Last updated 03/31/2022
Gymdesk provides online management software for gyms, martial arts schools and other wellness and membership club businesses ("Services").
These Terms of Service (“Agreement”) apply to any use of and access to the Services by you and your Affiliates. By accessing or using the Services, you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.
This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement (including through an Order Form), or (b) the date you (or an Affiliate) first access or use the Services.
By accessing the Services, you are agreeing to be bound by the Terms of Service contained in the Agreement, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing the Service.
Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to https://gymdesk.com/page/terms, and we agree the changes will not be retroactive.
If we make any material changes to the Agreement, we’ll notify you within the day by sending you an Email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement.
2.1 Software Services
2.1.1 Access and Service Levels. Gymdesk will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term (defined below), the Software Services will meet the service levels specified in the Service Level Agreement (“SLA”) defined below.
We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
2.1.2 Changes to Services. Notwithstanding Section 2.1.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (a) in connection with a Force Majeure event, (b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime as provided in the SLA.
In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
2.2 Third Party Offerings. Although the Services may allow you to access or use Third Party Offerings (including, but not limited to: 3rd party payment providers), they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder.
The availability of any Third Party Offerings through the Services does not imply Gymdesk' endorsement of or affiliation with the provider. Gymdesk does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings.
By using or enabling any Third Party Offering, you are expressly permitting Gymdesk to share Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
2.4 Support Services. As part of the Services you will have access to Gymdesk’ standard support services as follows:
Our response time is typically within the hour during business hours M-F (CST). During off hours and weekends, it may take up to 1 day to respond.
2.5 Free Trial Services. Gymdesk may in its sole discretion offer free or trial Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free or trial Services are provided “AS IS” with no warranties of any kind; and (b) Gymdesk may discontinue any free or trial Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us.
2.6 Service Level Agreement.
2.6.1 Uptime Commitment. We will make the Software Service available to you on a twenty-four hour, seven days a week (24x7) basis at a rate of 99.9% (“Uptime Requirement”).
The Uptime Requirement will commence on the date you first access the Software Service with a paid subscription (“Commencement Date”).
2.6.2 Uptime Calculation.
Uptime is the percentage of total possible minutes Services were available during a calendar year. Our commitment is to maintain at least 99.9% Uptime:
[(total minutes in a year - Downtime) / total minutes in year] > 99.9%
2.6.3 Scheduled Downtime
Sometimes we need to perform maintenance to keep Slack working smoothly. If scheduled downtime is necessary, we’ll give you at least 48 hours advance notice. In a year, scheduled downtime will not exceed 10 hours.
2.6.4 Service Credits
If we fall short of our Uptime commitment, we'll apply a credit to your that is equal to 1 free month of use of the Services.
Service Credits are not refunds, cannot be exchanged into a cash amount, are capped at a maximum of 1 month of paid service, require you to have paid any outstanding invoices and expire upon termination of your customer contract. Service Credits are the sole and exclusive remedy for any failure by Gymdesk to meet its obligations under this SLA.
2.6.5 Refunds and cancellations
We do not have term contracts - you may cancel your account at time by informing us of your need to cancel. If you're unhappy with our service for any reason, please let us know and we'll refund your most recent payment, up to 30 days from the payment date.
3. Your Responsibilities
3.1 Liability for End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users.
You will ensure that your End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by Gymdesk, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services.
Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by End Users, and any act or omission of an End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.
You are responsible for providing accurate data and collecting and protecting that data as required by law. You are responsible for the things that allow you to access our Services.
3.2 Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify Gymdesk promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
You agree that you and anyone you’re responsible for in this Agreement won’t violate the Agreement or engage in any of the prohibited conduct.
3.3 Restrictions on Use. You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use the Services to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services.
Notwithstanding subsection (x) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, Gymdesk grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Gymdesk reserves the right to revoke these permissions at any time and without notice.
3.4 Cardholder Data. You are solely responsible for any liability resulting from your or any End User’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
3.5 User Names and Passwords. User names and passwords are for internal business use only and may not be shared with any third party. You, and not Gymdesk, are responsible for any use or misuse of user names or passwords associated with your account.
3.6 Consent. You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products.
3.7 Fees and payment. You agree to pay the Subscription Fees and any other applicable fees stated on an invoice or otherwise specified in this Agreement. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM.
All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Invoice, fees must be paid in advance of each billing period.
You will provide Gymdesk with valid and updated credit card information or another form of payment acceptable to Gymdesk. If you provide credit card information, you represent that you are authorized to use the card and you authorize Gymdesk to charge the card for all payments hereunder.
By submitting payment information, you authorize Gymdesk to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Gymdesk for purposes of acknowledging or completing any payment.
If you fail to pay the required amount by 14 days from the payment due date, your Services will be suspended until you resolve your payment. Payments will continue on the original schedule after you resolve your payment.
4. Intellectual Property Rights
Gymdesk retains all right to our own Intellectual Property.
4.1 Gymdesk Intellectual Property. Gymdesk or its affiliates own all right, title and interest in and to the Services, the Gymdesk Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Gymdesk and its affiliates reserve all rights, title and interest in and to the Services, the Gymdesk Data and Aggregated Data, including, without limitation, all related intellectual property rights.
As between you and Gymdesk, all Gymdesk Marks are owned by Gymdesk or its affiliates. You agree not to display or use any Gymdesk Marks in any manner without Gymdesk’ express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
You have a limited license to use the Services as outlined in this Agreement. You may not do anything expressly prohibited in this section.
4.2 License Grant to You. Subject to the terms and conditions of this Agreement, Gymdesk hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services during the Subscription Term and solely for your internal business purposes.
You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Gymdesk in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
You grant us a license to use your feedback, trademarks and logos in connection with providing the Services and for marketing your business and Gymdesk.
4.3 License Grant to Gymdesk. You hereby grant to Gymdesk and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or Gymdesk’ or its affiliates’ business(es); and (b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, (y) for marketing and promotional purposes in connection with Gymdesk’ business, and (z) for Marketing Services. Gymdesk agrees that any use by Gymdesk of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to Gymdesk or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
5. Data Ownership and Use
5.1 Your Data. As between you and Gymdesk, you own all right, title and interest in Your Data. You hereby grant to Gymdesk a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing Gymdesk products and services and/or complementary products and services of our partners.
You represent and warrant to Gymdesk that you have all rights necessary to grant the licenses in this Section 56.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
5.2 Gymdesk Data. Notwithstanding Section 65.1, all right, title and interest in any data or information collected by Gymdesk independently and without access to, reference to or use of any of Your Datathat has been de-identified so that it cannot be identified with Your Data (“Aggregated Data”) will be Gymdesk data.
5.3 Aggregated Data. You agree Gymdesk owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit Gymdesk from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
If You are a resident of the EEA or EU as defined by applicable data privacy law, Your Data is governed by our Data Processing Terms.
5.5 Protection and Security. During the Subscription Term, Gymdesk will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data. Gymdesk will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data.
5.6 Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
5.7 Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that Gymdesk has no obligation whatsoever to resolve or intervene in such disputes.
You agree to indemnify, defend, and hold harmless the Gymdesk Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.
7. Governing Law
Any claim relating to Gymdesk' web site and Services shall be governed by the laws of the State of Wyoming without regard to its conflict of law provisions.
8. Limitations and Exclusions of Liability
GYMDESK EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY GYMDESK. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GYMDESK PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH GYMDESK AND THE GYMDESK PARTIES.
IN NO EVENT WILL ANY GYMDESK PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF GYMDESK, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Subcontractors. Gymdesk uses subcontractors to provide the Services. You agree to be bound by applicable Subcontractor. See the full list of subcontractors here.