This Member Contract (this “Agreement”) is made effective as of the date of its execution by all parties hereto.
WHEREAS, Member wishes to procure from i5 LLC (DBA Digital Fitness) the digital fitness, design, and development services described herein.
WHEREAS, i5 LLC wishes to provide such services to Member, each on the terms and conditions set forth herein.
NOWTHEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein and in the Standard Terms and Conditions incorporated hereto and set forth as an attachment or accessible at i5digitalfitness.com, any other exhibits or addenda, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
The Digital Fitness Membership
Our Digital Fitness “Fit Start” Membership Includes the following deliverables:
Brand – Round 1
• Complete Style Sheet which includes:
• Logo Identity
• Color Palette
• Typography (Font)
• Social Media Style
• Website Style
Build – Round 2
• HTML5 Mobile Compatible Website*
• Centralized Dashboard with Reports & Analytics
• Google Analytic Integration
• Contact Form
• Social Media integration (based on Member needs may vary)
• Domain Registration/Transfer (if required)
• Website Hosting (up to 5GB data transfer/month & 1 GB of digital storage)
• Social Media Profile Setup (Google My Business, Facebook Fan Page, LinkedIn Company Page, Instagram, Twitter, Pinterest may vary with every Member)
• Unlimited pages (Additional costs may be required based on 3rd party subscriptions and eCommerce that will be added to Members monthly membership or billed directly to the Member.)
• SSL certificate installation
• Email Setup and Integration
Optimize – Round 3
• Google and Bing Organic Search Optimization (5 Primary & 20 Secondary Voice Keywords)
• Google Maps
• On-page SEO
• Link Building
• Press Releases
• Article Syndication
• Content Writing
• Facebook Paid Ads (Any agreed budget is an additional expense added to the Members monthly Membership or billed directly to the Member.)
• Google AdWords (Any agreed budget is an additional expense added to the Members monthly Membership or billed directly to the Member.)
Broadcast – Round 4
• Directory Listings (Up to 40)
• Blog Posting (Posting only for SEO purposes)
• Social Media Pushes (Newsworthy only and limited to 2 per week)
• Review Widget Installation
• YouTube Setup
Evaluate – Round 5
• Digital Brand Book completion (This is an ongoing process over the period of one year which will include a variety of the following design work: merchandise, print media, promotional products, etc.
• 10-month Membership Evaluation
• 60 minutes per week of Member support from a Digital Coach to take care of Member needs such as uploading and changing photos, content, blog posts, conducting phone calls with the Member, email communication externally with Member and internally with Digital Fitness Team, etc.
Additional Deliverables for Fit Pro Memberships:
• Professional Photography (Produces a minimum of 15 – 20 edited images)
• 1 Professional Interview Style Video (Produces a minimum one 120-second edited video)
• Graphic Design for Print (Unlimited Graphic Design) *Print materials require an additional charge based on requested product by Member.
*Deliverables vary based on different Memberships outlined as Fit Start and Fit Pro services found on i5digitalfitness.com homepage.
Additional Services [may or shall] include Maintenance in the form of:
• Updates to WordPress
• Plugin updates
• Website file backups
Fees and Payment
Monthly Membership fee: $495 or $995
Member agrees to timely respond to Company questions and requests. Any delays in Member responses or delivery of Member materials may adversely affect the timing of delivery and quality of the Licensed Products. Materials presented to Member for review shall be deemed accepted by Member unless Company receives Member's written comments (if any) within 3 business days. In the event Member repeatedly fails to respond to Company during the production and fulfillment process, Company shall have the right to terminate this Agreement with no further obligation to Company, and Member shall have no right or claim for a refund of any Fees.
Company represents that it has the right to grant to Member license to use of the Intellectual Property rights set forth in this Agreement and that except for any materials supplied by Member or their agents or principals to Company for inclusion in the Licensed Product (“Member Materials”) no portion of any Licensed Product shall, to the best of Company's knowledge, infringe or violate any copyright, patent, trade secret or contractual right of any third party, or any other third-party right.
Member Materials provided to the Company by Member shall include:
Login and Password to Domain Registrar, Hosting Provider, Email Accounts, Social Media Accounts, Logo Files and any other necessary information and documents that are necessary to perform any and all outlines services provided by i5 LLC.
