally.

(g)            You agree to abide by this Agreement and any Supplemental Terms that are in effect from time to time.

(h)            PumpUp does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement, including in connection with your provision of Coaching Services or your acts or omissions.

(i)              You acknowledge and agree that you are solely responsible for taking such precautions as are reasonable and proper (including maintaining adequate insurance that meets the requirements of Applicable Law) regarding any acts or omissions of a User or third party.

(j)              PumpUp makes no representations, warranties, conditions or guarantees as to the actions or inactions of the Users who may request or receive Coaching Services from you, and PumpUp does not screen or otherwise evaluate Users. You acknowledge and agree that in providing Coaching Services through the PumpUp Service, or otherwise using the PumpUp Services, you may be introduced to a third party (including Users) that may pose harm or risk to you or other third parties. You are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the PumpUp Services and providing Coaching Services. PumpUp is not responsible or liable for the actions or inactions of a User in relation to you, your activities or your Coaching Services. You shall have the sole responsibility for any obligations or liabilities to Users or other third parties that arise from your provision of Coaching Services. PumpUp expressly disclaims all liability for any act or omission of you, any User or other third party.

(k)             You will cooperate with PumpUp and provide information reasonably requested by PumpUp to assist PumpUp and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or Applicable Law.

(l)              PumpUp retains the right to, at any time at PumpUp's sole discretion, deactivate your account for the PumpUp Services or otherwise restrict you from accessing or using the PumpUp Services in the event of a violation of this Agreement, your disparagement of PumpUp or any User, your act or omission that causes harm to PumpUp’s brand, reputation or business as determined by PumpUp in its sole discretion. PumpUp also retains the right to deactivate your account for the PumpUp Services or otherwise restrict you from accessing or using the PumpUp Services for any other reason at the sole and reasonable discretion of PumpUp.

7.              Covenants, Representations and Warranties. You hereby represent, warrant and covenant to PumpUp that:

(a)            you are qualified to provide Coaching Services and possess the appropriate and current level of training, expertise and experience to provide Coaching Services in a professional, respectful and courteous manner with due skill, care and diligence as conforms to generally accepted practices in the fitness instruction and training industry;

(b)            you are duly certified or accredited by the organizations set out in the Application and you will at all times comply with rules, regulation and requirements in place from time to time by such organizations and any other organization under which you hold applicable certification, accreditation or designation;

(c)            you will ensure that all Users that you provide Coaching Services to are physically and mentally able to receive the Coaching Services and perform any workouts, exercises or other activities which you provide to them;

(d)            you have the right and capacity to enter into the Agreement and fully perform all of your obligations hereunder;

(e)            you are not bound by any restrictive covenant, whether written or oral, or other contractual term in favour of any previous customer, employer or other party, and are not aware of any other facts or circumstances which would prevent or restrict in any way your ability to provide Coaching Services using the PumpUp Services;

(f)              you do not have any confidential or proprietary information from any former client, customer, employer or other party in your power, possession or control the disclosure of which could give rise to a legal claim against you or PumpUp; and

(g)            your use of the PumpUp Services and provision of Coaching Services through the PumpUp does not violate any Applicable Law.

8.              Information that You Provide PumpUp.

(a)            We collect, use and disclose your personal information for purposes relating to the establishment, management and administration of the PumpUp Services, establishing and maintaining a relationship with you and in furtherance of our business objectives. These purposes include: (i) evaluating your ongoing suitability for the provision of Coaching Services, (ii) communicating with you, including in connection with this Agreement; (iii) facilitating payment of Your Fees; or (iv) investigating suspected misconduct or breaches of this Agreement.

(b)            Much of the personal information we processes about you will have been collected from you directly in the Application.  However, we sometimes also receive personal information from third parties, such as when we check your references, certifications or accreditations.

(c)            You represent and warrant to PumpUp that all information provided by you in the Application is truthful and accurate and you will maintain the accuracy of such information at all times during the term of this Agreement.

