This Agreement governs commercial use of CloudGym by your organization. You retain complete ownership of your customer and business data. CloudGym provides high-availability fitness management, payment handling, and marketing tools in full compliance with applicable industry standards (PCI DSS, TLS encryption).
1.1 Agreement
This Agreement is a binding legal agreement between you and the applicable Cloud Gym Entity indicated in Section 14.4 below (Cloud Gym, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and Cloud Gym are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you’ve read the Privacy Policy and agree to its terms.
This Agreement applies to any use of the Services, whether in connection with a paid subscription or a free trial. For clarity, this Agreement does not apply to use of the Cloud Gym App. That has a separate agreement, which is accessible through the Cloud Gym App.
1.2 Changes to the Agreement
We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The legend at the top of the Agreement indicates when it was last changed.
1.3 Supplemental Terms
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.
2.1 Software Services
2.1.2 — Changes to Services: Notwithstanding Section 2.1.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (a) in connection with a Force Majeure event (as described in Section 14.9), (b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime as provided in the SLA. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
2.2 Third Party Offerings
Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply Cloud Gym’s endorsement of or affiliation with the provider. Cloud Gym does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings.
Cloud Gym has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting Cloud Gym to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS.
2.3 Support Services
As part of the Services you will have access to Cloud Gym’s standard support services described at https://cloudgym.freshdesk.com/ (or such other URL as specified by Cloud Gym), as may be updated by Cloud Gym from time to time. For an additional fee, you may purchase Professional Services as described at https://cloudgym.io/.
2.4 Recently Acquired Offerings
As an administrative courtesy to you, we may offer Recently Acquired Offerings to you through this Agreement before fully integrating, testing, and improving such offerings to meet our standards, which may take up to twelve (12) months. All representations and/or warranties made by us in this Agreement do not apply to such Recently Acquired Offerings.
2.5 Free, Trial and Beta Services
Cloud Gym may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) Cloud Gym may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us. Cloud Gym will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services.
2.6 - 2.9 Additional Terms
2.6 Professional Services Terms: Additional terms specific to the procurement of Professional Services apply and are hereby incorporated by reference into this Agreement as if set forth fully herein.
2.7 Branded Mobile App Terms: Additional terms specific to the procurement of the Branded Mobile App apply and are hereby incorporated by reference into this Agreement.
2.8 Hardware Terms: Additional terms specific to the procurement and use of heart rate monitors, receivers, payment enabling, and other similar hardware apply and are incorporated by reference.
2.9 Smart Payment Terminal Terms: Additional terms specific to the use of Smart Payment Terminals apply and are hereby incorporated by reference.
2.10 Payment Processing
Cloud Gym offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.
At Cloud Gym's sole discretion, you may be offered Payment Processing Services provided by Stripe (Cloud Gym Payments”). Cloud Gym Payments are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service and subject to certain fees and surcharges communicated to you during the enrollment process. In the event a consumer chargeback or dispute occurs, you may be charged up to fifteen dollars ($15) per occurrence by Cloud Gym.
3.1 Liability for Affiliates and End Users
You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by Cloud Gym, and any applicable local, state, national and foreign laws.
3.2 Data; Unauthorized Access; Maintaining Networks
You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws; (b) prevent unauthorized access to, or use of, the Services, and notify Cloud Gym promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
3.3 Restrictions on Use
You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful material; (ii) interfere with or disrupt the integrity or performance of the Services; (iii) attempt to gain unauthorized access to related systems; (iv) transmit any virus, worm, Trojan horse, time bomb, spyware or other harmful computer code; (v) restrict or inhibit any other person from using the Services; (vi) remove any copyright or trademark notice; (vii) frame or mirror any portion of the Services; (viii) systematically download and store Services content; (ix) send unsolicited electronic messages (spamming); or (x) use any robot, spider, or scraping application to gather Services content.
3.4 - 3.6 Security & Consent
3.4 Cardholder Data: You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
3.5 User Names and Passwords: User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Cloud Gym.
3.6 Consent: You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products.
4.1 - 4.3 Fees and Payment Terms
4.1 Software Services Fees: Unless otherwise stated on an Order Form, fees for the Software Services (“Subscription Fees”) are set forth on the applicable Website(s).
4.2 Change in Subscription Fees: The Subscription Fees during a Renewal Term will be updated to the pricing set forth on the applicable Website when each Renewal Term begins.
4.3 Payment Terms: You agree to pay the Subscription Fees and any other applicable fees stated on an Order Form. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period.
4.4 - 4.6 Overdue Charges & Taxes
4.4 Overdue Charges: Any amounts not received by the applicable due date may accrue late interest at the lesser of either 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law. Any amount not received within thirty (30) days will be deemed a material default.
4.5 Payment Errors: If you believe a payment has been processed in error, you must provide written notice to Cloud Gym within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute.
4.6 Taxes: Subscription Fees do not include any taxes, levies, duties or similar governmental assessments. You are responsible for paying all Taxes associated with purchases and transactions under this Agreement.
5.1 Cloud Gym Intellectual Property
Cloud Gym or its affiliates own all right, title and interest in and to the Services, the Cloud Gym Data and Aggregated Data, including, without limitation, all intellectual property rights therein. All Cloud Gym Marks are owned by Cloud Gym or its affiliates. You agree not to display or use any Cloud Gym Marks in any manner without Cloud Gym’s express prior written permission.
5.2 License Grant to You
Subject to the terms and conditions of this Agreement, Cloud Gym hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not reverse engineer, decompile, copy features, or use the Services for competitive analysis.
5.3 License Grant to Cloud Gym
You hereby grant to Cloud Gym and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to modify, copy, distribute and incorporate into the Services any suggestions or feedback provided by you. Cloud Gym may also display your business marks and logos solely for identifying you as a client and executing marketing services.
6.1 - 6.3 Your Data & Aggregated Data
6.1 Your Data: As between you and Cloud Gym, you own all right, title and interest in Your Data. You hereby grant to Cloud Gym a nonexclusive, worldwide, assignable, fully paid-up license to process Your Data for the purposes of providing and improving the Services.
6.2 Cloud Gym Data: All data or information collected by Cloud Gym independently without reference to Your Data will be solely owned by Cloud Gym.
6.3 Aggregated Data: You agree Cloud Gym owns all Aggregated Data that does not reveal any personally identifying information about you or any End Users.
6.5 HIPAA Compliance
6.6 - 6.8 Protection, Disclosure & Disputes
6.6 Protection and Security: During the Subscription Term, Cloud Gym will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data, maintaining PCI DSS compliance for portions storing Cardholder Data.
6.7 Unauthorized Disclosure: If either Party believes that an unauthorized disclosure has occurred, prompt notice must be given, assisting in remediation.
6.8 Data-Related Disputes: You are solely responsible for resolving internal disputes regarding ownership of or access to Your Data between business owners, partners, or employees.
A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information with at least a commercially reasonable standard of care.
8.1 Term and Automatic Renewal
Unless otherwise specified in an Order Form, the initial term of this Agreement is ninety (90) days (“Initial Term”). The Initial Term automatically renews in successive thirty (30) day periods until properly terminated. Either Party may terminate this Agreement by giving at least thirty (30) days’ written notice before the end of the relevant Subscription Term. If you elect to terminate early, you remain responsible for payment of all fees owed for the entire Subscription Term.
8.2 - 8.4 Rights Upon Termination & Suspension
8.2 Termination for Cause: Cloud Gym may terminate this Agreement immediately if you are in material breach.
8.3 Data Retention & Export: For a period of no greater than thirty (30) days following a notice of termination, Cloud Gym will make Your Data available through standard web services or data export.
8.4 Suspension of Services: We may suspend access immediately if we believe your account violates this Agreement, infringes intellectual property, or threatens the security of the platform.
9.1 & 9.2 Account Accuracy & Functionality Warranty
9.1 Accuracy of Your Account Information: You agree to provide Cloud Gym with complete and accurate account information, including legal entity name, email address, and banking info.
9.2 Warranty of Functionality: Cloud Gym warrants that the subscribed Software Service will perform materially in accordance with applicable Documentation. If Cloud Gym is unable to restore diminished functionality within reasonable efforts, you may terminate and receive a pro-rata refund of pre-paid fees.
You agree to indemnify, defend, and hold harmless the Cloud Gym Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you; (c) any violation of the intellectual property or privacy rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.
Cardholder Data Transmission: CLOUD GYM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY DAMAGES OR LOSS CAUSED BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY CLOUD GYM.
You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations.
Cloud Gym respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement, as may be updated by Cloud Gym from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy. If you have concerns, inquiries, or notices regarding potential trademark or copyright infringement, please email info@cloudgym.com.