By signing the Partner Service Agreement or otherwise accepting these Terms, you agree to be bound by these Terms, which apply to all locations, Activities and services you make available via the XROSSWORLD Platform, unless otherwise communicated or agreed upon by XROSSWORLD. You understand and agree that the Partner Agreement and these Terms may be updated or amended by XROSSWORLD from time to time as set forth in Section 14(b) below.
ACCOUNT SET-UP & DOCUMENTATION
- A. Bank account information. As part of the on-boarding process, we offer our XW partners the option to receive payment via Cheques or Electronic funds transfer (EFT).
- B. IRS Form W-9. Within 14 days of the date you sign the Partner Agreement, you will provide XROSSWORLD with a completed/signed IRS Form W-9*. We may withhold applicable amounts from payments due to you hereunder until such time as we have received this completed/signed form
- C. Availability. Your Activities or other services will be available for use by XROSSWORLD members after you are launched on our Platform. We reserve the right to limit the reservations or number of advertising spots available. Partner shall accord the same preferences and priorities to reservations made via XROSSWORLD as reservations made by Partner's clients/members. In addition, Partner shall not cancel a XROSSWORLD reservation except where the Activity or service itself has been cancelled. We continually update and test various aspects of the XROSSWORLD Platform and may include or exclude you from these tests.
- D. Partner’s XROSSWORLD Page. We may send you a link to review your page on our Platform and provide feedback. The XROSSWORLD design team will confirm that all photos and design comply with XROSSWORLD brand requirements.
- E. Post-Termination Reservations.
- A. One Activity Required. Partners must have at least ONE (1) Activity scheduled at all times. For new Partners, at least one scheduled activity must be offered for a minimum of three (3) months. After this time, Activities must be scheduled for a minimum of one (1) month. This does not apply to Seasonal Partners
PAYMENTS, EXCLUSIVITY & REPORTING
A. Payments. Payments for goods and services you provide to us will be referred to as “XW SERVICE PAYMENT” on your monthly itemized statement. XROSSWORLD will pay you the applicable rate(s) as set forth in the XW Partner Service Agreement for each Qualifying Activity. A “Qualifying Activity” means a reservation for a Activity or service through our Platform unless
- a. Cancellation: such reservation was cancelled by (1) Partner or (2) by XROSSWORLD member in accordance with the applicable refund/cancellation policy in place.
- b. Performance: such activity was completed, but there is sufficient proof presented that the Activity fell far below the standard fo that Activity, based on industry standards
- c. Not Booked through XW Platform: any bookings that were not reserved through our platform
- B. Payments for Qualifying Activities will be issued monthly along with any payments due for Partner’s XW Bonus Cash redemptions, which will be distributed on the monthly payment date that is at least 30 days from the date of redeeming points. XW may review Partner's rate from time to time to verify Partner pricing and ensure Partner’s rate is not price gouging and remains in line with Partner’s other packages and pricing. We will communicate any cost that may apply to your use of any upgrades, products, services or features we may release from time to time.
- C. Exclusivity. You agree not to participate in or launch any other services or arrangements that are similar in form and substance to those, which you are agreeing to with us pursuant to this Agreement (e.g., variety package deal, alternative fitness Partner subscription offerings, multi-Partner package programs). However, nothing in the prior sentence shall be interpreted as restricting your ability to run promotions on a “deal site” where your Activities are sold directly to the consumer at a discount.
- D. Reports & Payment Date. Payments for Qualifying Activities will be paid to you monthly (but in no case later than 15 business days after the last day of the month). Payments are calculated by data contained in the Partner dashboard/reports and as such will be the final determinant of payment. You may reconcile the data in the Partner dashboard / reports to our payment and must bring to our attention any discrepancies within 30 days after the last day of the month in which there is a discrepancy.
- E. Reconciliation. We have 90 days after each payment to you to make reconciliation adjustments, such as in respect of Activities that were cancelled but as to which we have remitted payment. We may credit overpayments against any other payments due to you hereunder. In addition, you agree to provide us reasonable access during business hours to your books and records to confirm that our payments to you hereunder are correct.
- F. Banking Authorization. You hereby acknowledge that our origination of all ACH transactions to your Bank Account must comply with provisions of U.S. law. Please note that ACH payments may take up to five (5) business days to become available in your Bank Account after processing.
