CUSTOMER USE AGREEMENT

This Customer Use Agreement (the “Agreement”) is made effective as of the date of electronic acceptance by the Customer (“Effective Date”), between CWAG VENTURES, LLC which shall be known as “SILVERBACK COACHING” (“Company”) for purposes of this Agreement, and the undersigned customer (“Customer”).

WHEREAS, Company owns and operates certain proprietary software and hardware (collectively, the “Products”) for purposes of physical training, exercise and health (“Program”);

WHEREAS, Customer desires to use the Products and Program for PERSONAL TRAINING, FITNESS and HEALTH PURPOSES;

NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.     “Grant of License.” Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable, revocable license to use the Products solely for Customer’s internal business operations. This license does not include the right to sublicense or sell the Products.  You are eligible to use the Product provided that you have paid all fees set forth in this Agreement. 

2.     Fee for Grant of License.  In exchange for Grant of License, Customer agrees to pay the sum of $8,000 for a six-month period during which the Grant of License shall be valid and in effect, thus allowing client to use the Products.  Renewal of the Grant of License is at the discretion of the Company and fees charged for renewal may vary in the Company’s sole discretion subject to your approval.  If you do not approve the new rate, your Grant of License shall be null and void without further obligation to you or the Company.   You will receive prior notice of any change in rate of 15 days.  It is customer’s obligation to notify Company of any objection to or declination of the new rate.  If you do not so notify Company, Company will commence charging Customer at the new rate commencing the next billing cycle. 

3.     Payment. The Customer may, with consent of Company and Customer, pay for the six-month Grant of License in one lump sum in the amount set forth above or may pay in two installments: one payable upon execution of this Customer Use Agreement and one within 90 days therefrom. 

4.     Refunds. If requested within 14 days of payment for Grant of License, Company agrees that upon written request to the Company, Company shall refund the full amount paid less any out- of- pocket costs or expenses, including but not limited to costs for blood testing.  If requested within 21 days from the date of payment, Company agrees that upon written request to the Company,  Company shall refund 50% of the amount paid less any out-of-pocket costs and expenses, including but  not limited to costs for blood testing.  If requested more than 21 days but less than one month after payment, Company shall refund 25% of the amount paid less any out-of-pocket costs or expenses, including but not limited to costs for blood testing.  For any refund request made one month or more after the first payment, Company shall not issue any refund and shall be entitled to retain full payment made by Customer to Company. 

5.     Medical Reasons for Refund.  Upon presentation of valid, verifiable proof showing a medical reason why Customer cannot participate in the Personal Training and Fitness program (“Proof”) provided through the Grant of License, Customer shall be permitted to pause membership until and if Customer is certified by a medical doctor or other appropriate health care provider that Customer can participate in the Program.  Upon presentation of valid, acceptable Proof establishing a medical condition that permanently prevents Customer from utilizing the Program, Company shall issue a refund as follows: 100% of the fees paid if such Proof is presented within 30 days from execution of this Agreement; 50% of the fees paid if such Proof is presented within 60 days from execution of this Agreement and 25% of the fees if such Proof is presented within 90 days from execution of this Agreement.  A refund based upon Proof presented more than 90 days from execution of this Agreement shall be in the sole discretion of the Company.  All such refunds shall be exclusive of out-of-pocket fees and costs which shall be deducted from the amount paid as a refund. 

6.      Use Restrictions. Customer shall not (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Products; (ii) circumvent any user restrictions; (iii) use the Products for any purpose that is unlawful or prohibited by this Agreement.

7.     Protection of Intellectual Property and Proprietary Information. The Customer acknowledges that the Products, including but not limited to all software, hardware, documentation, features, and content provided as part of the Program, are and shall remain the exclusive property of SILVERBACK COACHING. The Customer further acknowledges that the Products and Program contain valuable trade secrets and proprietary information owned by SILVERBACK COACHING. Accordingly, the Customer agrees to maintain the confidentiality of all such proprietary information and to not disclose such information to any third party without the prior written consent of SILVERBACK COACHING. The Customer shall take all reasonable precautions to protect the integrity and confidentiality of the Products and Program, including, but not limited to, securing and restricting access to such Products and Program. Unauthorized use, duplication, distribution, or disclosure of any part of the Products or Program, or any information contained therein, is strictly prohibited and may result in civil and criminal penalties. Upon termination or expiration of this Agreement for any reason, or upon SILVERBACK COACHING’s request, the Customer agrees to immediately return or destroy all copies of the Products and Program and any related documentation in the Customer’s possession or control. The obligations under this section shall survive the termination or expiration of this Agreement and shall continue to bind the Customer, its employees, agents, and representatives.