(d)            You agree to provide PumpUp with genuine copies of any applicable licenses, permits, certifications, approvals and registrations prior to your provision of any Coaching Services. Thereafter, you must submit to us written evidence of all such licenses, permits, certifications, approvals and registrations as they are renewed. You will notify us if any such licenses, permits, certifications, approvals or registrations are terminated or expired. We shall, upon request, be entitled to review such licenses, permits, certifications, approvals and registrations from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. We reserve the right to independently verify your documentation or Application information from time to time in any way that we deem appropriate in our reasonable discretion.

(e)            You acknowledge and agree that the PumpUp Services may provide certain information about you to Users both before or after you have accepted a User’s request for Coaching Services, including, your name, your photo, information about your accreditation and work history.

(f)              Subject to Applicable Law, we may provide to a third party, including law enforcement or other authorities, any information (including personal information and any PumpUp Data) about you provided hereunder if: (i) there is a complaint, dispute or conflict, including an accident, between you and a User; (ii) it is necessary to enforce the terms of the Agreement; (iii) it is required, in PumpUp’s sole discretion, by Applicable Law; (v) we are to engage professional advisers (e.g. bankers, lawyers, accountants) or liaise with potential buyers and vendors in connection with the sale or acquisition of PumpUp or its assets; or (iv) it is necessary, in PumpUp’s sole discretion, to (1) protect the safety, rights, property or security of PumpUp, the PumpUp Services or any third party, (2) detect, prevent or otherwise address fraud, security or technical issues, and/or (3) prevent or stop activity which PumpUp, in its sole discretion, considers to be, or to pose a risk of being, illegal, unethical, or legally actionable; or (4) it is required or necessary, in PumpUp’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the PumpUp Services. You understand that we may retain your personal information for legal, regulatory, safety and other necessary purposes after this Agreement is terminated. We process personal information in accordance with our privacy policy, which is located at http://www.pumpup.com/privacy.

9.              Account Information. PumpUp may provide you with certain information to allow you to use the PumpUp Services, such as a user ID and a password or the ability to create a user ID and/or password (the “Access Information”).  The Access Information is provided on the understanding that it is personal to you. You will not permit anyone other than you to obtain access to the PumpUp Services, or otherwise provide Coaching Services, using your Access Information.  PumpUp is not responsible or liable in any way for any use of the PumpUp Services (authorized or unauthorized) by any party accessing the PumpUp Services using your Access Information, and you accept all responsibility for such use of the PumpUp Services and any consequences resulting from such use of the PumpUp Services.

10.           Fees and Payment.

(a)            You acknowledge and agree that each User is charged a monthly recurring fee for receiving Coaching Services through the PumpUp Services (“Coaching Fee”) and that pricing for the Coaching Fee is set at a prevailing rate common to all Users of the PumpUp Services in effect from time to time.

(b)            PumpUp agrees to remit, or cause to be remitted, to you the Coaching Fees, collected by PumpUp from Users to whom you provide Coaching Services less: (i) the applicable Service Fee (as defined below); and (ii) any amounts refunded by PumpUp, in its sole discretion, to any Users as a result of any complaint raised by such User(s) related to your provision or failure to provide Coaching Services to them, regardless of whether such complaint has merit or is otherwise valid, or any other breach of this Agreement (“Your Fees”). Payment of Your Fees will be made within forty-five (45) days of PumpUp’s receipt of payment Coaching Fees from each applicable User. Your Fees will be paid through such means as arranged between you and PumpUp from time to time.

(c)            You acknowledge and agree that, except for Your Fees, you are not entitled to receive any other fees or amounts from us in connection with providing Coaching Services or in relation to this Agreement.

(d)            In consideration of PumpUp’s provision of connecting you with Users to provide Coaching Services to and the provision of the PumpUp Services, you agree to pay PumpUp a service fee calculated as a percentage of the Coaching Fee of each User for which you provide Coaching Services to using the PumpUp Services, such percentage as provided to you via email or otherwise made available electronically by PumpUp from time to time (“Service Fee”). We reserve the right to change the Service Fee at any time, in PumpUp’s sole discretion, including changing the percentage calculation or establishing new components to the Service Fee. If we increase the Service Fee or add new components to the Service Fee, you have the right to terminate the Agreement immediately upon notice to us or otherwise terminating your account through the PumpUp Services. Continued use of the PumpUp Services after any such change in the Service Fee calculation will constitute your consent to such change.

(e)            PumpUp is a resident of Canada and is registered for purposes of the GST/HST levied under the Excise Tax Act (Canada). PumpUp’s registration number is 814424107RT001. Where you are a resident of Canada, the Service Fee is inclusive of the applicable GST/HST based on your Province of residency and, notwithstanding the generality of the remittance obligations under Section 10(f), you will remit all applicable tax liabilities and amounts related to your Service Fees.

(f)              You acknowledge and agree that you are required to complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Coaching Services as required by Applicable Law. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Coaching Services.

11.           Prohibited Activity. In addition to the prohibitions and negative covenants set out elsewhere in the Agreement, you will not, and agree to not, do any of the following:

(a)            interact or communicate with any Users through any means other than through the PumpUp Service, including meet with any User in person;

(b)            provide any medical or other health care advice or information to any User;

(c)            interact or otherwise engage with any User or any other person in a manner that, in the sole discretion of PumpUp:

(i)              is offensive, racist, bigoted, hateful, disrespectful, unsafe, unprofessional or is otherwise physically, emotionally or psychologically harmful, or potentially harmful, to any person;

(ii)            harasses or advocates harassment of another person;

(iii)           solicits or is designed to solicit an inappropriate or unlawful relationship with a User;

(iv)           constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

(v)             constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music, video or links to pirated video files;

(vi)           solicits, or is designed to solicit, passwords or personal identifying information from Users;

(vii)          involves criminal conduct; or

(viii)        violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person;

(d)            commit any criminal or tortious activity, including, fraud, harassment, defamation, stalking, spamming, sending of viruses or other harmful files, copyright infringement, patent infringement, trademark infringement, or theft of trade secrets;

(e)            impersonate or attempt to impersonate a PumpUp employee;

(f)              use the account credentials for the PumpUp Services, including username and password, of any other person at any time or disclosing your Access Information to any third party or permitting any third party to access your PumpUp Services account;

(g)            sell or otherwise transfer your Access Information or profile;

(h)            accepting payment or anything of value from a third party in exchange for your performing any commercial activity through the PumpUp Services on behalf of that party, including placing commercial content on your profile, displaying branded clothing or other materials in your profile or during the course of interactions with Users, or otherwise interacting with Users with a commercial purpose;

(i)              otherwise endorsing, advertising or promoting any products or services not authorized by PumpUp;

(j)              offer to sell, barter or trade, or selling, bartering or trading for your vote or rating in any aspect of the PumpUp Services that provides a voting or rating functionality;

(k)             take any action which would detract from the good name and reputation of PumpUp or the PumpUp Services; or

(l)              furnish to any User any warranty, undertaking or guarantee of any nature whatsoever which may tend to involve the responsibility or liability of PumpUp.

12.           Term and Termination.

(a)            This Agreement shall commence on the date that the Agreement is executed by you (electronically or otherwise) and shall continue until terminated in accordance with its terms.

(b)            You may terminate this Agreement for any reason at any time upon providing us with at least two (2) weeks’ notice. We may terminate this Agreement at any time and for any reason, with or without notice to you. This Agreement shall immediately and automatically terminate without notice or other act upon your death.

(c)            Upon termination of this Agreement: (i) you shall immediately delete and fully remove the PumpUp Software from any of your devices; and (ii) outstanding payment obligations and those provisions of this Agreement, which by their nature should survive, shall survive termination of this Agreement, including Sections 1, 2, 3, 4, 5, 6(h), 6(j), 6(k), 7, 8, 9, 10, 13(b), 13(d), 13(f), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25.

13.           Use of PumpUp Services and PumpUp Software.

(a)            Subject to the terms and conditions of this Agreement, PumpUp hereby grants you a non-exclusive, royalty-free, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the PumpUp Software and the PumpUp Services connection with the provision by PumpUp of the PumpUp Services solely for the purpose of providing Coaching Services through the PumpUp Services to Users and tracking resulting Your Fees. All rights not expressly granted to you are reserved by PumpUp and its respective licensors.

(b)            You are solely responsible for complying with the terms and conditions of any third party social networking sites, social media applications, blogs, tweets and other messaging and update services on which you post information through the PumpUp Services and these features, and acknowledge that such information, once posted, is subject to such third party’s data collection and privacy policies, over which PumpUp has no control, and for which PumpUp shall in no event be liable.

(c)            PumpUp reserves the right to change, suspend or discontinue the PumpUp Services at any time, including the availability of any feature or content, account access, or any promotion offered by PumpUp.  PumpUp may also impose limits on the PumpUp Services and/or terminate or restrict your access to parts or all of the PumpUp Services without notice or liability.

(d)            Use of the PumpUp Services may contain references to third parties, links to third party websites or documents, and may incorporate information obtained from third parties, such as fitness information or opinions.  All such references, links and information are provided “AS IS”.  As such third party information (including those made by users of the PumpUp Services) is not under the control of PumpUp, PumpUp is not responsible or in any way liable for their contents, including without limitation their accuracy, reliability, or legality.  Under no circumstance will PumpUp be liable for any loss or damage caused by your reliance on information, products or services (including treatment, action, dietary supplements, medication, or other preparation) obtained through the PumpUp Services or a third party linked site (including any opinions, statements or advice). It is your responsibility to evaluate the accuracy, completeness or usefulness of any opinion, advice or other content available through the PumpUp Services, or obtained from a third party linked site.  You are responsible for viewing and abiding by the privacy statements and terms of use posted at any third party website accessed through the PumpUp Services and/or any other agreements entered into between you and such third party.

(e)            You shall not, and shall not allow any other party to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the PumpUp Services or the PumpUp Software in any way; (ii) modify or make derivative works based upon the PumpUp Services or the PumpUp Software; (iii) improperly use the PumpUp Services or PumpUp Software, including creating Internet “links” to any part of the PumpUp Services or the PumpUp Software, “framing” or “mirroring” any part of the PumpUp Services or the PumpUp Software on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the PumpUp Services or the PumpUp Software; (iv) reverse engineer, decompile, modify, or disassemble the PumpUp Services or PumpUp Software, except as allowed under Applicable Law; (v) send spam or otherwise duplicative or unsolicited messages; (vi) use the PumpUp Services or PumpUp Software for the benefit of any third party; (vii) alter, modify, delete, or otherwise interfere with or in any manner compromise the PumpUp Services or PumpUp Software or any content accessible through the PumpUp Services; (viii) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the PumpUp Services or PumpUp Software (including any copyright notice); (ix) copy any written materials accompanying any portion of the PumpUp Services or PumpUp Software unless specifically authorized in writing to do so by PumpUp; (x) use the PumpUp Services or PumpUp Software in any way inconsistent with its respective use parameters; or (xi) use the PumpUp Services or PumpUp Software in breach of this Agreement or Applicable Law or toviolate, infringe or misappropriate the rights of any person or entity. In addition, you shall not, and shall not allow any other party to, access or use the PumpUp Services or the PumpUp Software to: (1) design or develop a competitive or substantially similar product or service; (2) copy or extract any features, functionality, or content thereof; (3) launch or cause to be launched on or in connection with the PumpUp Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the PumpUp Services; or (4) attempt to gain unauthorized access to the PumpUp Services or its related systems or networks.

(f)              PumpUp does not guarantee the availability or uptime of the PumpUp Services or PumpUp Software. You acknowledge and agree that the PumpUp Services or PumpUp Software may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the PumpUp Services or PumpUp Software may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications, and PumpUp is not responsible for any delays, delivery failures or other damages, liabilities or losses resulting from such problems.

14.           Ownership. As between you and PumpUp, the PumpUp Services, the PumpUp Software, PumpUp Data and all documents or materials provided or made available by PumpUp to you, including all intellectual property rights therein, are and shall remain the property of PumpUp and its respective licensors. Neither this Agreement nor your use of the PumpUp Services and the PumpUp Software conveys or grants to you any right: (i) in or related to the PumpUp Services, PumpUp Data or any other PumpUp property; or (ii) to use or reference in any manner PumpUp or its respective licensors’ company names, logos, product and service name, trademarks, service marks or other indicia of ownership. All rights not expressly granted to you are reserved by PumpUp and its licensors and other third parties. Any goodwill that is created in connection with your use of the PumpUp Services and the PumpUp Software enures to PumpUp.

15.           Confidentiality and Non-Solicitation.

(a)            For the purposes of this Agreement, “Confidential Information” includes PumpUp Data, User Information, PumpUp’s marketing and business plans, training materials, policies, procedures, operational guides, business, financial, technical, operational and such other non-public information that relates to the manner in which PumpUp conducts its business (whether disclosed in writing or verbally) or any other any information identified to you by PumpUp as being confidential or proprietary to PumpUp, or that which a reasonable person, in good faith and good conscience, would understand to be confidential. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (i) is or becomes part of the public domain through no act or omission on your party; (ii) was possessed by you prior to the date of this Agreement without an obligation of confidentiality; (iii) is disclosed to you by a third party having no obligation of confidentiality with respect thereto; or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority; provided that you notify us thereof and provide us with a reasonable opportunity to contest or limit such required disclosure.

(b)            You acknowledge and agree that:

(i)              all Confidential Information shall remain the exclusive property of PumpUp;

(ii)            you shall not use Confidential Information for any purpose except in furtherance of this Agreement;

(iii)           you shall not disclose Confidential Information to any third party, except to you agents and advisors ("Permitted Persons") as necessary to perform under this Agreement; provided that Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof;

(iv)           you shall not reproduce or copy any Confidential Information, in whole or in part, unless approved by PumpUp in writing, and in any event you shall strictly limit such approved reproduction, copying or disclosure of same to the extent necessary to enable proper use by you for the purposes of performing Coaching Services using the PumpUp Services and you shall cause all copies, reproductions and excerpts made from the Confidential Information to include on the first page any notice of confidentiality, trade secret or copyright that is contained in the original provided by PumpUp;

(v)             you shall take all reasonable steps to prevent the disclosure of Confidential Information, except as expressly permitted herein, including disclosure as a result of casual observation, unauthorized perusal, or otherwise;

(vi)           you shall return or destroy all materials containing or constituting the Confidential Information upon the termination of this Agreement or at any time our request; and

(vii)          that the disclosure or use of the Confidential Information contrary to this Agreement will result in damage to PumpUp that is not fully or adequately compensable by money damages.

(c)            To the maximum extent permitted by law, you shall not, without the prior written consent of PumpUp, either directly or indirectly, individually or, in partnership, jointly or in conjunction with any other person, entity or other party, during the duration of this Agreement and for a period of six (6) months following the effective date of its termination either: (i) solicit any User if that solicitation is intended or calculated to obtain the business, custom or trade of that User for a business that competes with PumpUp or otherwise provides services similar to the Coaching Services; or (ii) induce or attempt to induce any User to reduce or curtail its business with PumpUp or to terminate its relationship with PumpUp.

(d)            You acknowledge and agree that the covenants in this Section 15 are reasonable in the circumstances and are necessary to protect the economic position of PumpUp.

16.           Indemnification.

(a)            You shall indemnify, defend (at PumpUp’s option) and hold harmless PumpUp and its respective officers, directors, employees, agents, successors and assigns (the “PumpUp Group”) from and against any and all liabilities, expenses (including reasonable legal fees and expenses), damages, penalties, fines, pension, social insurance, social security or similar contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Coaching Services or use of the PumpUp Services. You agrees that you may not, without PumpUp’s prior written consent, enter into any settlement or compromise of any claim.

(b)            You shall comply with all of your obligations under tax, social insurance, pension and social security laws to the extent applicable to this Agreement. To the fullest extent permitted by applicable legislation, but not to any extent inconsistent with such legislation, you shall indemnify and hold harmless PumpUp from all liabilities, duties, levies, claims and penalties that may be imposed on you or on PumpUp as a result of your failure to comply with any of your tax or contribution obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings (including any tax, pension contributions, social insurance premiums or employee insurance premiums) arising in the event that the relationship described in this Agreement, contrary to the intention and meaning of the parties, should be held to be an employment agreement between PumpUp and you.

(c)            PumpUp shall be entitled to enforce this Section 16 on behalf of the other PumpUp Group members as their agent and trustee.

17.           Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PUMPUP PROVIDES, AND YOU ACCEPT, THE PUMPUP SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. PUMPUP MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO REPRESENTATION, WARRANTIES CONDITIONS, ENDORSEMENTS, UNDERTAKINGS OR, GUARANTEES OF ANY KIND OR OF ANY NATURE, EITHER EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, TITLE OR NON-INFRINGEMENT) AS TO, ARISING OUT OF OR RELATED TO ANY OF THE FOLLOWING: (I) THIS AGREEMENT; (II) PUMPUP DATA; (III) PUMPUP SERVICES; (IV) THE PUMPUP SOFTWARE; OR (V) YOUR INTERACTIONS WITH ANY USERS.

18.           Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PUMPUP SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT (INCLUDING IN CONNECTION WITH THE PROVISION, USE OR FAILURE TO USE THE PUMPUP SERVICES OR PUMPUP SOFTWARE) FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (I) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (II) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR PUMPUP’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 10 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL PUMPUP’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE GREATER OF (1) THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO PUMPUP HEREUNDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM; AND (2) ONE HUNDRED (CAD$100) CANADIAN DOLLARS.

19.           Feedback. We welcome your feedback and comments regarding the PumpUp Services or PumpUp Software. By submitting or providing us with comments, messages, suggestions, ideas, concepts, feedback or other information about the PumpUp Services, PumpUp and/or its operations (“Submissions”). You thereby and hereby: (i) represent and warrant that none of the Submissions are confidential or proprietary to you or to any other party; (ii) represent and warrant that none of the Submissions breach any agreement to which you are a party; and (iii) grant PumpUp an exclusive fully paid-up, royalty-free, perpetual, irrevocable, unrestricted, transferable, sub-licensable, worldwide right and license to the right to use, share and commercialize Submissions in any way and for any purpose. You also waive in favour of PumpUp and its successors and assigns any and all of your moral rights in and to all Submissions. Furthermore, you agree that PumpUp is not responsible for the confidentiality of any Submissions.

20.           Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province without regards to conflict of laws principles. The parties hereby expressly and irrevocably attorn to the jurisdiction of the courts in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

21.           Entire Agreement. This Agreement, together with the Application and all Supplemental Terms, constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. No party has been induced to enter into this Agreement in reliance on, and there will be no liability assessed, either in tort or contract, with respect to, any warranty, representation, opinion, advice or assertion of fact, except to the extent it has been reduced to writing and included as a term in this Agreement.

22.           Severability. Each provision of this Agreement is distinct and severable. If any provision of this Agreement, in whole or in part, is or becomes illegal, invalid or unenforceable in any jurisdiction by a court of competent jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect: (i) the legality, validity or enforceability of the remaining provisions of this Agreement; or (ii) the legality, validity or enforceability of that provision in any other jurisdiction.

23.           Assignment. You may not assign or transfer this Agreement or any of your rights or obligations hereunder, in whole or in part, without the prior written consent of PumpUp. PumpUp may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification.

24.           Notices. Any notice delivered by PumpUp to you under this Agreement will be delivered by email to the email address associated with your Access Information or by posting on the online portal available to you on the PumpUp Service. Notices to PumpUp may be sent to the email address provided to you during the Application process or at any other email address as we may from time to time advise you of; provided that any notice alleging breach of this Agreement or notices of termination must be in writing and either personally delivered to PumpUp or sent prepaid by courier or registered mail to PumpUp Inc., 342 Queen St. West, 2nd Floor, Toronto, Ontario, Canada, M5V 2A5.

25.           Acceptance. By clicking “I accept” or signing below (as such may be required by Applicable Law), you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with PumpUp.

Your Signature: ______________________________

Your name: ____________________________

Date: _________________________________