Wellness Partner Participation Terms and Conditions

Updated: 08/22/2023

Peerfit  Inc. dba FitOn Health (“FitOn Health”) has developed an online resource for fitness, including researching and locating a health and fitness club and purchasing fitness classes and/or memberships (the “Service”). Wellness Partner is a fitness club and would like to become a participating wellness partner on the Service. By registering on the Service as a participating wellness partner and executing a Facility Partnership Agreement (the “Agreement”) with FitOn Health, Wellness Partner hereby agrees to the terms and conditions set forth below (these  “Terms”).

1. Wellness Partner Participation.

1.1. Wellness Partner hereby agrees to be a participating wellness partner on the Service and to permit FitOn Health to list Wellness Partner on the Service. Wellness Partner agrees to provide FitOn Health with all reasonably necessary wellness partner information to register a Wellness Partner account on the Service, and to list Wellness Partner as a participating wellness partner on the Service (“Wellness Partner Content”) as may be requested by FitOn Health, and other information as may be necessary for FitOn Health to complete its Wellness Partner profile page on the Service. Wellness Partner shall provide updates to such Wellness Partner Content through the Service so that it is accurate, complete and up to date for FitOn Health’s end-users of the Service. As part of the registration, Wellness Partner will provide its contact email address to FitOn Health and agrees that all required legal and other notices may be sent to such email address as effective notice. Wellness Partner agrees that it will be responsible for maintaining the confidentiality of its account and all associated end-user information, including usernames and passwords. Wellness Partner will immediately notify FitOn Health in the event of any breach of security or unauthorized use of Wellness Partner’s account and assist FitOn Health in identifying and remediating the scope of such unauthorized breach or use. 

1.2. Wellness Partner hereby grants FitOn Health the right and license to list Wellness Partner on the Service and to promote, market and sell Wellness Partner classes, memberships or levels of Wellness Partner access passes and benefits (each a “Wellness Partner Access”) through the Service, including the right to use Wellness Partner’s trademarks, service marks and logos and all Wellness Partner Content. Wellness Partner agrees that FitOn Health shall have the right to use, reproduce, edit, display and distribute Wellness Partner Content, including Wellness Partner trademarks, service marks and logos, as necessary for promotion and provision of the Service through multiple mediums, including but not limited to the Service, FitOn Health website(s), email campaigns, social media and other marketing channels, all as determined by FitOn Health. 

1.3. As part of the registration process, Wellness Partner will identify the types of Wellness Partner Access, including classes, open gym access or temporary memberships, to be offered through the Service for purchase by end-users. Wellness Partner agrees to allow FitOn Health end-users who purchase Wellness Partner Access through the Service to use Wellness Partner services and facilities for such Wellness Partner Access as it would a regular paying member and/or guest of Wellness Partner and at no additional charge to the end-user. Wellness Partner understands and agrees that this is a nonexclusive Service and that FitOn Health will have other facilities on the Service, including facilities that may be near or compete with Wellness Partner’s site(s). 

1.4. Wellness Partner shall provide to FitOn Health a phone number to receive calls and text message, and FitOn Health may communicate with Wellness Partner through calls, emails, or text messaging as FitOn Health determines in its sole discretion. 

1.5. Wellness Partner Access, and all services provided by Wellness Partner to FitOn Health end-users, shall be provided or arranged at gyms, fitness studios, specialized studios, community classes, digital streaming, or exercise centers by duly licensed, certified or otherwise authorized (as applicable) professionals in accordance with the requirements of applicable law. 

1.6. Wellness Partner shall maintain in good standing at all times during the term of the Agreement any and all licenses, certificates and/or approvals required by applicable law (including but not limited to business licenses where applicable) for its performance under the Agreement. Wellness Partner shall be required to meet the applicable business, state and local licensing/certification requirements required by applicable law. 

