This Group Online Coaching Agreement, (hereinafter the “Agreement”) is made and entered into as of the Effective Date (as noted in the signature block) by and between DLDNation LLC (“DLDNation”), a limited liability company in Austin, Texas and __________________________ (hereinafter “Client”, “I”, “Me, or the possessive “My”). DLDNation, Coach (as defined below), and Client shall be sometimes collectively referred to as the “Parties” or singularly as a “Party”. For good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, including, but not limited to, the opportunity to be coached by DLDNation, and as a precondition to participating in such coaching and the Group Program (as defined below), Client has read this Agreement. The Parties hereby agree to the following terms and conditions:

 

1. General Terms

 

Client acknowledges that they are entering into this Agreement in exchange for services provided in a group setting, as defined herein, by an online personal health and fitness coach through DLDNation. No particular individual coach shall be assigned to Client as the engagement associated to this Agreement shall be for group coaching. However, any DLDNation personnel that shall provide the Group Program shall be referred to as a “Coach” for the purposes of this Agreement. This Agreement entitles any Coach employed by DLDNation to work with Client to provide the services described in this Agreement and Client hereby acknowledges that the Group Program and services provided through this Agreement shall be in a group setting with limited individualized attention, if any, as described herein. All DLDNation Coaches shall be subject to the terms of this Agreement and no Coach shall hold themselves out to be a medical professional of any kind and all the information obtained through this Agreement and the Group Program shall be for entertainment or informational purposes only.

 

2. SERVICES AND EXPECTATIONS

2A. Group Program Services and Expectations for Client

Coach shall lead a Group Program entitled “DLD Universal” that shall provide content that relates to exercise and health program coaching that reflects the client’s objectives, fitness level, and experience (the “Group Program”). Client hereby agrees to review the proposed Group Program and Client’s commencement of the Group Program constitutes Client’s acceptance of the proposed program terms and schedule.

The Group Program may include, but is not limited to, one or more of the following:

• Customized one time nutrition protocols for Client’s body and goals upon initial sign up (this may include calorie tracking, macro protocols, and water intake). These initial customized guidelines shall be provided once and then may be adjusted during the coaching group calls at the Coach’s discretion, if necessary. Client shall receive these custom protocols within forty-eight (48) hours of joining the DLDNation Group Program;
• Access to the DLDNation private Facebook group to connect with other Group Program clients;
• 24/6 coaching support in the DLDNation Facebook Group;
• Weekly meal plans and recipes. DLDNation notes that this is not a prescription meal plan nor will any plan be customized specifically to the Client. This is an optional plan and is a bonus as part of the Group Program. Nothing associated to these weekly plans and/or recipes shall be considered mandatory nor should any of the information given be interpretated as advice from a registered dietician;
• Access to the DLDNation training application for individualized workouts. However, the workout plans shall not be customized for each Client’s specific needs and Client shall not be guaranteed any ability to request a modification to the workout regimen;
• Access to the official Universal eBook as a content resource; and
• Access to DLDNation’s online course run through Thinkific, for fitness and nutrition content to supplement their Group Program.

As mentioned above, all information and content provided by Coach shall be for entertainment purposes only and shall not be considered medical or dietary advice of any kind.  

More specifically, the Group Program’s physical activity may include:  

• Testing, including but not limited to testing of the cardiovascular system, heart rate, muscle strength, endurance, and flexibility; • Exercise;
• Aerobics and aerobic conditioning and training;
• Weight training;
• Circuit training;
• Cardiovascular exercise and training;
• Use of machinery, training equipment, free weights, circuit machinery, and cardiovascular machines;  
• Stretching;  
• Weight lifting; and/or
• Other training activities, techniques, and/or exercises as determined by the Coach.  

DLDNation and Client hereby acknowledge that there are no guarantees as to what will and won’t be included in each Group Program. By accepting the Program as received by Client, Client hereby waives any claims they may have as it relates to the contents of their particular Group Program.

3. PAYMENTS

Client is purchasing a month-to-month subscription to the package noted below. Month to month payments shall be due each monthly continuing on the recurring numerical day of their initial payment.

☐ Month-to-month subscription - $99.00 per month

The entirety of the period noted above shall be considered the Client’s “Initial Commitment Period”. Once the Initial Commitment Period has tolled, the Program payment commitment for Client shall automatically renew based on the term noted in their above selection at the price selection indicated above until notice of termination is provided by either Party. A Client’s declined payment shall not be considered notice of their intent to terminate this Agreement or any commitment as cited herein.  

As noted in Section 6 of this Agreement, all Agreement termination requests must be routed to universal@dldnation.com to be considered valid. Additionally, either Party must provide the other Party thirty (30) days written notice of their intent to terminate this Agreement. After Client provides their intent to terminate to DLDNation, Client shall still be responsible for paying for the remaining services for that thirty (30) day period until the final thirty (30) days has tolled.

1. Clients understands that payment is due PRIOR to receiving any Group Program information, details, or directives. DLDNation accepts most credit and debit cards. DLDNation does not take any insurance.
2. Client understands that there will be no refunds granted, under any circumstances, and Client hereby promise to make all payments timely, regardless of the outcome associated to Client’s utilization of the Group Program. Client hereby acknowledges that this Group Program requires a significant time commitment on the part of DLDNation and Coach and does not guarantee any results. Should any payment be declined, DLDNation shall reach out to Client to obtain a new payment option but Client confirms that their Group Program shall be suspended until new payment is rendered and their account is current on all outstanding payments.
3. Client shall not be entitled to any refund via a “chargeback” with their financial institution or through refuting any DLDNation charges. Client hereby states that they, through the terms of this Agreement, are voluntarily stating that they shall willingly drop any chargeback or dispute claim they file with their financial institution as the terms of this Agreement state that NO REFUNDS SHALL BE GRANTED for any reason. Should a Client file a dispute with their financial institute, Client hereby authorized DLDNation to cite to this Section 3(c) in the charge dispute case and Client further states that their acknowledgement of this Section 3(c) shall constitute as a valid waiver and release of any payment dispute claim they file against DLDNation.
4. The month-to-month price Client shall be charged is indicated by their selection above. DLDNation shall supply Client an electronic receipt for all amounts paid under this Agreement. Pricing for the services provided in this Agreement shall be stated on such invoice.
5. Client agrees that all payments are to be made via Stripe, Wave, or via Automated Clearing House (“ACH”) bank transfer. Client hereby consents to the use of any third-party payment services as noted herein and any additional terms and conditions associated to such third-party services.
6. If payment is not made or is not authorized by any means, all coaching services and the Group Program shall be suspended until a new payment is made by Client and once their outstanding balance is zero (0). Failure to submit a valid payment puts the Client in breach of this Agreement but does not terminate the Agreement. The conditions for the termination of this Agreement are outlined below in Section 6.

4. PRE-AUTHORIZED PAYMENTS

Client hereby authorizes DLDNation, their contractors, affiliates, and representatives to make periodic charges of withdrawals (EFT  Authorization) from the account or card used to pay the initial payment designated by Client and accepted by DLDNation or Coach, for the payment  of any and all fees, costs, expenses and any conditions contained in this Agreement. By executing this Agreement, Client pre-authorizes DLDNation to save their payment information, including all credit card information, for all necessary payments. In the event that Client wishes to terminate the  Agreement, Client must follow the procedure outlined in Section 6. 

5. REFUNDS ON PAYMENTS

Client understands and agrees that no refunds shall be granted on any payment made from Client to DLDNation no matter whether Client has selected to pay on a month to month or yearly basis. For the month-to-month option, Client shall not be entitled to a prorated refund if they cancel in the middle of a month-to-month payment period. The phrase “cancel at any time” in reference to the month-to-month option means that Client is able to cancel their month-to-month commitment with thirty (30) days’ notice and the future obligation to the month-to-month payment shall cease as Client finishes up their final month after proper notice is received by DLDNation.  

6. TERMINATION OF AGREEMENT

The Parties shall have the right to terminate this Agreement upon thirty (30) days written notice of termination to the other Party. This written notice must be provided thirty (30) days in advance and be provided to Coach or DLDNation via email at universal@dldnation.com. Text messaging shall not be considered written notice. As noted in Section 3, a Client’s declined payment shall not be considered notice of their intent to terminate. Client hereby acknowledges that they shall still be responsible for any payments owed to Coach or DLDNation during that thirty (30) day termination period.  

Client is not entitled to a refund for cancellation. In the event of termination of this Agreement, Sections 6 to 18 shall survive such termination. This Section 6 shall apply to any Agreement extensions agreed upon between Client and DLDNation.

7. CONFIDENTIALITY

From time to time and during the life of this Agreement, DLDNation (as the "Disclosing Party") may disclose or make available to the Client (as the "Receiving Party") information about its business affairs, products/services, intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form of media whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information”) This includes but is not limited to items such as workout protocols, nutritional guidelines, exercise explanations, e-books, videos related to exercise performance and any other information disseminated to the Receiving Party by the Disclosing party to aid in the execution of this Agreement.

The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives.

On the expiration or termination of the Agreement or at any time during or after the term of this Agreement, at the Disclosing Party's written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section and to secure its enforcement.

8. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement of the Parties, and supersedes any and all previous understanding, agreements, arrangements, or discussions, written or oral, between the Parties relating hereto. There are no collateral agreements, representations, or guarantees, oral or otherwise unless attached hereto and signed by both Parties.

 

9. WARRANTIES

Coach warrants that they shall provide coaching services in accordance with industry standards and, in no event, less than a reasonable level of care. DLDNation provides no other warranties, either express or implied, that are not contained in this Agreement. While DLDNation hereby

promises to convey their best efforts to acknowledge Client, the services provided for the Group Program shall be done in a group setting and DLDNation makes not guarantee or warranty as to the individualized attention or customization that Client shall receive through the Group Program.  