- A. Payments. Payments for goods and services you provide to us will be referred to as “XW SERVICE PAYMENT” on your monthly itemized statement. XROSSWORLD will pay you the applicable rate(s) as set forth in the XW Partner Service Agreement for each Qualifying Activity. A “Qualifying Activity” means a reservation for a Activity or service through our Platform unless
MEMBER VISITS; FEES PAYABLE BY MEMBERS
Except as provided in the next sentence, you agree not to charge XROSSWORLD members for any fees associated with attending Activities and services booked through our Platform or by XROSSWORLD. The only charges which you may assess our members in connection with Activities and services booked through our Platform or by XROSSWORLD are equipment use or rental fees, and then only if such fees expressly have been disclosed to XROSSWORLD in advance in writing not less than seven (15) days prior to the member’s reservation. Partner may not charge XROSSWORLD members any fee that is not being charged to Partner’s existing and regular clients. We reserve the right to credit our members for any fees improperly assessed against them and then to apply such credits against payments otherwise due to you hereunder. In addition, XROSSWORLD has no responsibility for any payments that may be due to you from our members. Partner may not solicit any XW member by offering deals that are equal to or better than the rate negotiated between Partner and XROSSWORLD.
You are solely responsible for collecting/remitting local or state tax authorities any applicable taxes related to transactions herein.
Except as follows, you agree not to use or disclose to a third party any Customer Data (defined below).
- A. Authorized Use of Telephone Numbers. During the term of this Agreement, you are authorized to use XROSSWORLD member telephone numbers to (a) provide logistical details to such members in respect of upcoming reservations made by them through XROSSWORLD or (b) as may be necessary for emergency medical or other exigent circumstances. You will notify us immediately of any actual or suspected unauthorized access to or use of Customer Data (or XROSSWORLD confidential information), and agree to cooperate with us in the investigation of such breach/misuse and the mitigation of any damages. You will bear all associated expenses incurred by us to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data by you or any of your employees or agents. As used herein, “Customer Data” means all identifiable information about XROSSWORLD members generated or collected by XROSSWORLD or you in connection with this Agreement, including a member’s name, home, business or other physical addresses, email addresses, phone numbers, birthdate, Activity participation preferences, tendencies, and financial transaction data.
TERM AND TERMINATION
Please review your XW Partner Service agreement to see the length of your term. Partner may terminate this Agreement for any reason upon 30 days advance notice. XROSSWORLD may terminate this Agreement for any reason upon 30 days advance notice. During the period between the notice of termination and the effective date of termination, Partner (1) shall maintain, and not restrict, XROSSWORLD access to Partner's reservation software and (2) shall not reduce the percentage of its inventory made available to XROSSWORLD by more than 50%. In addition, XROSSWORLD may terminate this Agreement or suspend your participation in the XROSSWORLD network if you breach this Agreement or fail to meet our quality standards. Sections 2(a), 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and this Section 6 will continue in full force and effect after any termination of this Agreement. Partner warrants that each Activity will be completed with good faith and best efforts. If Partner is unable to complete Activity, Partner must provide proper notice to us at least 30 days before the Activity. Failure to provide notice at least 30 days in advance of the Activity will result in a penalty of seventy-five dollars ($75.00) for each Activity reservation cancelled. This amount will be deducted from any payments owed to Partner.
INTELLECTUAL PROPERTY RIGHTS
- A. Partner IP. During the term of this Agreement, and solely in connection with our promotion of your goods and services and XROSSWORLD, you grant XROSSWORLD a non-exclusive, worldwide, royalty free, paid‐up, right to use, modify, reproduce, publicly display, bid on, distribute, broadcast, transmit, stream, publish and publicly perform Partner IP and 3rd Party IP, in each case in all media or formats now known or hereinafter developed (the “License”), including without limitation for your Partner page, blog posts, emails, banner ads, search engine marketing. While XROSSWORLD’ use of the Partner IP or 3rd Party IP as contemplated by this License shall be within our discretion, you expressly retain the right to request that we use Partner IP or 3rd Party IP pursuant to any written guidelines that you provide to us. After any termination of this Agreement, we will use commercially reasonable efforts to remove Partner IP and 3rd Party IP from our Platform and other marketing materials; however, we will be authorized to maintain Partner IP and 3rd Party IP to the extent reflected in blog entries, cached pages or in marketing materials where more than one Partner is referenced or which otherwise would not be commercially feasible for XROSSWORLD to remove and/or modify.
- B. XROSSWORLD IP. During the term of this Agreement, you may use the XROSSWORLD name, logo and other XROSSWORLD IP specified by us in writing in select locations (e.g., on Partner’s website, at check in) solely in accordance with any marketing guidelines that we provide to you and subject to our right to withdraw or limit such permission at any time. Without our express written authorization (from an executive officer), you shall not otherwise use XROSSWORLD IP for any purpose. You agree not to disparage or otherwise denigrate XROSSWORLD and not to promote a competitive offering.
- C. All rights to Partner IP and 3rd Party IP not expressly granted in this Agreement to us are reserved by you, and all rights to XROSSWORLD IP not expressly granted in this Agreement to you are reserved by us.
