By purchasing any of the instructor training courses from 4TFM, you are bound by the following Instructor Membership Agreement.

By agreeing to this Instructor Membership Agreement, I acknowledge that I understand its content and that this release and agreement cannot be modified orally. By checking this box and agreeing to the terms and conditions for use, I acknowledge that this electronic signature shall have the same force and effect as my written signature, and I agree to conduct this transaction by electronic means.

A copy of this INSTRUCTOR MEMBERSHIP AGREEMENT can always be found in the Instructor Resources section of the 4TFM Google Drive. 


This Instructor Membership Agreement (“Agreement”) is made between 4th Trimester Fitness, LLC, a Florida limited liability company (“Company”), and the certified instructor, individually (“You” or “Instructor”) effective as of the date You entered into this Agreement electronically (“Effective Date”).  

 

RECITALS

 

Company has developed training and certification courses for an evidence-based curriculum to teach about childbirth, childbirth preparation, pelvic health and core strength in the prenatal, postpartum period, and beyond (the “Curriculum”); 

 

The Curriculum will focus on three classes (“Classes”): 1) Birth Ball Basics™ which is a 3-hour class designed for mothers preparing for labor (“Birth Ball Basics”), 2) Postpartum Recovery® Fitness which is a 6-week series for new mothers and their newborn babies (“Postpartum Recovery”), and 3) Pelvic Floor, Core & More™  which is a 3-hour class to help women in all stages of life with core and pelvic strength and stability (“Pelvic Floor, Core & More”);   

 

Instructor has attended Company’s certification courses and has achieved certification for at least one of the foregoing Classes;

 

Company owns the 4th Trimester Fitness®, the Postpartum Recovery® Fitness, Birth Ball Basics™, and Pelvic Floor, Core & More™ trademarks;

 

Instructor desires a license to allow Instructor to teach at least one of the Classes to customers (“Customers”) and use the 4th Trimester Fitness® trademarks for marketing and promotion of at least one of the Classes, pursuant to the terms and conditions in this Agreement.

 

The parties hereby agree as follows:

 

Grant of License.  Subject to the provisions of this Agreement, Company hereby grants to Instructor, a nonexclusive, non-transferrable, license to (i) allow Instructor to teach Company’s Curriculum for the Classes selected, trained in, and paid for by Instructor during the registration process, (ii) use the 4th Trimester Fitness® trademark for marketing and promotion of the Classes, and (iii) if selected, trained in, and paid for by Instructor during the registration process, use the Postpartum Recovery® Fitness, Birth Ball Basics™, and Pelvic Floor, Core & More™ trademarks for marketing and promotion of the designated Classes. The parties to this Agreement are independent, and no agency, partnership, joint venture, independent contractor, employee-employer, or franchisee-franchisor relationship is intended or created by this Agreement. Nothing herein or otherwise provided by Company to Instructor shall operate as a guarantee or implication that she will successfully locate venues in which to teach the Classes, participants for the Classes, or generate revenue from the activities authorized by this Agreement. Neither party shall have any right or authority to make commitments on behalf of the other party, or to otherwise obligate or bind the other party in any manner whatsoever, other than as set forth in this Agreement. 


Membership Fee.  Instructor shall pay to Company an annual fee of $360.00 or $36.00 per month (the “Membership Fee”), which will be increased from time to time. Failure to pay the Membership Fee shall result in termination of this Agreement. 


Marketing and Class Registration. Instructor shall comply with the Company website’s Terms of Service, and the Marketing Guidelines attached hereto as Exhibit B. Instructor shall obtain a waiver and release of liability from each of her class participants which releases the Company and its members, managers, employees, agents, representatives and instructors from liability in connection with the Classes, in the form attached hereto as Exhibit C. 


Use of the Curriculum.  Instructor shall ensure that all Classes adhere to the Curriculum and comply with this Agreement. The obligations regarding Instructor’s use of the Curriculum in this Section or elsewhere in this Agreement, shall survive the termination of this Agreement for whatever reason.