Limitation On Liability
Company's liability under this Member Contract shall be limited to the total amounts paid by Member to Company in the aggregate during the twelve month period prior to the date a cause of action arose, and neither party shall be liable for any special, indirect, exemplary, incidental, punitive or consequential damages, including without limitation, lost profits or business or damages arising in contract, tort, strict liability or otherwise out of the Agreement, even if the Company has been advised of the possibility of such loss or damage. Any cause of action arising out of or related to the Services or Licensed Products must be commenced within one (1) year after the cause of action accrues; otherwise such cause of action shall be permanently barred.
Neither party will use, copy, adapt, alter, or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature or where the party, exercising ordinary business judgment, should know it is of a confidential nature or disclosed under circumstances of confidence. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
Any notice to be given by either party to the other party via certified or registered mail, postage prepaid, return receipt requested, or by first class mail postage prepaid and email, in either case addressed to Member at the address on the Member Contract, or to the Company as follows: i5 LLC., 583 D’onofrio Drive, Suite 218, Madison, WI 53719, Attention: General Counsel. Notice shall be deemed given upon receipt or three (3) days following mailing, if sooner. Either party may change its address by written notice to the other given in accordance with this paragraph.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
This is the entire Agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this contract. Any capitalized terms defined or used herein are applicable as well to the Standard Terms and Conditions.
If any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity nor enforceability of the remainder of this Agreement shall be affected.
Neither Party shall assign or transfer all or any part of its rights under this Agreement without the consent of the other Party. This Agreement may not be amended for any other reason without the prior written agreement of both Parties.
Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. If such delay or failure continues for at least seven days, the Party not affected by such delay or failure shall be entitled to terminate this Agreement by notice in writing to the other.
Refer to Exhibit A under the terms and conditions of this agreement.
Exhibit A - Service Level Agreement
This Exhibit A is subject to the terms of and is hereby incorporated by this reference to the Agreement. The terms of this Exhibit A shall control if there is a conflict with the terms of the Agreement.
1. Service Level Agreement (SLA). The hosting of the Website (the "Hosting Services") by Company will meet the Performance Objective set forth in Section 2 below. Failure by the Company to meet this SLA will result in the issuance of a credit to Member pursuant to Section 3 below.
2. Performance Objective. During the term of the Agreement, Company will provide uptime hosting of the Website of 99.8% ("Hosting Uptime") of available time. Total Hosting Uptime shall be solely determined by Company and shall be calculated on a monthly basis. For purposes of calculating such Hosting Uptime, the service interruptions caused by the following shall not be included:
a. periodic scheduled maintenance or repairs Company may undertake from time to time;
b. changes to the Licensed Products or Services requested by Member;
c. errors caused by Member from custom scripting or coding;
d. outages that do not affect the appearance of the Website but merely affect access to the Website such as FTP and email;
e. causes beyond the control of Company or that are not reasonably foreseeable by Company;
f. problems with Member's domain registrar;
g. suspension of the Services by Company in accordance with the Agreement; and
h. outages related to the reliability of certain programming environments.
3. Remedies for Service Outages:
a. In the event Member requests a credit and Company determines that it has failed to meet the Performance Objective, then Company will issue to Member a credit to be applied towards the next monthly invoice for Hosting Services provided under the Agreement, equal to 10% of the next month’s recurring Monthly Fee associated with such Hosting Service.
b. Any claims for a credit pursuant to this Section 3 shall be made by Member within thirty (30) days after the alleged failure to meet the Performance Objective and will be made to Company's Member support organization via email or any other mutually agreed upon means. Any such claim by a Member must be accompanied by a written offer by the Member to treat all employees and owner(s) of the Company to milkshakes. Claims made more than thirty (30) days after the event will not be eligible for any of the remedies described in this Exhibit.
c. Credits shall only apply to Hosting Services and will not apply to any other Service provided by Company. Member's account will not be credited more than once per month under this Exhibit. Member's sole and exclusive remedy, and Company's sole and exclusive liability, in the event Company fails to meet the Performance Objective in Section 2 above, shall be to receive a credit in accordance with the terms of this Exhibit.
By purchasing or using any products or services offered by i5 LLC, DBA Digital Fitness (the "Company"), you hereby agree to these terms and conditions. i5 LLC has agreed to provide the services set forth herein and in the Member Contract ("Services") to the Member. In case of any conflict between the Member Contract and these Standard Terms and Conditions, the Member Contract shall control. Together, the Member Contract and the Standard Terms and Conditions shall constitute the entire agreement between the Company and the Member (the “Agreement”).
