Total Gym Home Fitness App Entry Form

TOTAL GYM® BETA PARTICIPATION AGREEMENT

This Total Gym Beta Participation Agreement (“Agreement”) is an agreement between Total Gym Fitness, LLC, a Pennsylvania limited liability company (“Total Gym Fitness”), and you, an individual (“You”). By clicking on the “Accept” button where indicated on the application form located at: totalgymdirect.com/app-survey, You agree to be bound by the terms of this Agreement. The terms are as follows:

1. Participation in the Total Gym Beta Testing Program. The purpose of the Total Gym Beta Testing Program (“Beta Program”) is to provide Beta Program participants with an opportunity to test a new mobile app with personalized training technology (“App”) and a new smart training device (“Sensor”) with their existing Total Gym® home gyms, and to provide feedback to us about their experience with the App and the Sensor (collectively referred to herein as the “Product”) before the Product is introduced to the marketplace. Some participants will test and evaluate only the App. Others will test and evaluate the App and the Sensor. The duration of the test period will be six (6) weeks (“Beta Test Period”). You understand and agree that your participation in the Beta Program is voluntary and does not create a legal partnership, agency, or employment relationship between You and Total Gym Fitness. Total Gym Fitness reserves the right to modify the terms, conditions, and policies of this Beta Program from time to time upon written notice to You.

2. License Grant and Restrictions. You represent and warrant that you are at least eighteen (18) years of age (or, if higher, the age of majority for the State in which you reside) and are a legal U.S. resident residing in one of the fifty United States or the District of Columbia. Subject to your compliance with this Agreement, Total Gym Fitness hereby grants You a personal, limited license to use the Product (the App, or the App and Sensor, as assigned to You), including all software included therewith, solely for testing and evaluation purposes and only in connection with this Beta Program. Except as otherwise set forth herein, this license does not grant You the right to use the Product for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Product. You agree not to disclose any information about the App or the Sensor to any third parties, nor to provide any third parties with access to or use of the App or Sensor, whether or not supervised by you. You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any part of Product. Except to the extent otherwise set forth below, You certify that the Product will only be used for testing and evaluation purposes in connection with the Beta Program, and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred by You. Total Gym Fitness, together with its licensors and co-developers (collectively the “Total Gym Parties”), retain ownership of the Product, including all intellectual property interests therein, and except as expressly set forth in this Agreement, no other rights or licenses are granted or to be implied hereunder. To the extent that any software owned by third parties is contained within or used in connection with the Product, ownership of such software shall remain at all times with the third parties, subject only to such licensed rights as have been granted to the Total Gym Parties.

3. No Warranty. The Product provided to you under this Agreement is still in development and could contain deficiencies or defects in performance or quality. A primary purpose of this Beta Program, for which no fees have been charged or are due from any participants, is to obtain feedback on the performance of the Product and identification of any deficiencies or defects. ACCORDINGLY, TOTAL GYM FITNESS IS PROVIDING THE PRODUCT AND ALL CONFIDENTIAL INFORMATION (AS DEFINED HEREIN) SOLELY ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE.

4. Feedback; Contact from Total Gym. As part of the Beta Program, Total Gym Fitness will provide You with the opportunity to submit feedback to Total Gym Fitness on your experience with the Product, which may include bug reports, enhancement requests, issue reports, responses to questionnaires, and/or support information (collectively, “Feedback”). By agreeing to this Agreement, You agree that Total Gym Fitness may contact You from time to time about the Beta Program in order to receive the Feedback, and You hereby consent to receive such communications. You agree that, in the absence of a separate written agreement to the contrary, Total Gym Fitness will be free to use any Feedback You provide for any purpose and that no compensation or other consideration will be due You in connection with same.

5. Confidential Information.

5.1 You agree that the Product, including its nature and existence, features, functionality, design, display, method of operation, purpose and manner of use, and efficacy, and any other information disclosed by Total Gym Fitness to You or otherwise learned by You in connection with the Product and/or the Beta Program, will be considered and referred to in this Agreement as “Confidential Information.” Confidential Information will not include information that (a) is generally available to the public through no fault or breach of yours, (b) is generally made available to the public by Total Gym Fitness, (c) is independently developed by You without the use of any Confidential Information, or (d) is rightfully obtained by You from a third party who had the right to transfer or disclose it to You without limitation. All Confidential Information remains the sole property of Total Gym Fitness and You have no implied licenses or other rights in the Confidential Information not specified in this Agreement.