- D. You shall not prepare any derivative work based on the XROSSWORLD IP or translate, reverse engineer, decompile or disassemble the XROSSWORLD IP. You acknowledge and agree that, as between the parties, XROSSWORLD owns all interest in and to XROSSWORLD IP. You further agree not to take any action to challenge or object to the validity of XROSSWORLD’s rights in the XROSSWORLD IP or XROSSWORLD’ ownership or registration thereof.
- E. If you provide us with Feedback, you assign and agree to assign to XROSSWORLD and its affiliates all right, title, and interest in and to any intellectual property rights associated with such Feedback. You agree to provide XROSSWORLD such assistance as XROSSWORLD may reasonably require to document, perfect, or maintain XROSSWORLD’s rights in and to the Feedback.
- F. XROSSWORLD shall have no liability to you, your employees, contractors, agents and its or their affiliates in respect of any reviews or comments posted by our members on our Platform or otherwise.
- G. Definitions. As used in this Agreement, “XROSSWORLD IP” means any intellectual property associated with our Platform, Customer Data, XROSSWORLD trade names, logos, trademarks, domain names, social media identifiers, all data collected through or from our Platform, all audiovisual content, video or audio recordings, photographs, graphics, artwork, text or any other content created by XROSSWORLD or at XROSSWORLD’ direction, or assigned to XROSSWORLD, and any materials, software, technology or tools used or provided by XROSSWORLD to promote the goods and services and conduct its business in connection therewith; “Feedback” means feedback, suggestions, reviews, modifications, data, images, text, or other information or content about our products or services or otherwise in connection with this Agreement, any XROSSWORLD IP, or your participation in this Agreement; “Partner IP” means Partner’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video or recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Partner; and “3rd Party IP” means any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video or recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Partner.
You represent and warrant that:
- A. You have the right, power and authority to enter into this Agreement;
- B. You are registered, to the extent required by applicable law, for sales and use tax collection purposes in all jurisdictions where the goods and/or services you make available to the XROSSWORLD Platform will be provided;
- C. You own all interest in and to the Partner IP and Feedback and have the right to grant us the License;
- D. The Partner IP, 3rd Party IP and your goods and services (including the goods/services you make available to the XROSSWORLD Platform) do not include any material that gives rise to civil liability or otherwise violates any law;
- E. You and your employees, contractors and agents have had proper education and training and hold all required and up-to-date regulatory authorizations, licenses and certifications relating to any goods or services described in this Agreement;
- F. You comply with all laws and regulations applicable to your business (including business licenses, insurance documents, etc.); and
- G. Your business information and Bank Account as provided pursuant to this Agreement are accurate and you are the authorized person to receive the funds sent by XROSSWORLD.
- H. You will offer your services equal in kind to services offered to your customers.
- I. You will use best efforts to provide a top-rated experience equal to premium or first rate experience of the same kind offered to your customers.
- J. You will always conduct your self professionally and offer excellent customer service to XW Members.
At your sole cost and expense, you shall have and maintain in force at least the following insurance coverage:
- A. Solely to the extent required by applicable law, Worker’s Compensation Insurance, including occupational illness or disease coverage, or other similar social insurance with a minimum limit of $100,000 per occurrence, accident or disease and $500,000 in the aggregate; and
- B. Commercial General Liability Insurance,including products, completed operations liability and personal injury, contractual liability and broad form property damage liability coverage for damages to any property with a minimum combined single limit of $1 million per occurrence and $2 million in the aggregate.Except as to any required Worker's Compensation Insurance, the foregoing insurance coverage will be primary and non‐contributing with respect to any other insurance or self-insurance that may be maintained by any other party. Upon our request, you shall arrange for your insurers to issue certificates of insurance issued by an authorized representative of the insurer evidencing that the coverage and policy endorsements required pursuant to these Terms are maintained in force and that XROSSWORLD is named (endorsed) as an Additional Insured under all such policies (except as to Workers Compensation Insurance). The insurers selected by you each will have an A.M. Best & Co. rating of not less than A- or otherwise be acceptable to the XROSSWORLD.
We agree to indemnify you and hold you harmless for any breach by us of our obligations under this Agreement. You are solely responsible for, and to the maximum extent allowed under applicable law, shall release, defend and hold XROSSWORLD, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any Losses arising out of or relating to any of the following: (a) any breach by you of this Agreement, or of your representations and warranties hereunder (including misuse of Customer Data); (b) your sales, use, or similar state or local tax obligations arising in connection with this Agreement; (c) claims arising out of or relating to goods and services provided by Partner or any of its affiliates, or as to any of its or their facilities, including but not limited to, any claims for false advertising, personal injury, death, or property damages. We maintain the right to control our own defense and to choose and appoint our own defense counsel, regardless of the presence or absence of a conflict of interest between the parties. Your duty to defend us includes the duty to pay our reasonable defense fees and costs. In addition to any other rights or remedies set forth herein, we may offset any amounts due or payable by you pursuant to this Agreement against any amounts due or payable by us pursuant to this Agreement.