(a) Procedures. Production of any Licensed Products shall only begin once the Company receives the applicable Fees, as described in this Agreement. Included with the Fee is two rounds of revisions to Member’s website prior to launch, and one round of edits for any video package. Additional edits or services may be subject to an additional charge of $85/hr. for Video edits/revisions/website edits/revisions/changes, and $100/hr. for any services that fall outside of the Company's standard products and services. Edits and revisions shall otherwise be limited to the Company's standard policies and procedures. Member must approve in writing any edit, revision, change, or service request beyond those included in the rounds of revisions specified above.
(b) Video and Photo. Member may reschedule the date and time of the Video or Photo shoot up to two times upon at least 48 hours notice. If Member fails to give such notice, or is not available at the scheduled time, Member shall pay a $100 cancellation fee for each cancellation. Member must obtain all and any permits, consents or approvals required to film the Member, its location, and any logos or people appearing in the Video or Photos to be taken by Company, and, to permit the use of such Video and Photos by the Company as described herein. Additional charges may apply for travel to locations outside of the County of Dane, Wisconsin.
Payment and Fees. All fees, including setup fees, monthly fees, video and photography fees, third party fees, change order fees, and any other charges or fees for Services implied, contracted for, or ordered by Member (the “Fees”) shall be added to the Member’s monthly membership or billed directly to the Member at the time the services are provided. The Member will be responsible for any and all applicable sales and use tax for the Services. Upon execution of this Agreement, Member shall pay the applicable setup fee and the first Monthly Fee as set forth in such Member Contract. If Member has elected to pre-pay any fees, such prepayments shall be due upon execution of this Agreement, and Member shall receive a 10% discount on Monthly Membership fees therefor. All additional change order fees are not discounted and in some cases may be billed as a Monthly Fee to the Member. Monthly Fees and any fees earned, accrued, or added to the contract as a change order during that month shall be due and payable in advance of each calendar month following the contract date. Company shall begin production of the products ordered by Member in accordance with the specifications set forth in the Member Contract (the "Licensed Products") upon receipt of all Fees due under this Agreement. Any amounts not paid within 30 days of the date due will bear a monthly charge equal to the greater of 1% of the outstanding balance or the maximum amount allowed by law. Member shall be liable for all fees incurred by Company for bounced checks, insufficient funds, bank overdraft fees, or chargebacks. If Company in its sole good faith discretion determines not to proceed with production of the Licensed Product, then Company may terminate the Agreement. The Company, however, agrees to honor and not increase the Monthly Fee rate for the term of this Agreement.
Grant of License. Provided that Member has paid all Fees, and for so long as Member makes timely payments of all other applicable Fees, Company grants Member the non-exclusive worldwide right (the "License") to use the Licensed Product. Upon termination of this Agreement or Member’s failure to make timely payments under this Agreement, Member's License shall terminate. Member shall have no right to the source code of the Licensed Products, including but not limited to any website. Member acknowledges and agrees that all copyrights and other intellectual property elements and rights contained in or displayed in the Licensed Products (collectively, the "Intellectual Property"), including without limitation, technology, business records and plans, trade secrets, technical data, search engines, Java applets, toolbars, and ActiveX controls, product ideas, contracts, financial information, pricing structure, discounts, computer programs and listings, source code, object code, any report, format, design or drawing produced by computer programs, applications of the Company’s technology, algorithms, techniques, inventions, product specifications, processes and operations, compositions, formulae, formulation techniques, analytical methodology, data, marketing and financial data and research, financial projections, marketing plans materials and strategies, logo, databases, development tools and instructions, templates, inventions, strategic alliances, partners, all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, get up and trade names, internet domain names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered, including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future in any part of the world, are owned exclusively by Company. Incorporation of any Member Materials into any Licensed Product will in no way affect Company's continued and separate copyright ownership in the Licensed Products, and Company's ownership will not merge with Member's ownership of any Member Materials nor deprive Company of copyright ownership. Company retains its rights to such Intellectual Property, subject only to Member's License to use the Licensed Product pursuant to the terms and conditions herein. Member shall not have the right or authority to use the Intellectual Property except as incorporated in and as part of the Licensed Product as a whole. Member agrees not to reverse engineer any source code, other element, or part of the Licensed Product or otherwise use or allow others to use the Licensed Product other than as specifically permitted herein. Member hereby agrees that Company may use the Licensed Product, including but not limited to any materials or content provided by Member, for Company's marketing and promotional purposes. Member further acknowledges and agrees that Company shall have the right include its logo and other attribution information on Member's Website, Video, and other Licensed Products as determined by Company in its sole discretion.
