LIQUID MOTION STUDIOS, LLC
CERTIFICATION TRAINING TERMS AND CONDITIONS
These terms and conditions (“Terms and Conditions”) are entered into by Liquid Motion Studios, LLC, a Connecticut Limited Liability Company with an email address of: Info@LiquidMotionCT.com, (“Liquid Motion”), pursuant to the Liquid Motion Certification Training Program Agreement for Services (the “Agreement”) and the Client, as defined in the Agreement, dated as of point of sale. Any term undefined herein shall have the meaning as set forth in the Agreement. In consideration of the opportunity to partake in any of the following Liquid Motion Certification Training Programs: (i) 1.0 Certification Program; (ii) 2.0 Certification Program; (iii) Heels Certification Program; and/or (iv) Pole Certification Program (collectively, “Liquid Motion Certification Training Programs”), Client agrees to these Terms and Conditions:
1. Definitions. As used in these Terms and Conditions, the following terms shall have the meanings set forth below:
“1.0 Certification Program” shall mean the three (3) day long in-person, virtual or self-guided on-demand 1.0 Certification Training Program on the dates and location set forth in the Agreement.
“2.0 Certification Program” shall mean the two (2) day long in-person, virtual or self-guided on-demand 2.0 Certification Training Program on the dates and location set forth in the Agreement.
“Heels Certification Program” shall mean the two (2) day long in-person, virtual or self-guided on-demand Heels Certification Training Program on the dates and location set forth in the Agreement.
“Pole Certification Program” shall mean the three (3) day long in-person, virtual or self-guided on-demand Pole Certification Training Program on the dates set forth in the Agreement.
“Licensed Network” shall mean an all-access membership to branding, digital images, logos and individual listings on the Liquid Motion® website as a licensed instructor. This membership also includes Clients’ ability to teach their own Liquid Motion® class whenever and wherever they want subject to the terms of this Agreement.
“Certification Program Materials” shall mean the Liquid Motion Certification manual; Liquid Motion fundamental moves, theories and techniques packet; any pre-recorded videos associated with the Liquid Motion Certification Training Programs or Liquid Motion; and any other materials received or given access to as part of the Agreement.
“Intellectual Property Rights” shall mean copyright rights, trademark rights, patent rights, trade secrets, moral rights, rights of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other applicable state, country or jurisdiction.
“Services” shall mean the Liquid Motion Certification Training Programs, as selected and paid for by Client and further described in the Agreement.
2. Purchase of Services. The parties acknowledge and agree that Liquid Motion will provide the Services and Client will purchase the same by, and through, the efforts of Liquid Motion, as set out in the Agreement and these Terms and Conditions. Liquid Motion shall maintain all Intellectual Property Rights related to and in the Services and the Certification Program Materials except as allowed in Section 4 below.
3. Compensation. Client agrees to pay Liquid Motion for the Services according to the terms of payment set forth by Liquid Motion.
4. Ownership; License. Ownership of the Services and the underlying and related Intellectual Property Rights shall remain the exclusive property of Liquid Motion in accordance with these Terms and Conditions. Client agrees and understands that the information provided in the Services and the Certification Program Materials is proprietary to Liquid Motion. While certain portions and elements may be used by Client, neither Client nor Client’s employees, staff, contractors, students, clients, agents or representatives (collectively, the “Client Parties”) may copy, distribute, or otherwise share the Certification Program Materials. If Client passes the certification exam (the “Exam”) following completion of the 1.0 Certification Program (the “Initial Certification Program), which shall be determined by Liquid Motion in its sole and reasonable discretion, Liquid Motion grants Client eligibility to join the Liquid Motion® Licensed Network. The Liquid Motion Licensed Network grants Client a non-exclusive, revocable license, with no warranty, to (i) instruct Liquid Motion® pole fitness classes conforming to the Liquid Motion® standards and guidelines, (ii) use the Certification Program Materials, as purchased in the Agreement, but only to the extent necessary to teach or instruct others in Liquid Motion® fitness courses; and (iii) use the Liquid Motion name, logo, and trademark to promote such conforming pole fitness classes. In the event that Client does not pass the Exam, Client may coordinate with Liquid Motion to retake the Exam within six (6) months of the original Exam date. Client must complete the Initial Certification Program in order to participate in either the 2.0 Certification Program, Heels Certification Program and/or Pole Certification Program (collectively, the “Advanced Certification Program(s)”). If Client successfully completes an Advanced Certification Program, which shall be determined by Liquid Motion in its sole and reasonable discretion, Liquid Motion grants expansion of Client’s Licensed Network to include additional Certification Program Materials, as purchased in the Agreement, but only to the extent necessary to teach or instruct others in Liquid Motion® fitness courses. Notwithstanding the foregoing, Client does not have the authority to enter into any exclusive agreement or relationship with any third party to be the exclusive Liquid Motion® instructor of any studio, gym, fitness center or territory. Liquid Motion does not grant Client the ability to certify other individuals to teach Liquid Motion courses, workshops, or seminars. Client may not use the Intellectual Property Rights of Liquid Motion in any other way except as permitted hereunder. Client shall not create or sell any products or merchandise using the Liquid Motion brand or trademark. If any individual would like any Liquid Motion® products or apparel, Client may direct such individual to the Liquid Motion website where such products and/or apparel may be purchased.
5. Assumption of Risk.
5.1 Release. Client understands that pole dance and fitness instruction requires physical exertion and acknowledges that injury may result during instruction and participation, including but not limited to as a result of physical contact with other students, instructors, or fixed or movable objects, or the condition of the floor. Client recognizes that the 1.0 Virtual Certification Program, the 2.0 Virtual Certification Program, the Virtual Heels Certification Program and the Virtual Pole Certification Program (collectively, “Virtual Certification Programs”) involve activities that may require the use of Client’s floor space and own equipment that Liquid Motion has not inspected and of which Liquid Motion has no knowledge regarding its condition. Client further acknowledges that Liquid Motion® instructors of any Virtual Certification Programs will be unable to physically correct or prevent any potentially hazardous activities engaged in by Client during the Virtual Certification Programs, and as such Client assumes the risk for any and all injuries or property damage associated therewith. Client represents and warrants that Client is medically and physically able to safely participate in dance classes with or without heels, workshops, rehearsals, and performances and to meet the physical demands thereof. Client shall assume all risks associated with participating in the Liquid Motion Certification Training Programs, even if not specifically set forth herein, whether or not they fall within the scope of reasonably foreseeable injuries related to such participation. Furthermore, Client agrees they are responsible for accessing the Virtual Certification Programs and ensuring that they can properly do so prior to the beginning of the Virtual Certification Programs. In the event Client encounters difficulties in accessing the Virtual Certification Programs that do not originate with Liquid Motion, including but not limited to technological difficulties, general network failures or delays, internet traffic volume, or any physical computer damage, Liquid Motion shall not be held liable for any missed hours of training, and Client’s fee shall not be refunded. If Client decides to teach or instruct dance or fitness courses, workshops or seminars in the future, Client agrees to assume all risks associated with providing dance instruction, workshops, rehearsals, and performances to participants and Client Parties. Client acknowledges that Liquid Motion is not responsible for investigating any third-party locations that Client desires to use in the future for instruction, and hereby releases Liquid Motion from any claims that may arise out of such third party agreements.
In view of the foregoing, and as a term and condition of participating in the Services hereunder, Client, on behalf of itself, the Client Parties, its legal representatives and assigns, expressly releases, waives and discharges Liquid Motion, its officers, directors, affiliates, employees, agents, successors, predecessors, sponsors, legal representatives and assigns (collectively, “LM Parties”), from all present and future claims, demands, actions, judgments, executions and liabilities of any kind, known or unknown, that now have, ever had or may have, or claim to have, against any and all LM Parties, created by, as arising out of, Client’s participation in the Liquid Motion Certification Training Programs, any dance instruction, workshop, rehearsal, or performance or related activity, regardless of where held or when held, even though such claim or liability may arise out of negligence or fault on the part of any of the foregoing persons or entities, breach of contract or otherwise, and whether for bodily injury, property damages or loss or otherwise. This release is for the entire premises owned, leased, borrowed or used by Liquid Motion, including but not limited to locker rooms, studios, bathrooms, parking areas, sidewalks, alleys, stairwells, elevators, buildings and grounds.
5.2 Limitation of Liability. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF LIQUID MOTION OR ANY OF THE LM PARTIES TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET AMOUNT PAID TO LIQUID MOTION BY THE CLIENT FOR THE SERVICES. IN NO EVENT SHALL LIQUID MOTION BE LIABLE FOR ANY LOST PROFITS, PHYSICAL INJURY, PROPERTY DAMAGE, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY LIQUID MOTION, EVEN IF LIQUID MOTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. Term and Termination.
6.1 Term. These Terms and Conditions shall be effective upon the Effective Date of the Agreement and shall remain in force until the Services are completed or terminated by Liquid Motion. Liquid Motion reserves the right to modify or terminate access to the Premium Services.
6.2 Compensation After Termination. In order for Client to reserve a spot and to partake in any Liquid Motion Certification Programs, Client is responsible for the following full Liquid Motion Certification Training Program non-refundable fee(s) of: (i) 1.0 Certification Program $500 up front; (ii) 2.0 Certification Program $500 up front; (iii) Heels Certification Program $500 up front; and/or (vi) Pole Certification Program $575 up front. Upon registration for the Initial Certification Program, Client is responsible for the full discounted annual fee of $180 up front. If Client elects to stay enrolled in the Licensed Network one (1) year after successfully completing the Initial Certification Program, Client is responsible for either (i) the discounted annual fee of $180 up front; or (ii) a monthly plan of $20/month, with a minimum monthly payment plan of twelve (12) months. Accordingly, under the monthly payment option, Client is responsible for a minimum of twelve (12) monthly payments. All fees are non-refundable.