5.2 Except as expressly permitted in this Section 5, You agree that You will not disclose, publish, or otherwise disseminate any Confidential Information to anyone unless expressly permitted or agreed to in writing by Total Gym Fitness. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the App or Sensor to third parties. You agree to use the Confidential Information solely for the permitted uses as set forth in this Agreement. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Total Gym Fitness in each instance. You hereby acknowledge that the unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Total Gym Fitness that may be difficult to ascertain. Accordingly, You agree that Total Gym Fitness will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other legal or equitable rights and remedies it may have.

6. Consent to Collection and Use of Data.

6.1 In order to test and help the Total Gym Parties validate the capabilities and performance of the Product and identify and resolve any design or performance issues with the Product prior to going to market, and unless You opt out as set forth below, You acknowledge and agree that the Total Gym Parties may collect, use, store, process and analyze (collectively, “Collect”) certain information regarding your use and interaction with the Product, including personal information you provide directly to the App, such as your name, gender, age, and account details. Additionally, we may also collect diagnostic, technical, health, and usage logs and information from the device where you have downloaded the App and, as applicable, from the Sensor installed on your Total Gym or through other hardware integrations. This information includes, but is not limited to, exercise metrics, such as exercise duration, repetitions, and resistance volume, and health data from wearables to which the Sensor has been connected such as heart rate. This information may be Collected at any time during the Beta Test. By downloading the App and, as applicable, installing the Sensor, You acknowledge and agree that the Total Gym Parties have your permission to Collect all such information and use it as set forth in this Agreement and in our Privacy Policy available at totalgymdirect.com/privacy-policy. If You do not agree to the Collection of your information as described herein, You may opt out by contacting customer service at: totalgymtv@totalgymdirect.com or 1-800-501-4621. Certain data is required to be Collected to provide access to the App, if you would like to opt out of all Collection of your data you may not be able to access the App or use the Sensor.

6.2 Privacy Policy. Data collected pursuant to this Section 6 will be treated in accordance with Total Gym Fitness’ Privacy Policy, which is incorporated by reference into this Agreement and which can be viewed at: totalgymdirect.com/privacy-policy.

7. Support. During your participation in the Beta Program, Total Gym Fitness may provide You with technical, usage or other support for the Product. If such support is provided, You agree to abide by any support rules and policies that Total Gym Fitness provides to You in order to receive such support.

8. Liability Waiver; Assumption of Risk.

8.1 Not all fitness programs are suitable for everyone. You should always consult your physician before beginning any exercise or nutritional regimen to help ensure that you are in good physical condition and that no illness, medical condition or injury might impair your participation in the program. This is especially important if You are over the age of 35, are pregnant, or have a pre-existing health condition. Always listen to your own body during workouts and take breaks, modify movements, or stop your workouts as necessary. If you experience any discomfort including pain or tightness in your chest, an irregular heartbeat, dizziness, nausea, or shortness of breath, stop exercising immediately and consult your physician or call 9-1-1.

8.2 You represent and warrant that, to the best of your knowledge, You are in good physical condition and are aware of no illness, medical condition or injury that might impair your participation in the Beta Program. In addition, You agree that, in participating in the Beta Program, You do so at your own risk and assume the risk of any and all injury or damage You may suffer. This includes injury, damage or death sustained by You while participating in and/or resulting from participation in any Product workouts using any equipment during the workouts (whether provided by Total Gym Fitness or You), as well as any costs, expenses or other liabilities You may incur as a result of your testing, installation or use of the App or the Sensor, including (but not limited to) any damage to equipment, software or data, or any loss of data or information arising from such use. Your participation rights, including access to and use of the Product, extend only to You, and You assume the risk of (and agree to indemnify and hold harmless the Released Parties, as defined below, from) claims of any third parties who gain access to the Product through You.