1.7. Wellness Partner represents and warrants that it is not and shall not become listed on a Preclusion List (as defined in 42 CFR §422.2 published by the Centers for Medicare and Medicaid Services or excluded from participation in the Medicare program pursuant to Section 1128 or Section 1128A of the Social Security Act. In the event Wellness Partner becomes so listed or excluded, FitOn Health may immediately terminate the Agreement, provide written notice to Wellness Partner of such termination, and provide Vendor notice of the right to appeal such termination. FitOn Health shall also have the right to terminate the Agreement, immediately upon written notice to Wellness Partner, in the event FitOn Health reasonably determines that there are material deficiencies in the professional competence, conduct or quality of services of Wellness Partner which adversely affects or could adversely affect the health or safety of FitOn Health members. 

1.8. Wellness Partner shall maintain, during the term of the Agreement, commercial general liability insurance with commercially reasonable policy limits appropriate to the risk being insured, and to provide a certificate of such insurance to FitOn Health upon request. Such insurance must be provided by insurers licensed to do business in the state where Wellness Partner provides Wellness Partner Access, and who have obtained an A.M. Best financial strength rating of A- or better and are classified by A.M. Best as being of financial size category VIII or greater. 

1.9. Wellness Partner agrees to perform its duties under the Agreement in accordance with all administrative guidelines, including but not limited to applicable law.

2. Fees.

2.1  Wellness Partner shall not be obligated to pay any upfront listing fee for participation in the Service.

2.2  As part of the registration process and in consultation with FitOn Health, Wellness Partner shall set the rate(s) for each level of Wellness Partner Access that Wellness Partner wishes to make available through the Service. Such rates will be denominated on the Service as “FitOn Health Credits,” and Wellness Partner shall be entitled to receive payment in the amounts specified in the Agreement. FitOn Health may sell and distribute the FitOn Health Credits to its end-users at prices to be determined by FitOn Health in its sole discretion. Any limitations or restrictions on Wellness Partner Access shall be set forth on Wellness Partner’s profile page. 

2.3  FitOn Health will pay Wellness Partner for Wellness Partner Access booked, activated or purchased, and not cancelled, by a FitOn Health end-user at Wellness Partner’s facilities, unless otherwise agreed upon by both parties for special events, according to the FitOn Health Credits for such class. Within seven (7) days of the last day of each preceding month during the term of the Agreement, FitOn Health will provide a report of Wellness Partner Access bookings payable to Wellness Partner. Wellness Partner shall within three (3) days from the receipt of that report submit any discrepancies on Wellness Partner Access payable. FitOn Health will submit an appropriate, correct statement and payment to Wellness Partner within thirty (30) days of the last day of the preceding month. FitOn Health may modify the amount payable for FitOn Health Credits at any time upon prior written notice to Wellness Partner; provided, however, that all Wellness Partner Access sold prior to such modification will be paid at the pre-modification rate, even if used after the date of such modification. If Wellness Partner does not accept the modified FitOn Health Credit rate, Wellness Partner may terminate the Agreement and its status as a Wellness Partner; provided however, that it shall honor all Wellness Partner Access sold to end-users prior to such termination. FitOn Health will reimburse Wellness Partner via direct deposit through Bill.com. Membership reimbursement amounts may be prorated based on each membership start date within a given month.

2.4 Wellness Partner will be reimbursed for a calendar month’s membership (prorated as provided herein) if an end-user has incurred at least one visit in a calendar month. In an instance where an end-user has an active membership for a given calendar month, but does not visit Wellness Partner during such month, FitOn Health will reimburse Wellness Partner but terminate the membership for the following calendar month unless and until the end-user chooses to re-enroll in a membership with Wellness Partner. Notwithstanding the foregoing, in the event FitOn Health provides written notice to Wellness Partner that this paragraph is applicable to Wellness Partner, rather than FitOn Health generating reports of Wellness Partner Access bookings, Wellness Partner will provide FitOn Health a report within three days of the first day of each calendar month listing all active and inactive memberships with Wellness Partner which were booked through FitOn Health. FitOn Health will then remit payment, in accordance with the preceding paragraph, based on such report.

2.5 Wellness Partner agrees to retain and maintain during the term of the Agreement and for one (1) year following complete and accurate records related to its performance and compliance under the Agreement including these Terms. FitOn Health may, at its own expense during the term of the Agreement and for one (1) year following, audit all of Wellness Partner’s records and systems, as well as visit Wellness Partner’s facilities during regular business hours, to confirm Wellness Partner’s compliance with the Agreement. FitOn Health will provide Wellness Partner with at least ten (10) business days’ written notice prior to conducting any audit or visit. Wellness Partner agrees to provide reasonable assistance and access to its records and systems for such audits. Any discrepancies identified in any audit will be promptly addressed by Wellness Partner, and FitOn Health may reasonably adjust billing or take other reasonable remedial actions with respect to such discrepancies. All information accessed or obtained during the course of any audit will be treated as confidential and will not be disclosed to third parties, except as required by law or as necessary to enforce the terms of the Agreement.

3. Member Information.

Wellness Partner acknowledges and agrees that in providing the Service and selling Wellness Partner Access to end-users through the Service, FitOn Health will collect from such end-users certain personally identifiable information, such as name, email address, payment account and billing information, and provide certain personally identifiable information to Wellness Partner in connection with such end-user’s participation. Wellness Partner agrees that it will use such information only as consented to by such end-users. Wellness Partner will not distribute or disclose end-user information to any third party without the expressed prior written consent of the end-user and will use such information only in accordance with the Agreement and applicable laws, rules and regulations.

4. Intellectual Property.

4.1. Wellness Partner acknowledges and agrees that all rights in and to the Service, including without limitation, the website content (excluding Wellness Partner Content), look and feel, software underlying the Service and FitOn Health’s trademarks, service marks and logo, shall remain the exclusive property of FitOn Health. Wellness Partner shall obtain no rights or license in or to the Service other than as set forth herein. 

4.2. Wellness Partner shall retain all right, title and interest in and to Wellness Partner Content; provided, however, that FitOn Health shall have the nonexclusive, royalty-free, fully paid up right and license during the term of the Agreement to disclose and use Wellness Partner Content for the provision of the Service as set forth herein.

5. Termination.

FitOn Health may terminate the Agreement immediately with or without cause upon providing notice to Wellness Partner or such termination.  Wellness Partner may terminate the Agreement with or without cause upon ninety (90) days’ prior written notice by contacting FitOn Health via email at network@fitonhealth.com and completing a termination form. Upon any termination, Wellness Partner shall continue to honor all Wellness Partner Access booked and sold by FitOn Health through the date of termination, and FitOn Health shall obligated to pay for such Wellness Partner Access as set forth above. Upon any termination, FitOn Health shall have the right to immediately remove or disable access to all Wellness Partner Content. The provisions of Sections 2.5 (for one year), 4, 5, 6.2, 6.3, 7 and 9 shall survive any expiration or termination of the Agreement. The Agreement will automatically renew on a monthly basis until either party terminates as specified in this Section 5.

6. Warranties, Disclaimers and Limitations of Liability.

6.1. Wellness Partner represents and warrants that Wellness Partner Content is, and shall remain, complete, accurate and up-to-date and fairly represents Wellness Partner and Wellness Partner Access offerings, including Wellness Partner’s location, physical spaces, features, competencies, capacity, equipment, instructors, classes, offerings and services. Wellness Partner shall provide all Wellness Partner services in accordance with all applicable laws, rules and regulations. Wellness Partner further represents and warrants that it owns or has sufficient rights in Wellness Partner Content to provide such Wellness Partner Content for use on the Service and to grant the rights to FitOn Health as set forth herein. 

6.2. THE SERVICE AND ALL CONTENT AND INFORMATION INCLUDED IN OR AVAILABLE THROUGH THE FITON HEALTH WEBSITE OR SERVICE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, FITON HEALTH DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. FITON HEALTH DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM WELLNESS PARTNER’S PARTICIPATION IN THE SERVICE. FITON HEALTH DOES NOT WARRANT THAT THE SERVICE WILL BE ACCESSIBLE AT ALL TIMES OR IN ALL GEOGRAPHIC AREAS. THE SERVICE MAY BE UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. WELLNESS PARTNER UNDERSTANDS AND AGREES THAT THE END-USERS PURCHASING WELLNESS PARTNER ACCESS HAVE NOT BEEN SCREENED OR QUALIFIED BY FITON HEALTH AND THAT FITON HEALTH SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY EXTENT FOR ANY END-USER’S USE OF WELLNESS PARTNER ACCESS, INCLUDING WITHOUT LIMITATION FOR ANY PROPERTY LOSS OR DAMAGE, DEATH, OR PERSONAL INJURY. 

6.3. EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED AND EXCLUDING EACH PARTY’S INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES ATTRIBUTABLE TO ANY PERSONAL INJURY OR DEATH, LOSS OF DATA OR LOSS OF BUSINESS OR PROFITS, ARISING OUT OF WELLNESS PARTNER’S PARTICIPATION IN THE SERVICE OR THE USE OF, OR INABILITY OF ANY PERSON TO USE, THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Indemnification.

7.1. Wellness Partner agrees to indemnify, defend and hold FitOn Health harmless against and from any and all third-party losses, claims, damages or liabilities, joint or several, including reimbursement for reasonable legal expenses, to which FitOn Health may become subject as the result of Wellness Partner’s breach of any of the obligations, covenants, warranties or representations under the Agreement including these terms, or for any action by an end-user relating to such end-user’s use of Wellness Partner’s facilities, or any Wellness Partner Access offered by Wellness Partner through the Service, including without limitation, any claims for personal injury or death. 

7.2. FitOn Health agrees to indemnify, defend and hold Wellness Partner harmless against and from any and all third-party losses, claims, damages or liabilities, joint or several, including reimbursement for reasonable legal expenses, to which Wellness Partner may become subject as the result of FitOn Health’s breach of any of FitOn Health’s obligations, covenants, warranties or representations under this Agreement. 

7.3. Pursuant to each of the indemnifications provided in Sections 7.1 and 7.2 of this Agreement, an indemnified shall promptly notify the indemnifying party of any indemnified claim; provided, however, that any delay in giving such notice shall not limit the obligations of the indemnifying party except to the extent that the indemnifying party is materially prejudiced by such delay. The indemnifying party shall have the right to take over and conduct the defense of the claim. The indemnified party shall cooperate with the indemnifying party in defense of the claim and shall have the right to participate at its own expense, in such defense. In defending or settling an indemnified claim, the indemnifying party may not, without the consent of the indemnified party, accept any liability, or make any admission on behalf of, the indemnified party.

8. Medicare Provisions.

8.1. Wellness Partner shall undertake commercially reasonable efforts to continue to perform under these Terms and the Agreement for the benefit of Alignment Healthcare USA, LLC (“AHC”), in the event that FitOn Health dissolves or becomes insolvent, in accordance with the rates set forth in the Agreement, for the remainder of the then-current calendar year. 

8.2. Wellness Partner shall not request, demand, require or seek directly or indirectly the transfer, discharge or removal of any FitOn Health end-user for reasons of such end-user’s need for, or utilization of, the Services, except in accordance with the procedures established by AHC for such action, nor intentionally participate in or encourage any actions that a reasonable person would expect to create an adverse risk of disenrollment of end users from AHC. (For clarity, Wellness Partner will not turn away any end user because of their receipt of Medicare benefits, nor encourage end users to disenroll from AHC’s benefits.) 

8.3. Wellness Partner shall comply with the Medicare Marketing Guidelines. 

8.4. Wellness Partner shall only seek compensation for Wellness Partner Access booked/obtained/paid for through the Service provided to FitOn Health end-users who are AHC members from FitOn Health (and/or AHC, in the event AHC becomes liable directly to Wellness Partner for Wellness Partner Access), and shall at no time bill, charge, collect a deposit from, or seek compensation from such AHC member for Services including, without limitation, in the event of nonpayment by AHC or insolvency of AHC. Notwithstanding the foregoing, Wellness Partner may bill, charge, or seek compensation from such members in the event such members opt into additional Wellness Partner Access (or other services or equipment offered by Wellness Partner) separate from or in addition to Wellness Partner Access booked/obtained/paid for through the Service. 

8.5. Wellness Partner shall comply with all final determinations made by AHC or the applicable managed care organization or prepaid health plan contracted with AHC (“Contracted MCO”), as the case may be, through appeals and grievance procedures for resolving AHC member claims for benefits under the Medicare Advantage benefit plan and all other claims against AHC or Contracted MCO. 

