Terms and Conditions

By clicking “I agree to the Terms and Conditions”, the Instructor referenced (“You”) hereby accepts and agrees to be bound by and entered into this Instructor Independent Contractor Agreement (this “Agreement”) effective immediately (the “Effective Date”) by and between High Fitness LP (“High Fitness”) and You (“Instructor”) (with each of High Fitness and Instructor being a “Party”; and collectively, the “Parties”).

WHEREAS, High Fitness has invested considerable time, money, and resources into developing and providing a hardcore, fun, fitness class that incorporates high intensity aerobic interval training, marketed under the HIGH FITNESS brand name; and

WHEREAS, Instructor wishes to be an instructor for HIGH FITNESS classes;

NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

1.                   DEFINITIONS.

A.                 “Certified Instructor” means an instructor who has completed the Instructor Training and has met all applicable qualifications, standards, and training, in High Fitness’s sole discretion.

B.                  “Choreography” means the original fitness choreography created by High Fitness and distributed to Instructor under this Agreement.

C.                  “Class(es)” means fitness class(es) branded with the Trademarks in which a Certified Instructor leads the class in performing the Choreography to the Music.

D.                 “Fees” means collectively, the Instructor Training Fee, Monthly Subscription Fee, Change Fee, and NSF Fee (as each are defined in Section 5), if and as applicable.

E.                  “Instructor Training” means the one-day training sessions provided by High Fitness.

F.                  “Materials” means any and all materials that High Fitness provides to Instructor in connection with the Instructor Training and to use with the Classes and Class participants, including, without limitation, punch card templates and poster templates.

G.                 “Music” means the music to which the Choreography is choreographed.

H.                 “Trademarks” means the words HIGH FITNESS, the HIGH FITNESS logo, and any other trademarks, service marks, logos, or other indicia belonging to High Fitness.

2.                   LICENSE.  Once Instructor has completed and paid for the Instructor Training and been approved by High Fitness to be a Certified Instructor (collectively, “Approved”) and initiated payment of the Monthly Subscription Fee, subject to the terms of this Agreement, High Fitness hereby grants to Instructor a non-exclusive, revocable, non-transferrable, non-sublicensable license to use the Choreography, the Trademarks, and the Materials during the Term of this Agreement, solely for purposes of instructing Classes, including the right to advertise as a “High Fitness Certified Instructor.”  Instructor’s use of the Trademarks and Materials are limited solely to the purpose of advertising, promoting, and holding Classes.  Instructor’s use of the Choreography is limited solely to Instructor-led Classes.

3.                   USER ACCOUNT.  Instructor must create a user account (“User Account”) via the High Fitness website located at www.highfitness.com (“Website”) in order to register for the Instructor Training. If Approved, Instructor must initiate payment of the recurring Monthly Subscription Fee by providing written consent to High Fitness no later than six months after the date of Instructor’s Instructor Training (“Time Period”) in order to access the Choreography, Materials, and be granted access to the Instructor-only Facebook page.  If Instructor has not initiated payment of the Monthly Subscription Fee during the Time Period, Instructor’s Approved status, if granted, and this Agreement are automatically terminated.  Instructor’s User Account and the associated recurring Monthly Subscription Fee may be placed on hold at any time upon 30 days written notice to [email protected] and [email protected], for a minimum of two months and a maximum of nine months, or otherwise in High Fitness’s sole discretion (“Hold”), during which time Instructor will not have access to the Choreography and Materials and will not be charged the Monthly Subscription Fee.  Upon expiration of the Hold, Monthly Subscription Fees will resume in accordance with the terms of this Agreement.  Instructor consents to High Fitness using the information provided in connection with a User Account for the purpose of allowing access to the Choreography and Materials, and collection of the applicable Fees.  High Fitness’s collection and use of personal information in connection with User Accounts and the instructor portal of the Website (“Portal”) is provided in High Fitness’s Privacy Policy.

