Services Agreement Gold S Gym New Franchised Club

[ ] SERVICES AGREEMENT GOLD’S GYM NEW FRANCHISED CLUB

KEY TERMS

Distributor

Licensed Club

Start Date

Programs

Location

Services Fees

Instructor Resources Price

Instructor Assessment Fee

Territory

BACKGROUND

AThe Distributor has certain rights to the Programs and Intellectual Property in the Territory pursuant to a Distribution Agreement with Les Mills North America Holdings Limited (Les Mills).

BThe Distributor qualifies Instructors to conduct classes of the Programs pursuant to an Instructor Agreement.

CThe Licensed Club is a Gold’s Gym New Franchised Club and wishes to use the Programs at the Location and the Distributor has agreed to license the Licensed Club to use the Programs and Intellectual Property on the terms set out in this Services Agreement.

For good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree to these Key Terms and the Terms and Conditions attached.

SIGNED AS AN AGREEMENT

[ ] by[ ] by

______

Authorized OfficerAuthorized Officer
Date:Date:

TERMS AND CONDITIONS

1 Rights Granted to the Licensed Club: The Distributor grants to the Licensed Club the non-exclusive right to use the Programs and Intellectual Property at the Location as set forth in this Agreement.

2 Location: The Licensed Club must not use the Programs or Intellectual Property outside the Location unless:

(a) the Distributor gives prior written consent; and

(b) that use relates to an exhibition of the Programs for the purpose of promoting the Programs.

The Distributor must not unreasonably withhold such consent.

3 Rights Reserved: The Distributor and/or Les Mills, in their sole and absolute discretion, may change the list and content of the Programs, the Instructor Resources, the Group Fitness Resources and/or Intellectual Property at any time without notice.

4 Term: This Agreement will commence on the Start Date and will continue until terminated by either party on one month’s notice or in accordance with this Agreement. This Agreement may be terminated immediately upon notice by the Distributor if the Licensed Club is engaging in, or has engaged in, conduct that could damage, dilute, or impair the Intellectual Property.

PART 1: TRAINING, EDUCATION AND ASSISTANCE

5 Initial training: Unless otherwise agreed by Gold’s Gym, the Licensed Club will receive initial trainings from Gold’s Gym.

6 Qualification: The Distributor will qualify an Instructor to conduct a Program when, in the reasonable opinion of the Distributor, the Instructor has satisfied the qualification guidelines contained in the Instructor Resources.

7 Training Workshops: The Licensed Club must ensure that each Qualified Instructor attends and completes any Training Workshops as required by the Distributor and/or Les Mills and to the Distributor’s reasonable satisfaction. The Distributor is entitled to charge a reasonable fee to the Instructor (or the Licensed Club on behalf of the Instructor) for attendance at Training Workshops.

8 Instructor: The Licensed Club will ensure each of its Instructors enters into the Instructor Agreement before training to become a Qualified Instructor or having access to the Instructor Resources or the Group Fitness Resources. The Licensed Club will ensure each Instructor complies with the terms of the Instructor Agreement. The Licensed Club will only conduct Programs using Instructors who are Qualified Instructors in relation to the relevant Program.

9 International transfer by Instructors: If the Licensed Club is approached by an Instructor who previously conducted Program classes in another territory and now wishes to conduct Program classes in the Territory, the Licensed Club will:

(a) inform the Distributor of such approach;

(b) to the extent reasonably practicable provide the Distributor with all information in its possession in relation to that Instructor; and

(c) only allow that Instructor to conduct Program classes or have access to Group Fitness Resources following written consent of the Distributor (not to be unreasonably withheld).

10 Assistance to Licensed Club: If, following request from the Licensed Club, the Distributor makes a Representative available at any Location to provide assistance to the Licensed Club, then the Licensed Club will pay to the Distributor:

(a) all reasonable travel and accommodation expenses incurred by the Representative;

(b) the Distributor’s standard rate for any consultancy assistance as modified from time to time.

11 Inspection: Subject to the Licensed Club’s reasonable security requirements, the Distributor and/or Les Mills may at any time visit a Location to inspect Program classes conducted by the Licensed Club to ensure compliance with this Agreement.

12 Distributor’s obligations: The Distributor will:

(a) ensure that all Initial Trainings (where the Licensed Club receives initial training from the Distributor) and Training Workshops are delivered to Les Mills’ high standards of professionalism;

(b) provide Instructor Resources and Group Fitness Resources that are of high quality; and

(c) communicate with the Licensed Club on a regular basis and keep the Licensed Club updated with information regarding the Programs.