(a) Termination. Upon termination, Member shall have no further use of the Licensed Products, nor shall Member receive a refund for any Fees paid.
(b) “As Is”. Unless specifically noted otherwise herein, Member acknowledges and agrees that Company's services are provided on an "as is" basis, and that Company specifically disclaims any and all express or implied warranties, including but not limited to any warranties of merchantability, fitness for a particular purpose, and non-infringement, to the maximum extent permitted by law. The Company makes no warranty that the Licensed Products or Services will be error free, on time, will operate without interruption, will be compatible with or is supported by all operating systems or internet browsers, will fulfill Member's particular purposes or needs, or meet any level of sales, purchases, clicks, leads or other performance metric. Company makes no warranty as to storage of Member Materials and shall not be responsible for any loss of or damage to Member Materials.
(c) Injunction. Member acknowledges that Company may suffer irreparable harm from misuse of the Licensed Product or the Intellectual Property. Member agrees to take all reasonable precautions to prevent such misuse by Member or any third party, and to execute a non-disclosure agreement regarding same if requested by the Company. Member specifically acknowledges and agrees hereby that Company is entitled to injunctive or other equitable relief against any breach or threatened breach of this Member Contract regarding misuse of the Intellectual Property, in addition to any other legal remedies that may be available. Member's rights and remedies in the event of a breach of this Member Contract by Company shall be limited to the right, if any, to recover damages in an action at a law and Member shall not be entitled to any equitable relief to restrict or interfere with Company's rights pursuant to this Agreement.
Maintenance. Member is entitled to Maintenance services, which shall be limited to basic tasks or otherwise basic modifications to its website. Maintenance includes time spent consulting with the Company, site functionality, the changing of photographs, modifications to text on a page, and similar services. Maintenance includes creation of additional web pages, creation of copy or other content for the Website, re-editing of Video, Photoshopping or editing of photography and creative design work. The Member is entitled to up to 60 minutes of Maintenance per month. Any unused Maintenance included in a Member Contract does not rollover or accumulate month to month. Maintenance charges in excess of that provided in the Member Contract shall be charged to Member at Company's rate of $85/hr.
Password Security. As a Member, you are responsible for maintaining the confidentiality of your member identification and password information, and for restricting access to your computer(s). The Member agrees to accept responsibility for all activities that occur under the member identification and password. Member agrees to notify the Company immediately of any unauthorized use of the Member account or any other breach of security. The Company will not be liable for any loss that the Member may incur as a result of someone else using the password or account, with or without the Member’s knowledge. Member could be held liable for losses incurred by the Company or another party due to someone else using the Member’s account or password. The Member may not use anyone else's account at any time, without the permission of the account holder.
Legal disclaimers. Member shall be responsible for timely notifying Company of any copyright, legal notices or disclaimers that Member requires to be included in the Licensed Product.
Representations & Warranties. Member represents, warrants and covenants that none of the materials Member has provided to the Company infringe or violate any copyright, patent, trade secret, contractual right of any third party, or any other third-party right. Member represents and warrants that (a) Member's performance hereunder will not cause a material breach of any agreement to which it is a party; (b) Member has the right and authority to enter this Agreement and perform the obligations herein, and the signatory for Member is at least 18 years old and has the right and authority to bind Member to this Agreement; (c) Member shall comply with all applicable laws and regulations; and (d) Member will not provide to Company, and Member's website or materials will not contain, any content that is illegal, obscene, pornographic, or otherwise offensive in nature. Member further represents and warrants that Member is the owner or rightful lessee of Member's locations, and Member has the right to authorize the production and distribution of its website, Video and Photography, and that Member has the right to include Member's business and all of its signage and accoutrements, and all individuals at Member's business, in all media throughout the world in perpetuity.
Member shall be responsible for obtaining all necessary consents and approvals for anything related to this Agreement. Member represents that it is authorized to grant entry to its property by Company and its contractors or subcontractors. Member hereby grants permission to the Company to enter upon and use the property to take video recordings, motion pictures, still photographs and sound recordings, including without limitation, all people, animals, automobiles and any other objects on the property.