4.                   ADDITIONAL INSTRUCTOR OBLIGATIONS.  If Approved, in order to provide Classes, Instructor agrees to:

A.                 Secure and pay any fee associated with using suitable locations for Classes, which locations must be licensed by ASCAP, BMI, and SESAC for the public performance of music;

B.                  Provide equipment, legally obtained Music, clothing, and other necessary materials for Classes at Instructor’s own expense;

C.                  Undertake such actions reasonably requested by High Fitness in order to maintain his/her Certified Instructor status;

D.                 Dedicate sufficient and adequate time and resources to learning and memorizing the new Choreography each week to be able to teach and cue it properly to Class participants;

E.                  Not modify the Choreography, Trademarks, or Materials in any way without the consent of High Fitness;

F.                  Not use the Choreography independently of the Trademarks and/or Materials (e.g., in a class that is offered under a different name);

G.                 Timely arrive for and professionally lead his/her Classes; and

H.                 At Instructor’s sole cost and expense, procure and maintain in full force and effect during the Term and for a period of one (1) year thereafter, commercial general liability insurance, including coverage for damages due to bodily injury, sickness, disease or death which arise out of any negligent act or omission of Instructor, and damages due to injury to or destruction of tangible or intangible property, including loss of use resulting therefrom, which arise out of any negligent act or omission of Instructor, with annual limits of liability in an amount not less than $1,000,000 per occurrence; $1,000,000 general aggregate.  This insurance shall be primary and any insurance maintained by High Fitness shall be considered excess over Instructor’s insurance.

5.                  Fees.

A.                 Instructor Training Fee.  In consideration of Instructor’s participation in the Instructor Training, Instructor shall pay (or has already paid, if and as applicable) a one-time fee in the amount of $250 (“Instructor Training Fee”).

B.                  Monthly Subscription Fees.  In consideration for the license granted hereunder, if Approved, Instructors shall pay to High Fitness a monthly subscription fee in the amount of $30 for access to the Choreography and Class Materials, which amount may be adjusted by High Fitness in its sole discretion upon written or 30 day notice to Certified Instructor (“Monthly Subscription Fee”).  Monthly Subscription Fees are not refundable and will not be prorated.

C.                  Change Fee.  If Instructor wishes to change the bank account associated with the User Account for the payment of Monthly Subscription Fees, Instructor shall be charged a change fee of $10 (“Change Fee”).

D.                 NSF Fee.  If High Fitness attempts to collect a Monthly Subscription Fee from Instructor via the bank account information provided by Instructor and such Monthly Subscription Fee is refused due to “not sufficient funds,” Instructor shall be charged a NSF fee of $30 (“NSF Fee”).

E.                  Music.  Music is not provided as part of the Monthly Subscription Fee.  Instructor must purchase the Music independently each month.

F.                  Taxes.  Any applicable taxes on the payment of the Instructor Training Fee or the Monthly Subscription Fee are the sole responsibility of the Instructor.

6.                   PAYMENT.

A.                 The Instructor Training Fee shall be paid in advance of the Instructor Training via PayPal in connection with the Website.  The Instructor Training Fee will be refunded if the Instructor Training is cancelled by High Fitness, or otherwise in High Fitness’ sole discretion.  If Instructor wishes to cancel Instructor’s registration more than seven days in advance of the Instructor Training, High Fitness shall refund the Instructor Training Fee less a $30 processing Fee.  If Instructor wishes to cancel Instructor’s registration less than seven days in advance of the Instructor Training, no refunds will be provided.

B.                  Instructor authorizes High Fitness and/or its service providers to automatically charge or initiate transfers from the bank account provided by Instructor for the purpose of billing the recurring Monthly Subscription Fees, together with any service charges, applicable taxes, or any other charges authorized under this Agreement, or any portion thereof, as described herein.  Instructor may change the payment method at any time upon 30 days’ written notice to [email protected] and [email protected]  Instructor is responsible for notifying Instructor’s bank or credit card company in a timely manner of any errors regarding Fees that appear on Instructor’s statement, and for keeping all payment information up to date.  High Fitness is not liable for any fees charged by Instructor’s financial institution in the event a payment request is returned as uncollectable.

7.                   CONFIDENTIAL INFORMATION.

A.                 Definition of Confidential Information.  Instructor acknowledges that Instructor shall, during the Term of this Agreement, be exposed to or acquire information which is proprietary to or confidential to High Fitness, including but not limited to Choreography, Materials related to Instructor Training, marketing strategies, trade secrets, business plans, techniques, strategies, information pertaining to business operations, present or future products, services, prospects, interests, and/or customers (“Confidential Information”).  The Parties agree that High Fitness’s Confidential Information is and will remain the sole property of High Fitness.

B.                  Non-Use and Non-Disclosure.  Instructor shall maintain High Fitness’s Confidential Information in strict confidence in accordance with this Section.  Instructor shall not (i) use High Fitness’s Confidential Information other than as strictly necessary to perform Instructor’s obligations under this Agreement, nor (ii) disclose High Fitness’s Confidential Information without High Fitness’s prior written consent, except for the Choreography, which Instructor is authorized to perform in branded HIGH FITNESS Classes (displaying the Trademarks) only, according to the terms of this Agreement.

8.                   Proprietary Rights.

A.                 Proprietary Rights Defined.  The term “Proprietary Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dress, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefor.

B.                  Ownership.  As between the Parties, High Fitness owns any and all Proprietary Rights in the Materials, Choreography, and Trademarks.  Any choreography created by Instructor that is based on the Choreography, whether or not authorized by High Fitness, shall be considered a “derivative work” as that term is defined in the Copyright Act 17 U.S.C. § 101 et seq., and shall be owned exclusively by High Fitness with Instructor retaining no rights whatsoever in same.  All use of the Trademarks and the goodwill generated thereby will inure to the benefit of High Fitness.

C.                  Assignment.  To the extent High Fitness does not obtain all ownership rights and Proprietary Rights in or to any Materials, Choreography, or Trademarks pursuant to Section 8.B, Instructor hereby irrevocably assigns, transfers, and quitclaims to High Fitness (or such third party/ies as High Fitness may elect) all right, title, and interest Instructor may have or hereafter acquire in and to all such Materials, Choreography and/or Trademarks, together with all Proprietary Rights thereto.

9.                   Representations and Warranties.

A.                 Instructor represents and warrants as follows:

i.                    Instructor is not under any pre-existing obligation (including, without limitation, any non-compete or exclusive services agreement) inconsistent with the provisions of this Agreement;

ii.                  Instructor is sufficiently physically fit and possesses the requisite skills, knowledge, and qualifications to lead the Class, and will use common sense, reasonable judgment, and professional experience in leading the Class and interacting with Class participants;

iii.                Instructor will only hold Classes in locations with public performance music licenses, as specified in Section 4; and

iv.                 Instructor will not take, use, or post any video of Classes anywhere, without the consent of High Fitness.

B.                  High Fitness represents and warrants as follows:

i.                    High Fitness shall provide the Instructor Training (unless cancelled by High Fitness and the Instructor Training Fee refunded to Instructor); and

ii.                  For Certified Instructors who have initiated payment of the Monthly Subscription Fee, High Fitness shall (a) provide access to the Choreography and Materials to Instructor on a weekly basis via the Instructor Portal, (b) use reasonable efforts to promote Instructor’s Classes on the Website, and (c) be available to Instructor to help support choreography concerns and execution via email at [email protected]

10.               LIMITATION OF LIABILITY.  OTHER THAN IN CONNECTION WITH INSTRUCTOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL HIGH FITNESS’S AGGREGATE LIABILITY TO INSTRUCTOR FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL CLAIM.  THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.

11.               ASSUMPTION OF RISK.  INSTRUCTOR UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE INSTRUCTOR TRAINING AND/OR PROVIDING CLASSES MAY INVOLVE INHERENT AND UNAVOIDABLE RISKS, INCLUDING INJURY, PARALYSIS, OR EVEN DEATH.  WITH FULL AWARENESS OF SUCH RISKS, INSTRUCTOR ASSUMES THE RISK OF TAKING PART IN THE INSTRUCTOR TRAINING AND/OR PROVIDING CLASSES.

12.               INDEMNIFICATION.  Instructor will defend (at High Fitness’s option), indemnify, and hold harmless High Fitness, its affiliates, and its and their officers, directors, employees, representatives, successors, and assigns, from and against all claims, damages, losses and expenses (including costs and reasonable attorneys’ fees), arising out of or resulting from (A) any action against High Fitness based on any negligent act or omission or intentional misconduct of Instructor; or (B) Instructor’s breach of any representation, warranty, or covenant contained in this Agreement.

13.               term and Termination.

A.                 The term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided herein (“Term”).

B.                  In addition to termination rights provided elsewhere in this Agreement, either Party may terminate this Agreement (i) by providing thirty (30) days’ prior written notice to the other Party; or (ii) in the event of a breach by the other Party of this Agreement if such breach continues uncured for a period of thirty (30) days after receipt of written notice.

C.                  Upon the effective date of termination: (i) High Fitness shall terminate Instructor’s access to the Portal and shall cease billing the Monthly Subscription Fee to Instructor’s bank account within thirty (30) days; (ii) Instructor shall cease to advertise as a Certified Instructor of High Fitness and shall cease teaching Classes; (iii) Instructor shall cease all use of the Trademarks, Materials, and the Choreography, and any rights granted herein shall immediately revert to High Fitness; and (iv) Instructor shall promptly return to High Fitness (or, at High Fitness’s option, certify the destruction of) all High Fitness Confidential Information in Instructor’s possession, custody or control, including all copies thereof.

14.               QUALITY CONTROL.  Instructor shall maintain and adhere to the standards of quality in the instructional fitness services Instructor provides under the Trademarks and in connection with the Classes as Instructor has done in Instructor’s past teaching practices and pursuant to High Fitness’s requirements for its Certified Instructors.  High Fitness shall have the right, upon reasonable advance notice, to observe, inspect and approve the quality of Instructor’s services offered under the Trademarks and in connection with the Classes, which approval shall not be unreasonably withheld.  Where such quality is not maintained, High Fitness shall provide written notice to Instructor and Instructor shall have thirty (30) days to take reasonable steps to address the quality concerns of High Fitness.  If the quality issue is not cured within thirty (30) days after written notice, in the reasonable discretion of High Fitness, High Fitness shall be entitled to terminate this Agreement.

15.               GENERAL.

A.                 Assignment.  This Agreement may not be assigned by either Party without the prior written consent of the other Party.  Notwithstanding the foregoing, High Fitness may assign this Agreement to a party controlling, controlled by or in common control with High Fitness or as part of the sale of all or substantially all of the assets of High Fitness.  This Agreement shall be binding upon and shall inure to the benefit of the respective heirs, representatives, successors, and permitted assigns, in accordance with the terms hereof.

B.                  Complete Understanding; Modification.  This Agreement constitutes the complete and exclusive understanding and agreement of the Parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties hereto.

C.                  Independent Contractor.  At all times during the Term of this Agreement, Instructor is and shall be an independent contractor and is not an agent or employee of, and has no authority to bind High Fitness by contract or otherwise.

D.                 Severability.  If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

E.                  Notices.  All notices, requests, approvals, and other communications to either Party shall be in writing and delivered by email to the email address associated with Instructor’s User Account, for Instructors; or to [email protected], for High Fitness.

F.                  Survival.  Any and all provisions in this Agreement which would reasonably be expected to be performed after the termination or expiration of this Agreement shall survive and be enforceable after such termination or expiration, including without limitation provisions relating to confidentiality, ownership of materials, representations and warranties, indemnification, limitations of liability, effects of termination, and governing law.

G.                 Governing Law; Venue.  This Agreement, and any and all claims that may arise in connection with this Agreement will be governed and construed in accordance with the laws of the State of Utah, USA, without regard to the conflict of laws principles thereof.  The Parties hereto agree that venue and jurisdiction with respect to any matter arising under this Agreement shall be exclusively in the state or federal courts, as applicable, located in the State of Utah.

H.                 No Waiver.  No express or implied waiver by either Party of any event of default hereunder shall in any way be, or be construed as, a waiver of any future or subsequent event of default.

I.                    Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.  Signatures sent to the other Party by facsimile transmission, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be binding as evidence of acceptance of the terms hereof by such signatory Party.

J.                    Attorney Fees.  The prevailing Party will be entitled to reasonable attorney fees in the event of a breach or in successfully defending against a claim of a breach of this Agreement.

K.                 Currency.  All references to money in this Agreement shall be in United States dollars.