Ownership.  This Agreement is not a sale of the Curriculum or intellectual property.  Company retains title and ownership of the Curriculum and all subsequent versions, including the intellectual property rights therein, regardless of the form or media in or on which the Curriculum or subsequent copies exist.


Copy Restrictions.  The Curriculum is copyrighted.  Unauthorized copying of the Curriculum or any accompanying written materials is expressly forbidden.  Instructor may be held legally responsible for any copyright infringement that is caused or encouraged by Instructor’s failure to abide by the terms of this Agreement.


Use Restrictions.  Instructor expressly agrees not to use, or knowingly permit others to use, the Curriculum (including derivatives or variations of the Curriculum) for any purpose, in any way that violates any law or regulation, or subjects Company to liability of any kind, except as provided in this Agreement. Instructor may not modify, vary, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Curriculum. Instructor may not remove, alter, or obscure any proprietary notices, including trademark or copyright notices, in the Curriculum.  Instructor may not sell, license, or distribute the Curriculum by itself or as a part of a service or product. Instructor may not distribute copies of the Curriculum to third-parties. Conducting a Class with an alternative format or a format deviating from the Curriculum is expressly prohibited.


Transfer Restrictions.  The Curriculum is licensed only to Instructor, individually, and may not be transferred to anyone without the prior written consent of Company. If a transfer is authorized, the recipient shall be bound by the terms and conditions of this Agreement.  In no event may Instructor transfer, assign, rent, lease, sell, or otherwise dispose of the Curriculum on a temporary or permanent basis except as expressly provided herein. 

Insurance. During the term of this Agreement, Instructor shall obtain and maintain: (1) comprehensive general liability insurance, including individual automobile coverage, and (2) professional liability insurance. Such coverage shall be maintained in a minimum amount of $1,000,000 and cover no less than the following activities: (i) bodily injury and property damage, (ii) personal and advertising injury, (iii) damage to premises rented to You, medical expenses, and (iv) professional liability. Instructor shall submit proof of such insurance to Company upon request. Instructor agrees to add Company as an additional insured under such policies immediately upon request. Instructor agrees to maintain current CPR and AED certifications and will supply Company with proof of certification upon request.


Compliance. Instructor shall comply with all laws, regulations, and industry standards. Instructor shall cooperate with Company in providing information and materials, conducting surveys, and providing access to Classes and other events such that Company may ensure compliance with its quality control standards. Instructor agrees to accept exclusive liability for complying with all applicable state, local and federal laws and any and all laws of the country of Instructor’s residence, as applicable, including, without limitation, obligations such as payment of taxes. Instructor hereby agrees to indemnify and defend Company against any and all such taxes, payments and obligations, including penalties and interest. Neither Instructor nor any of Instructor’s agents or employees shall pass on any express or implied warranty on behalf of Company to any third parties. 


Disclaimer of Warranty.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CURRICULUM IS PROVIDED “AS IS”, AND COMPANY AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE CURRICULUM OR THE LICENSE (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE), AS WELL AS ANY WARRANTIES THAT THE CURRICULUM (OR ANY ELEMENTS THEREOF) OR THE LICENSE WILL ACHIEVE A PARTICULAR RESULT. 


Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY, EVEN IF COMPANY OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS INTENDED PURPOSE.  INSTRUCTOR’S EXCLUSIVE REMEDY AND THE TOTAL LIABILITY OF COMPANY ARISING IN ANY WAY IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO A REFUND OF THE MEMBERSHIP FEES PAID TO COMPANY, IN COMPANY’S SOLE AND ABSOLUTE DISCRETION.


Amendments and Changes.  Company reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement and the website’s Terms of Service at any time. Instructor acknowledges that there will be future versions of this Agreement because Company is continuing to develop its business model, and Instructor acknowledges that future versions of this Agreement will have additional terms, requirements and obligations for Instructor to undertake and comply with. Instructor’s continued use of the license granted herein shall mean that Instructor accepts and agrees to the changes. A copy of the current version of this Agreement can be found in the Google Drive for 4TFM Instructors, and although Company will notify instructors of changes to this Agreement from time to time, it is Instructor’s responsibility to check the Google Drive periodically for the current version.


Renewal; Termination.  The term of this Agreement begins on the Effective Date and shall continue for one year, after which the Instructor shall pay the Membership Fees in order for this Agreement to remain in effect. Failure to pay the Membership Fees shall result in termination of this Agreement. All of the terms of this Agreement are subject to Company’s right to modify this Agreement during the term of this Agreement as set forth in the previous paragraph. If this Agreement is modified by Company, the future version of this Agreement, with such modifications, shall be subject to the same term beginning on the Effective Date. Company shall have the right to terminate this Agreement at any time if (i) Instructor does not wish to agree with the terms of the future versions of this Agreement, (ii) if Instructor breaches a non-monetary provision of this Agreement, or (iii) Instructor does not pay the Membership Fees when due. Upon termination of this Agreement, Instructor’s license to the Curriculum granted herein immediately terminates. Unless terminated, this Agreement and future versions of this Agreement shall automatically renew upon payment of the Membership Fees when due.  


Confidentiality.


“Confidential Information” includes without limitation, the terms of this Agreement, all information that Company or any of its representatives or affiliates furnishes to the Instructor or her affiliates, employees, officers, directors, agents or advisors (including without limitation attorneys, accountants, consultants and financial advisors, and any of their respective representatives) (collectively, “Representatives”), including but not limited to, curriculum, curriculum development, product offerings, techniques, class descriptions, technology, business operations and strategies, finances and financial data, business models, operating and product descriptions, potential operation and product development ideas, database descriptions, business workflow, trade secrets, business information, customer information, pricing, marketing, social media strategies, personnel, potential patents, potential copyrights, potential trademarks, other intellectual property rights and other information of any kind whatsoever which Company discloses to Instructor or to which Instructor obtains access in connection with this Agreement, regardless of  (a) the date on which and the manner in which such information is or has been furnished by or on behalf of Company and (b) whether such information is specifically identified as “confidential” (collectively, “Confidential Information”).  The term “Confidential Information” does not include any specific Confidential Information which, Instructor can prove, by documents maintained in the ordinary course of business: (i) is or becomes generally available to the public other than as a result of disclosure by the Instructor in breach of this Agreement; or (ii) was or becomes available to the Instructor from a source other than Company, provided that such source, to Instructor’s knowledge, was not prohibited from disclosing such Confidential Information to the Instructor.

 

Instructor acknowledges the proprietary and sensitive nature of the Confidential Information, and the importance of maintaining the secrecy and confidentiality of such Confidential Information. Instructor hereby agrees to: (i) hold all Confidential Information in confidence and take all reasonable precautions to protect such Confidential Information and prevent any unauthorized disclosure (including, without limitation, taking the same degree of care with respect to its own confidential materials, but in no case less than reasonable care); (ii) not disclose any Confidential Information or any information derived from such Confidential Information to any other person, other than Instructor and its Representatives, except upon the prior written consent of the Company; (iii) use the Confidential Information for the sole limited business purpose of and fulfilling its obligations under this Agreement; and (iv) not copy, reproduce or reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any such Confidential Information without the prior written consent of the Company.  Instructor shall be responsible for any breach of this Agreement by any of its Representatives, and the Instructor will take reasonable measures to prevent its Representatives from prohibited or unauthorized disclosure or use of the Confidential Information.

 

Upon termination or expiration of this Agreement, or promptly following receipt of a written request by Company, Instructor agrees to destroy all Confidential Information Company has furnished to Instructor and all written material, memoranda, notes, copies, excerpts and other writings or recordings however prepared by the Instructor to the extent the same contains or otherwise reflects any Confidential Information.  Notwithstanding the return or destruction of the Confidential Information, Instructor will continue to be bound by its confidentiality obligations in this Agreement.  Instructor agrees to verify the destruction of such material in writing.at the Company’s request the Instructor will return to the disclosing party or destroy all written materials that contain any Confidential Information.  Any destruction of written materials that contains Confidential Information shall be certified to the disclosing party in writing by an authorized officer of the disclosing party supervising such destruction.