8.     Term and Termination. This Agreement commences on the Effective Date and shall continue in effect until terminated by either party upon 30 days’ written notice to the other party. Upon termination, Customer shall cease all use of the Products and return or destroy all copies of the Products and any documentation provided by Company.

9.     Limitation of Liability.  In no event will Company be liable for any indirect, incidental, special, consequential, or punitive damages arising out of or related to this Agreement, even if informed of the possibility of such damages.

10.  Waiver of Liability for Injuries. The Customer acknowledges and agrees that the use of the Products and participation in the Program involves inherent risks and dangers of injuries, including but not limited to, bodily injury, disease, strains, fractures, partial and/or total paralysis, death or other ailments that could cause serious disability. The Customer hereby agrees to waive, release, discharge, and covenant not to sue SILVERBACK COACHING, its officers, directors, employees, agents, licensors, and their respective successors and assigns (collectively, the “Released Parties”), from any and all claims, demands, losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from the use of the Products or participation in the Program, including any and all liabilities or claims made as a result of negligence on the part of the Released Parties, except where the injury is a direct result of the negligence or willful misconduct of the Released Parties. The Customer further agrees to indemnify and hold harmless the Released Parties from any loss, liability, damage, or costs they may incur due to the use of the Products or participation in the Program by the Customer. The Customer understands and acknowledges that SILVERBACK COACHING is providing recreational services and may not be held liable for any injury, including death, caused by use of the Products or participation in the Program. This waiver of liability constitutes a part of this Agreement and shall remain in effect for the duration of the Customer’s use of the Products and participation in the Program.

11.  Medical Disclaimer. The information provided by SILVERBACK COACHING regarding physical training, exercise, and health within the Program is for general informational purposes only. All information on the Program is provided in good faith, however, we make no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability, or completeness of any information within the Program. Under no circumstance shall we have any liability to you for any loss or damage of any kind incurred as a result of the use of the Program or reliance on any information provided within the Program. Your use of the Program and your reliance on any information within the Program is solely at your own risk. This Program does not contain medical or health advice. The medical and health information is provided for general informational and educational purposes only and is not a substitute for professional advice. Accordingly, before taking any action based upon such information, we encourage you to consult with the appropriate professionals. The use or reliance of any information contained within this Program is solely at your own risk.

12.  Indemnification. The Customer agrees to indemnify, defend, and hold harmless SILVERBACK COACHING, its officers, directors, employees, agents, licensors, and their respective successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to the Customer’s use of the Products or participation in the Program. This indemnification obligation will survive the termination of this Agreement and the use of the Products or participation in the Program by the Customer.

13.  Coverage of Employees, Independent Contractors, and All Workers. This Agreement applies to all individuals engaged by the Customer in any capacity, including, but not limited to, employees, independent contractors, and all other workers (“Covered Individuals”). The Customer shall ensure that all Covered Individuals comply with the terms and conditions of this Agreement as if they were the Customer. Any breach of this Agreement by a Covered Individual shall be deemed a breach by the Customer.

14.  Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or disagreements shall be finally settled by arbitration administered by the [Arbitration Association] under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in the State of New York and the language of the arbitration shall be English. The decision of the arbitrator shall be final and binding on both parties. The costs of arbitration, including administrative and arbitrator fees, shall be shared equally by the parties, but each party shall bear its own legal fees and expenses. Notwithstanding the foregoing, the Company shall be entitled to seek injunctive relief or any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights.

15.  General Provisions. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral. This Agreement may only be modified by a written amendment signed by both parties. This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of laws principles.