6.3 Cancellation. Client understands that any fees paid to Liquid Motion are non-refundable. Each client is allowed one (1) transfer of registration date for any Liquid Motion Certification Program. Transfers between individuals will be allowed. Failure to attend the transferred registration date will result in forfeiture of any paid registration fees. All transfers must be requested no later than 14 days prior to the Client’s original scheduled training date. Each transfer will incur a $40 administrative transfer fee. Clients will be invoiced for this fee, which must be paid within 48 hours or client will forfeit the right to transfer. Client understands that registration for any Liquid Motion Certification Program is subject to the Liquid Motion Cancellation Policy (the “Cancellation Policy”).
6.4 Survival. Upon the expiration or termination of these Terms and Conditions, Sections 1, 2, 4, 5, 6.2, 6.3, 6.4 and 7 shall survive and continue in effect.
7. Miscellaneous.
7.1 Waiver. Any of the provisions of these Terms and Conditions may be waived by the party entitled to the benefit thereof. Neither party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
7.2 Governing Law; Jurisdiction. The Agreement and these Terms and Conditions shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. The jurisdiction and venue for all disputes hereunder shall be Fairfield County, Connecticut and each party hereby consents to such jurisdiction and venue.
7.3 Amendment. The Agreement and these Terms and Conditions may not be amended or modified by the parties in any manner, except by an instrument in writing signed on behalf of each of the parties to which such amendment or modification applies by a duly authorized officer or representative.
7.4 Arbitration. Any controversy or claim arising out of or relating to the Agreement or these Terms and Conditions, or the breach thereof, shall be settled by arbitration and by a neutral arbitrator to be chosen by both parties, and the parties hereby agree to be bound by the results. Such arbitration shall be held before the American Arbitration Association in accordance with their rules and procedures. Payment of arbitration fees is to be decided by the arbitrator and judgment upon the award rendered may be entered in any court possessing jurisdiction of arbitration awards. Notwithstanding the foregoing, without breach of this arbitration provision, any party may apply to any court specified in Section 7.2 for temporary injunctive relief in accordance with Section 7.5.
7.5 Injunctive Relief. Client acknowledges that Liquid Motion’s services are of a special, unique, and extraordinary character which gives them a peculiar value, and that, in the event of a breach of any term, condition, representation, warranty, covenant, or agreement contained in the Agreement and these Terms and Conditions, Liquid Motion shall be caused irreparable injury, including loss of goodwill and harm to reputation, which cannot be adequately compensated in monetary damages. Accordingly, in the event of any such breach, actual or threatened, Company shall have, in addition to any other legal remedies, the right to injunctive or other equitable relief.
7.6 Notices. Any notice, consent, approval, request, or other communication (collectively, a “notice”) required or permitted under these Terms and Conditions shall be in writing and given to the appropriate party at their respective address, by (i) personal delivery, (ii) email, (iii) certified or registered mail, postage prepaid or (iv) recognized overnight delivery services. In the case of personal delivery, such notice shall be deemed to have been given on the date of such delivery. In the case of email transmissions, such notice shall be deemed to have been given on the date that receipt is acknowledged by electronic confirmation. In the case of mailing, such notice shall be deemed to have been given seven (7) days after such mailing. Either party may change its address for notice purposes hereof on written notice to the other party in accordance with this Section 7.6.
7.7 Severability. Any provision of the Agreement or these Terms and Conditions that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
7.8 Independent Contractor. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Liquid Motion shall be permitted to engage and/or use third party pole fitness instructors or other service providers as independent contractors in connection with the Services.
7.9 Accreditation and Promotions. Liquid Motion retains the right to reproduce, publish and display photos, video or information (“Materials”) about the Services and Liquid Motion Certification Training Programs in Liquid Motion’s portfolios and websites and to be credited with authorship of the Services and Certification Programs in connection with such uses. Liquid Motion shall have the right to reference such Materials, the Services and the Liquid Motion Certification Training Programs on any advertising, sales promotion materials, press releases or in any other publicity matters. Liquid Motion shall have the right to include and/or depict Client in the Materials unless otherwise requested by Client in writing.
7.10 Force Majeure. In the event that Liquid Motion is prevented from performing or is unable to perform any of its obligations under these Terms and Conditions due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of Liquid Motion, Liquid Motion shall give reasonable written notice to Client, its performance of the Services shall be excused, and the time for the Services shall be extended for the period of delay or inability to perform due to such occurrences.
7.11 General. The Agreement and these Terms and Conditions contain the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral, between the parties with respect to the subject matter hereof. The Agreement and these Terms and Conditions shall not be construed against any party by reason of the drafting or preparation thereof.