 

In the event that Instructor is requested or required (by applicable law, regulation, or legal process) to disclose any of the Confidential Information, Instructor shall promptly notify the Company of any such request or requirement so that the Instructor may seek a protective order or other appropriate remedy and/or in its sole discretion, waive compliance with the provisions of this Agreement.  If, in the absence of a protective order, other remedy or waiver by the Company, Instructor or any of her Representatives is nonetheless, in the opinion of the Instructor’s legal counsel, legally compelled to disclose Confidential Information, the Instructor or its Representative may, without liability hereunder, disclose only that portion of the Confidential Information concerning the Company that is legally required to be disclosed.

 

All of the undertakings and obligations relating to confidentiality and non-disclosure, whether contained in this Section or elsewhere in this Agreement, shall survive the termination of this Agreement for whatever reason.


Indemnification. Instructor shall, for itself and its assigns, indemnify, defend and hold the Company, and its officers, directors, employees, agents, and affiliates (collectively, all such parties including Company are referred to herein as the “Released Parties”) harmless from and against all demands, claims actions, judgments, losses, costs, damages or expenses, including attorneys’ fees and related expenses, which in any manner are caused by, arise from, or are incident to (i) any services performed by Instructor pursuant to this Agreement, (ii) Instructor’s breach of any obligations provided for under this Agreement; (iii) Instructor’s marketing or promotion of  fitness, prenatal or postpartum classes, or (iv) the Instructor’s use of the Company’s marks, proprietary intellectual property, or other Company. By execution of this Agreement, it is Instructor’s intention to surrender and waive any rights to exercise any legal action or seek any damages against Company and all Released Parties. Instructor also represents that she has signed and agreed to the Instructor Release attached hereto as Exhibit C. Instructor agrees, from time to time, at Company’s sole discretion, to execute an updated version of the Instructor Release should Company make such a request.  


Injunctive Relief.  Instructor agrees that money damages may be an insufficient remedy for any actual or threatened breach of this Agreement and that Company shall be entitled to seek specific performance and immediate injunctive or other equitable relief as a remedy for any such actual or threatened breach.  Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to Company.  The Company agrees that in no event shall Instructor be liable to the Company for any special, indirect, incidental or consequential damages of any kind or nature whatsoever under this Agreement. Failure or delay by Company in exercising any right, power or privilege hereunder shall not be deemed to be a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any such right, power or privilege.  


Choice of Law.  This Agreement is governed by the laws of the State of Florida, without regard to choice of law provisions to the contrary.  The sole and exclusive jurisdiction and venue for any actions arising under or related to this Agreement shall be in Duval County, Florida.


Headings.  The headings of the Sections of this Agreement are for convenience only, and in no way limit or affect the terms and conditions or the meaning or interpretation of this Agreement.

 

Severability.  If any provision of this Agreement is held to be invalid or unenforceable then that provision will be altered or limited such that it is enforceable and corresponds to the original provision as closely as possible.  An invalid or unenforceable provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement.  


Assignment.  Neither party may delegate, assign, or sublicense this Agreement or the licenses granted in this Agreement without the prior written consent of the other party, such consent to be granted or withheld in such party’s sole and absolute discretion, and any such delegation or assignment shall be ineffective.


Waiver.  Waiver by either party of a breach of any provision contained in this Agreement shall not constitute or be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself.  Failure at any time to enforce any of the provisions of this Agreement or any right with respect thereto, or to exercise any option herein provided, will in no way be construed to be a waiver of such provisions, rights, or options or in any way to affect the validity of this Agreement.  The exercise of any rights or options under the terms or covenants herein shall not preclude or prejudice the exercising thereafter of the same or any other right under this Agreement.


Notices.  Notices to be given under this Agreement shall be in writing, and shall be deemed to have been duly given (a) when received, if personally delivered; (b) two (2) business days after being sent, if sent for next day delivery to a domestic address by a nationally-reputable overnight delivery service (e.g., Federal Express); (c) on the date of transmission, if sent by facsimile, telex, electronic mail, or other wire transmission with transmission confirmed; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.  Notices shall be sent to the addresses of the parties listed below their signatures.


Completeness.  This Agreement sets forth the entire understanding between the parties with respect to the matters set forth herein and supersedes all previous licenses, agreements, and representations with respect to the Curriculum and trademarks herein.

 

IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date. By becoming an Instructor, I acknowledge that I understand the content of this Agreement and that this Release and Agreement cannot be modified orally, and I agree to conduct this transaction by electronic means.



Exhibit A

 

Instructor has license to use the trademarks and teach the Classes below, as long as Instructor has been trained by Company to teach such Class, and Instructor has paid for the designated training certification and Membership Fee during the registration or renewal process: 


 

 

Exhibit B

Marketing Guidelines


 

 

Exhibit C

 

Instructor Release and Publicity Agreement

 

Because physical exercise can be strenuous and subject to risk of serious injury, we urge You to obtain a physical examination from a doctor before using any exercise equipment or participating in any exercise activity. You agree that by participating in physical exercise or training activities, you do so entirely at your own risk. You agree that you are voluntarily participating in these activities and assume all risks of injury, illness, or death. We are also not responsible for any loss of your personal property.

 

You acknowledge that you have carefully read this “waiver and release” and fully understand that it is a release of liability. You expressly agree to release and discharge 4th Trimester Fitness, LLC and its members, managers, owners, officers, employees, contractors, agents, and affiliates (“Company”) from any and all claims or causes of action and you agree to voluntarily give up or waive any right that you may otherwise have to bring a legal action against Company for personal injury or property damage.

 

To the extent that statute or case law does not prohibit releases for negligence, this release is also for negligence.

 

You further agree that your name, voice, likeness, image, statements, and other identifying elements may be used in Company’s marketing, publicity, social and other promotional materials without compensation to the Instructor.  Instructor’s statements may be used in whole or in part and may be paraphrased, amplified and shortened to meet the requirements of copy, layout, and/or script, provided their general sense is not changed.  Instructor hereby waives any right to review or approve Company’s marketing publicity, social and other materials that contain or include any such identifying elements. If any portion of this release and agreement shall be deemed by a Court of competent jurisdiction to be invalid, then the remainder of this release and agreement shall remain in full force and effect and the offending provision or provisions severed here from.

 

AGREED: By signing electronically, I acknowledge that I understand its content and that this release and agreement cannot be modified orally.  By checking this box and including my name and date of signature, I acknowledge that this electronic signature shall have the same force and effect as my written signature, and I agree to conduct this transaction by electronic means.

 

Release for Class Participants

(to be included in your registration process)

 

I understand that physical exercise can be strenuous and there is inherent risk in participating in any exercise program. I agree to assume those risks personally and hereby release 4th Trimester Fitness® LLC, its members, managers, employees, agents, representatives and instructors (the “Released Parties”) from any and all claims or liability, loss or expense for any injury or discomfort I or my baby may sustain as a result of my participation in this program. I understand that I am not required to participate in any or all of the body movements demonstrated by the 4th Trimester Fitness® LLC instructor, and that nothing we do in class should ever be painful. I represent that I have consulted with my physician before participating in this activity. I understand that this is a group fitness class, that the Released Parties are not providing physical therapy or medical services, advice or treatment, and that the Released Parties are not acting as my physician, physical therapist, or one-on-one personal trainer. I give permission for photographs taken of me while participating in the class to be used in social media and marketing/public relations materials in the promotion of 4th Trimester Fitness® LLC and its classes. At any time during class, I can let the instructor know that I prefer not to be photographed.


AGREED:

By signing electronically, I acknowledge that I understand its content and that this release and agreement cannot be modified orally.  By checking this box and including my name and date of signature, I acknowledge that this electronic signature shall have the same force and effect as my written signature, and I agree to conduct this transaction by electronic means.