PART 2: QUALITY AND MATERIALS

13 Supply and use of Instructor Resources: The Distributor will sell to the Qualified Instructors and/or the Licensed Club, and the Qualified Instructors and/or the Licensed Club will purchase from the Distributor, the most current release of the Instructor Resources. The Licensed Club will pay, or ensure that each Qualified Instructor pays, the relevant Instructor Resources Price to the Distributor at the time any such material is purchased from the Distributor. The Licensed Club will ensure that each Qualified Instructor has their own set of the most current release of Instructor Resources for which appropriate fees have been paid to the Distributor and will prohibit any copying of the Instructor Resources. The Licensed Club is permitted to, and must ensure that its Qualified Instructors are permitted to use the Instructor Resources only:

(a) for the purpose of the Licensed Club conducting the Programs;

(b) in accordance with this Agreement;

(c) in accordance with any directions given by the Distributor or Les Mills from time to time;

(d) in accordance with all laws and regulations of the Territory; and

(e) in accordance with any music licensing rights of Les Mills or the Distributor that have been notified to the Licensed Club. For the avoidance of doubt the Licensed Club is responsible for obtaining public performance rights for the use of the Instructor Resources at the Location.

14 Supply of Group Fitness Resources: The Distributor will make the Group Fitness Resources available to the Licensed Club.

15 Use of Materials: The Licensed Club is permitted to, and must ensure that its Qualified Instructors are permitted to, copy, distribute, or use any of the Group Fitness Resources or any Intellectual Property (excluding the Instructor Resources dealt with at clause 13 above) only:

(a) for the purpose of the Licensed Club conducting or promoting the Programs;

(b) in accordance with this Agreement;

(c) in accordance with the Les Mills Brand Guidelines and any other directions given by the Distributor or Les Mills from time to time;

(d) in accordance with all laws and regulations of the Territory.

16 Customization: The Licensed Club may only customize any of the Instructor Resources, Group Fitness Resources or Intellectual Property with the prior written permission of the Distributor.

17 Conduct of Classes: The Licensed Club will maintain the highest standards and ensure the Program classes are conducted:

(a) by a Qualified Instructor or an Instructor who has completed their initial training and has the consent of the Distributor to conduct Program classes;

(b) in compliance with this Agreement;

(c) to Les Mills’ high standards of professionalism;

(d) in accordance with the Instructor Resources and Group Fitness Resources;

(e) in accordance with the current release of the Program; and

(f) in a way that is not likely to damage, dilute, or diminish the reputation of the Programs, Les Mills and/or the Distributor.

18 Sale of Merchandise: The Licensed Club may purchase Les Mills Merchandise only from persons approved and/or licensed by Les Mills and/or the Distributor.

PART 3: PAYMENT

19 Payment and Calculation of Fees: Except as expressly provided otherwise in the Key Terms of this License, the Licensed Club will pay the Distributor the monthly Services Fees set forth in the Key Terms to this Agreement for each Program used by a Licensed Club at each Location. The Licensed Club will pay the Distributor such Services Fees and all other amounts as invoiced, on the first day of each month by direct debit from the Licensed Club’s nominated bank account. The Distributor may alter any fee, rate or price (including without limitation the Services Fees, the Initial Training Fee, the Instructor Assessment Fee and the Instructor Resources Price) under this Agreement with 30 days prior notice to the Licensed Club, provided that the Distributor may not change the Services Fees until after 12 months from the Start Date.

20 Payment Default: Without limiting the Distributor’s rights, the Licensed Club will pay the Distributor interest, if demanded, on any amount due but not paid, from the due date until the date of payment at the rate of 2.5% per month or part month.

21 No Direct Debit: Where the Licensed Club is unable or unwilling to pay the Services Fee or any other amount payable to the Distributor by direct debit, the Distributor may charge the Licensed Club a reasonable administration charge.

PART 4: INTELLECTUAL PROPERTY

22 Ownership of Intellectual Property: The Licensed Club acknowledges and agrees that:

(a) as between Licensed Club, Distributor and Les Mills, all right, title and interest in and to the Programs, Intellectual Property, Improvements, Instructor Resources and Group Fitness Resources is (and will be) owned exclusively by Les Mills, regardless of the media in which embodied, now or in the future;

(b) except as specifically set forth in this Agreement, the Licensed Club does not have, and will not acquire or claim, any right, title or interest in or to the Programs, Intellectual Property, Improvements, Instructor Resources, Group Fitness Resources or the Goodwill; and

(c) all Goodwill will inure for the exclusive benefit of Les Mills.

23 Assignment: If, as a result of this Agreement or otherwise, the Licensed Club has, or ever acquires, any right, title or interest in or to any of the Programs, Intellectual Property, Improvements, Instructor Resources, Group Fitness Resources or Goodwill (collectively the Rights), then the Licensed Club holds those Rights on trust for Les Mills. The Licensed Club:

(a) assigns all its existing Rights (Les Mills may itself assign or modify those Rights) and (to the extent possible) all its future Rights to Les Mills;

(b) (to the extent that the Licensed Club’s future Rights are not capable of assignment now), assigns all future Rights (Les Mills may itself assign or modify those Rights) immediately on those Rights coming into existence; and

(c) will promptly (at its own cost) execute all documents and do all things immediately on Les Mills’ request necessary to achieve, confirm or perfect that assignment.

