Terms and Conditions
This Trainer Agreement (“Agreement”) constitutes a legal agreement between you, an individual (“you”) and [ENTITY NAME] (“Alto” or “Company”), which provides lead generation to independent contractors who provide personal training services using the Alto Services (as defined below). The Alto Services enable an authorized personal trainer to seek, receive and fulfill requests for training services from an authorized user of Alto’s mobile applications. You desire to enter into this Agreement for the purpose of accessing and using the Alto Services. You acknowledge and agree that Company is a technology services provider that does not provide personal training services. In order to use the Alto Services, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Company shall be bound by the terms and conditions set forth herein. IMPORTANT: PLEASE NOTE THAT TO USE THE ALTO SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
1.1 “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 “Company Data” means all data related to the access and use of the Alto Services hereunder, including all data related to Users (including User Information), all data related to the provision of Training Services via the Alto Services and the Trainer App, and the Trainer ID.
1.3 “Device” means a mobile telecommunications device.
1.4 “Term” is as defined in Section 12.1.
1.5 “Trainer App” means the mobile application and related technology provided by Company that enables your and other training providers (collectively, “Trainers”) to access the Alto Services for the purpose of seeking, receiving and fulfilling on-demand and schedule-ahead requests for training services by Users, as may be updated or modified from time to time.
1.6 “Trainer ID” means the identification and password key assigned by Company to you that enables you to use and access the Trainer App.
1.7 “Territory” means the cities or metro areas in the United States in which you are enabled by the Trainer App to receive requests for Training Services.
1.8 “Training Services” means your provision of training services to Users via the Alto Services in the Territory.
1.9 “Alto Services” mean Alto’s on-demand and schedule-ahead lead generation and related services licensed by Alto to Trainers that enable training providers to seek, receive and fulfill on-demand requests for training services by Users seeking training services; such Alto Services include access to the Trainer App and Alto’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.10 “User” means an end user authorized by Alto to use the Alto mobile application for the purpose of obtaining Training Services offered by Trainers using the Trainer App.
1.11 “User Information” means information about a User made available to you in connection with such User’s request for and use of Training Services, which may include the User’s name, workout location, contact information and photo.
1.12 “Your Device” means a Device owned or controlled by you: (a) that meets the then-current Company specifications for Devices; and (b) on which the Trainer App has been installed as authorized by Company solely for the purpose of providing Training Services.
2. Use of the Alto Services
2.1 Trainer IDs. Alto will issue you a Trainer ID to enable you to access and use the Trainer App on Your Device in accordance with this Agreement. Company reserves the right to deactivate your Trainer ID if you have materially breached any provision of this Agreement. You agree that you will maintain your Trainer ID in confidence and not share your Trainer ID with any third party. You will immediately notify Company of any actual or suspected breach or improper use or disclosure of your Trainer ID or the Trainer App.
2.2 Provision of Training Services. When the Trainer App is active, User requests for Training Services may appear to you via the Trainer App. If you accept a User’s request for Training Services, the Alto Services will provide you with certain User Information via the Trainer App, including the User’s first name and workout location. In order to enhance User satisfaction with the Alto Services and your Training Services, it is recommended that you wait at least ten (10) minutes for a User to show up at the requested workout location, i.e. if you have had no communication from the User after accepting the User’s request, you must wait at least ten minutes after you arrive at the designated location before canceling the session. If the User communicates with you during that period, you must wait until the User arrives, but you are not required to continue the workout session beyond the originally scheduled ending time. You acknowledge and agree that once you have accepted a User’s request for Training Services, the Alto Services may provide certain information about you to the User, including your first name, contact information, and location. You shall not contact any Users or use any User’s personal data for any reason other than for the purposes of fulfilling Training Services and may not (a) contact any User except by means of the Trainer App or (b) contact any User except with respect to scheduling or following up on a scheduled training session. As between Company and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Training Services; and (b) except for the Alto Services, you shall provide all necessary equipment, tools and other materials, at your own expense, necessary to perform Training Services. You understand and agree that you have a legal obligation under the Americans with Disabilities Act and similar state laws to train Users with disabilities (as defined by applicable state and Federal law).
2.3 Your Relationship with Users. You acknowledge and agree that your provision of Training Services to Users creates a direct business relationship between you and the User. Company is not responsible or liable for the actions or inactions of a User in relation to you, or your activities. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Training Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a User, you, or other third party. You acknowledge and agree that Company may release your contact and/or insurance information (see Section 8 below) to a User upon such User’s reasonable request. You acknowledge and agree that, unless specifically consented to by a User, you will not permit individuals other than Users to participate in any solo or group Training.
2.4 Your Relationship with Company. You acknowledge and agree that Company’s provision to you of the Trainer App and the Alto Services creates a direct business relationship between Company and you. Company does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Training Services, your acts or omissions. You retain the sole right to determine when, where, and for how long you will utilize the Trainer App or the Alto Services. You retain the option, via the Trainer App, to attempt to accept or to decline or ignore a User’s request for Training Services via the Alto Services, or to cancel an accepted request for Training Services via the Trainer App, subject to Company’s then-current cancellation policies. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the Alto Services; and (ii) engage in any other occupation or business. Notwithstanding the above, you agree that when you choose to provide services hereunder, you shall comply with any and all policies and guidelines set by Company, as they may be amended from time to time (“Policies”). Company retains the right to deactivate or otherwise restrict you from accessing or using the Trainer App or the Alto Services in the event of a violation or alleged violation of this Agreement, your disparagement of Company or any of its Affiliates, your act or omission that causes harm to Company’s or its Affiliates’ brand, reputation or business as determined by Company in its sole discretion.
2.5.1 You acknowledge and agree that: (a) after receiving Training Services, a User will be prompted by Alto’s mobile application to provide a rating of you and such Training Services and, optionally, to provide comments or feedback about you and such Training Services; and (b) after providing Training Services, you will be prompted by the Trainer App to provide a rating of the User and, optionally, to provide comments or feedback about the User. You shall provide your ratings and feedback in good faith. Your feedback regarding a User’s flexibility, strength and endurance will be shared with that User upon the User’s request. Your other feedback about Users may be shared with those Users as Company may in its sole discretion determine.
2.5.2 You acknowledge that Company desires that Users have access to high-quality services via the Alto Services. In order to continue to receive access to the Trainer App and the Alto Services, you must comply with the Company’s Policies, as amended from time to time [LINK TO POLICIES] and must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Company for your Territory, as may be updated from time to time by Company in its sole discretion (“Minimum Average Rating”). Your average rating is intended to reflect Users’ satisfaction with your Training Services rather than your compliance with any of the Company’s policies or recommendations. You may rebut any negative review by a User. In the event your average rating falls below the Minimum Average Rating, Company will notify you and may provide you, in Company’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the Trainer App and the Alto Services. Additionally, you acknowledge that your repeated failure to accept User requests for Training Services while you are logged in to the Trainer App creates a negative experience for Users of the Alto Services. If you do not wish to accept User requests for Training Services for a period of time, you agree that you will log off of the Trainer App. In addition, you agree that you will act respectfully and professionally with Users at all times, and will engage in no indecent, aggressive, inappropriate or demeaning behavior with any User. Specifically, you agree to employ only appropriate tactile cueing techniques with Users, which shall include only using the palm or back of the hand or the forearm for correcting the User And shall not include touching the User in the vicinity of the User’s groin, glute or chest in any manner.
2.5.3 Company and its Affiliates reserve the right to use, share and display your User and other ratings, and comments, in any manner in connection with the business of Company and its Affiliates without attribution to you or your approval. You acknowledge and agree that Company and its Affiliates are distributors (without any obligation to verify) and not publishers of your and other User ratings, and comments, provided that Company and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Company’s or its Affiliates’ content policies.
2.6.1 Company requires you to use Your Device in providing Training Services.
2.6.2 When using Your Devices hereunder: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) Company shall make available the Trainer App for installation on Your Device. Company hereby grants you a personal, non-exclusive, non-transferable license to install and use the Trainer App on Your Device solely for the purpose of providing Training Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Trainer App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the Trainer App from the Trainer-Provided Device in the event that you cease to provide Training Services or otherwise engage with the Alto Services using Your Device. You agree that: (i) use of the Trainer App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; (ii) use of the Trainer App on Your Device as an interface with the Alto Services may consume very large amounts of data through the data plan; and (iii) you are responsible for maintaining the current version of the Trainer App on Your Device and complying with such current version. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
3. You and Your Qualifications
3.1 Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold and maintain a valid certification to provide Training Services in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide Training Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you will be subject to background checks from time to time in order to qualify to provide, and remain eligible to provide, Training Services. You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Trainer App or the Alto Services if you fail to meet the requirements set forth in this Agreement.
3.2 Documentation. To ensure your compliance with all requirements in Section 3.1 above, you must provide Company with written copies of all such licenses, permits, approvals, authority, registrations, certifications and insurance information (see Section 8 below) prior to your provision of any Training Services. Thereafter, you must submit to Company written evidence of all such licenses, permits, approvals, authority, registrations, certifications and insurance information as they are renewed. Company shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations, certifications and insurance information from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Company reserves the right to independently verify your documentation from time to time in any way Company deems appropriate in its reasonable discretion.
4. Financial Terms
4.1 Fee Calculation and Your Payment. Users will be charged and pay you a fee for each instance of completed Training Services provided to a User that are obtained via the Alto Services (“Fee”). You acknowledge and agree that the Fee provided under the Fee Calculation is the only payment you will receive in connection with the provision of Training Services, and that neither the Fee nor the Fee Calculation includes any gratuity; gratuities are not permitted. You: (i) appoint Company as your limited payment collection agent solely for the purpose of accepting the Fee, and, depending on the region and/or if requested by you, applicable taxes and fees from the User on your behalf via the payment processing functionality facilitated by the Alto Services; and (ii) agree that payment made by User to Company (or to an Affiliate of Company acting as an agent of Company) shall be considered the same as payment made directly by User to you. Company agrees to remit, or cause to be remitted, to you on at least a monthly basis: (a) the Fee less the applicable Platform Service Fee (as defined below); and (b) depending on applicable laws in the Territory, certain taxes and ancillary fees.
4.2 Changes to Fee Calculation. Company reserves the right to change the Fee Calculation at any time in Company’s discretion based upon local market factors, and Company will provide you with notice in the event of changes to the base Fee. Continued use of the Alto Services after any such change in the Fee Calculation shall constitute your consent to such change.
4.3 Fee Adjustment. Company reserves the right to: (i) adjust the Fee for a particular instance of Training Services (e.g., you failed to properly start or end a particular instance of Training Services in the Trainer App, technical error in the Alto Services, etc.); or (ii) cancel the Fee for a particular instance of Training Services (e.g., User is charged for Training Services that were not provided, in the event of a User complaint, fraud, etc.). Company’s decision to reduce or cancel the Fee in any such manner shall be exercised in a reasonable manner, but shall be final and binding upon you.
4.4 Platform Service Fee. In consideration of Company’s provision of the Trainer App and the Alto Services for your use and benefit hereunder, you agree to pay Company a platform service fee on a per Training Services transaction basis calculated as a percentage of the Fee determined by the Fee Calculation, as provided to you via email or otherwise made available electronically by Company from time to time for the applicable Territory (“Platform Service Fee”). In the event regulations applicable to your Territory require taxes to be calculated on the Fee, Company shall calculate the Platform Service Fee based on the Fee net of such taxes. Company reserves the right to change the Platform Service Fee at any time in Company’s discretion based upon local market factors, and Company will provide you with notice in the event of such change. Continued use of the Alto Services after any such change in the Platform Service Fee calculation shall constitute your consent to such change.
4.5 Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Training Services that have been accepted by you via the Trainer App at any time up to 24 hours prior to your arrival for the training session. In the event that a User cancels an accepted request for Training Services, Company may charge the User a cancellation fee (“Cancellation Fee”) on your behalf. If charged, this Cancellation Fee shall be deemed the Fee for the cancelled Training Services for the purpose of remittance to you hereunder.
4.6 Receipts. As part of the Alto Services, Company provides you a system for the delivery of receipts to Users for Training Services rendered. Upon your completion of Training Services for a User, Company prepares an applicable receipt and issues such receipt to the User via the User App Such receipts are also provided to you via the Trainer App available to you through the Alto Services [two (2) business days after completion of the related Training Services]. Receipts include the breakdown of amounts charged to the User for Training Services and may include specific information about you. Any corrections to a User’s receipt for Training Services must be submitted to Company in writing within four (4) business days after the completion of such Training Services. Absent such a notice, Company shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fee.
4.7 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Company and its Affiliates may seek to attract new Users to the Alto Services and to increase existing Users’ use of the Alto Services. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
4.8 Taxes. You acknowledge and agree that you are required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to your provision of Training Services as required by applicable law; and (b) provide Company with all relevant tax information. You further acknowledge and agree that you are responsible for taxes on your own income arising from the performance of Training Services. Notwithstanding anything to the contrary in this Agreement, Company may in its reasonable discretion, based on applicable tax and regulatory considerations, collect and remit taxes resulting from your provision of Training Services and/or provide any of the relevant tax information you have provided pursuant to the foregoing requirements in this Section 4.8 directly to the applicable governmental tax authorities on your behalf or otherwise.
5. Proprietary Rights; License
5.1 License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the Alto Services (including the Trainer App on Your Device) solely for the purpose of providing Training Services to Users and tracking resulting Fees. All rights not expressly granted to you are reserved by Company, its Affiliates and their respective licensors.
5.2 Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Alto Services, Trainer App or any Company Data in any way; (b) modify or make derivative works based upon the Alto Services or Trainer App; (c) improperly use the Alto Services or Trainer App, including creating Internet “links” to any part of the Alto Services or Trainer App, “framing” or “mirroring” any part of the Alto Services or Trainer App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Alto Services or Trainer App; (d) reverse engineer, decompile, modify, or disassemble the Alto Services or Trainer App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the Alto Services or Trainer App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Alto Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Alto Services; or (iv) attempt to gain unauthorized access to the Alto Services or its related systems or networks.
5.3 Ownership. The Alto Services, Trainer App and Company Data, including all intellectual property rights therein, and any Company Devices are and shall remain (as between you and Company) the property of Company, its Affiliates or their respective licensors. Neither this Agreement nor your use of the Alto Services, Trainer App or Company Data conveys or grants to you any rights in or related to the Alto Services, Trainer App or Company Data, except for the limited license granted above. Other than as specifically permitted by the Company in connection with the Alto Services, you are not permitted to use or reference in any manner Company’s, its Affiliates’, or their respective licensors’ company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "ALTO Marks and Names") for any commercial purposes. You agree that you will not try to register or otherwise use and/or claim ownership in any of the ALTO Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
6.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Company Data, Trainer IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information of each party (whether disclosed in writing or verbally) either (x) that such party designates as being proprietary or confidential, or (y) of which the other party should reasonably know that it should be treated as confidential.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided that Permitted Persons are bound in writing to obligations of confidentiality and non-use of Confidential Information no less protective than the terms hereof, and provided further that the party disclosing the Confidential Information to its Permitted Persons is responsible for the conduct of such Permitted Persons; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Company, its internal record-keeping requirements).
6.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
7.1 Disclosure of Your Information. Subject to applicable law, Company and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Company Data) about you or any Training Services provided hereunder if: (a) there is a complaint, dispute or conflict between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Company’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g., Company or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in Company’s or any Affiliate’s sole discretion, to (1) protect the safety, rights, property or security of Company or its Affiliates, the Alto Services or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Alto Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which Company or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, legally actionable or otherwise objectionable activity); or (e) it is required or necessary, in Company’s or any Affiliate’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Alto Services. You understand that Company may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
7.2 Company and its Affiliates may collect your personal data during the course of your application for, and use of, the Alto Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Company and its Affiliates, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Company’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
8.1 You agree to maintain during the Term liability insurance that provides protection against bodily injury and property damage to third parties in the amount of $1 million per occurrence or as required by each state in which you provide Services.
You agree to provide Company and its Affiliates a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy required in this Section 8.1 upon request. Furthermore, you must provide Company with written notice of cancellation of any insurance policy required by Company. Company shall have no right to control your selection or maintenance of your policy. You must be a named insured, for which a premium is charged, on the insurance policy required in this Section 8.1 at all times.
8.2 You agree to maintain during the term of this Agreement workers’ compensation insurance, if and to the extent that it may be required by applicable laws in the Territory. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
8.3 If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of Company, to resolve them with your insurer(s).
8.4 Company may maintain during the term of this Agreement insurance related to your provision of Training Services as determined by Company in its reasonable discretion, provided that Company and its Affiliates are not required to provide you with any specific insurance coverage for any loss to you or your vehicle. You are required to promptly notify Company of any injuries to You or a User that occur while providing Training Services and to cooperate and provide all necessary information related thereto.
