Terms of Service

Last updated 07/21/2023

Martial Arts on Rails LLC d.b.a Gymdesk ("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 (defined below). 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.

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

1. Terms of Service

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. 

Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you’ve read the Privacy Policy and agree to its terms.

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. Services

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's 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’s standard support services as follows: 

• Customer service contact form - 24 hours
• Email: support@gymdesk.com - 24 hours
• Live chat: https://gymdesk.com - 10am-6pm CST

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 Gymdesk 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 account based on the table below:

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.

Gymdesk reserves the right to provide the service. Access to the service may be terminated by Gymdesk upon no less than thirty (30) calendar days notice in writing to the other party, without cause, unless a lesser time is mutually agreed upon in writing by both parties. Said notice shall be delivered by Email.

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’s 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’s 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’s 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.

4.4 Notice and Procedure for Making Claims of Copyright Infringement in Accordance with DMCA. In accordance with the Digital Millennium Copyright Act, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov, Gymdesk will respond expeditiously to clear notices of alleged copyright infringement that are reported to Gymdesk’s designated copyright agent identified below. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by Gymdesk that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the Digital Millenium Copyright Act (“DMCA”). This Section describes the information that should be present in these notices. IMPORTANT NOTE: while the DMCA by its own express terms does not contemplate disputes related to trademark infringement, Gymdesk may (but is not obligated to) respond expeditiously to clear notices of alleged trademark infringement that are reported to Gymdesk’s designated copyright agent identified below, provided that all terms of this Section 4 and its included subsections are complied with by all concerned parties, as if the notice of alleged infringement concerned copyright infringement, as opposed to trademark infringement.

4.4.1 Notice of Infringing Material. If you are a copyright owner, or are authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, and believe that your work has been copied in a way that constitutes copyright infringement, please report your notice of infringement to Gymdesk by providing Gymdesk’s designated copyright agent listed below with the following information:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identify in sufficient detail the copyrighted work that you believe has been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identify the material that you claim is infringing the copyrighted work listed in #2 above and that is to be removed or access disabled, and information reasonably sufficient to permit Gymdesk to locate the material;
4. Provide information reasonably sufficient to permit Gymdesk to contact you, including a name, address, telephone number and email address;
5. If possible, provide information sufficient to allow Gymdesk to notify the owner/administrator of the allegedly infringing content;
6. Include the following statements:
   1. "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
   2. "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
7. Sign the notice; and
8. Send the notice to:
   1. Martial Arts on Rails LLC d.b.a Gymdesk
      ATTN: Copyright
      Gymdesk Legal Department
      Gymdesk, 9901 Brodie Lane Ste 160 #1150 Austin, TX 78748
      Email: support@gymdesk.com
   2. Please note that a copy of this legal notice will be forwarded to the person who provided the allegedly infringing content.

4.4.2 Counter Notification. The administrator of an affected site or the provider of affected content may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When we receive a counter notification, we may reinstate the material in question. To file a counter notification with us, you must provide a written communication by fax or regular mail that sets forth the items specified below:

1. Identify the specific URLs or other unique identifying information of material that Gymdesk has removed or to which Gymdesk has disabled access.
2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or the Northern District of California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled and will no longer be shown."
4. Sign the notice; and
5. Send the notice to:
   Martial Arts on Rails LLC d.b.a Gymdesk
   ATTN: Copyright
   Gymdesk Legal Department
   Gymdesk, 9901 Brodie Lane Ste 160 #1150 Austin, TX 78748
   Email: support@gymdesk.com

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 5.1, 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 5.1, 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 Data that 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.

5.4 Personal Information. Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy. Without limitation, you acknowledge and agree that Gymdesk may process Your Data for the purpose of providing the Services and related functions, such as billing and customer or End User support, as well as to send direct marketing communications to your representatives’ or End Users, data science and product or service improvement and reporting.

You represent and warrant that You are authorized to process Your Data and make such data available to Gymdesk for uses as set out in the Agreement and Privacy Policy, including through appropriate notice, consent and by your referring individuals, such as End Users, to our Privacy Policy (notwithstanding Gymdesk’s ability and right, to which You agree, to request consent, and provide notice and its Privacy Policy separately to individuals).

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.

6. Indemnification

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's web site and Services shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. The parties hereby agree to the exclusive jurisdiction of the state and federal courts located in the State of Texas, Travis County and hereby agree that such courts shall be the exclusive venue for any action or proceeding arising out of or related to this Agreement.

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. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".

9. Subcontractors

Gymdesk uses subcontractors to provide the Services. Gymdesk reserves the right to engage and substitute subcontractors as it deems appropriate to provide the Services and support hereunder.

10. Counterparts; Electronic Signatures.

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. A facsimile, PDF or other electronic signature of this Agreement shall be valid and have the same force and effect as a manually signed original. In addition, the terms and conditions of Gymdesk’s E-SIGN CONSENT, are hereby incorporated as if fully recited herein.

11. Third Party Recipient Consent to Electronic Signature.

You understand and agree that to the extent you utilize the Services to facilitate electronic signatures of various documents by “Third-Party Recipients” (as such term is defined in the E-SIGN CONSENT), Gymdesk is not guaranteeing the legality, enforceability, or binding nature of any such electronic signatures. In addition, you understand and agree that best practices dictate that to the extent you seek binding electronic signatures from any such Third Party Recipients, that your OWN terms and conditions for such Third Party Recipients provide a clear and concise statement of such Third Party Recipient’s consent to the use and deployment of any such electronic signatures, which may take the form of the following (it being understood that the following consent language is provided for example and informational purposes only and that Gymdesk is NOT providing any legal advice and that you understand and agree that it is your duty to have your own legal advisors review and/or modify such language): 

“By selecting the form submit button, I agree that the signature and initials will be the electronic representation of my signature and initials for all purposes when I (or my agent) use them on documents, including legally binding contracts - just the same as a pen-and-paper signature or initial and in connection with the foregoing, I acknowledge, have read, and hereby agree to the terms set forth in the Martial Arts on Rails LLC d.b.a Gymdesk E-SIGN CONSENT, including the heading entitled Electronic Delivery of Communications and Use of Electronic Signatures (i.e., Third Party Users and Third Party Recipients).”

12. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.

EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.