Last Updated: August 16, 2022
This Referral Program Agreement (the “Agreement”) is a binding agreement between TSR Gym Technik Ltd. d/b/a Trainerize (“Trainerize” or the “Company”) and you, the individual or business entering into this Agreement, (“User”), (collectively “the Parties”). By clicking on the “ACCEPT” button at the end of this Agreement, you represent that you have the authority to bind User to the terms of this Agreement, and User accepts and agrees to be bound by and comply with the terms of this Agreement.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE REFERRAL PROGRAM.
1. Purpose. Trainerize is in the business of helping trainers and fitness businesses reach new clients, building stronger relationships with their existing ones, and promoting a healthy lifestyle for everyone. User is in a position to refer prospective customers to Trainerize. This Agreement provides the terms and conditions under which User will do so as part of the referral program (the “Referral Program”).
2. Referral Program. By accepting this Agreement and participating in the Referral Program, User may, from time to time, refer new prospective customers (the “New Customers”) to Trainerize on a non-exclusive basis. Trainerize will pay User a referral fee (“Referral Fee”) for each Successful Referral (defined below), subject to the conditions in Section 3 of this Agreement. A “Successful Referral” occurs when: (a) a New Customer signs up for a Grow, Pro or Studio Plan, and/or, a Video Coaching Add-On, Video Coaching Credits, Stripe Integrated Payments Add-On, Nutrition Coaching Add-On, or Pro Custom Branded App Add-On (an “Applicable Service”) with Trainerize using User’s dedicated “Referral Link” and (b) directly following New Customer’s access to the Applicable Service, New Customer converts to a paid Trainerize account and (c) the New Customer remains a paid Company account for at least sixty (60) days. A referral cannot be a “Successful Referral” if (i) Trainerize has already contracted with or contacted referral about its services or (ii) referral has already been referred to Trainerize by a third-party.
3. Referral Fee. For Successful Referrals, Company shall pay User a residual referral fee (“Referral Fee”), subject to the conditions herein, based on the tier of User. A “Tier One User” is any User that is not designated as a “Tier Two User” by Trainerize, at its sole and absolute discretion.
a. Referral Fee Structure.
i. Tier One User will be paid a Referral Fee equal to fifteen percent (15%) of the Trainerize product monthly software subscription price that is successfully collected from Successful Referral, excluding discounts, claims, taxes and credits. Tier Two User will be paid a Referral Fee equal to twenty (20%) of the Trainerize product monthly software subscription price that is successfully collected from Successful Referral, excluding discounts, claims, taxes and credits. The Referral Fee will be payable within sixty (60) days following receipt of the monthly software subscription fee by Trainerize, subject to the conditions provided herein.
ii. User will receive ongoing Referral Fees for Successful Referrals provided User refers at least one (1) Successful Referrals during any thirty-six (36) month period. Referrals Fees may be amended at any time or terminated, as provided herein.
iii. If User fails to refer a Successful Referral during any thirty-six (36) month period, all Referral Fees will terminate (“Referral Fee Termination”).
iv. If, following Referral Fee Termination, User refers a Successful Referral, User will be paid a Referral Fee for new Successful Referrals only.
b. Referral Fees specified herein are subject to change at the sole and absolute discretion of Trainerize.
4. Payments. Payment of Referral Fees is handled by PartnerStack (the “Payment Provider”). In order to receive payments under this Agreement, User must create and maintain an account with Payment Provider in the Payment Provider’s online or app-based dashboard (“Payment Provider Platform”), which is provided pursuant to terms directly between the Payment Provider and User. User must keep all information updated and complete within the Payment Provider Platform to receive payments. The Payment Provider Platform will reflect User payment history. The Parties agree that: (a) the data shown in the Payment Provider Platform will govern payments, subject to Trainerize’s right to correct errors based on its own records and (b) records and payments will be deemed complete and incontestable by User twelve (12) months after the date of the payment.
5. Relationship of the Parties. Participation in the Referral Program does not constitute a partnership, joint venture, employment relationship, broker relationship or agency relationship, between User and Trainerize. It is the sole responsibility of the User to disclose the nature of their relationship with Trainerize to any New Customers or other parties. User shall indemnify and hold harmless Trainerize against any liability arising from User’s lack of proper disclosure to any New Customer or other parties.
6. Communications. User consents to be contacted by Trainerize via email and telephone, including via automated dialing systems, texts and pre-recorded messages.