9. Representations and Warranties; Disclaimers
9.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the Term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws, rules and procedures in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide Training Services pursuant to this Agreement, and the rules and policies of any fitness facility in which you provide Training Services (for the avoidance of doubt, the term “facility” does not include a hotel or other place whose principal function is not the provision of fitness training services); and (d) you will not permit any non-User to participate in any Training Services you provide hereunder.
9.2 Disclaimer of Warranties. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE ALTO SERVICES, TRAINER APP AND THE COMPANY DATA ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE ALTO SERVICES, TRAINER APP OR THE COMPANY DATA: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR TRAINING SERVICES. COMPANY AND ITS AFFILIATES FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE TRAINING SERVICES FROM YOU, AND COMPANY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE ALTO SERVICES AND TRAINER APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE ALTO SERVICES OR TRAINER APP. NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
9.3 No Service Guarantee. COMPANY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE ALTO SERVICES OR TRAINER APP. YOU ACKNOWLEDGE AND AGREE THAT THE ALTO SERVICES OR TRAINER APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE ALTO SERVICES OR TRAINER APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATION AND YOUR DEVICE, AND COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
10. Indemnification. You shall indemnify, defend (at Company’s option) and hold harmless Company and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Training Services or use of the Alto Services. This indemnification provision shall not apply to your breach of any representations regarding your status as an independent contractor.
11. Limits of Liability. COMPANY AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF COMPANY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PLATFORM SERVICE FEES ACTUALLY PAID TO OR DUE TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12. Term and Termination
12.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein (the “Term”).
12.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Company may terminate this Agreement or deactivate your Trainer ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Company and its Affiliates, to provide Training Services, or as otherwise set forth in this Agreement.
12.3 Effect of Termination. Upon termination of the Agreement, you shall immediately delete and fully remove the Trainer App from any of Your Devices. Outstanding payment obligations and Sections 1, 2.3, 2.5.3, 4.7, 4.8, 5.3, 6, 7, 9, 10, 11, 12.3, 13 and 14 shall survive the termination of this Agreement.
13. Relationship of the Parties
13.1 Except as otherwise expressly provided herein with respect to Company acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contracting parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Company and you; and (b) no joint venture, partnership, or agency relationship exists between Company and you.
13.2 You have no authority to bind Company or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Company or its Affiliates. Where, by implication of
mandatory law or otherwise, you may be deemed an agent or representative of Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the commercial rules of American Arbitration Association (the “Rules”) in force on the date when the Notice of Arbitration is submitted in accordance with the Rules.
The parties shall attempt to jointly designate the sole arbitrator within 30 days from the date when the Notice of Arbitration was received by the Respondent (the date of such receipt being referred to as the “Reference Date”). In the event that the parties cannot agree on a designation of the sole arbitrator within 30 days from the Reference Date, then there shall be three arbitrators, one designated by the initiating party within 45 days from the Reference Date, the second designated by the other party within 45 days of the Reference Date, and the third, who shall act as presiding arbitrator, designated by the two-party designated arbitrators within 30 days of the designation of the first and second arbitrators. If any arbitrators are not designated within these time periods, the American Arbitration Association shall proceed with the appointment(s).
The arbitration shall be conducted in New York, New York.
The arbitral proceedings shall be conducted in English.
All capitalized terms contained in this Section 14 that are not here defined shall have the meaning assigned by the Rules.
15. Miscellaneous Terms
15.1 Modification. In the event Company modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on you only upon your acceptance, in accordance with the terms of this Agreement,of the modified Agreement. Company reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the Alto Services, or downloading, installing or using the Trainer App, you are bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fee Calculations. Continued use of the Alto Services or Trainer App after any such changes shall constitute your consent to such changes.
15.2 Supplemental Terms; Terms of Service. Supplemental terms may apply to your use of the Alto Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict. You are also subject to the Terms of Service for the Alto website and app (“TOS”), which are not Supplemental Terms hereunder. This Agreement shall prevail over the TOS in the event of a conflict.
15.3 Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
15.4 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Company may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of Company’s business, equity or assets.
15.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.
15.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
15.7 Notices. Any notice delivered by Company to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the Alto Services. Any notice delivered by you to Company under this Agreement will be delivered by contacting Company at [email@example.com]