Implementation Services ---> As outlined in digital agreement
Level 0 Services - MacroActive Lite (or) ---> As outlined in digital agreement
Level 1 Services (and) ---> As outlined in digital agreement
Level 2 Support Services (and/or) ---> As outlined in digital agreement
Level 3 Advertising Services ---> As outlined in digital agreement
Level 4 Marketing Services ---> As outlined in digital agreement
Developer Account Required : No, unless otherwise stated in digital agreement
Additional Services : N/A unless otherwise stated in digital agreement
Additional Training : N/A unless otherwise stated in agreement
MacroActive Partner Agreement
Thank you for your interest in MacroActive’s Partner Program (“Program”). The Program is designed by MacroActive Limited (“we”, “us” or “our”) to allow our authorised partners to offer new and existing clients our personalised nutrition and exercise software-as-a-service platform for personal trainers, coaches, nutritionists, chefs and influencers. By using the Subscription Services (defined below) you can select from a large library of exercise and nutrition content to tailor Programs for use by your own clients, and/or upload videos and instructions relating to exercise and nutrition to distribute via your own branded application.
This Partner Agreement (“Agreement”) applies to all partners and sets out our, and your, rights and obligations in relation to your role as a partner.
Acceptance of this Agreement allows you to provide your clients with access to our services, via a white label application and a Trainer Console that you can use to manage your clients’ subscription.
By joining our Program, you agree to be bound by the terms and conditions of this Agreement.
This Agreement may be varied by us at any time, effective upon the posting of modified terms on the MacroActive Website or as otherwise notified to you in writing (including by email). You will ensure that you have read, understood and agreed to the most recent terms posted on the MacroActive Website or as otherwise notified to you.
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires:
Additional Services means any additional services offered by us as set out in Schedule 1, and requested by you in the Partner Application Form;
Additional Services Fee means the fees for Additional Services, as set out in Schedule 2;
Application Platform means the App Store or Google Play, as applicable;
Authorised User means any:
(a) Client Authorised User; or
(b) Partner Authorised User;
Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;
Client Access Fee means the fee that you charge for each Client Authorised User to access the Subscription Services;
Client Authorised User means any individual client of your business, who is authorised to access and use the Subscription Services and Documentation in accordance with this Agreement;
Client Data means the data inputted by any Client Authorised User for the purpose of using the Subscription Services including, where applicable, Client Authorised User’s personal data;
Developer Account means a developer account on the relevant Application Platform in your name, registered and maintained by us on your behalf;
Developer Account Fee means the fee for maintaining your Developer Account, as set out in Schedule 2;
Documentation means the documentation (if any) made available to you by us through the Subscription Services, which sets out a description of the Subscription Services and the user instructions for the Subscription Services;
Embedded Link means a URL link to the Partner Branded Application on the Partner Website;
End User Licence Agreement means the applicable end user licence agreement between you and the Client Authorised User governing the Client Authorised User’s use of the Subscription Services, substantially in the same form provided by us to you – and incorporating any amendments we require to be made from time to time;
Fees means (as applicable):
(a) the Implementation Fee;
(b) the Revenue Share (i.e. Gross Revenue including any local taxes);
(c) the Developer Account Fee;
(d) the Training Fees; and
(e) the Additional Services Fee;
(f) the Minimum Annual Platform Maintenance Fee;
(g) the Per Seat License Fee;
Implementation Fee means the fees for the Implementation Services, as set out in Schedule 2;
Implementation Services means the implementation services to customise the White Label Application to meet the Requirements;
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, right in databases, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
MacroActive Website means https://www.macroactive.com or any other URL address notified to you by us from time to time;
Partner, you and your means the person that has subscribed to the Subscription Services and accepted the terms of this Agreement;
Partner Application Form means the online application form located at https://onboarding.macroactive.com;
Partner Authorised User means any employee, contractor, officer or agent of the Partner who is authorised by the Partner to access and use the Subscription Services and Documentation in accordance with this Agreement;
Partner Branded MacroApp means a tailored application based on the White Label Application, through which Authorised Users can access and use the Subscription Services;
Partner Content has the meaning set out in clause 2.9;
Partner Onboarding Questionnaire means an online application form required by new Partners to be completed as a means of helping our team complete the onboarding process;
Partner Website means your main business website (as you notify to us in writing from time to time);
Platform Information means information, know-how, guides, programs, techniques and instructions relating to exercise, fitness, strength, power, resistance, training, food, supplements, nutrition, recipes, weight-loss, dieting (in any audio or visual form);
Platform Revenue means the total amount of Revenue;
Requirements means your requirements for the customisation of the Partner Branded MacroApp as agreed by us;
Revenue means the total Client Access Fees received by you, net of any Transaction Costs, but excludes revenue from:
(a) any additional value-add goods or services referred to in clause 6.3 of the Agreement; and
(b) third-party advertising delivered through the Partner Branded MacroApp (for example, banner advertisements appearing on your Partner Branded Application);
Revenue Share has the meaning set out in Schedule 2;
Subscription Services means:
(a) the MacroActive software-as-a-service consisting of a commerce platform specifically for custom workout & personalized nutritional plans which match each program to a customer's specific goals and objectives and any other modules offered by us from time to time, accessible via the MacroActive Website and/or Partner Branded MacroApp;
(b) the MacroActive Website;
(c) the Partner Branded MacroApps; and
(d) the Platform Information.