10. ASSUMPTION OF THE RISKS AND RELEASE.

BY PURCHASING THIS MEMBERSHIP, CLIENT RECOGNIZES THAT THERE ARE CERTAIN INHERENT RISKS ASSOCIATED WITH THE ABOVE REFERENCED ACTIVITIES AND THAT THE GROUP PROGRAM MAY INVOLVE STRENUOUS PHYSICAL ACTIVITY INCLUDING, BUT NOT LIMITED TO MUSCULAR STRENGTH, ENDURANCE TRAINING, CARDIOVASCULAR CONDITIONING AND TRAINING, AND ANY OTHER FITNESS RELATED ACTIVITY.

CLIENT HEREBY AFFIRMS THAT CLIENT IS IN GOOD PHYSICAL CONDITION AND DOES NOT SUFFER FROM ANY KNOWN DISABILITY OR CONDITION WHICH WOULD PREVENT OR LIMIT CLIENT’S PARTICIPATION IN THE ONLINE FITNESS GROUP COACHING PROGRAM. CLIENT UNDERSTANDS THAT CLIENT’S ENROLLMENT AND PARTICIPATION IS PURELY VOLUNTARY AND IN NO WAY MANDATED BY COACH OR DLDNATION. CLIENT ASSUMES FULL RESPONSIBILITY FOR PERSONAL INJURY TO CLIENT AND (IF APPLICABLE) CLIENT’S FAMILY MEMBERS OR THOSE WITH WHOM CLIENT SHARES THE GROUP COACHING PROGRAM. CLIENT UNDERSTANDS THAT DLDNATION AND COACH, THEIR CONTRACTORS, AFFILIATES, AND REPRESENTATIVES ARE RELYING ON CLIENT’S WARRANTY OF THEIR PHYSICAL CONDITION AND ALL OTHER PROMISES AND TERMS CONTAINED HEREIN. CLIENT FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT CHANGING THEIR LIFESTYLE TAKES TIME AND THAT ANY ANTICIPATED RESULTS WILL NOT OCCUR OVERNIGHT AND ARE NOT GUARANTEED. CLIENT HAS BEEN GIVEN THE CHANCE TO ASK QUESTIONS CONCERNING THIS AGREEMENT, AND ALL SUCH QUESTIONS HAVE BEEN ANSWERED TO THEIR SATISFACTION.

CLIENT FURTHER AFFIRMS THAT CLIENT’S RESPONSES TO THE PRE-SCREENING QUESTIONNAIRE IN NO WAY SHIFT LIABILITY TO COACH OR DLDNATION AND IT IS CLIENT’S RESPONSIBILITY TO DETERMINE WHETHER OR NOT CLIENT IS PHYSICALLY AND MENTALLY ABLE TO PARTICIPATE IN THE GROUP COACHING PROGRAM.

Client hereby expressly waives and releases any and all claims, now known or hereafter known in any jurisdiction throughout the world, against Coach or DLDNation, and its officers, directors, employees, agents, affiliates, successors, and assigns (collectively, "Releasees"), on account of injury, death, or property damage arising out of or attributable to my participation in the online fitness coaching Group Program, whether arising out of the negligence of the Coach, DLDNation, or any Releasees or otherwise. Client covenants not to make or bring any such claim against the Coach, DLDNation, or any other Releasee, and forever release and discharge the Coach, DLDNation, and all other Releasees from liability under such claims.

By purchasing this membership, Client acknowledges that Client has read and understood all of the terms of this agreement and that Client voluntarily giving up substantial legal rights, including the right to sue Coach or DLDNation.

 

11. INDEMNIFICATION.  

Client shall defend, indemnify, and hold harmless the Coach, DLDNation, and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by/awarded against indemnified party in a final judgment, arising out or resulting from any claim of a third party arising from or related to the acts described in this Agreement.

12. MEDICAL DISCLAIMER

By participating in the online coaching Group Program, Client understands and agrees that Coach and DLDNation are not medical practitioners, registered dieticians, nor are they physiatrists or psychologists. Any guidance, content, or information given by DLDNation is not meant to be used as prescriptions for diets, supplements to treat any medical or clinical condition, to treat any symptoms of a medical or clinical condition, or to diagnose a medical or clinical condition. Any content given is merely informational and for entertainment purposes only. If you have a medical or clinical condition, please consult a medical practitioner for more information regarding nutrition and your condition.

As such, Client agrees that they are not engaging in this relationship seeking medical advice, diagnostic, or treatment procedures. Client understand that the coaching advice provided by DLDNation, Coach, their contractors, affiliates, and representatives through the Program does not prevent or cure any disease and does not guarantee any outcome. The services performed by DLDNation and Coach, their contractors, affiliates, and representatives are, at all times, restricted to consultation on the subject of lifestyle/nutritional matters and are intended for the maintenance of the best possible state of lifestyle/nutritional health, aesthetic physical appearance, and wellness and does not involve diagnosing, prognosticating or the treatment of any disease, illness, or injury. Additionally, Client hereby fully understand that any nutritional/lifestyle coaching is in no way to be construed as psychotherapy, psychological counseling, or any type of therapy. In the event that Client feels the need for professional counseling or therapy, it is their responsibility to seek a licensed professional.

13. AFFILIATE DISCLAIMER

Coach and DLDNation have affiliate relationships with certain companies which may be discussed throughout the term of this Agreement, on social platforms owned by Coach or DLDNation, and on Coach’s or DLDNation’s website. Client’s use of products or services from these

affiliates or interactions with the affiliates, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Client and such affiliates and/or individuals. Client is solely responsible for making all investigation necessary or appropriate before proceeding with any offline or online transaction with any of these third parties.

Client agrees that neither DLDNation nor Coach shall not be responsible or liable for any loss or damage of any sort incurred as the result of any transactions entered into with third party affiliates or other third parties. Client shall be solely responsible for resolving disputes between Client and an affiliate. Client hereby releases Coach, DLDNation, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to transactions with third party affiliates or other third parties.

14. NON-DISPARAGEMENT AGREEMENT

Client agrees to not make any false and/or derogatory statements about DLDNation or Dala McDevitt. This restriction includes any negative and false statement made to anyone in person, on a social media platform, or through any written medium. Should Client make a statement that implicates the reputation of DLDNation or Dala McDevitt, DLDNation and Dala McDevitt shall have all legal remedies available to them including, but not limited to, suing for damages and/or lost profits, injunctive relief, and/or the initiation of a protective order against me.

15. USE OF PHOTOS AND PERSONAL INFORMATION BY COACH

Client acknowledges that photos and or videos of Client may be used across various social media platforms, and websites by DLDNation and/or Coach for marketing purposes. Thus, Client hereby licenses to DLDNation and Coach an irrevocable license approving the use of their name, image, and likeness. Client gives permission and consent to allow Coach to use client progress photos as necessary on platforms including but not limited to Instagram, Instagram Story, Facebook, and their own personal website. Client may request that all photos be kept private and not used in any manner, further if any time Client is uncomfortable with a photo that has been shared, they may request Coach to take down certain photos or information. DLDNation shall own all right, title, and interest in and to all photos and videos of Client that are taken using DLDNation or Coach’s photo or video equipment, or that are used on Coach or DLDNation’s website or social media platforms.

16. APPLICABLE LAW AND DISPUTE RESOLUTION

The laws of the State of Texas will govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement. The Parties submit to the non-exclusive personal jurisdiction of the federal and state courts located in or having jurisdiction over Austin, Texas. The Parties agree to endeavor in good faith to resolve all disputes arising under or related to this Agreement by mediation. If the parties fail in their attempt to resolve a dispute by mediation, they will submit the dispute to arbitration according to the then prevailing rules and procedures of the American Arbitration Association. The arbitrator will allocate all costs and fees attributable to the arbitration between the Parties equally. The arbitrator’s award will be final and binding and judgment may be entered in any court of competent jurisdiction.

17. REMEDIES

Except as otherwise provided in this Agreement, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.

This DLDNATION ONLINE FITNESS AND NUTRITION COACHING SPECIALIZATION AGREEMENT (the “Agreement”) is entered between me, the undersigned, (hereinafter referred to as the “Client”, “you”, “me”, “I”, and the possessive “my”) and DLDNation LLC and its affiliates (“DLDNation”), a Texas limited liability company, through Dala McDevitt, on behalf of DLDNation. For good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, including, but not limited to, the opportunity to participate in the three (3) month DLDNation Online Fitness and Nutrition Coaching Specialization Program (the “Program”). DLDNation reserves the right to change the terms and conditions of the Program and of this Agreement at any time without notice, and by using the Program I am agreeing to the terms and conditions as they appear, whether or not I have read them. If you do not agree with the Program terms and conditions and Agreement, do not use the DLDNation Program. As a precondition to participating in the Program, I have read this Agreement and agree to the following terms and conditions:

 

1. Definitions

 

“Certification(s)” means an Online Fitness and Nutrition Coaching Specialization (“OFNC”) Certification offered by

DLDNation. “DLDNation Certificant” means an individual who has successfully met the requirements for Certification as set forth in this Agreement.

“Confidential Information” means any DLDNation proprietary or any DLDNation confidential information received by me in connection with this Agreement and if such information is marked as confidential or should be reasonably understood to be confidential or proprietary, proprietary or the like or, in the case of confidential information disclosed orally, identified as confidential, proprietary or the like at the time of oral disclosure. Such confidential information includes, without limitation, any information related to the following: (i) any questions, answers, worksheets, videos, computations, drafts, workings, drawings, diagrams, workbooks, and the questions and/or number of questions contained in the Program; ii) all information contained in the OFNC Program, (iii) any information as to the contents of an Program assessment prior to DLDNation’s announcement of information; (iii) any communication (including, without limitation, any oral communication) regarding or related to the assessments; or (iv) information which I know or have reason to know is confidential, proprietary or trade secret information of DLDNation, as well as, any information posted on DLDNation.com (to the extent such information is not publicly accessible).