7. Term & Termination. This Agreement shall commence on the date User joins the Referral Program (“Effective Date”) and will continue until terminated (a) by either Party upon thirty (30) days written notice to the other Party or (b) by Company upon notice if User breaches the terms of this Agreement. Upon termination, Company will pay User Referral Fees through the termination date. For the avoidance of doubt, Company’s obligation to pay Referral Fees is terminated upon termination by Party, for any reason.
8. Confidentiality. During the course of this Agreement, it may be necessary for either Party to share proprietary and/or confidential information, including, but not limited to, the methods and processes of operation; identities of customers, suppliers, and employees; cost and expense information; production information; trade secrets; confidential processes and technology; pricing information; computer programs and equipment; know-how; research; inventions; financial statements or other financial information, with the other Party, (the “Confidential Information”). Each Party agrees to hold all information that is communicated to such party by the other relating to or arising in connection with this Agreement, whether written or oral, and whether received prior to or subsequent to the Effective Date, in strict confidence; to not use the Confidential Information for its own benefit or the benefit of others, except for the purpose Referral Program or as may be otherwise authorized in writing by the disclosing party; and to not disclose, distribute or disseminate the Confidential Information or documents or information derived therefrom in any way to any third party, except its respective employees, agents, consultants and independent contractors having a specific need to know in performance of their work for the recipient party and who have been informed of the recipient party’s obligations under this Agreement.
9. Return of Confidential Information. Upon request, or upon the termination of this Agreement, User shall return all copies of the Confidential Information, and all derivatives thereof, to Trainerize or, if so requested, certify in writing that all copies of the Confidential Information have been destroyed. The rights and obligations of the parties under this Agreement shall survive any such return or destruction of Confidential Information.
10. Representations and Warranties. Both Parties represent that they are fully authorized to enter into this Agreement and that each Party shall comply with all applicable laws, rules, and regulations and will not violate or infringe upon any third-party rights in its performance of its rights and obligations under this Agreement. User further represents and warrants that it will not publish or make available any content that:
a. Infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
b. Contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
c. is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
d. is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
e. is harmful to minors in any way;
f. is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Trainerize;
g. impersonates a Trainerize employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to the Site or Service or a portion thereof without proper authorization;
h. uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy Trainerize’s website (“Site”) or the content contained therein;
i. facilitates the unlawful distribution of Trainerize copyrighted content;
j. includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of content transmitted through the Site or to users;
k. constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
l. collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
m. attempts to gain unauthorized access to the computer systems of Trainerize or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site;
n. posts adult or pornographic content;
o. decompiles or reverse engineers or attempts to access the source code of the software underlying the Site or any other Trainerize technology;
p. copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Site or Trainerize services (“Service”);
q. accesses the Site or Service for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site or Service;
11. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO USER OR ANY THIRD PARTY UNDER ANY CONTRACT, NEGLIGENCE, STRICT LABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. COMPANY WILL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THE PAYMENT PROVIDER OR THE PAYMENT PROVIDER PLATFORM.
12. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT MAKE ANY OTHER REPRESENTATION, WARRANTY, OR GUARANTY, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE REFERRAL PROGRAM PROVIDED OR OFFERED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE REFERRAL PROGRAM IS PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPENSATION OR ANY OTHER BENEFITS THAT USER WILL RECEIVE. ALL OF COMPANY’S OBLIGATIONS ARE AS, AND ONLY AS, EXPRESSLY STATED IN THIS AGREEMENT. USER HAS NO RESPONSIBILITY TO COMPANY IF REFERRALS DO NOT LEAD TO SUCCESSFUL REFERRALS.
13. FTC Endorsement Compliance. It is the mission of Company to treat all our customers well. In line with this, we require all Users to comply with applicable laws, regulations and guidelines regarding advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which requires disclosure of communications between advertisers and sponsors. This means that all of User’s materials (e.g., emails, websites, blogs) must clearly disclose the fact that you are receiving compensation for referred customers. Company reserves the right to withhold the Referral Fee and terminate the relationship if User does not comply with any of the foregoing guidelines or other FTC regulations or guidelines that we deem appropriate. Company reserves the right to permanently withhold the Referral Fees and terminate this agreement if we determine, in our sole discretion, that you do not comply with any of the foregoing guidelines or other FTC regulations or guidelines that we deem appropriate.