Trainer Console means that part of the MacroActive Website accessible by Partner Authorised Users to:
(a) add, remove or change Authorised Users;
(b) add, remove or change Subscription Services;
(c) configure or customise any part of the Subscription Services including nutrition, training and meal plans; and
(d) add, remove or change details in relation to your account with us;
Training Fees has the meaning set out in Schedule 2;
Third Party Provider has the meaning set out in clause 9.7;
Transaction Costs means any credit card transaction fees, platform fees, bank fees, foreign exchange fees or penalties incurred by you and any refunds paid or owing to Client Authorised Users;
Virus means any thing or device (including any software, code, file or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, in each case including worms, trojan horses, viruses and other similar things or devices;
White Label Application means an unbranded, generic mobile application that allows access to certain of the Subscription Services that we will use to develop the Partner Branded MacroApp in accordance with the Requirements; and
Your Data means the data and information inputted or submitted by you or your Partner Authorised Users for the purpose of: (i) using the Subscription Services, (ii) facilitating the use of the Subscription Services, or (iii) customising the Partner Branded MacroApp. Your Data includes the Partner Content and, where applicable, Partner Authorised Users’ personal data.
1.2 In this Agreement, unless the context requires otherwise:
(a) words importing the singular or plural number include the plural and singular number respectively;
(b) headings are inserted for the sake of convenience of reference only and do not affect the interpretation of this Agreement; and
(c) a person includes any individual, corporation, unincorporated association, government department or municipal authority;
(d) the words “includes” or “including” do not imply any limitation; and
(e) all amounts are specified in United States Dollars (unless another currency is expressly set out).
Minimum Annual Platform Maintenance Fee is an annual fee which is rebated against revenue share paid to MacroActive. This fee does not apply to partners who generate Annual Revenue of US$6,700 or more.
Per Seat License Fee is an option for partners who want the basic functionality of meal plan automation and training automation without the need for an unlimited number of Client Authorized Users.
2. Access to Subscription Services Licence
2.1 We grant you a non-exclusive, non-transferable right to:
(a) access and use the Subscription Services that you have subscribed to, and the relevant Documentation; and
(b) download, install and use the Partner Branded MacroApp,
solely for the business purposes of providing training, coaching and nutrition services including fitness, exercise, health, wellness and/or meal plan services to your clients (the Permitted Purpose), all on the terms and conditions set out in this Agreement.
2.2 You may allow Authorised Users to access and use the Subscription Services (including to download, install and use the Partner Branded MacroApp) in accordance with clause 2.1 so that you can carry out the Permitted Purpose. Without limiting any of your obligations under this Agreement:
(a) you will be responsible for determining the level of access that each Authorised User has to the Subscription Services, and you acknowledge that we will not be responsible for your use of, inability to use, or incorrect use of, the Subscription Services arising out of or in connection with:
(i) any act or omission of the Authorised Users; or
(ii) you incorrectly granting a level of access to an Authorised User, which that Authorised User is not entitled to;
(b) you will notify Authorised Users, and procure Authorised Users to agree, that their use of the Subscription Services is subject to the following terms and conditions:
(i) Partner Authorised Users will comply with this Agreement;
(ii) Client Authorised Users will comply with the End User Licence Agreement as contemplated in clause 7;
(iii) we will have no liability to Authorised Users whatsoever (whether direct or indirect) arising out of or in connection with their use of the Subscription Services;
(iv) any other terms and conditions we notify to you in writing;
(c) you will ensure Authorised Users access the Subscription Services using the username and password selected by them during the Subscription Services registration process (User Details);
(d) you will, and will procure that your Authorised Users will, keep the User Details required to access the Subscription Services secure and confidential and not reveal them to any other person. You are entirely responsible for all activities that occur through the use of User Details;
(e) you will:
(i) immediately notify us if you become aware of or suspect (i) that any unauthorised person has obtained or attempted to obtain access to the User Details, the White Label Application, the Partner Branded MacroApp and/or other parts of the Subscription Services, or (ii) any other breach of security. On receipt of notification, we will cease providing Subscription Services in relation to those User Details. You release us from all claims arising from any reasonable reliance by us on any use of the User Details;
(ii) promptly notify us if you become aware of any fault in the White Label Application, Partner Branded MacroApp and/or other parts of the Subscription Services, and assist us in the diagnosis and correction of the fault; and
(iii) (and will procure that the Client Authorised Users) comply with our reasonable instructions in respect of the use of and access to the Partner Branded MacroApp and/or other parts of the Subscription Services;
(f) any act or omission of Authorised Users relating to the Subscription Services will be treated as your act or omission. Without prejudice to our other rights and remedies, we may terminate any authority you have granted to any Authorised User if we consider that the relevant Authorised User is in breach of this Agreement or puts you in breach of this Agreement.
2.3 You acknowledge that we regularly upgrade and update the Subscription Services and that the Subscription Services are continually evolving. Some of these changes will occur automatically, while others may require you to schedule and implement the changes. You will, where required, upgrade your software and/or devices in order to make efficient use of the Subscription Services. Authorised Users may also need to upgrade their software and/or devices in order to make efficient use of the Subscription Services. We will provide you with reasonable notice of any such changes. We may from time to time suspend or restrict your and/or your Authorised Users' access to the Subscription Services to the extent reasonably necessary to enable us to upgrade, update or maintain the Subscription Services.
Your access obligations
2.4 You will:
(a) keep secure logins and passwords for your access and use of the Subscription Services and Documentation and keep such logins and passwords strictly confidential;
(b) allow us at any time to audit your use of the Subscription Services in order to establish whether the Subscription Services are being used in accordance with this Agreement;
(c) promptly disable any login account if we discover (through undertaking the audits referred to in clause 2.4(b)) that any login details have been provided to any unauthorised third party; and
(d) on demand, pay to us an amount of any underpayment of relevant fees discovered by us through undertaking the audits referred to in clause 2.4(b).
2.5 You will not access, store, distribute or transmit any Viruses, and we may, without liability to you and without prejudice to our other rights and remedies, disable your (and your Authorised Users’) access to the Subscription Services if you are in breach of this clause.
2.6 You will not:
(a) except to the extent expressly permitted under this Agreement or by any applicable law which is incapable of exclusion by agreement between the parties:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services and/or Documentation in any form or media or by any means; or
(ii) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Subscription Services;
(b) access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation;
(c) use the Subscription Services and/or Documentation to provide services to third parties (other than to Authorised Users in accordance with this Agreement);
(d) undermine the integrity or security of:
(i) the Subscription Services; or
(ii) our, or any third party’s, systems, networks or resources used in the provision of the Subscription Services;
(e) make the Subscription Services and/or Documentation available to any third party (other than to Authorised Users in accordance with this Agreement);
(f) obtain, or assist third parties in obtaining, access to the Subscription Services, Documentation or other related materials, other than as provided under this clause 2; or
(g) use the Subscription Services in a manner likely to cause excessive load or otherwise interfere with the delivery of the Subscription Services to third parties;
(h) attempt to do any of the things specified in paragraphs (a) to (g) above.
2.7 You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, immediately notify us.
2.8 You may include any Platform Information in your Partner Branded MacroApp.
2.9 In addition to the Platform Information, you may upload your own content in any form that is compatible with the Partner Branded MacroApp (including video or audio). For example, you may wish to upload an instructional video to demonstrate how to perform a particular action or exercise. This content you upload shall be referred to as Partner Content.
2.10 You will not incorporate any Partner Content in the Partner Branded MacroApp that in our reasonable opinion:
(a) infringes the Intellectual Property Rights of a third party;
(b) promotes a competitor of ours, or any products or services provided by a competitor of ours;
(c) brings us into disrepute;
(d) is, or could reasonably be expected to be, detrimental to our business;
(e) violates this Agreement and any other guidelines issued by us to you from time to time;
(f) violates any laws or regulations;
(g) is defamatory, unlawfully threatening or harassing, obscene, pornographic, or liable to incite hatred or acts of terrorism;
(h) contains any Viruses; or
(i) otherwise exposes us to any additional liability.
2.11 Without prejudice to any of our other rights and remedies, we may cease making available the Partner Branded MacroApp, remove any item of Partner Content from the Partner Branded MacroApp, and/or request you to remove any item of Partner Content from the Partner Branded MacroApp, if you fail to comply with the obligations set out in clause 2.10.
Administration and support
2.12 Any Partner Authorised User who is authorised by you as an administrator of your account with us may access and use the Trainer Console.
2.13 We will provide you with the applicable level of support services you have selected in the Partner Application Form.
3.2 You acknowledge and agree that you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
3.3 You will procure Client Authorised Users to have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
3.4 Each party will take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful processing of Your Data and the Client Data or any of its accidental loss, destruction or damage and we will, as part of these measures, use reasonable efforts to back-up Your Data and the Client Data. You acknowledge that if there is any loss or damage to Your Data and/or the Client Data, your sole and exclusive remedy will be for us to use reasonable efforts to restore such lost or damaged data from the latest back-up of Your Data and the Client Data maintained by us. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data or the Client Data caused by any third party.
3.5 You acknowledge and agree that we may use Your Data and the Client Data (and you will procure Client Authorised Users to consent to our use of the Client Data as contemplated below) for the purpose of:
(a) performing our obligations under this Agreement;
(b) ensuring that you are complying with the terms and conditions of this Agreement;
(c) improving or enhancing the Subscription Services;
(d) performing data analysis, machine learning, or cross entity analysis, all on an aggregated and/or anonymous basis,
provided that we comply with our confidentiality obligations under clause 11.
4. Your Rights and Obligations
4.1 You will:
(a) provide us with all necessary co-operation in relation to this Agreement, and all necessary access and consents to such information as may be required by us, so that we can provide the Subscription Services, including Your Data, Client Data, security access information, configuration services and servers. You warrant that you are authorised to provide the foregoing information, access and consents to us so that we can provide the Subscription Services to you;
(b) comply with all applicable laws (including in respect of the collection, use and disclosure of personal information that is included in Your Data and Client Data) with respect to the use, sale and marketing of the Subscription Services and your activities under this Agreement;
(c) use the Subscription Services and the Documentation in accordance with the terms and conditions of this Agreement;
(d) use all reasonable efforts to promote the use of the Subscription Services to your clients;
(e) ensure that your network and systems comply with any reasonable specifications provided by us from time to time;
(f) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres (and we will not be liable for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet);
(g) ensure your relevant staff members complete any training required by us in relation to the Subscription Services;
(h) host a dedicated landing page on the Partner Website that promotes the Subscription Services and includes the Embedded Link; and
(i) notify us if any information in the Partner Application Form changes.
4.2 As a Partner, you will not:
(a) represent yourself as our agent for any purpose, nor pledge our credit or give any condition or warranty or make any representation on our behalf or commit us to any contracts;
(b) without our prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Subscription Services which are inconsistent with those contained in any promotional material supplied by us; or
(c) otherwise incur any liability on our behalf.
4.3 Nothing in this Agreement will prevent us from:
(a) promoting, marketing or providing the Subscription Services to any person; or
(b) granting further rights to any third party to promote, marketing or provide the Subscription Services; or
(c) creating branded applications for other partners based on the White Label Application,
anywhere in the world, except that we will not do any of the above in respect of the Partner Branded MacroApp we have created for you.
5. Our Rights and Obligations
5.1 We will:
(a) provide the Implementation Services in accordance with Schedule 1; and
(b) provide such information and support as may be reasonably requested by you to enable you to properly and efficiently discharge your duties under this Agreement.
5.2 If you have requested us to maintain a Developer Account on your behalf, then:
(a) we will create a Developer Account log-in with such account details as you instruct us;
(b) we will create and register the Partner Branded MacroApp on the relevant Application Platform in the name of the Developer Account;
(c) we will share with you the log-in and account details for the Developer Account (which shall be confidential information for the purposes of this Agreement) and you may use the Developer Account in a manner at your discretion;
(d) we will act on your reasonable instructions in using the Developer Account solely for maintaining the Partner Branded MacroApp in accordance with the terms of this Agreement; and
(e) in consideration for us maintaining the Developer Account, you will pay us the Developer Account Fee at completion of the Implementation Services and on an annual basis thereafter.
5.3 We may offer you Additional Services (such as data analytics) in addition to the Subscription Services under this Agreement. Those Additional Services are specified in Schedule 1.
5.4 We may immediately suspend or restrict your and/or your Authorised Users’ use of the Partner Branded MacroApp and/or other parts of the Subscription Services in whole or in part if use of the Partner Branded MacroApp and/or other parts of the Subscription Services by you or the Authorised Users:
(a) presents a material security risk or will interfere materially with the proper continued operation of the Partner Branded MacroApp and/or other parts of the Subscription Services;
(b) is subject to an order from a court or governmental body stating that such use must stop; or
(c) violates any applicable laws or regulations or the Intellectual Property Rights of any third party.
5.5 You acknowledge and agree that we may:
(a) change the Subscription Services; or
(b) discontinue the Subscription Services.
No such change or discontinuance will be a breach of this Agreement or be deemed to be a termination of this Agreement.
6. Advertising and Promotion
6.1 We may provide you with a set of sales and promotional materials for the Subscription Services, such materials to be supplied by electronic or such other means as we may determine.
(a) acknowledge that implementing the best practice directions and instructions that we give to you in relation to the promotion and advertising of the Subscription Services is a critical success factor to the success of the Program;
(b) will not send unsolicited electronic messages to multiple unrelated recipients in promoting the Subscription Services, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement;
(c) will conduct your business in a manner that reflects favourably at all times on us and our good name, goodwill and reputation and not enter into any contract or engage in any practice detrimental to our interests or the Subscription Services; and
(d) will not engage in any deceptive, misleading or unethical practices that are, or might be, detrimental to us, the Subscription Services, or the public and will not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to us or the Subscription Services.
6.3 You are free to offer additional goods or services (e.g. branded merchandise) via the Partner Branded MacroApp (but not through the other parts of the Subscription Services) or the Partner Website to your clients or Client Authorised Users. Any revenue earned via this clause 6.3 shall not be counted towards the revenue split set out in Schedule 1 of this Agreement.
7. Provision of Subscription Services to Client Authorised Users
7.1 Once we have completed the Implementation Services you will provide the relevant Client Authorised Users with access to and use of the Subscription Services by providing each Client Authorised User directly with the relevant User Details through the automation features within the Trainer Console.
7.2 You acknowledge that:
(a) Client Authorised Users may not use the Platform Branded MacroApp without complying with the terms applicable to them set out in the End User Licence Agreement (as may be amended by the parties by agreement in writing); and
(b) you will notify Client Authorised Users that you are responsible for the provision of the Subscription Services and that we have no liability to Client Authorised Users (whether direct or indirect) arising out of or in connection with their use of the Subscription Services.
7.3 We will invoice you for any Subscription Services you provide to Client Authorised Users in accordance with the provisions of Schedule 2.
7.4 For the avoidance of doubt you will not be relieved from any of your obligations under this Agreement or the End User Licence Agreement (including in relation to payment of our invoices) due to any act or omission of your Client Authorised Users.
8. Charges and Payment
8.1 We will issue an invoice to you for Fees and any other amounts payable to us under this Agreement. It is anticipated that in almost all cases the amount stated in an invoice will be the Revenue Share which will have been paid in full at the time of payment of a Client Access Fee. To the extent that the invoice does not relate to Revenue Share that has already been paid, you will pay us the amount outstanding within 10 days of the date of the invoice.
8.2 If you fail to pay any invoice when due then without prejudice to any of our other rights and remedies:
(a) we may, without liability to you, disable access to all or part of the Subscription Services, and will be under no obligation to provide any or all of the Subscription Services while any invoice concerned remains unpaid; and/or
(b) we may charge you interest that will accrue on such due amounts at an annual rate equal to 2% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full.
8.3 All costs incurred by us in the recovery of any overdue amounts will be your responsibility.
8.4 In consideration of us providing Subscription Services to you, you will pay the Revenue Share at the rate applicable for the Revenue Period.
8.5 You are responsible for all Transaction Costs and Transaction Costs are excluded from the Revenue Share.
8.6 In the event where refunds are issued to Client Authorized Users, the amount refunded will be whatever amount determined by you (understanding it will most often be the total amount of the transaction), however Fees automatically distributed and already collected by us will not be refunded to you. Any fees charged by Stripe for administering refunds will be charged to your account and will not be subsidized by MacroActive.
8.7 You will provide to us, and maintain for us, administrative access to your Stripe Account (or other relevant payment gateway) at all times, solely for the purpose of reconciliation of Revenue reporting.
8.8 Following the close of each month, we will issue you an invoice for the Revenue Share for the previous month, as specified in Schedule 2. If any Revenue Share has not already been collected via automatic distribution within the payment gateways, you will pay the amount of the invoice still owing in accordance with clause 8.1.
8.9 You will keep accurate records of all Revenue (Records). You will, at our reasonable request, permit an independent auditor appointed by us to inspect the Records solely for the purpose of confirming that the Revenue Share paid by you is accurate. Any amount found to be not paid or underpaid by you will be paid by you to us immediately after the extent of the non-payment has been established, together with interest in accordance with clause 8.2(b) of this Agreement.
8.10 All amounts under this Agreement are exclusive of all taxes, levies and other governmental charges. You will pay to us all taxes, levies and other governmental charges (where applicable and at the applicable rates) in addition to the Revenue Share and on any other payments payable by you under this Agreement.
8.11 If you are required by law to deduct or withhold taxes or charges from the amounts due to us under this Agreement, you will ensure that the amount due to us is increased so that the payment actually made equals the amount due to us as if no such taxes or charges had been imposed.
8.12 Outside of the Term of this agreement (clause 12.1), we may change the Fees at any time by giving you at least 90 days’ prior written notice.
9. Warranty and liability
9.1 Each party warrants that it has the power and authority to enter into, and perform its obligations under, this Agreement.
9.2 We warrant that:
(a) the Subscription Services will function substantially as described in the Documentation; and
(b) to the best of our knowledge and belief the Subscription Services do not infringe the copyright of any third party.
9.3 If the Subscription Services do not function substantially in accordance with the Documentation, we will, at our option, either:
(a) modify the Subscription Services to conform to the Documentation; or
(b) provide a workaround solution.
If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate this Agreement by giving written notice to the other party.
9.4 We will not be liable for a breach of the warranty in clause 9.2 to the extent any non-conformance or infringement is caused by:
(a) use of the Subscription Services contrary to the Documentation and any other of our instructions, or modification or alteration of the Subscription Services by any party other than us or our duly authorised contractors or agents;
(b) the Requirements;
(c) Your Data; or
(d) Client Data.
9.5 We do not warrant:
(a) that your use of the Subscription Services will be uninterrupted or error-free;
(b) that the Subscription Services, Documentation and/or the information obtained by you through the Subscription Services will meet your requirements or will always be available, either in its current form or at all;
(c) that we will support, maintain or continue to offer the Subscription Services; and
(d) the accuracy, correctness, reliability or completeness of any Platform Information or any other information, recommendation, program or instruction provided or created through the use of the Subscription Services (together referred to as Instructions). You acknowledge that the results of, assumptions used in, and figures generated from any Instructions are for informational purposes only, and are subject to change depending on a variety of factors, which may not have been taken into account in the Instructions. To the maximum extent permitted by law, we will not be liable for any form of loss or damage arising out of or in connection with your reliance on and use of the Instructions. You agree that you will not rely solely on the Instructions and will carry out your own research, testing and diligence (other than by using the Subscription Services) to verify the accuracy, correctness, reliability and completeness of the Instructions.
9.6 You warrant that none of Your Data infringes the Intellectual Property Rights of any third party. You will indemnify us against all costs and losses that we incur arising out of or in connection with a breach by you of this warranty.
9.7 You acknowledge that:
(a) we are not a medical professional, health professional, fitness expert, nutritionist, physiotherapist, sports coach or other health and fitness advisor and you are solely responsible for any output or result from use of the Subscription Services;
(b) we may rely on the provision of services by third parties (including data centre, electricity, telecommunications and outsourcing providers) in order to provide the Subscription Services (Third Party Providers) and that the Subscription Services may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
(c) we will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any services provided by Third Party Providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
9.8 Except as expressly set out in this Agreement, the Subscription Services and Documentation are provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the Subscription Services and Documentation are expressly excluded.
9.9 Except for a breach by either party of its confidentiality obligations or an infringement by either party of the other party’s or any third party’s Intellectual Property Rights:
(a) neither party will be liable to the other party for loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by the other party as a result of anything done by the first party under this Agreement; and
(b) our total liability arising out of all claims for loss or damage under this Agreement will not exceed in aggregate an amount equal to the Fees actually paid by you in the six months immediately prior to the first time a claim is made under this Agreement for any loss or damage.
9.10 You acknowledge and agree that no Authorised User (other than you) may make a claim in relation to this Agreement, provided that where any Authorised User suffers any loss or damage which, if suffered by you, would be recoverable from us, then you may make a claim in relation to such loss or damage on the Authorised User’s behalf.
10. Intellectual Property Rights
10.1 You acknowledge that we and/or our licensors own all Intellectual Property Rights in the Subscription Services, Documentation and White Label Application and you will not dispute such ownership. You acknowledge that the Intellectual Property Rights in any adaptations of, modifications, enhancements or other developments to, the Subscription Services, Documentation, and White Label Application (whether recommended or created by you or any other person) will belong to us or our licensors and you will not dispute such ownership.
10.2 We acknowledge that you, your licensors and/or Client Authorised Users own all Intellectual Property Rights in Your Data and the Client Data and we will not dispute such ownership. We acknowledge that the Intellectual Property Rights in any adaptions of, modifications enhancements or other developments to, Your Data or the Client Data will belong to you, your licensors and/or Client Authorised Users and we will not dispute such ownership.
10.3 During the term of this Agreement you grant us the non-exclusive right to use your name, trade marks, logos and any other branding solely in relation to the promotion or development of the Subscription Services, the Partner Branded MacroApp and the MacroActive Website, and in accordance with any guidelines set by you from time to time.
10.4 You will not market, advertise or promote the Subscription Services under any name or trade mark other than those which we approve (such approval not to be unreasonably withheld).
11.1 Each party will treat as confidential all confidential information obtained from the other pursuant to this Agreement. Neither party will divulge such information to any persons (except to their employees (for whom that party will be responsible) and then only to those employees who need to know) without the other party’s prior written consent.
11.2 In relation to either party, confidential information means (i) any information designated by that party as confidential, and (ii) any information relating to the business or affairs of that party and includes, without limitation, its designs, drawings, manufacturing know how, object code, source code, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, customer lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets.
11.3 Confidential information does not include information which:
(a) can be established by written records to be already known to the recipient at the time of disclosure; or
(b) which is in or enters the public domain through no fault of the recipient.
11.4 If the recipient of any confidential information is required by any applicable law, court or authority to disclose such confidential information to any person, it will:
(a) give the disclosing party prompt written notice of the disclosure, where practicable before it occurs, so that the disclosing party has sufficient opportunity to prevent the disclosure through appropriate legal means;
(b) disclose only that part of the confidential information which the recipient’s legal advisors consider is legally required to be disclosed; and
(c) use all reasonable endeavours to obtain an assurance that the confidential information disclosed will be treated confidentially by the recipient.
11.5 Each party will on demand and, in any event, on termination of this Agreement, deliver to the other party all confidential information supplied by or obtained from the other party.
11.6 Notwithstanding any other provisions of this clause 11, we may mention your name, and identify you as a customer of MacroActive, in any publicity or marketing collateral, provided that we will comply with any reasonable brand guidelines you notify us of in advance.
11.7 This clause 11 will survive termination of this Agreement.
12. Term and Termination
12.2 Either party may terminate this Agreement immediately by giving written notice to the other party (Defaulting Party) if the Defaulting Party:
(a) is in material breach of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring the breach to be remedied;
(b) goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangement with its creditors.
12.3 On termination of this Agreement:
(a) each party will immediately return any copies of confidential information, and any other property, belonging to the other party except to the extent that a party is required by law to retain such information;
(b) all rights and licences granted by either party to the other under this Agreement will terminate;
(c) we will not be liable for any payments relating to goodwill; and
(d) the accrued rights of the parties as at termination, and the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.
12.4 Termination of this Agreement will be without prejudice to any rights and remedies relating to any breach of this Agreement by any party, where that breach occurred before the termination of this Agreement.
13.1 We may sub-contract any of our obligations under this Agreement without obtaining your prior written consent.
13.2 If we use a sub-contractor, we are not relieved of any of our liabilities or obligations under this Agreement.
14.1 If a dispute arises out of or relates to this Agreement (the Dispute), a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
14.2 A party claiming the Dispute has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the Dispute.
14.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
14.4 If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 14.3 (or within such further period agreed in writing by the parties) any party may, by giving written notice to the other parties, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within 5 Business Days of the notice requiring arbitration, by the President or Vice President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
15. Force Majeure
Neither party will have any liability under this Agreement to the extent it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond that party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network or service, act of God, war, riot, civil commotion, malicious damage, accident, breakdown of plant or machinery, fire, flood, or storm, provided that party notifies the other of such an event and its expected duration.
16.1 This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements regarding that subject matter.
16.2 This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
16.3 If any part or a provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
16.4 A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.
16.5 A party may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that (or any other) right, power or remedy.
16.6 This Agreement may be varied by us at any time, effective upon the posting of modified terms on the MacroActive Website or as otherwise notified to you in writing (including by email). You will ensure that you have read, understood and agreed to the most recent terms posted on the MacroActive Website or as otherwise notified to you.
16.7 You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.
16.8 Notices and other communications under this Agreement are to be given in writing by email, personal delivery or by post and must be:
(a) sent to the correct email or address designated in writing by each party for that purpose from time to time. The designated email address for notices you send to us is firstname.lastname@example.org; and
(b) marked for the attention of the designated person or office holder (if any).
16.9 A notice or communication in relation to this Agreement will be deemed to be received:
(a) in the case of a letter, on the tenth Business Day after posting; or
(b) in the case of email, on the Business Day on which the email is successfully delivered; and
(c) in the case of personal delivery, when delivered.
16.10 This Agreement will be governed by and construed in accordance with the laws of New Zealand. If you wish to bring any claim or other action against us arising out of or in connection with this Agreement then you must bring that claim or other action against us in New Zealand.
Schedule 1 – Services
1. Scope of Implementation Services
1.1 We will provide the following Implementation Services to you in order to prepare your Partner Branded MacroApp for distribution:
(a) Customising the White Label Application (every aspect of the look and feel and customer experience to be tailored to represent your brand) in accordance with the Requirements to create the Partner Branded MacroApp, including:
(i) repurposing Partner supplied images, logos & brand colours for mobile app and online member area;
(iii) creation of SSL certificates;
(iv) assistance with the creation of Partner Stripe (or other payment gateway) accounts;
(v) (in some cases) the importing and configuration of our proprietary workouts and customization of these workouts with Partner supplied exercise videos and exercise thumbnails;
(vi) in cases where the Partner has their own custom training program, we will configure the Partner Branded MacroApp in such a way as to recreate the Partner training program within the Trainer Console;
(vii) customization of automated email notifications;
(viii) in coordination with the Partner, our nutritionist will configure the nutritional attributes of the meal plan generator to suit the nutritional guidelines of the Partner. In cases where the Partner is unsure of these guidelines, our nutritionist will coach the Partner through this process; and
(ix) assistance with DNS and email configuration so that communications appear to come from Partner.
(b) Training you on the use of the Subscription Services, the Trainer Console and your Partner Branded MacroApp;
(c) Training you on our best practice trade secrets related to plans & pricing;
(d) Training you on our best practice trade secrets related to increasing traffic and improving conversion rates using a MacroActive social selling methodology;
(e) Publishing the Partner Branded MacroApp on the App Store and/or Google Play;
(f) Setup & branding of a members’ area where Client Authorized Users can log onto a web site and interact with the same content provided in the Partner Branded MacroApp;
(g) Creating a landing page which matches the brand look and feel of Partner’s current web site, using a content management system of our choice, while following a structure and pattern of content layout which MacroActive has determined as best practices from our in market experience; and
(h) Depending on Additional Services, outlined below, this may include creation of Partner branded Apple and Google Developer Accounts.
1.2 You acknowledge that customisation of the Partner Branded MacroApp does not include any changes to the functionality of the underlying White Label Application or to the Subscription Services.
2. Implementation Process
Following acceptance of this Agreement, we will send you an invoice for the Implementation Fee. The Implementation Fee will be payable within 5 Business Days of the date of the invoice.
The parties will agree times and days for us to provide the Implementation Services:
Customisation of Partner Branded MacroApp
2.1 We will send you a link to the Partner Onboarding Questionnaire which you are required to complete in order to customise your Partner Branded MacroApp. We will not commence customisation until we receive all required information and content in such format as we require.
2.2 Once we have customised the Partner Branded MacroApp in accordance with the Requirements, we will publish your Partner Branded MacroApp and notify you in writing that we have done so. You will then have 5 Business Days to test the Partner Branded MacroApp and you may make reasonable requests for adjustments that are within any of our content guidelines. Once we have made the changes based on your reasonable requests, the Partner Branded MacroApp will be deemed accepted by you.
Training in use of the Subscription Services and Partner Branded MacroApp
2.3 Training will take place either online via video conferencing (e.g. Zoom), in person at our premises and/or for some sessions via recorded video training. We will provide a minimum of 8 hours of training as part of your total onboarding process. This amount of training is not required to go live, but rather a minimum of available resource to use at your discretion.
2.4 Twice a year, MacroActive hosts a MasterClass training session which covers best practices in marketing and advanced configuration and use of the Partner Branded MacroApp. Each Partner will have one complimentary pass to this event, which they can attend themselves or send a delegate in their place. Additional passes to this event can be purchased if a Partner wanted to bring additional members of their team.
2.5 From time to time, MacroActive will send video recordings of additional training, tips and tricks on how to get the most from the Partner Branded MacroApp.
2.6 If you require more training in addition to the hours stated at section 2.3 above, we may charge you Training Fees for each additional hour of training. Any additional Training Fees will be invoiced at the end of the month in which the training occurred.
Publishing of Partner Branded MacroApp
2.7 Once we have completed the customisation of your Partner Branded MacroApp, we will publish the customised Partner Branded MacroApp on the relevant Application Platform within 10 days of completing the customisation, provided that you have paid the Implementation Fee.
2.8 Unless you have requested us to maintain a Developer Account on your behalf, then the developer of the Partner Branded MacroApp on the Application Platform will be registered as MacroActive Limited.
Level 0 Services (MacroActive Lite) means the following services will be provided to support and maintain your Partner Branded MacroApp:
(a) MacroActive Trainer Console setup
(b) Set up of credit card Conversion Page
(c) Load nutritional information including ingredient, recipe and meal data
(d) Load generic exercise videos and generic workouts (optional - see Per Seat License Fees)
(e) Your Members Area setup
(f) WrittenJustForMe Module (delay)
(g) Access to MacroActive Knowledgbase
Level 1 Services means the following services provided to support and maintain your Partner Branded MacroApp:
(a) New feature development & ongoing platform innovation;
(b) Software Platform Maintenance;
(c) iOS & Android App Maintenance (optional);
(d) Digital marketing training & resources via MacroActive University;
(e) Access to partner-only forum of shared industry best practices;
(f) Free software & app upgrades as required
(g) Strategy session with your team;
(h) Library of 100+ meals & 100+ recipes ready to be sold to clients;
(i) Library of 100+ generic exercises & over 1500 generic workouts;
(j) Ongoing platform training as new features are released - 100 free promotional accounts included;
(k) actioning reasonable requests to customise your Partner Branded MacroApp on your behalf after completing the Implementation Services; and
(l) resolving any technical issues that render your Partner Branded MacroApp unavailable to a majority of your Client Authorised Users.
Level 2 Support Services means [in addition to the Level 1 Services], the following services provided to support and maintain your Partner Branded MacroApp AND to support and maintain your inbound customer service enquiries:
(a) Full service customer support (email) to be handled by MacroActive, on a white label basis;
(b) handling and responding to all technical support queries directly from Client Authorised Users;
(c) providing support services or training services to assist you in using the Subscription Services in addition to the Implementation Services;
(d) actioning reasonable requests to customise your Partner Branded MacroApp on your behalf after completing the Implementation Services;
(e) resolving any technical issues that render your Partner Branded MacroApp unavailable to a majority of your Client Authorised Users;
Level 3 Advertising Services means the following services will be provided to promote your Partner Branded MacroApp:
(a) Ongoing promotional strategy coaching
(b) Produce and manage Google, Facebook, Instagram, YouTube and/or Snapchat advertising
(c) Any add'l agreed upon services defined by our Certified Partners.
Level 4 Marketing Services means the following services will be provided to promote your Partner Branded MacroApp: (a) Design and produce lead magnets to build email lists
(b) Write and construct email sequences to warm up audience
(c) Produce and optimize Conversion Rate Optimization tests on sales page
(d) Producing additional sales pages to optimize for different customer segments
Schedule 2 – Fees
Implementation Fee (Non-Refundable)
The following are included as part of the one-time setup and configuration of your Partner Branded Progressive Web App (without iOS & Android Apps):
(a) MacroActive Trainer Console setup
(b) Production of 1x Landing / Bridge Page
(c) Set up of credit card Conversion Page
(d) Load recipe, meal and exercise data
(e) Your Members Area setup & design
(f) WrittenJustForMe Module (delay)
(h) Pricing Strategy Consultation
(i) Social Selling Hacks for Facebook, Snapchat & Instagram
(j) Story Selling Templates
(k) Staff Training
Implementation Fee (Non-Refundable)
The following are included as part of the one-time setup and configuration of your Partner Branded MacroApp (with iOS & Android Apps):
(b) Develop Partner Branded MacroApp and published to iOS & Android storefronts
Revenue Share for Level 1 to 3 services
We will receive, and you will pay, a share of the Revenue that you receive from each Client Authorised User (i.e. your customer) that signs up to the Subscription Services / Platform (Revenue Share). The percentage Revenue Share for each Client Authorised User is determined at the time that the Client Authorised User first signs up to access the Subscription Services / Platform, having regard to the total Revenue that has already been received by you at the time that the Client Authorised User signs up. The percentage Revenue Share for that Client Authorised User will remain the same for the duration of this Agreement.
The Revenue Share percentage that will apply to each Client Authorised User will be determined as follows:
(a) where you have requested us to provide Level 1 Services:
Column 1. If at the time the Client Authorised User signs up the total Platform Revenue:
Column 2. Then the Revenue Share percentage applicable for that Client Authorised User will be:
Does not exceed $500,000 -|- 15%
Exceeds $500,000 but does not exceed $1,000,000 -|- 14%
Exceeds $1,000,000 but does not exceed $1,500,000 -|- 13%
Exceeds $1,500,000 but does not exceed $2,000,000 -|- 12%
Exceeds $2,000,000 but does not exceed $2,500,000 -|- 11%
Exceeds $2,500,000 10%
(b) where you have requested us to provide Level 2 Support Services:
Column 1. If at the time the Client Authorised User signs up the total Platform Revenue:
Column 2. Then the Revenue share percentage applicable for that Client Authorised User will be:
Does not exceed $500,000 -|- 20%
Exceeds $500,000 but does not exceed $1,000,000 -|- 19%
Exceeds $1,000,000 but does not exceed $1,500,000 -|- 18%
Exceeds $1,500,000 but does not exceed $2,000,000 -|- 17%
Exceeds $2,000,000 but does not exceed $2,500,000 -|- 16%
Exceeds $2,500,000 -|- 15%
(c) where you have requested us to provide Level 2 Support Services and Level 3 Advertising Services:
Column 1. If at the time the Client Authorised User signs up the total Platform Revenue:
Column 2. Then the additional Revenue share percentage applicable for that Client Authorised User will be:
Does not exceed $500,000 -|- 25%
Exceeds $500,000 but does not exceed $1,000,000 -|- 24%
Exceeds $1,000,000 but does not exceed $1,500,000 -|- 23%
Exceeds $1,500,000 but does not exceed $2,000,000 -|- 22%
Exceeds $2,000,000 but does not exceed $2,500,000 -|- 21%
Exceeds $2,500,000 -|- 20%
(d) where you have requested us to provide Level 2 Support Services and Level 3 Advertising Services and Level 4 Marketing Services then:
Column 1. If at the time the Client Authorised User signs up the total Platform Revenue:
Column 2. Then the Revenue share percentage applicable for that Client Authorised User will be:
Does not exceed $500,000 -|- 30%
Exceeds $500,000 but does not exceed $1,000,000 -|- 29%
Exceeds $1,000,000 but does not exceed $1,500,000 -|- 28%
Exceeds $1,500,000 but does not exceed $2,000,000 -|- 27%
Exceeds $2,000,000 but does not exceed $2,500,000 -|- 26%
Exceeds $2,500,000 -|- 25%
(a) Platform Revenue means the total amount of Revenue earned via the Program since the commencement of this Agreement.
(b) Example of Calculation: Where Partner has selected Level 1 Services, for all new Client Authorised Users who sign up while Platform Revenue is still less than $500,000, then the Revenue Share percentage for those customers will be 15%. After the threshold of $500,000 has been met, then the Revenue Share percentage for all new Client Authorised Users who sign up will be 14%. For further clarity, for those Client Authorised Users who signed up when Platform Revenue was still less than $500,000 then the Revenue Share percentage for those customers will continue to be 15%.
(c) Currency symbol “$” in this table means USD.
(d) GST / VAT: The amounts payable to us for any Revenue Share are [exclusive] of any goods and service tax, value-added tax or any similar tax (as applicable) under the laws of the applicable jurisdiction, at the rate prevailing at the time of supply.
Developer Account Fees
Creation and management of Partner branded Apple and Google Developer Accounts – In the case where Partners request that the developer name of their Partner Branded MacroApp also be white labelled, there will be an annual fee of $1,000 payable upon acceptance of this Agreement. This amount is inclusive of which includes any annual fees from Apple and Google.
Minimum Annual Platform Maintenance Fee
This is an annual fee of US$1000 that is rebated against revenue share paid to MacroActive. This fee does not apply to partners who have generated an Annual Revenue of US$6,700 or more. If during the 12 months after launching, a partner who generates revenue less than US$6,700 will receive a Minimum Annual Platform Maintenance invoice for US$1,000. This invoice will be payable within 7 days.
Per Seat License Fee (Non-Refundable)
This non-refundable annual license fee of USD$1,995 grants the Partner Authorized User access to the MacroActive Lite platform (Level 3 Services - Nutrition module) up to a maximum of 50 concurrent active Client Authorized Users. An additional USD$500 will increase this number to 100 concurrent active Client Authorized Users. An additional annual license fee of USD$997 will enable Level 3 Services - Training. In the event that a Partner reaches the 100 concurrent active user limit and wishes to increase beyond this number, they must request an upgrade to Level 1 Services with associated Revenue Share Fees being applied to all new signups from the date of upgrade forward.
Additional Services Fees
“Done For You” Custom Workout Design -- 3 day and 5 day workouts, male and female, cutting and bulking, 30 minute and 60 minute programs. USD$1500 flat fee; changes to this format will incur additional hourly rate charges at USD$100/hour.
Sales Page Hosting. USD$19/month
Gsuite Email Hosting w/ Google USD$6/month (Required)
Level 4 Marketing Services -- Additional 5% revenue share Rebranding Fee -- At any point after going live on your platform, should you choose to rebrand your services, an additional fee of $5,000 will be payable before rebranding services can commence.
50 Aitken Tce, Kingsland, Auckland, New Zealand - email@example.com