You agree not to disclose the terms described in this Agreement or any non-public information that we may share with you from time to time (such as business or product development plans) to any party (other than your employees, parent entity, shareholders, attorneys and accountants on a strict need-to-know basis, provided that you have taken reasonable precautions to preserve the confidentiality of the information made available to such parties). In the event of a breach of Section 6 or Section 11, we will be entitled to injunctive relief and specific performance, and any other relief allowed under applicable law (including monetary damages, if appropriate) without any requirement to post a bond. XROSSWORLD confidential information includes data, reports and other information we may provide to you from time to time about the fitness industry, your location(s), Activities and/or other services. Such information is provided for informational purposes only.
LIMITATION OF LIABILITY
In no event shall we be liable or obligated to you or any third party for any special, incidental, exemplary, consequential, punitive, or indirect damages in advance. In addition, we shall have no liability to you in connection with any acts or omissions of its members, their guests or any other third parties. Except in respect of an intentional violation by us of our obligations under section 7, XROSSWORLD’ sole and complete liability to partner for any claims arising out of or relating to this agreement is limited to payment of the unpaid fees due to partner pursuant to section 2. This limitation of liability applies to the maximum extent permitted by applicable law and notwithstanding the failure of any limited remedy.
- A. Relationship of the Parties. XROSSWORLD and Partner are independent contractors. Nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, or an agency relationship between the parties and neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.
- B. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. We may amend the Agreement (including the Partner Agreement and/or the Terms) at any time without advance notice or consent. The most recent version of the Terms will be available in the Partner dashboard. Partner agrees that this notification method constitutes adequate notice to inform Partner of any amendments to the Agreement and Partner further agrees to be bound by any such amendments immediately upon such notification, or in accordance with such other time frame that may be communicated by XROSSWORLD. If this Agreement is terminated promptly upon such notification because Partner does not agree to a material change in a material term of the Agreement then XROSSWORLD will continue to honor the terms in effect prior to such amendment for the duration of the applicable termination period. This Agreement may not otherwise be amended or modified except by mutual agreement of authorized representatives of the parties in writing.
- C. Assignment. You will not transfer or assign your rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of an authorized signatory of XROSSWORLD. We are authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to you or to terminate this Agreement in the event of any of the foregoing.
- D. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected.
- E. NO REPRESENTATIONS. Except as expressly stated in this agreement, neither party makes any representations or warranties, express nor implied, including but not limited to any implied warranty of merchantability, fitness for a particular purpose or non-infringement. XROSSWORLD does not warrant or guarantee that the services offered on or through our Platform will be uninterrupted or error-free or that any partner offering will result in any revenue or profit for partner.
- F. Governing Law; Jurisdiction; Waiver. This Agreement shall be governed by the laws of the State of California without regard to its conflict or choice of law principles. Partner for disputes arising out of or relating to this Agreement shall be limited to a federal or state court located within Los Angeles County. Each Party submits to the jurisdiction of such courts. You hereby waive any right to a jury trial and agree that any proceedings will be conducted only on an individual basis and not in a Activity, consolidated, or representative action.
- G. Notices. You agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Except as explicitly stated otherwise, legal notices will be served, with respect to XROSSWORLD, at LEBEN & CERNE CORP. California Registered Agent Inc, 1267 Willis ST STE 200 Redding, CA 96001 Attention: Legal Department, and, with respect to you, to the email address you provide to us during the registration process (or to any new email address as to which you notify us pursuant to this Section 14(g)). Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process (or to any new address as to which you notify us pursuant to this Section 14(g)). Any notice delivered by physical mail will be deemed given the earlier of delivery or three days after the date of mailing.
- H. Headings, Captions & Definitions. The headings and captions in this Agreement are for convenience of reference only and shall in no way modify, or affect the meaning or construction of, any of the terms or provisions hereof. The terms defined herein shall apply equally to both the singular and plural forms and to the correlative forms of such terms. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. “Person” (whether or not capitalized) means any natural person, corporation, company, partnership, limited liability company, joint venture, trust, association, sole proprietorship or other entity. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. “Losses” means claims, lawsuits, investigations, penalties, damages, losses or expenses (including reasonable attorney’s fees). The word “or” is not exclusive. All references to “days” shall be to calendar days and all references to “months” shall be to calendar months, unless otherwise specified.
XrossWorld reserves the right to send you certain communications relating to XrossWorld, such as service announcements and administrative messages that are considered part of your XrossWorld account.Contact Info
c/o Leben & Cerne, Corp.
California Registered Agent Inc 1267 Willis ST STE 200 Redding, CA 96001