“Personal Data” means my personal information or any information which is susceptible to identifying me, in any event as defined by applicable law, including, without limitation, my full name, e-mail address, postal address, Certification(s), certification date(s), certification expiration date(s), photograph, signature, biometric data or other personally identifying data collected from me by DLDNation or its authorized agents.

“Program” means the OFNC Certification Program offered by DLDNation under this Agreement. The Program shall be administered by DLDNation through Thinkific and shall give me access to a private Facebook group together with two (2) weekly group calls. However, I acknowledge that DLDNation shall administer the Program and the other benefits listed herein at their own discretion.

 

2. Requirements as a DLDNation OFNC Certificant

 

As a student of the Program and as a DLDNation Online Fitness and Nutrition Coaching Specialization Certificant I promise to:

1. Comply with all polices, requests, processes, procedures, and guidelines required of me by DLDNation;
2. Provide truthful information to DLDNation;
3. Commit to providing reasonable effort and participation towards completing the tasks, requirements, assessments, and objectives of the DLDNation Online Fitness and Nutrition Coaching Specialization Program;
4. Promote DLDNation and its affiliates in a positive light;
5. Ensure that DLDNation has the most updated information relevant to my participation in the Program;

Violations of this Section 2 and/or any applicable DLDNation policy may result in legal action, candidate sanction, removal from DLDNation’s Program, and/or removal of my Certification.

 

3. Nature of the Relationship

 

Dala McDevitt, her contractors, affiliates, and representatives, are not medical doctors or practitioners. I am not engaging in this relationship seeking medical advice, diagnostic, or treatment procedures. I understand that the advice and information provided by DLDNation and Dala McDevitt, her contractors, affiliates, and representatives through the Program does not prevent or cure any disease and does not guarantee any outcome for me or my clients. The services performed by DLDNation and Dala McDevitt, her contractors, affiliates, and representatives, are, at all times, restricted to consultation on the subject of coaching for lifestyle/physical fitness/nutritional matters and does not involve the direct or indirect diagnosing, prognosticating or the treatment of any disease, illness, or injury for me or my clients.

I further acknowledge that, upon receipt of my Certification, I will not be recognized by any state or federal authority to provide any medical advice or diagnose any medical condition. I acknowledge that I am obtaining this Certification for the purposes of learning from and receiving consultation and educational services from DLDNation and that no guarantees or warranties are made as to the utility of this Certification or to my increased performance in any way. I understand

that the term “specialization” is intended to be a metaphor that signifies the educational experience you will receive from this Program. DLDNation makes no warranties as the Program. I agree that our Program is provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law DLDNation disclaims all warranties, express or implied.

I represent and warrant that I am participating in the Program and am voluntarily attending any associated obligation solely on my own behalf. This includes in-person, virtual, phone, text, and email meetings. It is my express intent that this Agreement bind the members of my family and spouse (if any), my estate, heirs, administrators, assigns, and personal representatives as well as all of my clients and their aforementioned affiliates, relatives, and decedents. I further agree that I will not use the Program in any way that causes or is likely to cause the other users of the Program or access to the Program to be interrupted, damaged or impaired in any way.

I understand that this Agreement does not create an employee employer relationship between me and DLDNation and that nothing contained herein shall be construed to create a partnership, joint venture, principal-agent or employer-employee relationship between me and DLDNation. I hereby warrant to DLDNation that I am engaged in an independent business enterprise, and that I have complied with all requirements necessary to operate my business, if any, such as licensing, tax, and other related business operation requirements. I shall be solely and entirely responsible for my and my business’ acts and omissions relative to the Program. I hereby understand that this Program currently does not qualify for continuing education units.

 

4. Release of Liability and Indemnity

 

In consideration for DLDNation allowing me to participate in the Program, I agree that I will not sue DLDNation, Dala McDevitt, or her contractors, affiliates, and representatives and I release DLDNation, Dala McDevitt, and her contractors, affiliates, and representatives from any and all liabilities, claims, demands, actions, causes of actions, costs and expenses of any nature whatsoever arising out of any loss, damage, or injury, including death, that may be sustained by me or my clients, to any property belonging to me or my clients, arising from the Program and/or employing the techniques and/or strategies learned from the Program. I understand that participation in the Program entails inherent risks. I have been given the chance to ask questions concerning this Agreement, and all such questions have been answered to my satisfaction.

I fully understand that any coaching I receive from DLDNation and/or Dala McDevitt is in no way to be construed as psychotherapy, psychological counseling, or any type of therapy. In the event I feel the need for professional counseling or therapy, it is my responsibility to seek a licensed professional. Additionally, this Certification does not entitle me to provide any psychotherapy, psychological counseling, or any type of therapy to any third party. Any advice for changes in diet, including the use of supplements and products, are to be pursued entirely at my and my clients’ own discretion and I understand that my client and I should consult a physician and pharmacist prior to undergoing any dietary or food supplement changes.

This Program is not to be perceived or relied upon in any way as business, financial or legal advice. I understand that the information provided through the Program is not intended to be a substitute for professional advice that can be provided by my own accountant, lawyer, or financial advisor. DLDNation is not giving me financial or legal advice in any way. I am hereby advised to consult with my own accountant, lawyer or financial advisor for any and all questions and concerns I have regarding my own income and taxes pertaining to my specific financial and/or legal situation.

DLDNation tries to ensure that the availability and delivery of our Program is uninterrupted and error-free. However, DLDNation cannot guarantee that my access will not be suspended or restricted from time to time, including to allow for repairs, maintenance or updates, although, of course, DLDNation will try to limit the frequency and duration of suspension or restriction. To the fullest extent permitted by law, DLDNation will be not be liable to you for damages or refunds, or for any other recourse, should our Program become unavailable or access to the them becomes slow or incomplete due to any reason, such as system back-up procedures, internet traffic volume, upgrades, overload of requests to the servers, general network failures or delays, or any other cause which may from time to time make the DLDNation Program inaccessible to me.

DLDNation may provide links and pointers to other programs maintained by third parties which may take me outside of our Program. These links are provided for my convenience and the inclusion of any link in our Program to any other program does not imply DLDNation‘s endorsement, sponsorship, or approval of that program or its owner. DLDNation does not endorse and is not responsible for the views, opinions, facts, advice, statements, errors or omissions provided by external resources referenced in the Program, or their accuracy or reliability.

I agree to defend, indemnify, and hold DLDNation, Dala McDevitt, her officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties (including my clients) against DLDNation, Dala McDevitt, or her contractors, affiliates, and representatives based on any claim including, but not limited to, a breach by me of any representations or warranties made in this Agreement.

 

5. Libel and Defamation

 

I agree to not make any false and/or derogatory statements about DLDNation, the Program, the Certification, Dala McDevitt or any DLDNation affiliates. This restriction includes any negative and false statement made to anyone in person, on a social media platform, or through any written medium. Should I make a statement that implicates the reputation of DLDNation or its affiliates, the Program, Dala McDevitt, or the Certification, DLDNation and its affiliates will have all legal remedies available to them including, but not limited to, suing for damages and/or lost profits, injunctive relief, and/or the initiation of a protective order against me.

 

6. Confidentiality and Intellectual Property Ownership

 

1. Confidentiality. DLDNation makes assessments, presentations, and modules available to me through Thinkific solely for the purpose of testing my knowledge of the subject matter for which I seek Certification. I am expressly prohibited from disclosing, publishing, reproducing, or transmitting any Confidential Information, in whole or in part, in any form or by any means, oral or written, electronic or mechanical, for any purpose to any person(s). If I disclose

Confidential Information in violation of this Agreement or I otherwise undermine the integrity and security of the Program, DLDNation reserves the right to revoke my Certification and seek immediate legal action including, but not limited to, seeking an injunction or filing a civil complaint against me in the relevant court of law.

1. Intellectual Property Ownership. DLDNation retains all rights, title and interest in and to all Certifications, Programs, Confidential Information and content provided to me by DLDNation together with all copyrights, patent rights, trademark rights and other proprietary rights therein (collectively “DLDNation Proprietary Information”). If I view, purchase, or access the DLDNatoin Program, I will be considered a DLDNation Licensee. For the avoidance of doubt, I understand that I have been granted a revocable, non-transferable license for personal, non-commercial use only, limited to me only. I may not in any way at any time use, copy, adapt, imply or represent that the DLDNation Program is mine or has been created by me. By downloading, printing, or otherwise using the DLDNation Program for personal use, I in no way assume any ownership rights of the Program. This means I cannot post or share the Program content without prior approval from DLDNation.

All rights in DLDNation Proprietary Information are expressly reserved to DLDNation. DLDNation may pursue all available remedies to protect DLDNation Proprietary Information, which may include, without limitation, prosecution to the maximum extent possible under applicable law(s) and to seek, to the fullest extent of applicable law, civil and criminal penalties. I understand that I cannot take the content contained in the Program and repurpose it for my own profit.

 

7. Privacy Policy

 

In order to deliver and administer the Program, and by using our websites and modules or by providing any Personal Data to DLDNation, I acknowledge and agree that DLDNation may transfer, store and process such Personal Data however they should so choose. I also hereby agree to follow and consent to all Thinkific terms and conditions that may be necessary for me to participate in the Program and receive my Certification. DLDNation may share my information in the following ways: (a) to comply with applicable laws or any judicial or regulatory request (including, without limitation, to comply with any subpoenas or court orders), (b) to exercise our legal rights or defend against legal claims related to this Agreement, (c) to investigate, prevent, or take action regarding actual or suspected fraudulent or unlawful activities and/or brand protection matters (such as use of DLDNation's trademark without a license), and/or (d) situations involving potential threats to the physical safety of any person. DLDNation (i) may, at its sole discretion or (ii) will, as required by applicable law, notify me as to what information has been provided to relevant third parties. If I make a purchase from DLDNation on or through the Program, all information obtained during my purchase or transaction and all of the information that I give as part of the transaction, such as my name, address, method of payment, credit card number, and billing information, may be collected by both DLDNation, the merchant, and the DLDNation payment processing company. I further agree that DLDNation shall not be responsible or liable for any loss, damage, refunds, or other matters of any sort that incurred as the result of such dealings with a merchant. Payment processing companies and merchants may have privacy and data collection practices that are different from DLDNation’s. DLDNation shall have no responsibility or liability for these independent policies of the payment processing companies and merchants.

 

8. Certification

 

a. Certification Requirements. To become a DLDNation Online Fitness and Nutrition Coaching Specialization Certificant, I must meet the minimum requirements of the relevant Program, which includes, without limitation, watching every training video, completing each section assessment, and earning a passing score on the final assessments administered through Thinkific in accordance with DLDNation’s testing guidelines. If I meet these requirements, I will receive a certificate from DLDNation signifying my accomplishment. DLDNation makes no guarantee as to the longevity associated to the Certification. DLDNation may change the Program at any time without notice. Accordingly, it is my responsibility to review www.dldnation.com as often as it is required to keep me up to date with the requirements of the Program. Such changes may include, without limitation, adding or deleting available Certifications and modifying Certification requirements, changes to recommended training courses, testing objectives, outlines and assessments. I hereby agree to meet (and to continue to meet) the Program requirements, as amended, as a condition of obtaining and maintaining my Certification. Furthermore, I acknowledge that DLDNation shall have the complete discretion to award me or not award me the Program Certification, and that my payment for the participation in the Program does not guarantee that I will acquire such Certification.

 

9. Noncompete and Nonsolicitation

 

For a period of two (2) years after the Effective Date of this Agreement, I agree that I will not create an online fitness training certification program or nutrition certification program. The term “online fitness training certification program” or “nutrition certification program” shall be defined as any business that provides a public or private opportunity to participate in a certification program that educates the participants on physical fitness and/or nutrition based strategies for the purposes of improving physical and/or mental health. I understand and acknowledge that the scope of this noncompete shall be across the United States and in the physical fitness and nutrition training or coaching industry. Furthermore, by purchasing the OFNC Specialization, I promise that I will not attempt to hire any employee, or Independent Contractor of DLDNation; will not assist in such hiring by another person, organization, corporation, partnership, company, firm, business or other entity; and will not encourage any such employee or independent contractor to terminate their relationship with DLDNation. I will not solicit nor accept any customer or prospective customer of DLDNation and will not assist in obtaining any such customer or prospective customer for any other person, organization, corporation, partnership, sole proprietorship, company, firm, or other entity; and will not encourage any such customer or prospective customer to terminate its relationship with DLDNation.

 

10. Correspondence

 

I understand that it is my own responsibility to complete the Program lessons, correspond with DLDNation where necessary, and respond to any necessary communication from DLDNation, if applicable, and that it is not DLDNation’s responsibility to remind me or keep track of my appointments and lessons scheduled through the Program.

Email: By purchasing the OFNC Specialization, I hereby consent to receive Program emails from DLDNation and Dala McDevitt (appointment confirmations, answers to my questions, any other pertinent info/Program related information, etc.).

Calls: By purchasing the OFNC Specialization, I hereby consent to receive Program phone messages from DLDNation and Dala McDevitt. This includes calls and/or text messages (appointment confirmations, answers to my questions, any other pertinent info/program related information, etc.).

 

 

11. Content

 

I consent to be interviewed, photographed, videotaped (the “Content”) during my participation in the Program and consent to the release, publication, exhibition, or reproduction of the Content to be used for public relations, news articles or telecasts, education, advertising, research, inclusion on websites, fundraising, or any other purpose by DLDNation, Dala McDevitt, and her affiliates. I hereby release DLDNation, Dala McDevitt, her affiliates and their respective officers and employees, and each and all persons involved from any liability connected with the taking, recording, or publication of said Content, including all interviews, photographs, slides, images, videotapes, or sound recordings. I waive all rights that I may have to any copyright ownership over said Content or to claims for payment or royalties in connection with any exhibition, televising, or other publication of these materials, regardless of the purpose or sponsoring of such exhibiting, broadcasting, or other publication irrespective of whether a fee for admission or film rental is charged. I also waive any right to inspect or approve any photo, video, or film taken by DLDNation, Dala McDevitt or the person or entity designated it by it. I release and discharge DLDNation, Dala McDevitt and their affiliate(s) from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form whether intentional or otherwise, that may occur or be produced in the taking of the pictures, or in any processing toward the completion of the finished product. All negatives and positives, whether prints, video, film, or sound recording are the property of DLDNation and Dala McDevitt or the person or entity designated by it, solely and completely.

I agree, that when I submit or post any comment, photo, image, video or any other submission for use on or through our Program, I am granting DLDNation, and anyone authorized by DLDNation, an unlimited, royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such contributions, in whole or in part, in any manner or medium, now known or developed in the future, for any purpose, and granting us the right to make it part of our current or future Program and its Content. This right includes granting DLDNation proprietary rights or intellectual property rights under any relevant jurisdiction without any further permission from me or compensation by DLDNation to me.

I also grant DLDNation, and anyone authorized by DLDNation, the right to identify me as the author of any of your comments, posts, photos, images, videos or other contributions by name or screen name. I acknowledge that DLDNation has the right but not the obligation to use any contributions from me and that DLDNation may elect to cease the use of any such contributions on our Program at any time for any reason. I hereby acknowledge that, as a part of the Program, DLDNation

may host a Facebook group that I may participate in at DLDNation’s discretion. I hereby acknowledge that DLDNation shall own any information and data that I may post or share within the Program and the associated Facebook group and I hereby waive any objection to DLDNation’s decision to utilize such data in their sole discretion. Furthermore, I acknowledge the opportunity to submit a payment of an additional five hundred dollars ($500.00) to DLDNation for access to the private group chat. Should I elect to join this private group chat, I hereby consent to allow DLDNation to charge my account on file as per the terms of Section 9.

 

12. Limitation of Liability

 

To the maximum extent permitted by law, in no event will DLDNation be liable to me for any (i) lost or damaged data, lost revenue, lost income or lost profits, or (ii) special, indirect, consequential or incidental losses, or (iii) punitive damages, regardless of the theory of liability (including negligence), even if DLDNation has been advised of the possibility of such damages. The exclusions and limitations of this Section 13 will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Subject to the terms of this Section 13, DLDNation’s maximum liability under this agreement shall not exceed the Program fee paid by me to DLDNation.

 

13. Term and Termination

         

The Agreement commences on the Effective Date and shall remain in effect in perpetuity even after the approximately three (3) month and two (2) week Program is complete. I acknowledge that DLDNation and Dala McDevitt may, in their sole discretion, terminate this Agreement at any time and for any reason. This includes, but is not limited to, any breaches by me of any of the terms or condition of this Agreement or if I fail to meet any Program requirements. All notices of termination must be made in accordance with the notice requirements set forth in the “Notice” section below. DLDNation will provide me with written notice of termination at my last known email and/or physical address. Termination notices sent by DLDNation are effective as of the date set forth in the notice. Upon the termination of this Agreement, I shall immediately cease to represent myself as a DLDNation Online Fitness and Nutrition Coaching Specialization Certificant, if I have attained such Certification at that time, including the return and/or destruction of materials evidencing such Certification. I understand that I will not receive any refund at any time, even if this Agreement is terminated early.

 

14. Miscellaneous

 

1. Waiver and Modification. I waive the right to challenge the validity and enforceability of this Agreement on the grounds it was transmitted and entered into electronically. I agree that entering into this Agreement electronically is equivalent to signing the Agreement. Failure by either me and/or DLDNation to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by both me and DLDNation.
2. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the provision, and the remainder of this Agreement will continue in full force and effect.
3. Survival. Sections 4 (Release of Liability and Indemnity), 5 (Libel and Defamation), 6 (Confidentiality and Intellectual Property Ownership), 7 (Privacy Policy), 13 (Limitation of Liability), 14 (Term and Termination), and 15 (Miscellaneous) shall survive termination of this Agreement.
4. Controlling Law and Jurisdiction. This Agreement and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Texas and the United States, without regard to its conflicts of laws provisions. Unless otherwise waived by DLDNation, at its sole discretion, the exclusive jurisdiction and venue of any action arising out of or relating to this Agreement shall be Heman Marion Sweatt Travis County Court House with respect to the additional terms referenced in this Section 15. Both DLDNation and I submit to the exclusive jurisdiction and venue of such courts for the purpose of any such action.
5. Entire Agreement. This Agreement constitutes the entire agreement between me and DLDNation with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
6. Notices. All notices sent or required to be sent shall be in writing or by e-mail to the other party at the address provided by the respective party in writing, via e-mail, or by either party as part of the Program.
7. Assignment. This Agreement and the rights and obligations thereunder with respect to me are personal to me and may not be assigned by any act of me or by operation of law without the prior written consent of DLDNation. DLDNation shall have the unfettered right to assign this Agreement to any party in its sole discretion.
8. Dispute Resolution. I agree to endeavor in good faith to resolve all disputes arising under or related to this Agreement by mediation. If DLDNation and I fail in our attempt to resolve a dispute by mediation, we will submit the dispute to arbitration according to the then prevailing rules and procedures of the American Arbitration Association. Texas law will govern the rights and obligations of the parties with respect to the matters in controversy. The arbitrator will allocate all costs and fees attributable to the arbitration between the parties equally. The arbitrator’s award will be final and binding and judgment may be entered in any court of competent jurisdiction.

 

15. Disclaimer

 

By purchasing the OFNC Specialization, I acknowledge that any nutritional/lifestyle/supplement information given by DLDNation and Dala McDevitt, and her team, contractors, and representatives, through my participation in the Program, is for informational purposes only, and is not intended to be interpreted as the diagnosis, cure or treatment for any medical disease, illness, injury, or ailment. I also acknowledge that my physician is my primary health care provider and confirm that they are responsible for supervising all changes that I make to my health. I warrant that I will never disregard or advise my clients to disregard any medical advice or delay seeking such advice because of any information given by DLDNation, Dala McDevitt, or their affiliates.

This Program License and Terms of Use Agreement (“Agreement”) is entered into as of the day notated on the checkout confirmation (“Effective Date”) between DLDNation LLC, a Texas limited liability company (hereinafter referred to as “DLDNation LLC”), and I (hereinafter referred to as “I”, or “Licensee”), each of the above referenced singularly as a Party or collectively as the Parties. DLDNation LLC owns the DLDNation LLC Program (“Program”) further described and detailed at https://dldnation.com/pages/dld-program-licensing#get-access.

 

Licensee desires to utilize DLDNation LLC’s Program and DLDNation LLC desires to license the Program to Licensee. For the good and valuable consideration, the receipt of which is hereby acknowledged, DLDNation LLC shall license the Program to Licensee based on the terms of this Agreement. Licensee is willing to accept the Program license under the conditions set forth set forth herein.

 

1. LICENSE GRANTED

 

Subject to the terms and conditions of this Agreement and in consideration of Licensee’s obligation to pay the monetary fees as outlined in Section 5, such fees which may be adjusted from time to time through the complete and discretionary authority of the DLDNation LLC, DLDNation LLC hereby grants, and Licensee hereby accepts a nonexclusive license to use the Program, subject to the terms noted herein, until the termination of this Agreement. The Parties agree that this Agreement, and the associated rights as noted herein, shall be utilized by the Licensee’s clients but shall not be utilized, used, distributed, or disclosed to anyone other than Licensee and their clients. Licensee hereby acknowledges that, should Licensee distribute, release, disclose, sell, license, or provide the Program to anyone other than Licensee or Licensee’s clients, DLDNation LLC shall have all legal remedies available to them including, but not limited to, suing for damages and/or lost profits, injunctive relief, and/or the initiation of a protective order against Licensee.

 

Together with the license associated to the use of the Program, DLDNation LLC hereby licenses to Licensee, all DLDNation LLC trademarks and intellectual property associated to their branding. This shall mean that Licensee shall be permitted to use DLDNation LLC trademarks in combination with the utilization Program as long as Licensee uses the Program as delivered from DLDNation LLC without any alterations, modifications, edits, or changes. This term shall also allow Licensee to refer to the Program as a “DLDNation LLC product” for as long as the Program remains unaltered or not customized. However, if License alters the Program in any way, whether it be through a customization, edit, correction, modification, or the like, Licensee hereby agrees that they shall immediately cease using the DLDNation LLC trademark, name, and associated branding intellectual property. The Parties hereby agree that any such future use of any DLDNation LLC trademarking or branding, after Licensee has altered any part of the Program as delivered by DLDNation LLC, must then be agreed upon in writing by both Parties.

 

Additionally, Licensee agrees and acknowledges that they do not own the Program and cannot bind DLDNation LLC to any additional obligations as it relates to the Program. Licensee’s permitted use, as noted herein, shall only be to provide the Program to their client base. Licensee hereby confirms that they shall be restricted from relicensing the Program to any other company or business as per the terms as noted in this Agreement.

 

DLDNation LLC hereby grants permission to Licensee to make and create customizations, updates, or corrections to the Program. However, these changes shall be made at the Licensee’s own risk and DLDNation LLC shall assume no responsibility or liability as to the use of the Program and any related changes Licensee decides to make in their own discretion. Should any changes be made to the Program, Licensee shall then own the work product created that has exceeded the necessary threshold of originality to create Licensee’s own work product. Licensee hereby waives any claim it may have, now or in the future, against DLDNation LLC through its use of the Program after it has been altered or modified by Licensee and shall forever indemnify DLDNation LLC hold them harmless from any claims from third parties against DLDNation LLC related to Licensee’s altered Program.

 

Licensee shall safeguard the Program and its related materials with the degree of high due care for the protection of trade secrets and proprietary information so that no unauthorized use is made of them and no disclosure of any part of their contents is made to anyone other than Licensee’s employees or agents whose duties reasonably require such disclosure or to Licensee’s clients as necessary in the ordinary course of business. Additionally, Licensee agrees that they shall be required to inform their clients of the Program’s confidential nature and the associated restriction of Licensee’s client’s disclosure, resuse, or distribution. Licensee shall make all such persons fully aware of their responsibility to fulfill the obligations of Licensee under this Agreement including, but not limited to, any Licensee employees, affiliates, contractors, clients, or the like. However, Licensee acknowledges that they are solely responsible for the safeguarding and confidentiality as it relates to any data uploaded or utilized within the Program. Licensee hereby waives any claim against DLDNation LLC as it relates to the confidentiality or security of the data utilized within the Program.

 

2. PROGRAM PROVIDED “AS IS”

 

DLDNation LLC warrants that it has the right to provide the Program to Licensee hereunder. Otherwise, DLDNation LLC provides the Program to Licensee “as is.” DLDNation LLC makes no warranties or representations that the Program is free of errors, adequate to provide the information it is intended to provide, adequate to receive any anticipated satisfaction from Licensee’s clients, or that the Program will guarantee any result as it relates to Licensee’s or Licensee’s client’s utility whether it be related to their business or physical fitness. Licensee’s acceptance of the Program through their execution of this Agreement shall be their test of the Program and shall indicate its acceptability for Licensee’s purpose prior to Licensee putting the Program in use.

 

DLDNation LLC is under no obligation to update or correct defects or errors in the Program and has no obligation to meet any requests, requirements, or demands of Licensee or their clients other than as noted by the terms herein. If DLDNation LLC does provide Licensee with updates or corrections, the terms and conditions of this Agreement shall still apply.

 

THE PROGRAM IS PROVIDED “AS IS” AND DLDNATION LLC MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PROGRAM, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

3. WARRANTIES OF LICENSEE

 

Related to Licensee’s use of the Program, Licensee hereby represents and warrants that:

 

• They shall distribute the Program only to their own clients and not to any other third party and hereby promise to submit their best efforts to keep the Program and its related material confidential and promise not to disclose the Program to any individual other than Licensee employees and Licensee’s clients;

 

• Licensee hereby promises to inform their client of the Program’s confidential nature and use their best efforts to ensure that their client does not disseminate, distribute, repurpose, or disclose the Program in any capacity to the best of their ability; and

 

• Should DLDNation LLC discover that Licensee or a Licensee’s client is inappropriately using the Program or disclosing the Program to parties not permitted by this Agreement, Licensee hereby agrees to immediately use significant efforts, including all legal remedies, to stop such unpermitted use to the best of their ability.

 

Related to customizations, updates and/or corrections by Licensee to the Program, Licensee represents and warrants that:

 

(i)

Licensee has all intellectual property rights necessary to produce customizations, updates and/or corrections to the Program;

 

(ii)

Licensee does not infringe the intellectual property rights of any third party;

 

(iii)

Licensee will make any customizations or enhancements to the Program under this Agreement in accordance with industry standards and in a professional and workman-like fashion; and

 

(iv)

Following completion of any customizations or enhancements to the Program, Licensee hereby warrants that they shall be responsible for ensuring that the Program is prepared as needed for their utilization and that the altered Program shall not contain any DLDNation LLC name, image, likeness, trademarks, or branding association.

 

4. PROPERTY RIGHTS AND RESTRICTIONS ON USE

 

Licensee recognizes that the Program and all content related to the Program, as delivered by DLDNation LLC to Licensee, is the property of, and all rights thereto, are owned by DLDNation LLC. Licensee also acknowledges that such are a trade secrets of DLDNation LLC, are valuable and confidential to DLDNation LLC, and that its use and disclosure must be carefully and continuously controlled.

 

Title and ownership of the Program, all the content related to the Program, and related Program information/data, as provided by DLDNation LLC to Licensee, shall at all times remain with DLDNation LLC.

 

The Program is for the sole use of Licensee and Licensee’s clients and shall be used only for the purpose set forth in this Agreement even if customizations, edits, corrections, or changes are made by Licensee.

 

Licensee shall treat the Program and related content as confidential and proprietary, and shall protect it in the same manner that it protects the confidentiality of its own information. While this Agreement is in effect, or while Licensee has custody and possession of the Program, Licensee shall not, directly or indirectly:

 

            (i)         provide or make available the Program to any person or entity other than employees and/or clients of Licensee;

 

            (ii)       misuse any DLDNation LLC intellectual property as per the terms of this Agreement and/or after any alteration, modification, or change is made to the Program by Licensee; or

 

(iii)       sell, license, distribute, market, exploit the Program or any of its parts commercially to any unauthorized person in a way that is not explicitly allowed as per the terms of this Agreement.

 

Licensee agrees to promptly notify DLDNation LLC if it obtains information as to any unauthorized possession, use or disclosure of the Program by any person or entity, and further agrees to cooperate with DLDNation LLC in protecting DLDNation LLC’s proprietary rights.

 

5. PAYMENT AND LICENSING FEE

 

In consideration of the Program license granted herein (and further detailed at https://dldnation.com/pages/dld-program-licensing#get-access), Licensee agrees to pay DLDNation LLC a licensing fee in the amount as noted by either option referenced below:

 

199. Licensee shall pay DLDNation LLC one hundred and ninety-ninety dollars ($199.00 USD) every four (4) weeks starting as of the Effective Date of this Agreement. Licensee agrees that there is a three (3) month minimum commitment to the terms as cited herein. After the three (3) month minimum period has tolled, this Agreement can be cancelled with thirty (30) days notice from Licensee to DLDNation LLC in writing (email or text message shall be sufficient); or

 

999. Licensee shall pay DLDNation LLC one lump sum payment of one thousand nine hundred ninety-nine dollars ($1,999.00 USD) for a one (1) year subscription to the Program license. Licensee shall be charged annually on the annual renewal of the Effective Date.

 

Licensee shall automatically be charged to the account information contained on file and as noted in the Stripe account information associated to Licensee’s account. Licensee hereby consents to such automatic charge and the retention of account data as necessary for the Stripe payment to be rendered in association with this Agreement.

   

Should, for any reason, Licensee fail to pay DLDNation LLC the appropriate fee, as noted above, for a period of seven (7) days after the first of the associated billing period, this Agreement shall automatically be terminated and DLDNation LLC shall revoke Licensee’s Program license as it relates to this Agreement.

 

6. TERM

 

As noted above in Section 5, Licensee agrees that there shall be a three (3) month minimum commitment associated to this Agreement if Licensee shall pay DLDNation LLC in a repeating four (4) week period as noted in Section 5(a).

 

If Licensee chooses to pay in the method as noted in Section 5(a) or Section 5(b) above, after the three (3) month minimum commitment period tolls, this Agreement may be cancelled through the first occurrence of any of the following:

1. thirty (30) days’ notice as provided by Licensee to DLDNation LLC pursuant to the following:

 

1. If Licensee shall pay DLDNation LLC pursuant to Section 5(a), Licensee must provide DLDNation LLC thirty (30) days’ notice before the subsequent four (4) week payment period. If Licensee fails to provide DLDNation LLC with thirty (30) days’ notice pursuant to the payment obligations cited in Section 5(a), Licensee’s obligation to DLDNation LLC shall automatically renew and terminate the following four (4) week payment period;

 

1. If Licensee shall pay DLDNation LLC pursuant to Section 5(b), Licensee must provide DLDNation LLC thirty (30) days’ notice before prior to the end of the one (1) year license period as referenced herein. If Licensee fails to provide DLDNation LLC with thirty (30) days’ notice pursuant to the payment obligations cited in Section 5(b), Licensee’s obligation to DLDNation LLC shall automatically renew;

 

1. upon written (text message or email shall be sufficient) notice provided from DLDNation LLC to Licensee. Notice from DLDNation LLC to Licensee shall cause the Agreement to terminate immediately as this Agreement shall be terminated by DLDNation LLC at any time for any reason in their sole discretion;

c)

until the Program or DLDNation LLC is acquired by a third party or survives any merger.

 

d)

Any non-performance of the Agreement terms subject to the terms and conditions as cited herein.

 

In the event of termination of this Agreement pursuant to the above, DLDNation LLC shall have the right to take possession of the Program. Termination of this Agreement shall not relieve either party of its obligations pursuant to Sections 2, 3, 4, 5, 6, and 7 hereof.

 

7. INDEMNIFICATION AND LIMITATION OF LIABILITY

 

Licensee agrees to indemnify and hold DLDNation LLC harmless from and against all loss, cost, expense or liability (including reasonable attorney’s fees) arising out of a claim by a third party against DLDNation LLC based upon Licensee’s use of the Program. This shall include against any and all claims from Licensee’s clients as it relates to their use or Licensee’s use of the Program.

 

Licensee agrees to indemnify and hold DLDNation LLC harmless from any loss or damages to DLDNation LLC related to, or associated with Licensee’s customizations, updates and/or corrections to the Program. Licensee agrees to indemnify and hold DLDNation LLC harmless, and defend at its own expense, any action brought against DLDNation LLC, its officers, directors, employees, shareholders, legal representatives, agents, successors and assigns (“DLDNation LLC Indemnified Parties”) to the extent that it is based on a claim that the customizations, updates and/or corrections developed by Licensee infringe any intellectual property rights of any third parties.

 

            DLDNation LLC shall have no liability to Licensee for any damage sustained by Licensee or any affiliates, clients, or employees of Licensee as a result of Licensee’s use of the Program, whether such damages would arise as a result of breach of contract, tort or otherwise. Licensee has tested the Program and relies on its own judgment in utilizing it. As such, Licensee hereby waives any claim it shall have, now or in the future, against DLDNation LLC pursuant to a term of this Agreement.

 

DLDNation LLC warrants that the use of the initially provided Program will not infringe any patent, copyright, or trademark in the United States or elsewhere, and DLDNation LLC shall indemnify and hold Licensee harmless against any and all losses, damages and expenses, (including attorney’s fees and other costs of defending any infringement action) which Licensee may sustain or incur as a result of a breach of this warranty.

 

Obligations set forth herein are contingent upon the other party:

 

a)

Providing the indemnifying Party with prompt written notice of any action brought against the other Party; and

 

b)

The other Party cooperating with the indemnifying Party in the defense of any such action, and allowing the indemnifying Party to control the defense and settlement of any such action at its expense.

            DLDNation LLC shall have no obligation to defend any action or indemnify Licensee from damage if:

 

(i)

Licensee, in providing customizations, updates and/or corrections to the Program, infringes upon the intellectual property of any third party.

 

(ii)

Licensee is not using the most current version of the Program and the action would have been avoided without such combined use.

 

(iii)

Licensee has modified the Program in combination with other Program and the action would have been avoided without such combined use.

 

(iv)

Licensee is using the Program in combination with other Program and the action would have been avoided without such combined use.

 

8. OWNERSHIP OF DATA

 

Any of Licensee’s client, employee, or business data used in combination with the Program shall remained owned by Licensee except as otherwise expressly noted in this Agreement.

 

9. FORCE MAJUERE

 

Either Party shall be excused from failures or delays in delivery or performance hereunder if such failure or delay is attributable to causes beyond the reasonable control of the Party, which makes such performance or delivery commercially impractical. In the event of any such delay, the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such delay (unless otherwise specified in writing between the Parties hereto).

 

10. NOTICES

 

All notices shall be in writing and shall be deemed to be delivered when deposited in the United States Postal Services, postage prepaid, return receipt requested, or when sent by email (to a valid and active Party email address). All notices shall be directed to Licensee or to DLDNation LLC, its successors or assigns, at the respective addresses set forth on the signature page of this Agreement or to such other address as one party may, from time to time, designate by notice to the other Party.

 

 

 

11. NONCOMPETE

 

    For a period of two (2) years after the Effective Date of this Agreement, Licensee agrees that they shall not license online fitness workout programming for a profit. The term “online fitness workout programming” shall be defined as any program that provides coaches or training teams/companies with workout programming and/or scheduling. Licensee understands and acknowledges that the scope of this noncompete shall be worldwide and across all virtual mediums.

 

12. RELATIONSHIP OF THE PARTIES

 

The parties to this Agreement are affiliated companies and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

 

13. LIBEL AND DEFAMATION RESTRICTION.

 

            Licensee agrees to not make any false and/or derogatory statements about DLDNation LLC or the Program. This restriction includes any negative and false statement made to anyone in person, on a social media platform, or through any written medium. Should Licensee make a statement that implicates the reputation of DLDNation LLC or the Program, DLDNation LLC shall have all legal remedies available to them including, but not limited to, suing for damages and/or lost profits, injunctive relief, and/or the initiation of a protective order against Licensee.

 

14. WAIVER

 

No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

 

15. COMPLETE AGREEMENT

 

This Agreement constitutes the complete and exclusive statement of this agreement between the Parties hereto and supersedes any and all prior express implied agreements or understandings between the Parties hereto concerning the subject matter hereof. No amendment, waiver or other alteration of this Agreement may be made except by mutual agreement in writing.

 

If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected thereby and the Parties shall negotiate replacement provisions for those provisions which are held invalid, illegal or unenforceable which as closely as possible express the intent of those provisions.

 

16. RESTRICTIONS OF TRANSFER

 

This Agreement and the rights and obligations under this Agreement shall not be transferable, sublicensable or assignable to any other person, firm or corporation by Licensee, without the express prior written consent of the DLDNation LLC. The rights and obligations of this Agreement shall insure to the benefit of and be binding upon the parties hereto, their successors and permitted assigns.

 

17. GOVERNING LAW

 

This Agreement shall be construed in accordance with the laws of the State of Texas. Licensee hereby consents to the necessary Texas venues, jurisdiction, and courts to adjudicate this Agreement that DLDNation LLC shall deem to be appropriate in DLDNation LLC’s complete and sole discretion.

 

 

18. NO CONSTRUCTION AGAINST THE DRAFTER

 

The Parties agree that this Agreement is the result of careful negotiations between sophisticated Parties and thus any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.

 

19. HEADINGS

 

The various headings in this Agreement are inserted for convenience only, and shall not affect the meaning or interpretation of this Agreement or any paragraph or provision hereof.

 

20. DISPUTE RESOLUTION

 

Licensee hereby agrees to endeavor in good faith to resolve all disputes arising under or related to this Agreement by mediation. If Licensee and DLDNation LLC fail in their attempt to resolve a dispute by mediation, they shall submit the dispute to arbitration according to the then prevailing rules and procedures of the American Arbitration Association. Texas law shall govern the rights and obligations of the Parties with respect to the matters in controversy. The arbitrator will allocate all costs and fees attributable to the arbitration between the Parties equally. The arbitrator’s award will be final and binding and judgment may be entered in any court of competent jurisdiction.

 

21. LIMITATION OF LIABILITY

 

To the maximum extent permitted by law, in no event will DLDNation LLC be liable to Licensee for any (i) lost or damaged data, lost revenue, lost income or lost profits, or (ii) special, indirect, consequential or incidental losses, or (iii) punitive damages, regardless of the theory of liability (including negligence), even if DLDNation LLC has been advised of the possibility of such damages. The exclusions and limitations of this Section 21 will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Subject to the terms of this Section 21, DLDNation LLC’s maximum liability under this agreement shall not exceed the total fee paid by Licensee to DLDNation LLC.

 

IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each executed this Agreement through their selection of the “accept” term and by proceeding to the DLDNation LLC checkout, Licensee hereby acknowledges that they have read this Agreement, agree to be bound by its terms, have had the sufficient opportunity to consult with legal counsel, have not been coerced to enter in to this Agreement, and are of the full capacity to execute and bind themselves to the terms of this Agreement.

This DLDNation LLC Product License and Terms of Purchase Agreement (“Agreement”) is entered into as of the day notated on the checkout confirmation (“Effective Date”) between DLDNation LLC, a Texas limited liability company (hereinafter referred to as “DLDNation LLC”), and I (hereinafter referred to as “I”, “Me”, “Purchaser” or “Licensee”), each of the above referenced singularly as a Party or collectively as the Parties. I acknowledge that DLDNation LLC owns the DLDNation LLC Products (“Product”) further described and detailed on DLDNation LLC’s website and as referenced in the online checkout utilized by Me.

 

Licensee desires to license DLDNation LLC’s Product and DLDNation LLC desires to license the Product to Licensee. The Parties also acknowledge that the Product may become owned by Purchaser at Licensee’s option as noted below. For the good and valuable consideration, the receipt of which is hereby acknowledged, DLDNation LLC shall license the Product to Licensee based on the terms of this Agreement. Licensee is willing to utilize the Product under the conditions set forth set forth herein.

 

1. LICENSE GRANTED

 

Subject to the terms and conditions of this Agreement and in consideration of Purchaser’s obligation to pay the monetary fees as outlined in Section 5, such fees which may be adjusted from time to time through the complete and discretionary authority of the DLDNation LLC, DLDNation LLC hereby grants, and Licensee hereby accepts a nonexclusive perpetual license to use the Product as delivered, subject to the terms noted herein. The Parties agree that the Product, as delivered, and the associated rights as noted herein, shall be utilized by the Purchaser and the Purchaser’s clients but shall not be utilized, used, distributed, or disclosed to anyone other than Purchaser and their clients. Purchaser hereby acknowledges that, should Purchaser distribute, release, disclose, sell, license, or provide the Product to anyone other than Purchaser or Purchaser’s clients, DLDNation LLC shall have all legal remedies available to them including, but not limited to, suing for damages and/or lost profits, injunctive relief, and/or the initiation of a protective order against Purchaser. However, as noted in this Agreement, should Licensee decide to modify and/or alter the Product in anyway, the Product shall then be owned by Purchaser in its entirety.

 

Together with the rights associated to the purchase of the Product, DLDNation LLC hereby licenses to Licensee, all DLDNation LLC trademarks and intellectual property associated to their branding. This shall mean that Licensee shall be permitted to use DLDNation LLC trademarks in combination with the utilization of the Product as long as Licensee uses the Product as delivered from DLDNation LLC without any alterations, modifications, edits, or changes. This term shall also allow Licensee to refer to the Product as a “DLDNation LLC product” for as long as the Product remains unaltered or not customized. However, if Licensee alters the Product in any way, whether it be through a customization, edit, correction, modification, or the like, Purchaser hereby agrees that they shall immediately cease using the DLDNation LLC trademark, name, and associated branding intellectual property. At that point of customization, alteration, or editing, the licensed Product then becomes solely owned by Purchaser. The Parties hereby agree that any such future use of any DLDNation LLC trademarking or branding, after Purchaser has altered any part of the Product as delivered by DLDNation LLC, must then be agreed upon in writing by both Parties.

 

Additionally, Licensee agrees and acknowledges that they do not own the Product until they customize, alter, or edit the Product, and, as such, cannot bind DLDNation LLC to any additional obligations as it relates to the Product until such customization or alteration is made by Purchaser. Purchaser’s permitted use, as noted herein, shall only be to provide the Product to their client base until further customization or alteration is made. Purchaser hereby confirms that they shall be restricted from relicensing the Product to any other company or business pursuant to the terms as noted in this Agreement.

 

DLDNation LLC hereby grants permission to Purchaser to make and create customizations, updates, or corrections to the Product. However, these changes shall be made at the Purchaser’s own risk and DLDNation LLC shall assume no responsibility or liability as to the use of the Product and any related changes Purchaser decides to make in their own discretion. Should any changes be made to the Product, Purchaser shall then own the new modified work Product as noted herein. Purchaser hereby waives any claim it may have, now or in the future, against DLDNation LLC through its use of the Product after it has been altered or modified by Purchaser and shall forever indemnify DLDNation LLC hold them harmless from any claims from third parties against DLDNation LLC related to Purchaser’s altered Product.

 

Purchaser shall safeguard the Product and its related materials with the degree of high due care for the protection of trade secrets and proprietary information so that no unauthorized use is made of them and no disclosure of any part of their contents is made to anyone other than Purchaser’s employees or agents whose duties reasonably require such disclosure or to Purchaser’s clients as necessary in the ordinary course of business and as noted in this Agreement. Additionally, Purchaser agrees that they shall be required to inform their clients of the nonmodified as delivered DLDNation LLC Product’s confidential nature and the associated restriction of Purchaser’s client’s disclosure, resuse, or distribution. Purchaser shall make all such persons fully aware of their responsibility to fulfill the obligations of Purchaser under this Agreement including, but not limited to, any Purchaser employees, affiliates, contractors, clients, or the like. However, Purchaser acknowledges that they are solely responsible for the safeguarding and confidentiality as it relates to any data uploaded or utilized within the Product. Purchaser hereby waives any claim against DLDNation LLC as it relates to the confidentiality or security of the data utilized within the Product.

 

2. PROGRAM PROVIDED “AS IS”

 

DLDNation LLC warrants that it has the right to provide the Product to Licensee. DLDNation LLC provides the Product to Licensee “as is.” DLDNation LLC makes no warranties or representations that the Product is free of errors, adequate to provide the information it is intended to provide, adequate to receive any anticipated satisfaction from Licensee’s clients, or that the Product will guarantee any result as it relates to Licensee’s or Licensee’s client’s utility whether it be related to their business or physical fitness. Purchaser’s acceptance of the Product through their execution of this Agreement shall be their test of the Product and shall indicate its acceptability for Licensee’s purpose prior to Licensee putting the Product in use.

 

DLDNation LLC is under no obligation to update or correct defects or errors in the Product and has no obligation to meet any requests, requirements, or demands of Licensee or their clients other than as noted by the terms herein. If DLDNation LLC does provide Licensee with updates or corrections, the terms and conditions of this Agreement shall still apply.

 

Licensee acknowledges that they are not entering into this Agreement seeking medical advice, diagnostic, or treatment procedures. Licensee understand that the Product they are receiving from DLDNation LLC, their contractors, affiliates, and representatives does not prevent or cure any disease and does not guarantee any outcome. The information, if any, contained in the Product are, at all times, restricted to education on the subject of fitness/lifestyle/nutritional matters and are intended for the maintenance of the best possible state of fitness/lifestyle/nutritional health, aesthetic physical appearance, and wellness and does not involve diagnosing, prognosticating or the treatment of any disease, illness, or injury.

 

THE PRODUCT IS PROVIDED “AS IS” AND DLDNATION LLC MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

3. WARRANTIES OF LICENSEE

 

Related to Licensee’s use of the Program, Licensee hereby represents and warrants that:

 

• They shall distribute the Product only to their own clients and not to any other third party and hereby promise to submit their best efforts to keep the Product and its related material confidential and promise not to disclose the Product to any individual other than Purchaser employees and Purchaser’s clients;
• Purchaser hereby promises to inform their client of the Product’s confidential nature and use their best efforts to ensure that their client does not disseminate, distribute, repurpose, or disclose the Product in any capacity to the best of their ability; and
• Should DLDNation LLC discover that Purchaser or a Purchaser’s client is inappropriately using the Product or disclosing the Product to parties not permitted by this Agreement, Purchaser hereby agrees to Page 3 of 7 immediately use significant efforts, including all legal remedies, to stop such unpermitted use to the best of their ability.

 

Related to customizations, updates and/or corrections by Licensee to the Program, Licensee represents and warrants that:

 

(i)

Purchaser has all intellectual property rights necessary to produce customizations, alterations, edits, updates and/or corrections to the Product;

 

(ii)

Purchaser does not infringe the intellectual property rights of any third party;

 

(iii)

Purchaser will make any customizations or enhancements to the Product under this Agreement in accordance with industry standards and in a professional and workman-like fashion; and

 

(iv)

Following completion of any customizations or enhancements to the Product, Purchaser hereby warrants that they shall be responsible for ensuring that the Product is prepared as needed for their utilization and that the altered Product shall not contain any DLDNation LLC name, image, likeness, trademarks, or branding association.

4. PROPERTY RIGHTS AND RESTRICTIONS ON USE

 

Licensee recognizes that the Product and all content related to the Product, as delivered by DLDNation LLC to Licensee, is the property of, and all rights thereto, are owned by DLDNation LLC. Licensee also acknowledges that such are a trade secrets of DLDNation LLC, are valuable and confidential to DLDNation LLC, and that its use and disclosure must be carefully and continuously controlled.

 

Title and ownership of the Product, all the content related to the Product, and related Product information/data, as provided by DLDNation LLC to Purchaser, shall remain with DLDNation LLC until any customization, alteration, edit, or change is made to the Product by Purchaser. At such inception of any customization, alteration, edit, or change, the title and ownership of the modified Product shall then become owned by Purchaser at which point the Purchase may use the modified Product in any fashion that they should so choose.

 

While the Licensee is using the Product as delivered by DLDNation LLC, Purchaser shall treat the Product and related content as confidential and proprietary, and shall protect it in the same manner that it protects the confidentiality of its own information. While this Agreement is in effect, or while Purchaser has custody and possession of the Product, Purchaser shall not, directly or indirectly:

 

(i) provide or make available the Product to any person or entity other than employees and/or clients of Licensee pursuant to the terms of this Agreement;

 

(ii) misuse any DLDNation LLC intellectual property as per the terms of this Agreement and/or after any alteration, modification, or change is made to the Product by Purchaser; or

 

(iii) sell, license, distribute, market, exploit the Product or any of its parts commercially to any unauthorized person in a way that is not explicitly allowed as per the terms of this Agreement.

 

Purchaser agrees to promptly notify DLDNation LLC if it obtains information as to any unauthorized possession, use or disclosure of the Product by any person or entity, and further agrees to cooperate with DLDNation LLC in protecting DLDNation LLC’s proprietary rights.

 

5. PAYMENT AND LICENSING FEE

 

In consideration of the Product license granted herein (and further detailed on DLDNation LLC’s website and as referenced in the online checkout utilized by Me), Licensee agrees to pay DLDNation LLC a one time licensing fee in the amount of six hundred ninety nine dollars ($699.00). This fee shall entitle the Licensee to perpetually use the Product as delivered by DLDNation LLC and/or customize/alter the Product so that Purchaser then becomes the owner of such modified Product.

 

Licensee shall be charged via thee Stripe account information provided by Licensee. Licensee hereby consents to such charge and the retention of account data as necessary for the Stripe payment to be rendered in association with this Agreement.

The Product shall be promptly delivered to Licensee upon payment.

Licensee hereby acknowledges that no refunds shall be granted for any reason

 

6. TERM

 

As noted above in Section 5, License agrees that the term of this Agreement shall be perpetual. In the event of termination of this Agreement pursuant to the above, DLDNation LLC shall have the right to take possession of the Product. Termination of this Agreement shall not relieve either party of its obligations pursuant to Sections 2, 3, 4, 5, 6, and 7 hereof.

 

7. INDEMNIFICATION AND LIMITATION OF LIABILITY

 

Licensee agrees to indemnify and hold DLDNation LLC harmless from and against all loss, cost, expense or liability (including reasonable attorney’s fees) arising out of a claim by a third party against DLDNation LLC based upon Licensee’s use of the Product. This shall include against any and all claims from Licensee’s clients as it relates to their use or Licensee’s use of the Product.

 

Licensee agrees to indemnify and hold DLDNation LLC harmless from any loss or damages to DLDNation LLC related to, or associated with Purchaser’s customizations, alterations, edits, updates and/or corrections to the Product. Purchaser agrees to indemnify and hold DLDNation LLC harmless, and defend at its own expense, any action brought against DLDNation LLC, its officers, directors, employees, shareholders, legal representatives, agents, successors and assigns (“DLDNation LLC Indemnified Parties”) to the extent that it is based on a claim that the customizations, alterations, edits, updates and/or corrections developed by Purchaser infringe on any rights of any third parties.

 

        DLDNation LLC shall have no liability to Licensee for any damage sustained by Licensee or any affiliates, clients, or employees of Licensee as a result of Licensee’s use of the Product, whether such damages would arise as a result of breach of contract, tort or otherwise. Licensee has tested the Product and relies on its own judgment in utilizing it. As such, Licensee hereby waives any claim it shall have, now or in the future, against DLDNation LLC pursuant to a term of this Agreement.

 

DLDNation LLC warrants that the use of the initially provided nonmodified Product will not infringe any patent, copyright, or trademark in the United States or elsewhere, and DLDNation LLC shall indemnify and hold Purchaser harmless against any and all losses, damages and expenses, (including attorney’s fees and other costs of defending any infringement action) which Purchaser may sustain or incur as a result of a breach of this warranty as it related to the nonmodified Product.

 

Obligations set forth herein are contingent upon the other party:

 

a)

Providing the indemnifying Party with prompt written notice of any action brought against the other Party; and

 

b)

The other Party cooperating with the indemnifying Party in the defense of any such action, and allowing the indemnifying Party to control the defense and settlement of any such action at its expense.

DLDNation LLC shall have no obligation to defend any action or indemnify Purchaser from damage if

 

(i)

Purchaser, in providing customizations, updates and/or corrections to the Product, infringes upon the intellectual property of any third party.

 

(ii)

Purchaser is not using the most current version of the Product and the action would have been avoided without such combined use.

 

(iii)

Purchaser has modified the Product in combination with other Product and the action would have been avoided without such combined use.

 

(iv)

Purchaser is using the Product in combination with other Product and the action would have been avoided without such combined use.

8. OWNERSHIP OF DATA

 

Any of Purchaser’s client, employee, or business data used in combination with the Product shall remained owned by Purchaser except as otherwise expressly noted in this Agreement.

 

9. FORCE MAJUERE

 

Either Party shall be excused from failures or delays in delivery or performance hereunder if such failure or delay is attributable to causes beyond the reasonable control of the Party, which makes such performance or delivery commercially impractical. In the event of any such delay, the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such delay (unless otherwise specified in writing between the Parties hereto).

 

10. NOTICES

 

All notices shall be in writing and shall be deemed to be delivered when deposited in the United States Postal Services, postage prepaid, return receipt requested, or when sent by email (to a valid and active Party email address). All notices shall be directed to Purchaser or to DLDNation LLC, its successors or assigns, at the respective addresses set forth on the signature page of this Agreement or to such other address as one party may, from time to time, designate by notice to the other Party.

 

11. NONCOMPETE

 

For a period of two (2) years after the Effective Date of this Agreement, Purchaser agrees that they shall not license online fitness training regimens for a profit. The term “online fitness training regimen” shall be defined as any Product that provides clients with online fitness or nutrition training and/or scheduling. Purchaser understands and acknowledges that the scope of this noncompete shall be worldwide and across all virtual mediums.

 

12. RELATIONSHIP OF THE PARTIES

 

The parties to this Agreement are affiliated companies and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

 

13. LIBEL AND DEFAMATION RESTRICTION.

 

          Purchaser agrees to not make any false and/or derogatory statements about DLDNation LLC or the Product. This restriction includes any negative and false statement made to anyone in person, on a social media platform, or through any written medium. Should Purchaser make a statement that implicates the reputation of DLDNation LLC or the Product, DLDNation LLC shall have all legal remedies available to them including, but not limited to, suing for damages and/or lost profits, injunctive relief, and/or the initiation of a protective order against Purchaser.

 

14. WAIVER

 

No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

 

15. COMPLETE AGREEMENT

 

This Agreement constitutes the complete and exclusive statement of this agreement between the Parties hereto and supersedes any and all prior express implied agreements or understandings between the Parties hereto concerning the subject matter hereof. No amendment, waiver or other alteration of this Agreement may be made except by mutual agreement in writing.

 

If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected thereby and the Parties shall negotiate replacement provisions for those provisions which are held invalid, illegal or unenforceable which as closely as possible express the intent of those provisions.

 

16. RESTRICTIONS OF TRANSFER

 

This Agreement and the rights and obligations under this Agreement shall not be transferable, sublicensable or assignable to any other person, firm or corporation by Purchaser, without the express prior written consent of the DLDNation LLC. The rights and obligations of this Agreement shall insure to the benefit of and be binding upon the parties hereto, their successors and permitted assigns.

 

17. GOVERNING LAW

 

This Agreement shall be construed in accordance with the laws of the State of Texas. Purchaser hereby consents to the necessary Texas venues, jurisdiction, and courts to adjudicate this Agreement that DLDNation LLC shall deem to be appropriate in DLDNation LLC’s complete and sole discretion.

 

 

18. NO CONSTRUCTION AGAINST THE DRAFTER

 

The Parties agree that this Agreement is the result of careful negotiations between sophisticated Parties and thus any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.

 

19. HEADINGS

 

The various headings in this Agreement are inserted for convenience only, and shall not affect the meaning or interpretation of this Agreement or any paragraph or provision hereof.

 

20. DISPUTE RESOLUTION

 

Purchaser hereby agrees to endeavor in good faith to resolve all disputes arising under or related to this Agreement by mediation. If Purchaser and DLDNation LLC fail in their attempt to resolve a dispute by mediation, they shall submit the dispute to arbitration according to the then prevailing rules and procedures of the American Arbitration Association. Texas law shall govern the rights and obligations of the Parties with respect to the matters in controversy. The arbitrator will allocate all costs and fees attributable to the arbitration between the Parties equally. The arbitrator’s award will be final and binding and judgment may be entered in any court of competent jurisdiction

 

21. LIMITATION OF LIABILITY

 

To the maximum extent permitted by law, in no event will DLDNation LLC be liable to Purchaser for any (i) lost or damaged data, lost revenue, lost income or lost profits, or (ii) special, indirect, consequential or incidental losses, or (iii) punitive damages, regardless of the theory of liability (including negligence), even if DLDNation LLC has been advised of the possibility of such damages. The exclusions and limitations of this Section 21 will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Subject to the terms of this Section 21, DLDNation LLC’s maximum liability under this agreement shall not exceed the total fee paid by Purchaser to DLDNation LLC.

 

IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each executed this Agreement through their selection of the “accept” term and by proceeding to the DLDNation LLC checkout, Purchaser hereby acknowledges that they have read this Agreement, agree to be bound by its terms, have had the sufficient opportunity to consult with legal counsel, have not been coerced to enter in to this Agreement, and are of the full capacity to execute and bind themselves to the terms of this Agreement.