Mindbody Referral Program Agreement

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Referral Program Agreement and any terms or policies governing your participation in the Referral Program that are posted on Mindbody’s main website, as may be updated from time to time.

“Mindbody Customer” or “Customer” means a third party that has purchased Services for its own internal business purposes or is targeted as an opportunity for sales of Services.

“Services” means Mindbody’s online business management software and related applications, products and services made available by Mindbody, excluding any third party applications.

You shall comply, and shall ensure that any third parties performing activities on your behalf comply, with all applicable foreign and domestic laws, governmental regulations and ordinances, including, but not limited to, data privacy laws, trademark and copyright laws, ICANN policies and procedures governing domain names, the United States Foreign Corrupt Practices Act and applicable export control laws or regulations (collectively “Applicable Laws”) and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Mindbody, its customers or the Services, or to the public. You represent and warrants that your activities and receipt of any referral fees under this Agreement are consistent with Applicable Laws. You shall promptly inform Mindbody in writing upon becoming aware of any violations of Applicable Laws in connection with this Agreement. You hereby represents and warrants that, no portion of any fees paid or payable by Mindbody to you hereunder will be paid to, or accrued directly or indirectly for the benefit of, any person, firm, corporation or other entity, other than you.

• 2.1. Feedback. You grant Mindbody a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback you provide relating to the operation of the Services, or to the Referral Program.
• 2.2. Cross Licenses. In Mindbody’s sole discretion and to the extent applicable, Mindbody may grant you a nonexclusive, nontransferable, nonsublicensable, royalty-free license during the Term to use, solely in connection with your rights, duties and obligations under this Agreement, the marks set forth in Mindbody’s branding guidelines available at Mindbody’s main website, as may be updated from time to time. This License does not grant rights to use any of Mindbody’s trademarks not identified herein. You grant Mindbody a nonexclusive, nontransferable, non-sublicensable, royalty-free license during the Term to use, solely in connection with Mindbody’s rights, duties and obligations under this Agreement, your marks, including your company name and logos associated therewith.
  
  Neither Party shall make any express or implied statement or suggestion, or use the other Party's marks identified in this Section 2.2 (“Licensed Marks”) in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the granting Party or its business, products or services. Each Party shall cease, or adjust the manner of, its use of any of the Licensed Marks at the request of the granting Party in its sole discretion. The granting Party may withdraw any approval of any use of its Licensed Marks at any time in its sole discretion upon written notice to the other Party, which withdrawal shall be effective promptly but in no case more than thirty (30) days from the date of the granting Party’s notice.
• 2.3. Reservation of Rights. Mindbody expressly reserves all rights not expressly granted to you in this Agreement. All goodwill arising out of your use of the Marketing Services and Mindbody’s marks will inure solely to the benefit of Mindbody.

You represent that you have all necessary power and authority to enter into this Agreement and perform your obligations hereunder, and the performance of your obligations hereunder will not require the consent of any third party, give rise to any conflict of interest, or constitute a breach or default under any agreement or obligation to which you are a party or by which you are bound. If you enter into this Agreement on behalf of a legal entity, you represent that you have the authority to bind that entity. You will not make or engage in any false, misleading or deceptive claims or practices with respect to the Services, or directly or indirectly offer, promise, or pay anything of value to referrals, or engage in any behavior that Mindbody determines in its sole discretion is unethical or harmful to Mindbody’s customers or its business.

• 4.1. Qualified Referrals. Mindbody will pay referral fees in arrears (“Referral Fees”) for each Qualified Referral at the rate set forth below. “Qualified Referrals” means net new Mindbody Customers: (i) you have submitted through the referral form; and (ii) for whom Mindbody has no record in connection with the Services, who have not had any interaction with Mindbody for the past thirty (30) days, and who are not, at the time referred, in any part of a sales cycle, contractual relations or ongoing negotiations with Mindbody; and (iii) who are not your Affiliates or Franchisees; and (iv) who purchase a subscription for Services no more than one hundred eighty (180) days from the date you refer them.
  
  Mindbody will not pay you Referral Fees based on renewal orders, add-on or upgrade orders.
• 4.2. Referral Fee Payment. Referral Fees will be awarded in the form of a gift card. Any payments made to you will be made only in the name as listed in the Agreement.

You agree to indemnify, defend, and hold harmless Mindbody and its affiliates, officers, directors, employees, contractors and agents from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, fines, costs and expenses of any kind (including reasonable attorneys’ fees) arising from or relating to any claim of a third party: (i) relating to your operation of your business; (ii) relating to a breach of any provision of this Agreement by you or your representatives, including without limitation Section 1 (Compliance with Laws); or (iii) alleging or relating to any act or omission by you or your representatives in connection with the performance of its obligations under this Agreement.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, MINDBODY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, ARISING UNDER ANY LAW, WITH RESPECT TO THE SERVICES, THE MARKETING SERVICES, AND ANY OTHER MINDBODY PRODUCT OR SERVICE MADE AVAILABLE, ACCESSED OR USED AS PART OF YOUR PARTICIPATION IN THE REFERRAL PROGRAM, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MINDBODY MAKES NO WARRANTY THAT ANY REFERRAL URLS, MINDBODY WEBSITES OR SERVICES WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MINDBODY BE LIABLE TO YOUR OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, STATUTE OR ANY OTHER BASIS, AND EVEN IF MINDBODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MINDBODY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE REFERRAL PROGRAM WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).

• 7.1. Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Mindbody shall include any Customer data (including personally identifiable information) to which you have access by virtue of participating in the Referral Program. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without breach of an obligations owed to the Disclosing Party.
• 7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, including under SEC disclosure requirements.

• 8.1. Relationship of Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between you and Mindbody. You will not represent that it has any authority to assume or create any obligation, express or implied, on behalf of Mindbody, nor to represent Mindbody as agent, employee, franchisee, or in any other capacity. There are no third-party beneficiaries to this Agreement. You shall not make any proposals, promises, warranties, guarantees, or representations on Mindbody’s behalf or in Mindbody’s name.
• 8.2. Entire Agreement. You agree that this Agreement and any information which is incorporated into this Agreement by written reference (including reference to any terms, policies and/or guidelines on our website and/or information contained in a URL), constitutes the complete agreement between the Parties relating to your participation in the Referral Program. This Agreement supersedes and replaces any other agreement you may have previously entered into with Mindbody governing your participation in the Referral Program. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective.
• 8.3. Changes to Agreement. Mindbody may change this Agreement at any time by providing notice to you in a manner that Mindbody deems reasonable in its sole discretion. Your continued participation in the Referral Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended. No other amendment, modification or waiver of this Agreement will be binding upon Mindbody except pursuant to separate written agreement signed by an authorized representative of Mindbody.
• 8.4. Opt-in to Marketing. Your participation in the Referral Program will serve as an opt-in to receive marketing communications from Mindbody in accordance with Mindbody’s Privacy Policy. You will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any referred friend or other persons who engage with Mindbody through the Referral Program.
• 8.5. Assignment. You may not assign or transfer its rights or obligations under this Agreement or participation in the Referral Program, whether by operation of law or otherwise, without prior written approval from Mindbody.
• 8.6. Notices. All notices from you to Mindbody must be in writing and addressed to: MINDBODY, Inc., 4051 Broad Street, Suite 220, San Luis Obispo, CA 93401, Attn: Legal, and will be sent by personal or overnight courier and deemed given when verified by written confirmation of delivery. Notices from Mindbody to you may be sent to the email or physical address we have on file for you and will be deemed given when verified by electronic log or written confirmation of delivery.
• 8.7. Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of California, without regard to its choice or conflicts of law rules. For any dispute arising out of or relating to this Agreement, you consent to personal jurisdiction in, and the exclusive venue of, the courts in Los Angeles County, California.