24 No challenge or registration: The Licensed Club will not do anything inconsistent with Les Mills’ exclusive ownership of the Programs, Intellectual Property, Improvements, Instructor Resources, Group Fitness Resources or the Goodwill or rights to the Licensed Rights and the Licensed Club will:

(a) not in the future use (except as permitted by this Agreement), and not at any time register or attempt to register; and

(b) not object to, oppose or prevent Les Mills’ use of (itself or by licensees), applications to register, or registrations of,

any of the Programs, Intellectual Property, Improvements, Instructor Resources or Group Fitness Resources or any Trademark, brand, business name, trading name, company name, domain name, logo or stylisation, design or work (or anything of a similar nature to any of these things) that is identical to, confusingly similar to, or incorporates any of the Programs, Intellectual Property, Improvements, Instructor Resources or Group Fitness Resources or Trademark anywhere in the world or assist or permit any other person to do any of these things. Without limitation, the Licensed Club will not at any time directly or indirectly:

(c) do or permit to be done any act or thing which may in any way impair the rights of Les Mills in or to the Intellectual Property, Programs, Improvements, Instructor Resources, Group Fitness Resources or Trademarks; or

(d) challenge or call into question the validity of Les Mills’ ownership of the Programs, Intellectual Property, Improvements, Instructor Resources, Group Fitness Resources or Trademarks, or Les Mills’ right to use or register or Distributor’s right to use, any of the foregoing in the Territory or elsewhere.

25 Use of Intellectual Property: The Licensed Club will (and will ensure that its Representatives) use the Intellectual Property, Programs, Improvements, Instructor Resources and Group Fitness Resources only as expressly permitted under this Agreement or otherwise approved by the Distributor in writing. In particular, without limitation, the Licensed Club must (and must ensure that its Representatives):

(a) comply strictly with all stipulations, requirements or guidelines in the Instructor Resources, Group Fitness Resources or otherwise advised to the Licensed Club by the Distributor or Les Mills regarding the use of the Intellectual Property, Programs or Improvements;

(b) not alter or attempt to alter in any way the Programs, Improvements, Instructor Resources, Group Fitness Resources or Intellectual Property, including without limitation the appearance of any imagery, graphic device or logo; and

(c) not copy or reproduce in whole or part in any way any of the Programs, Improvements, Instructor Resources, Group Fitness Resources or Intellectual Property except as permitted under this Agreement or approved by the Distributor.

26 Infringement and other parties: The Licensed Club must immediately notify the Distributor of any suspected or actual infringement of Les Mills’ or the Distributor’s Intellectual Property rights by third parties of which the Licensed Club is aware, in particular any copying of the Instructor Resources. The Licensed Club must immediately notify the Distributor and Les Mills of any claims or threatened claims made by any other parties that the Intellectual Property infringes or violates any other party’s intellectual property rights.

PART 5: GENERAL

27 Indemnity: The Licensed Club indemnifies the Distributor and Les Mills for any physical, direct and indirect/consequential damage, loss or cost (including attorneys fees and costs) to the Distributor and Les Mills or any other person, and will protect the Distributor and Les Mills from any claim against the Distributor and Les Mills, to the extent caused or contributed to by the Licensed Club in respect of this Agreement, the Intellectual Property or the Programs, including without limitation any claims of physical harm caused by the Licensed Club’s use of the Programs.

28 Disclaimer: EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSED CLUB WILL MAKE NO REPRESENTATIONS OR WARRANTIES ON DISTRIBUTOR’S OR LES MILLS’ BEHALF WITHOUT DISTRIBUTOR’S AND LES MILLS’ EXPRESS WRITTEN CONSENT, INCLUDING, WITHOUT LIMITATION, THE QUALITY OF THE PROGRAMS, RESULTS OR ANTICIPATED RESULTS OF THE EXERCISE ROUTINES, FITNESS RESULTS OR WEIGHT LOSS.

29 Limitation of Liability: The Distributor’s liability for all claims arising out of this Agreement, whether in contract, tort or otherwise, will be limited to the amount of fees paid by the Licensed Club to the Distributor under this Agreement during the twelve (12) months preceding the claim.

30 Insurance: The Licensed Club must have and maintain during the Term valid and enforceable comprehensive business liability insurance policies covering the Location and the use of the Programs .

31 Evidence Of Insurance Required: The Licensed Club must give evidence of the insurance policies required under this Agreement when requested by the Distributor.

32 Assignment: The Distributor may assign this Agreement, which shall be binding on any successors and assigns. The Licensed Club will not assign this Agreement without the Distributor’s prior written approval.