Indemnification. Company agrees to defend, indemnify and hold Member and its directors, officers, employees and agents harmless from and against all claims, defense costs, judgments and other expenses arising out of any breach of the Agreement by Company (except as otherwise expressly provided herein) and any claim that the Licensed Product violates the copyright or any other intellectual property right of any person. Member agrees to defend, indemnify and hold Company and its directors, officers, employees and agents harmless from and against all claims, defense costs (including reasonable attorney’s fees), judgments and other expenses arising out of any breach by Member of the Agreement, the use, display, public performance reproduction, distribution of the Licensed Product by Member or Member's assigns, licensees or any party to whom Member delivers the Licensed Product (except as covered herein), and (c) any modifications to the Licensed Product made by Member.
Member, on behalf of itself and any agents, representatives and persons, hereby unconditionally grants and releases to Company the irrevocable and perpetual right to use throughout the world any name, voice, or likeness, in its website, Video and Photography, as well as in any derivative content created by Company or any of its licensees, assignees, affiliates. Member, on behalf of itself and its agents, representatives and associates, hereby releases Company, its successors, assignees, and licensees from any and all claims and demands arising out of or in connection with any such uses, and Member agrees that it shall not assert or maintain any such claim against Company, its successors, assignees, or licenses.
No Waiver. Failure of the Company to object to any provision contained in the Agreement, any purchase order or other communication, whether oral or written, from Member will not be construed as a waiver of the Agreement, nor shall an acceptance by the Company of any such provision. Any failure to enforce any provision of the Agreement by the Company will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. No waiver by the Company of any condition or provision herein or therein will be considered a waiver of any other condition or provision herein or therein or of the same condition or provision at another time.
Force Majeure. Other than for payment or confidentiality, neither party shall be liable to the other for delays or failures to perform under the Agreement if the delay or failure is caused by shortage of labor, labor disputes, civil commotion, federal, state or municipal action, war, strikes or any other cause whatsoever beyond the control of the Company or customary force majeure event. In the event of such failure to perform, the Company may, at its sole discretion, provide Member with a refund or reschedule any Services. Member may not assign this contract without the written consent of Company.
Notice. Member agrees to maintain a current and operational email address on file with Company and further agrees that any correspondence or notification sent by Company to the email address that Member has on file with Company, shall be deemed delivered. Member acknowledges and agrees that Company may from time to time send marketing-related correspondence to Member via electronic or standard mail, and that Member may opt-out from receiving such correspondence at its option.
Collection and Arbitration. If the Company engages an attorney or collection agency to collect from the Member any unpaid fees, Member agrees to pay all reasonable costs incurred by the Company in collecting the amounts due, including reasonable attorneys’ fees and expenses, whether or not suit is filed. The laws of the State of Wisconsin shall govern the Agreement without reference to its conflicts of laws. In connection with any dispute or claim arising out of or in connection with the Agreement, Member and Company agree to arbitrate exclusively such dispute before a single arbitrator mutually agreed upon by the parties or by the designation of the Wisconsin Association of Mediators. The arbitration shall take place in Madison, Wisconsin, or in the office of an arbitrator closest to that city. The arbitrator must apply Wisconsin law, and any award will be final and non-appealable. The prevailing party in arbitration shall be entitled to its reasonable attorney’s fees. Any dispute resolution proceedings will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative, or private attorney general action unless Member and Company agree to same in writing.
Miscellaneous. Headings are inserted for reference and convenience only and in no way define, limit or describe the scope of this Agreement or intent of any provision. Wherever used herein, the singular will include the plural, the plural will include the singular, and pronouns will be read as masculine, feminine or neuter as the context requires. Any capitalized terms described or defined in these Standard Terms and Conditions shall also be so understood within the Member Contract. The Agreement term shall begin upon execution of the Member Contract by both parties.
The Company is acting solely as an independent contractor and not as an agent, partner, joint venturer, or employee of Member. Where agreement, approval, acceptance, or consent by either party is required by any provision of the Agreement, such action shall not be unreasonably delayed or withheld. If any term, provision, covenant or condition of the Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the same shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this Agreement, and the remainder of any provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
The Member Contract and the Standard Terms and Conditions (including all Exhibits and attachments incorporated to form this Agreement) constitute the entire agreement between the parties with respect to the Services and supersedes all other agreements or representations of the parties, whether express or implied, oral or written, with respect to the subject matter hereof. From time to time Company may adjust it business practices or amend or modify these Standard Terms and Conditions. Revised Standard Terms and Conditions may be posted on Company's Website or sent to Member.
The terms and conditions of this Agreement may not be modified or amended other than as set forth herein or by a writing signed by an authorized officer of Company. No course of conduct between Member and the Company or any other party shall be deemed to modify any provision of this Agreement. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties.