TERMS OF AGREEMENT
UPDATED 8 MARCH 2019
TAPfit Licence AGREEMENT
This Licence Agreement (“Agreement”) is entered into between JQ4 Pty Ltd Trading As TAPfit (“TAPfit”), and you (“Instructor”), and is effective as of Instructor’s date of enrollment (“Commencement Date”) in the TAPfit Instructor Success System (“Initial Training”). TAPfit and Instructor are referred to singularly as a “Party” and collectively as the “Parties.”
TAPfit is the legal and registered owner of the Intellectual Property (“TAPfit IP”) (as that term is defined below) and uses the TAPfit IP in connection with educational services in the field of dance-fitness (“Services”). The TAPfit IP has been used to develop dance fitness, health and lifestyle programs under the style or name of TAPfit. Instructor has completed an official TAPfit instructor training through the TAPfit Initial Training and desires to become a TAPfit Instructor Program member and make use of the TAPfit IP. The Instructor wishes to make use of the TAPfit IP by being granted a Licence so as to be able to conduct TAPfit Classes and instruct other in the use and benefits of TAPfit.
TAPfit Instructor Program membership is open only to individuals; a business, organization, company or other entity, including a gym, cannot be a TAPfit Instructor member.
This Licence does not allow you to train or Licence other instructors to teach TAPfit.
This Licence does not allow you to teach other or future programs of TAPfit which may be developed (i.e. kids program or elderly program)
In consideration of the foregoing, the mutual promises set forth below, and Instructor’s subscription to the TAPfit Instructor Program, the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
1.1. Initial Term & Term. The initial term is for a period of 3 months and shall begin from the Commencement Date.
Participants attending and completing the Initial Training day or completing the online training modules of the Initial Training will receive a TAPfit Instructor Success System Certificate of Completion. This document grants you the right to teach TAPfit classes and a limited non-transferable Licence to use the trademark TAPfit on your individual class schedule (proper use: TAPfit class) for up to three months.
Upon completion of the Initial Training, you will be eligible to join the TAPfit Instructor Program membership. The TAPfit Instructor Program membership provides resources in the areas of Class structure, Class Materials, Marketing, Continuing Education, Community, and Entrepreneurship. Your membership allows you to teach TAPfit classes for a lifetime as long as you remain a TAPfit member in good standing. In addition, you will be granted a limited non-transferable Licence to use TAPfit trademarks and logos, slogans, fitness music, images and our world-class marketing materials.
Following the Initial Term, the Agreement automatically renews for indefinite successive one-month periods unless TAPfit terminates the Agreement or Instructor cancels his/her membership pursuant to TAPfit’s cancellation policy (“Term”).
1.2. TAPfit Marks. Means certain word trademarks and/or service marks owned by TAPfit, including TAPfit, as well as certain trademarked logos, such logos being attached as Annexure A.
1.3. Marks. Means the word trademarks and or service marks owned by TAPfit, including TAPfit, as well as the trademarked logos, being the logos shown in Annexure A or as adopted by TAPfit from time to time.
1.4. TAPfit Copyrights. Means certain original literary, dramatic, musical, artistic and other works. The TAPfit Copyrights are valid, subsisting and in full force and effect.
1.5. TAPfit IP. Means Copyrights, Patents and Marks which are held by TAPfit now or which may be acquired by TAPfit from time to time.
1.6. TAPfit Instructor Program Marks. Means certain word and logo trademarks and/or service marks, including TAPfit Instructor Program and/or incorporating “TAPfit Instructor Program”.
1.7. TAPfit Related Parties. Means TAPfit’s affiliates, subsidiaries, related companies, employees, directors, officers, agents, vendors and suppliers.
1.8 TAPfit Class. Includes the TAPfit approved events which may not be strictly a TAPfit class.
1.9 Website. Means www.tapfit.com or such other or additional website of other digital format which may be adopted or used by TAPfit as its primary advertising or communication format.
2. Grant of Licence. Subject to the terms hereof, TAPfit grants Instructor a limited, nonexclusive, nontransferable, revocable Licence, without warranty, to use the TAPfit Marks to promote and teach Instructor’s TAPfit classes and approved events, and to use the TAPfit Instructor Program Marks solely to identify Instructor as a TAPfit Instructor Program member (“Licence”).
2.1. Territory. The Licence and Specialty Mark Licence are not valid in any country where exercising rights hereunder would violate any law, regulation or ordinance.
2.2. Affiliation. All uses of the TAPfit IP must be made in accordance with this Agreement and cannot imply an affiliation with any third party, including an implied affiliation with any brand, organization or company, and/or with any individual not Licenced hereunder. Where Instructor wishes to use the name, logo or marks of a third party in connection with the TAPfit IP, Instructor must obtain TAPfit’s prior approval.
Notwithstanding the foregoing, Instructor may use the business name, trade name and/or trademark of a gym or facility where a TAPfit class or approved event is being held, so long as such use is subordinate to the Marks and the use is permitted by the gym or facility.
2.3. Disparagement. Instructor agrees to promptly comply with any instructions from TAPfit, including the removal, deletion or withdrawal of such remarks, content or materials that TAPfit determines, in its discretion, dilutes, disparages, or is detrimental to the TAPfit IP or the TAPfit brand.
2.4. Ownership of the TAPfit IP. TAPfit owns all right, title and interest in the TAPfit IP and the Instructor must not take any action inconsistent with TAPfit’s ownership thereof. Nothing in this Agreement grants the Instructor any right, title or interest in the TAPfit IP other than the right to use the TAPfit IP as permitted by this Agreement. The Instructor agrees that TAPfit is the owner of and has all right, title and interest in the TAPfit IP including ownership of all live performance copyright rights in and to any TAPfit Classes, and including copyright rights in the filming, recording, streaming, uploading or reproduction of TAPfit Classes or events. The Instructor must not contest TAPfit’s ownership of the TAPfit IP, the validity or enforceability of the TAPfit IP, or the validity of this Agreement. Instructor must not register or attempt to register any trademark, service mark, logo, copyright, trade name or business name that incorporates “TAPfit” or the Marks, or any derivations thereof, nor can Instructor assist any party in doing so.
2.5. Restriction of Regions. The Instructor will not, directly or indirectly (which shall include without limitation having any interest in any person or company, whether as an owner, employee, officer, director, agent, consultant or otherwise), provide dance or fitness classes or instructor training classes or workshops, and will not open a facility to provide these classes or workshops, under the TAPfit mark in any of the following five (5) counties located in the Southern California:
San Diego County;
San Bernardino County; and
3. Fee. Instructor must pay TAPfit a subscription fee in an amount to be set by TAPfit (“Fee”), each and every month during the Initial Term and Term. The Fee is subject to change at TAPfit’s discretion. TAPfit reserves the right to establish, revise, modify or amend its billing practices, methods and fees, including its collection practices, payment practices, and fees for content or services provided on its website(s). Instructor agrees to accept notice of any changes by way of the changes posted on TAPfit.com. Instructor’s failure to make timely payments due hereunder is a material breach permitting TAPfit to terminate this Agreement.
3.1. Use of TAPfit Instructor Program Materials. All TAPfit Instructor Program materials distributed to the Instructor are the property of TAPfit. Any other use or distribution of such materials is prohibited.
3.2. Third Party IP Rights. Instructor must not include third party intellectual property rights in materials promoting Instructor’s TAPfit classes or approved events. However, use of the name of a gym or facility where TAPfit classes or approved events are being held is permitted if subordinate to the Marks and the use is permitted by the gym or facility.
4. Proper Use of the Marks. Instructor must use the Marks only in the forms shown in Annexure A, including adhering to the colors, fonts, stylization, proportionality and other elements of the Marks; follow TAPfit’s brand use guidelines; use the appropriate trademark symbol (® or ™) with each use of a Mark; follow all instructions, requests and/or demands made by TAPfit concerning Instructor’s use of the TAPfit IP; and use its best efforts to use the current versions of the Marks as provided by TAPfit.
4.1. Under Licence Language. Instructor must include the words “used under Licence” on all materials, printed or electronic, which bear the Marks: TAPfit® and the TAPfit Fitness logos are trademarks of TAPfit, used under Licence.
4.2. Quality Standards. The nature and quality of Instructor’s marketing and services using the Marks must conform to the standards set by TAPfit in the Instructor Initial training courses and manuals; at TAPfit.com; in TAPfit’s brand use guidelines; and in this Agreement. The Instructor must cooperate with TAPfit in facilitating TAPfit’s control over the nature and quality of Instructor’s marketing and services, to permit observation of Instructor’s TAPfit classes or approved events, to promptly comply with all instructions from TAPfit, and to supply TAPfit with evidence confirming compliance with this Agreement.
4.3. Compliance With Laws. Instructor must comply with all applicable laws, regulations and ordinances in the country, state and locality in which Instructor teaches TAPfit classes and approved events and obtain all appropriate government approvals pertaining to marketing, advertising, or providing Instructor’s services, including any requirements for the instruction of children.
4.4. Promotional materials. Instructor may use the Marks on flyers, posters, emails and other printed materials whose sole purpose is to promote Instructor’s TAPfit classes or approved events. Such materials must include the “used under Licence” language.
4.5. Email addresses. Instructor may use “TAPfit” as part of Instructor’s email address so long as Instructor uses such address solely for the promotion of Instructor’s TAPfit classes and approved, related TAPfit activities.
4.6. Domain Names. Instructor may use “TAPfit” as part of Instructor’s domain name for a website promoting only Instructor’s TAPfit classes, approved events and related, but subordinate, TAPfit apparel and accessory sales (e.g. TAPfitbyannie.com is acceptable for an Instructor named “Annie” Licenced to teach TAPfit classes and whose website promotes only her TAPfit classes, approved events and related TAPfit activities). Instructor may not register a domain name containing the other Marks. Registration and/or use of a domain name must adhere to the terms of this Agreement, including the following:
4.6.1 Competing Services/Goods. Under a domain name containing the TAPfit mark, Instructor must not sell, offer for sale, advertise or promote any services or goods except Instructor’s TAPfit classes, approved events and related, authorized TAPfit goods and activities.
4.6.2 Domain Name. An Instructor wishing to register or use a domain name containing “TAPfit” must obtain TAPfit’s approval in advance of such registration. In the event TAPfit determines it needs or desires to own a domain name registered or operated by Instructor incorporating “TAPfit” or the Marks, Instructor must, at TAPfit’s request, immediately transfer such domain name to TAPfit. TAPfit may reimburse Instructor for reasonable and documented out-of-pocket costs that Instructor paid to register the domain. TAPfit will not reimburse Instructor for any costs incurred in designing Instructor’s website, creating marketing materials, or any other costs incurred in connection with the domain name.
4.7. Internet Uses. Instructor may use the Marks on a website, including blogs and social media sites, where Instructor uses the Marks to promote Instructor’s TAPfit classes and approved events in accordance with this Agreement and under the following guidelines:
4.7.1 Trademark Notice. Instructor must include the “used under Licence” language on the home page of Instructor’s website, which must reference all Marks used on the site.
4.7.2 Link to TAPfit.com. Instructor must include a prominent hyperlink on the home page to TAPfit.com. Instructor must identify his/her self as the owner of Instructor’s Site by indicating his/her legal name on the home page. In addition, Instructor must post the following link: This site is owned and operated by [insert name], a Licenced TAPfit Instructor Program member.
4.7.3 Music. Instructor may use TAPfit’s royalty free music as provided in the TAPfit Instructor Program online portal. Instructor must not use any other music on Instructor’s site unless he/she has obtained an appropriate Licence.
4.7.4 Adwords/Keywords. Instructor must not use any Marks as AdWords, paid search, keywords or otherwise for search engine optimization and/or for creating “sponsored links”.
4.7.5 Instructor must include his/her name in the title of any social media page(s) incorporating the Marks. In the case of group pages, all Instructors must be TAPfit Instructor Program members and must be identified on the page. This Section applies to social media pages created and/or used for events.
4.8. Radio, Television and News Coverage. Instructor must not use the Marks on radio or television without TAPfit’s prior approval. Instructor may promote Instructor’s TAPfit classes or approved events through live or print news coverage, or through mainstream news organizations or print publishers. In the event of such promotion, Instructor must inform the news organization or publisher of TAPfit’s brand use guidelines. With respect to live news coverage, such coverage must not include more than ten minutes of a TAPfit class, approved event or TAPfit exercise routine without TAPfit’s prior approval. In the event Instructor is aware of the coverage, Instructor must notify TAPfit by email to hello@TAPfit.com. In the event Instructor is not aware of the coverage in advance, Instructor must promptly notify TAPfit after the coverage and, when possible, provide a copy of the article or footage.
4.9. Sale of Genuine TAPfit Products. Instructor may use the Marks in connection with the resale of genuine TAPfit products purchased from TAPfit so long as such sales are subordinate to Instructor’s TAPfit classes or approved events. Unless with prior approval, Instructor may not sell TAPfit products outside of the territory where those products were purchased (e.g. products purchased in the Australia must be resold in Australia and not sold outside Australia).
4.10. Trade Shows. With TAPfit’s prior approval, Instructor may conduct TAPfit classes at trade shows. An approval request must be submitted through hello@TAPfit.com. Whenever Instructor participates in or conducts such trade shows www.tapfit.com, hello@TAPfit.com and Instructor’s name must be listed in any promotional materials.
5. Restricted Use of the Marks & TAPfit IP. TAPfit may use, or Licence others to use, the TAPfit IP in connection with various goods and services. Instructor must not use the TAPfit IP for purposes of promoting any workshop, training, instruction, choreography session, or other activity except Instructor’s own TAPfit classes or approved events. Instructor must not use any TAPfit IP to identify a gym, workout facility, business or trade name, or any other facility, program or product, except as authorized herein, without TAPfit’s prior approval. TAPfit reserves the right to remove any content posted on the Internet and/or used by Instructor that violates TAPfit’s rights in the TAPfit IP.
5.1. Never Modify the Marks. Instructor must use the Marks in accordance with the terms of this Agreement and refrain from modifying the Marks.
5.2. Never Use the Marks in Business or Trade Names. Instructor must not use the Marks in the name of a business or trade name including.
5.3. Merchandise. Instructor must not manufacture, create, offer for sale, sell or distribute any merchandise, including apparel, accessories, CDs, DVDs or promotional items, bearing the TAPfit IP or any names, designs or logos similar to the Marks. (Merchandise is available at www.shoptapfit.com) The Instructor may use the Marks in connection with the resale of genuine TAPfit products purchased from TAPfit provided such sales are ancillary to the Instructor’s TAPfit Classes.
5.4. TAPfit Instructor Program Materials. Instructor must not copy, duplicate, sell, distribute, upload, stream or otherwise disseminate any TAPfit Instructor Program materials, such as Initial Training materials, Instructor Program Membership materials; other training manuals; DVDs and Videos. In the event of termination or cancellation of this Agreement, Instructor must retain all of TAPfit’s materials, destroy them or return them to TAPfit.
5.5. Videos/Recording. Instructor must not film, record, stream live video, create DVDs or reproduce in any manner TAPfit classes, or otherwise imitate TAPfit/TAPfit Instructor Program choreography or music. Unauthorized duplication, exhibition, distribution or use without TAPfit’s prior approval of TAPfit videos and DVDs is prohibited.
5.6. Mobile Applications. Instructor must not use the TAPfit IP in connection with a mobile application, including in the title, icon and content of the application.
6. Termination. TAPfit may immediately terminate this Agreement and Instructor’s TAPfit Instructor Program membership at any time, with or without cause, by giving Instructor written notice.
6.1. For Cause. TAPfit has the right to terminate this Agreement upon written notice in the event Instructor breaches this Agreement or as a result of any action or conduct by Instructor that TAPfit deems detrimental to the TAPfit IP, the TAPfit brand or the goodwill associated therewith. TAPfit may, in its discretion, provide Instructor with an opportunity to cure any breach prior to termination. Upon termination for cause, any Fee paid but not used will not be returned to Instructor.
6.2. Effect of Termination. Upon termination, Instructor must immediately discontinue use of the TAPfit IP, including in any websites or email addresses used by Instructor; comply with this Agreement concerning TAPfit materials; and transfer all domain names incorporating the Marks to TAPfit. All rights in the TAPfit IP and the goodwill associated therewith remain the exclusive property of TAPfit.
7. Cancellation by Instructor. Instructor may cancel this Agreement at any time after the Initial Term subject to the terms, conditions and processes set forth by TAPfit. If Instructor cancels this Agreement prior to the expiration of the Initial Term, Instructor must pay a termination fee in an amount set by TAPfit.
8. Third-Party Infringement. Instructor must promptly notify TAPfit of any unauthorized use of the TAPfit IP by a third party for which Instructor becomes aware. TAPfit has the sole right and discretion to take action, including bringing action involving the TAPfit IP and retaining the proceeds of any settlement or recovery in such action. Instructor agrees to cooperate with TAPfit in enforcing and protecting the TAPfit IP.
9. Interpretation & Enforcement. This Agreement will be construed in accordance with the laws of Queensland and Australia. The Parties accept the jurisdiction of the courts of Queensland and Australia and waive any right to challenge the jurisdiction or venue of those courts.
10. Acceptance of and Modifications to Agreement. Payment of the Fee pursuant to this Agreement and/or completing the click-through process required to accept this Agreement shall be effective as an original signature and constitutes Instructor’s acceptance to the terms hereof. Instructor acknowledges that he/she has read and understands this Agreement in its entirety and that this Agreement may be modified at TAPfit’s discretion. Such changes may be effected by TAPfit’s posting of a change notice or new agreement on TAPfit.com or on the TAPfit Instructor Program online portal. Such modified terms are deemed incorporated herein and made part hereof. TAPfit will make commercially reasonable efforts to notify Instructor of all modifications prior to implementation. The enforceability of such changes is not contingent upon actual notification, provided that TAPfit has posted the changes on TAPfit.com or TAPfit Instructor Program online portal. In the event Instructor does not agree to abide by the terms of the Agreement, as modified, Instructor’s sole remedy is to terminate this Agreement. Instructor must monitor TAPfit.com and TAPfit Instructor Program membership for changes to this Agreement.
11. Parties’ Relationship. The Parties’ relationship is that of Licensor and Licencee. Nothing herein shall be construed as creating any partnership, joint venture, agency, franchise, sales representative or employment relationship between the Parties, nor shall TAPfit be deemed to be acting in a fiduciary capacity with respect to Instructor. Instructor has no authority to make or accept any offers or representations on behalf of TAPfit or to act for or bind TAPfit in any manner. Instructor must not make statements or take actions that may contradict the relationship set forth herein or confuse or mislead any person regarding the nature of the Parties’ relationship.
12. Disclaimer & Limitation of Liability. TAPfit makes no representations or warranties, express or implied, with respect to TAPfit Instructor Program membership, the TAPfit Services, or any TAPfit-related products, including warranties of fitness, merchantability or non-infringement. Under no circumstances, or legal or equitable theory, whether in tort, contract, strict liability or otherwise, will TAPfit or the TAPfit Related Parties be liable to Instructor or any other person for any indirect, special, incidental or consequential losses or damages of any nature arising out of or in connection with this Agreement, including damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if an authorized representative of TAPfit has been advised of or should have known of the possibility of such damages. TAPfit makes no representation that the operation of TAPfit’s website(s) will be uninterrupted or error-free. TAPfit is not liable for the consequences of any interruptions or errors, although TAPfit will make commercially reasonable efforts to correct errors or interruptions. In no event will TAPfit be liable for any damages in excess of the Fees paid by Instructor during the three-month period preceding the date on which a claim arises.
13. Indemnification. Instructor agrees to indemnify, defend and hold harmless TAPfit and the TAPfit Related Parties from any and all losses, liabilities, damages and expenses (including legal fees and costs) as a result of any claims, demands, actions or other proceedings made or instituted by a third party which arises out of any criminal and/or negligent acts of Instructor; breach by Instructor of this Agreement; or other act or omission of Instructor.
14. Nature of Services. TAPfit classes or events may not be safe or appropriate for everyone. Any information TAPfit may provide to Instructor through a TAPfit Initial Training, TAPfit Instructor Program online portal, in TAPfit materials, or on TAPfit’s website(s) regarding health and fitness is intended solely as educational aids and are not substitutes for medical advice. Instructor is encouraged to seek medical advice before providing the Services, or if Instructor experiences any medical condition affecting Instructor’s ability to provide the Services. Instructor must ensure that he/she complies with all applicable laws, regulations and ordinances governing the instruction of children in the country, state and locality where Instructor teaches. TAPfit and the TAPfit Related Parties assume no responsibility for any consequence relating directly or indirectly from any action or inaction of Instructor based on the information, services, or other material provided by TAPfit. While TAPfit strives to provide complete, up-to-date and accurate information on its website(s) and in other materials, TAPfit and the TAPfit Related Parties do not guarantee, and will not be responsible or liable for, any damage or loss related to the accuracy, completeness, or timeliness of such information. Instructor releases from liability, and holds harmless TAPfit and the TAPfit Related Parties for any accident, injury, illness, death, loss, damage to person or property, or other consequences suffered by any person arising or resulting from Instructor’s provision of the Services. If Instructor is injured providing the Services, Instructor assumes any financial obligations for any medical costs Instructor may incur. TAPfit assumes no responsibility for any medical expenses, injury, or damages suffered by Instructor, or Instructor’s students, in connection with the provision of the Services.
15. Notices. Any notice, request, demand or other communication given hereunder may be given to a Party at the addresses set forth below. Any notice or request hereunder must be given by registered or certified mail, return receipt requested; courier; or, e-mail.
If to TAPfit: Chief Legal Officer, JQ4 Pty Ltd t/a TAPfit, P.O. Box 75, Mount Ommaney, Brisbane, QLD, Australia 4074, E-mail: hello@TAPfit.com or firstname.lastname@example.org
16. No Waiver & Reservation of Rights. TAPfit’s failure to enforce a provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or other provisions hereof. TAPfit reserves all rights not granted herein. To submit questions regarding this Agreement please email hello@TAPfit.com or email@example.com