8.3 YOU AGREE ON BEHALF OF YOURSELF AND YOUR PERSONAL REPRESENTATIVES, HEIRS, EXECUTORS, ADMINISTRATORS, AGENTS, SUCCESSORS AND ASSIGNS TO RELEASE AND DISCHARGE THE TOTAL GYM PARTIES, TOGETHER WITH THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, HEIRS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”), FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION, KNOWN OR UNKNOWN, ARISING OUT OF YOUR USE OF THE PRODUCT AND YOUR PARTICIPATION IN THE BETA PROGRAM (COLLECTIVELY, THE “RELEASED CLAIMS”). THIS WAIVER AND RELEASE OF LIABILITY INCLUDES, WITHOUT LIMITATION, INJURIES OR DEATH WHICH MAY OCCUR AS A RESULT OF (A) YOUR PARTICIPATION IN ANY BETA PROGRAM WORKOUTS, INCLUDING CLAIMS FOR NEGLIGENT INSTRUCTION, AND (B) THE USE OF THE PRODUCT AND ANY OTHER EQUIPMENT DURING ANY BETA PROGRAM WORKOUTS, WHETHER PROVIDED BY YOU OR TOTAL GYM FITNESS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS WAIVER AND RELEASE OF LIABILITY IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY LAW AND THAT, IF ANY PORTION HEREOF IS HELD INVALID, THE BALANCE SHALL NONETHELESS CONTINUE IN FULL LEGAL FORCE AND EFFECT.

8.4 IN NO EVENT WILL THE RELEASED PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY LIABILITY THAT STEMS FROM ANY USE OF THE PRODUCT ON YOUR DEVICE AND/OR ANY PERIPHERALS CONNECTED THERETO, FROM ANY CONFIDENTIAL INFORMATION DISCLOSED OR OBTAINED HEREUNDER, AND/OR FROM TOTAL GYM FITNESS’ PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF TOTAL GYM FITNESS HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

9. Term and Termination. The term of this Agreement (“Term”) shall commence upon your execution of the Agreement and continue for the duration of the Beta Test Period unless earlier terminated in accordance with this Section 9. You may terminate this Agreement at any time and for any reason effective immediately upon written notice to Total Gym Fitness. Total Gym Fitness may likewise terminate this Agreement at any time and for any reason effective immediately upon written notice to You. Notwithstanding termination or expiration of this Agreement, (i) You will remain bound by the provisions of Section 5 (“Confidentiality”), above, which shall survive the termination or expiration of this Agreement, and (ii) you may retain possession of the App and the Sensor for your own personal use only, subject to the provisions of Section 3 (“No Warranty”) and Section 8 (“Liability Waiver; Assumption of Risk”), above, which shall also survive the termination or expiration of this Agreement.

10. No Export. You agree that You will not export or re-export any part of the Product or Confidential Information received from Total Gym Fitness, including (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists.

11. Assignment. No delay or failure to take action under this Agreement will constitute a waiver unless expressly so stated in writing, signed by a duly authorized representative of Total Gym Fitness, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by You in whole or in part. Any contrary assignment by You shall be null and void.

12. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. In the event of any dispute between You and Total Gym Fitness concerning any aspect of this Agreement, the dispute shall be resolved by binding and confidential arbitration before a single neutral arbitrator with the office of Judicial Arbitration and Mediation Services (“JAMS”) located in Philadelphia County, Pennsylvania. The arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules unless otherwise agreed-upon by the parties. The prevailing party shall be entitled to have the non-prevailing party pay its reasonable attorneys’ fees and other litigation costs incurred in connection with any such arbitration. The arbitrator’s decision will be final, binding and enforceable in any court of competent jurisdiction, subject to the right of either party to appeal the arbitration award pursuant to the JAMS Optional Appeal Procedure. NEITHER YOU NOR TOTAL GYM FITNESS SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CONSUMERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS.   

13. Severability; Complete Understanding. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement with respect to your participation in the Beta Program and supersedes all prior or contemporaneous oral or written agreements concerning same. Any amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties.