Coaching Agreement

This Coaching Agreement (the "Agreement"), effective as of the date of payment (the "Effective Date"), is by and between Small Business Payments Group, LLC (a.k.a. SBPG Coaching), a Texas Limited Liability Company, ("Coaching Provider"), and the purchaser ("Customer", and together with Coaching Provider, the "Parties", and each, a "Party").

WHEREAS, Coaching Provider is in the business of providing online fitness coaching services, and Customer desires to obtain such services from Coaching Provider.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.           Coaching Services. Coaching Provider shall provide coaching services for Customer, generally constituting weekly meetings conducted by phone or videoconference. ("Coaching Services"). Coaching Provider shall use reasonable efforts to meet any performance dates specified, and any such dates shall be estimates only. Subject to Section 6, Customer acknowledges that Coaching Provider makes no warranty regarding the results to be attained by using the Coaching Services. Coaching Provider shall be available for at least ten (10) coaching sessions within eleven (11) weeks from the date of payment.

2.           Coaching Location. Coaching Provider shall provide all Coaching Services virtually, via phone or videoconference.

2.1            Coaching Provider Personnel Compensation. Coaching Provider is responsible for the payment of all Coaching Provider Personnel compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers' compensation insurance payments, and disability benefits.

3.           Customer Covenants.

3.1            Customer Property. Customer shall not without Coaching Provider's prior written consent (i) copy Coaching Provider's copyrighted material; (ii) use Coaching Provider's trademarks, trade names, or other designations in any promotion or publication; or (ii) use recording equipment in coaching sessions.

3.2            Customer Liability Waiver. Customer shall cause each of its employees or affiliates who are receiving Coaching Services to execute a release of liability and assumption of risk satisfactory to Coaching Provider.

4.           Payment Terms.

4.1            Payment. Customer shall pay all amounts due and owing under this Agreement on or before the Effective Date. All payments hereunder shall be in US dollars and made by debit/credit card, check, or other payment permitted by Coaching Provider.

4.2            Invoice Disputes. Customer shall notify Coaching Provider in writing of any dispute with any invoice along with substantiating documentation within seven (7) days from the Customer's receipt of such invoice. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 5.1. The parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, each Party shall continue performing its obligations under the Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under Section 5.1.

4.3            Late Payments. Except for invoiced payments that Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of two (2) percent per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Coaching Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees.

4.4            No Set-off. Customer shall not withhold payment of any amounts due and payable under this Agreement by reason of any set-off of any claim or dispute with Coaching Provider, whether relating to the Coaching Provider's breach, bankruptcy or otherwise.

5.           Limited Warranty.

5.1            Limited Warranty. Subject to Section 7, Coaching Provider warrants to Customer that it shall perform the Services in a professional and workmanlike manner in accordance with industry standards for similar coaching services and shall devote adequate resources to meet its obligations under this Agreement. COACHING PROVIDER MAKES NO WARRANTY AS TO RESULTS TO BE ATTAINED BY ATTENDING OUR PROGRAMS OR USING OUR COACHING MATERIALS. COACHING PROVIDER DOES NOT WARRANT THAT IT, ITS AFFILIATES, ITS SUBCONTRACTORS, OR ITS COACHES ARE CERTIFIED OR LICENSED.

5.2            DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN Section 6.1, COACHING PROVIDER MAKES NO WARRANTY WHATSOEVER REGARDING THE COACHING SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY COACHING PROVIDER, OR ANY OTHER PERSON ON COACHING PROVIDER'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6.1 OF THIS AGREEMENT.

6.           Limitation of Liability.

6.1            TYPES OF DAMAGES. IN NO EVENT SHALL COACHING PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT COACHING PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY, CONTRACT, TORT OR OTHERWISE UPON WHICH THE CLAIM IS BASED.

6.2            AGGREGATE LIABILITY. IN NO EVENT SHALL COACHING PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO TIMES THE TOTAL OF THE AMOUNTS PAID TO COACHING PROVIDER FOR THE CORRESPONDING COACHING SESSION OF COACHING SERVICES SOLD HEREUNDER.

7.           Confidentiality. From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party] (as the "Receiving Party") information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (v) is required to be disclosed pursuant to applicable federal, state, or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. 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 this Agreement. The Receiving Party shall be responsible for any breach of this Section 8 caused by any of its representatives. 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 8 and to secure its enforcement, in addition to all other remedies available at law. At any time during or after the term of this Agreement, at the Disclosing Party's written request, the Receiving Party and its representatives shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party's Confidential Information, or promptly destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.

8.           Term and Termination.

8.1            Term. The term of this Agreement commences on the Effective Date and continues for a period of ten (10) weeks or ten (10) coaching sessions, whichever expires first, unless and until earlier terminated as provided under this Agreement (the ["Term"]).

8.2            Coaching Provider's Right to Terminate. Coaching Provider may terminate this Agreement upon written notice to Customer:

(a)             if Customer fails to pay any amount when due under this Agreement ("Payment Failure") and such failure continues for three (3) days after Customer's receipt of written notice of nonpayment;

(b)             if Customer fails to participate in the program;

(c)             if Customer fails to attend one scheduled coaching session;

(d)             if Customer breaches any provision of this Agreement (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Customer within three (3) days after Customer's receipt of written notice of such breach;

(e)             if Customer (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;

(f)              if Coaching Provider terminates any other agreement between (i) Coaching Provider and (ii) Customer or Customer's affiliates, due to Customer's or Customer's affiliates' breach or non-performance thereof; or

(g)             if (i) Customer sells, leases or exchanges all or substantially all of Customer's assets, (ii) Customer merges or consolidates with or into another person, or a change in control of Customer occurs, in any case, without Customer's prior written consent.

8.3            Customer's Right to Terminate. Customer may terminate this Agreement upon written notice to Coaching Provider:

(a)             if Coaching Provider materially breaches any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Coaching Provider within thirty (30) days after Coaching Provider's receipt of written notice of such breach;

(b)             if Coaching Provider (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

(c)             in the event of a Force Majeure Event affecting the Coaching Provider's performance of this Agreement for more than thirty (30) consecutive days.

8.4            Effect of Termination; Survival.  

(a)             Expiration or termination of the Agreement will not affect any rights or obligations of the Parties that:

(i)              come into effect upon or after expiration or termination of this Agreement; or

(ii)            by their nature should apply beyond the Term of this Agreement.

(b)             Any notice of termination under this Agreement automatically operates as a cancellation of any coaching services that are scheduled to take place subsequent to the effective date of termination.

(c)             Subject to Section 9.5(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of [the terminating Party's rights or remedies/either Party's rights, remedies or defenses] under this Agreement, at law, in equity, or otherwise.

9.           Refunds. Customer shall not be entitled to any refund at any time for any reason. This sale is final.

10.        Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.

11.        Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims], in any forum other than the courts of the State of Texas, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts of the State of Texas. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

12.        Subcontracting. Coaching Provider may subcontract the performance of any of its duties or obligations under this Agreement to any person or entity.

13.        Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to Coaching Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party]. 

The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Agreement, either Party may thereafter terminate this Agreement upon thirty (30) days notice.

14.        Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

15.        Further Assurances. Each of the parties hereto shall execute and deliver, at the reasonable request of the other party hereto, such additional documents, instruments, conveyances and assurances and take such further actions as such other party may reasonably request to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

16.        Integration. This Agreement and all related exhibits and schedules, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the subject matter. In the event of any inconsistency between the statements in the body of this Agreement, and the related exhibits and schedules, the statements in the body of this Agreement shall control. The Parties have not relied on any statement, representation, warranty, or agreement of the other Party or of any other person on such Party's behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement.

17.         Indemnification. Subject to the terms and conditions set forth in this Agreement, Customer ("Indemnifying Party") shall indemnify, hold harmless, and defend Coaching Provider and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by Indemnified Party (collectively, "Losses"), arising out of or related to any third-party claim alleging:

17.1         breach or non-fulfillment of any provision of this Agreement by Indemnifying Party or Indemnifying Party's Personnel;

17.2         any negligent or more culpable act or omission of Indemnifying Party or its Personnel including any reckless or willful misconduct in connection with the performance of its obligations under this Agreement;

17.3         any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Indemnifying Party or its Personnel (including any reckless or willful misconduct); or

17.4         any failure by Indemnifying Party or its Personnel to comply with any applicable federal, state or local laws, regulations, or codes in the performance of its obligations under this Agreement.

18.        Notice of Third-Party Claims. Indemnified Party shall give notice to Indemnifying Party (a "Claim Notice") within thirty (30) days after obtaining knowledge of any Losses or discovery of facts on which Indemnified Party intends to base a request for indemnification under this Agreement. Indemnified Party's failure to provide a Claim Notice to Indemnifying Party under this Agreement does not relieve Indemnifying Party of any liability that Indemnifying Party may have to Indemnified Party, but in no event shall Indemnifying Party be liable for any Losses that result directly from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party claim. Indemnifying Party's duty to defend applies immediately, regardless of whether Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.

19.        Indemnified Party Control of Defense. Notwithstanding anything to the contrary in this Agreement, Indemnified Party may select its own legal counsel to represent its interests, and Indemnifying Party shall:

19.1         reimburse Indemnified Party for its costs and attorneys' fees immediately upon request as they are incurred; and

19.2         remain responsible to Indemnified Party for any Losses indemnified under this Agreement.

20.        Settlement of Indemnified Claims by Indemnifying Party. Indemnifying Party shall give prompt written notice to Indemnified Party of any proposed settlement of a claim that is indemnifiable under this Agreement. Indemnifying Party may not, without Indemnified Party's prior written consent, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder.

terms and conditions are deemed to have been accepted once customer submits payment and coaching provider receives the payment.

21.        AI Use and Information Sharing. Customer understands and consents to Coaching Provider and any of its agents, assigns, assignees, employees, officers, and any other affiliate to use and share Customer's information with AI.