8.6. Wellness Partner and Wellness Partner’s officers, agents, employees, contractors, and affiliates and their respective assignees or successors shall not directly or indirectly engage in conduct which may be reasonably interpreted as designed to persuade AHC members to disenroll from any Medicare Advantage benefit plan or discontinue their relationship with AHC or the Contracted MCO, as the case may be. 

8.7. Provided that the end-user has adequate FitOn Health credits to cover Wellness Partner Access booked with Wellness Partner, Wellness Partner shall not refuse to provide such Wellness Partner Access, if applicable and in the event an end user is unable to pay the Member Cost-Sharing Payment at the time the end-user presents for such Wellness Partner Access, except as may be approved in advance by AHC. “Member Cost-Sharing Payment” means an amount that an AHC member is obligated to pay directly to Wellness Partner for a specific service in accordance with a Medicare Advantage benefit plan. Member Cost-Sharing Payment shall include payments commonly referred to as “coinsurance,” “copayments,” or “deductibles.” Wellness Partner understands and agrees that AHC and FitOn Health do not currently provide for Member Cost-Sharing Payments as defined in this section.

9. Miscellaneous.

9.1. The Agreement, including these Terms, does not constitute either party as a partner, joint venturer, employee, agent, or legal representative of the other for any purpose whatsoever. Except as expressly set forth herein with respect to FitOn Health’s sale of Wellness Partner Access, neither party is granted, nor shall it represent that it has been granted, any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party, to incur debts for the other party or to bind the other party in any manner whatsoever; it being the intent of the parties hereto to create the relationship on the part of the other party of an independent contractor, for whose actions or failure to act, a party shall not be responsible. 

9.2. The parties agree to try to resolve any dispute relating to this Agreement through informal negotiations in good faith with escalation as necessary to the chief executive officers or other decision-makers of each company. This Agreement shall be governed by and construed according to the laws of the State of Florida, U.S.A., excluding its conflict of laws rules or principles. All disputes arising under or in connection with this Agreement shall be adjudicated in the federal courts of the Middle District of Florida or in the State courts located in Hillsborough County, Florida. Each of the parties acknowledges that venue shall be proper in such courts and expressly consents to the personal jurisdiction of such courts. 

9.3. In the event that Wellness Partner or any end-user have a dispute relating to such end-user’s exercise of Wellness Partner Access booked by such end-user or use of Wellness Partner, Wellness Partner agrees that such dispute shall be between Wellness Partner and the end-user, except to the extent FitOn Health has agreed to indemnification as set forth in Section 7.2. Wellness Partner further agrees that FitOn Health may maintain or implement an end-user feedback system and that FitOn Health shall not be responsible or liable for any end-user feedback on the Service. 

9.4. All notices and other communications required under the Agreement shall be in writing and deemed to have been duly given if delivered personally, sent by email (with confirmation of receipt) or sent by nationally recognized overnight carrier, or mailed by certified mail, postage prepaid, return receipt requested, addressed to the address for a party as set forth on the cover page. 

9.5. The Agreement, including these Terms, constitutes the entire agreement between Wellness Partner and FitOn Health with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements between Wellness Partner and FitOn Health, whether written or oral, with respect to the subject matter hereof. No agreement modifying the Agreement shall be binding on either party unless in a writing signed by an authorized representative of each party. 

9.6. The Agreement shall not be assignable or transferable by either party in whole or in part without the written consent of the other party, and any such purported assignment or transfer shall be void; except that either party may assign and transfer the Agreement in connection with the sale, assignment or other transfer of all or substantially all of its assets, or in connection with the merger of or other acquisition of such party. 

9.7. The individual registering Wellness Partner on the Services and accepting the terms of the Agreement hereby represents and warrants that they have the right and authority to bind Wellness Partner to the Agreement, including these Terms, and have obtained all authorizations required for registration of Wellness Partner on the Services. 

9.8. As used herein, “applicable law” shall refer to any applicable constitution, statute, code, ordinance, regulation, treaty, rule, court order or mandate, common law, policy, interpretation or guidance document enacted, published or promulgated by any government agency which has jurisdiction over Medicare or otherwise over the subject matter of the Agreement or the parties’ performance of their duties thereunder.