14. No License Grant. Nothing in this Agreement shall be construed as granting User, by implication, estoppel or otherwise, any license or other right under any intellectual property rights of the Company. EXCEPT AS EXPRESSLY PERMITTED HEREUNDER, YOU SHALL NOT AND ARE NOT PERMITTED TO (i) USE THE TRAINERIZE TRADEMARK, NAME, LOGO OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “TRAINERIZE IP”) (OR ANY MISSPELLINGS OR VARIATIONS THEREOF OR OTHER TERM OR TERMS SIMILAR TO ANY OF THE FOREGOING) WITHOUT TRAINERIZE’s EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE TRAINERIZE IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), SEARCH TERMS, KEYWORDS, CODE, OR ADVERTISING; (iii) ACT IN ANY WAY THAT CAUSES OR COULD CAUSE, CREATES OR COULD CREATE AN “INITIAL INTEREST CONFUSION” OVER THE USE OF TRAINERIZE IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF TRAINERIZE IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF TRAINERIZE IP RIGHTS, AND MAY SUBJECT YOU TO THE CLAIMS FOR DAMAGES (INCLUDING POTENTIAL DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY TRAINERIZE’S LEGAL COSTS AND FEES IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH TRAINERIZE SEEKS TO IMPLEMENT ITS RIGHTS UNDER THIS AGREEMENT OR IN REGARD TO ANY OF TRAINERIZE’S IP RIGHTS.
15. Pay-per-click (“PPC”) Restrictions. Unless Company first gives you written permission, you agree to abide by the following restrictions:
a. You may not bid on any of our restricted terms (defined below) for search or content-based campaigns on Google, Bing, Yahoo, Capterra, Facebook or any other such networks.
b. “Restricted Terms” is any term or sequence of terms containing the word “Trainerize.”
c. You may not use our restricted terms as your title, ad copy, display name or display URL.
d. You may not use any of our Restricted Terms as part of a domain or subdomain for our website.
e. You may not direct links from any PPC advertisement to the site or use redirects that get the same result. Customers should be directed to a genuine page on your website. You cannot bid for any search term in any auction-style PPC advertising program in any way that looks more than us.
f. If you will automate your PPC campaigns, it is solely your responsibility to exclude the terms of your trademark from your marketing and related activities and we strongly suggest that you add our trademark terms as negative keywords.
16. Social Media Restrictions. When advertising or promoting the Referral Program on any social media platform including, but not limited to, Facebook, Twitter, Instagram, YouTube, or Pinterest, you indicate and warrant that you will comply with the following requirements:
a. You are prohibited from posting your links on Company’s social media accounts or pages in an effort to convert those links into User sales.
b. You are prohibited from creating a social media account that includes our trademark or Restricted Terms in the page name and/or username.
17. Severability. In the event any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of the Agreement and all other provisions should continue in full force and effect as valid and enforceable.
18. Waiver. The failure by either Party to exercise any right, power or privilege under the terms of this Agreement will not be construed as a waiver of any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
19. Governing Law and Jurisdiction. This Agreement is made in British Columbia, shall be governed, construed and regulated under and by the laws of British Columbia, and shall inure to the benefit of, and be binding upon and enforceable by, the Parties hereto and their heirs and personal representatives. Jurisdiction and venue for enforcement and prosecution of this Agreement or any of its terms or for indemnification, lies exclusively in the state courts located in British Columbia. The Parties to this Agreement consent to the personal jurisdiction and venue of such British Columbia courts and to the service of process by any manner provided by British Columbia law, and expressly waive venue in all other locations and all objections and defenses to personal jurisdiction in British Columbia. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.
20. Indemnification. User (“Indemnifying Party”) shall indemnify, hold harmless, and defend Trainerize and its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys' fees, that are incurred by Indemnified Party/awarded against Indemnified Party in a final judgment, administrative proceeding, or any alternative dispute resolution proceeding (collectively, "Losses"), arising out of any third-party claim alleging: material breach or non-fulfillment of any representation, warranty, or covenant under/representation or warranty set forth herein; negligent or more culpable act or omission of Indemnifying Party (including any reckless or willful misconduct) in connection with the performance of its obligations under this Agreement; or, any failure by Indemnifying Party to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Agreement.
21. Assignment. User shall not assign, transfer, or delegate any of its rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the Company. Company may freely assign this Agreement.
22. Notice. Notice to User may be given by a notification within the Payment Provider Portal and/or email to User to the address provided to Company. Notice will be effective when given. Notice to Company may be given by email to Company at email@example.com and will be effective when received.
23. Entire Agreement. The Parties acknowledge and agree that this Agreement represents the entire agreement between the Parties related to the Referral Program, and supersedes all prior agreements related to the Referral Program.
24. Change to These Terms. Trainerize may amend this Agreement from time to time. Trainerize will provide User with at least thirty (30) days notice of any changes to this Agreement unless a change is required to comply with law or for security reasons.