TRAINING SERVICES AGREEMENT

THIS TRAINING SERVICES AGREEMENT (the “Agreement”) is made as of January 2022 (the “Effective Date”) by and between (“Client”), and Texas Pro Academy, LLC, a Texas limited liability company (“Trainer”). The parties hereby agree as follows:

1. ENGAGEMENT OF SERVICES; COMPENSATION. Trainer agrees to provide physical fitness and wellness services to Client as described in EXHIBIT A attached hereto (collectively, the “Services”) during the Term set forth in Section 4.1 below. As sole compensation for the performance of the Services rendered to date and to be rendered during the Term, Client shall provide the consideration as described in EXHIBIT A hereto.

2. INDEPENDENT CONTRACTOR RELATIONSHIP. Trainer’s relationship with Client will be that of an independent contractor. Because Trainer is an independent contractor, Client will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on Trainer’s behalf. Client understands and acknowledges that Trainer is an independent service provider with its own methods, techniques and programs and is not associated with any gym, health club, or other fitness provider.

3. LIABILITY WAIVER AND RELEASE

3.1  Liability Acknowledgment. Client acknowledges that the Services involve strength, flexibility, cardio, aerobic, basketball skills training and other exercises including the use of equipment, all of which may be potentially hazardous activities. Client also acknowledges that all or part of the Services may be held outdoors, which carries additional risks, including, but not limited to, those caused by temperature, weather, environment, vehicular traffic, lack of hydration, and actions of other people, including but not limited to, participants, pedestrians, spectators and instructors. CLIENT VOLUNTARILY AGREES TO PARTICIPATE IN THE SERVICES AND HEREBY AGREES TO EXPRESSLY ASSUME AND ACCEPT AND ALL ASSOCIATED RISKS OF INJURY, PHYSICAL HARM, OR DEATH. CLIENT ACKNOWLEDGES AND REPRESENTS THAT HE OR SHE IS PHYSICALLY SOUND AND DOES NOT SUFFER FROM ANY ILLNESS, IMPAIRMENT, DISEASE OR OTHER CONDITION THAT WOULD PREVENT CLIENT FROM PARTICIPATING IN THE SERVICES, PERFORMING ANY EXERCISES OR USING ANY FITNESS EQUIPMENT.

3.2 Waiver and Release. CLIENT KNOWINGLY AND VOLUNTARILY, INCLUDING ON BEHALF OF ANY HEIRS AND ASSIGNS, FOREVER WAIVES, RELEASES, DISCHARGES AND HOLDS HARMLESS TRAINER AND ITS MANAGERS, MEMBERS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, INDIVIDUALLY AND COLLECTIVELY, FROM ANY AND ALL LIABILITY, DAMAGES, LOSSES, SUITS, DEMANDS, CAUSES OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHER CLAIMS OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY LOSSES FOR PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT AND THE SERVICES. CLIENT ACKNOWLEDGES THAT HE OR SHE IS ENTERING THIS AGREEMENT WILLFULLY AND THAT NO SOCIAL RELATIONSHIP EXISTS BETWEEN TRAINER AND CLIENT, AND IF SUCH A SOCIAL RELATIONSHIP EXISTS, FOR PURPOSES OF THE SERVICES, TRAINER AND CLIENT HAS ASSUMED A STRICT BUSINESS RELATIONSHIP AND CLIENT UNDERSTANDS THAT ANY SOCIAL RELATIONSHIP DOES NOT RENDER THIS WAIVER INVALID.

To the extent that the foregoing is a waiver and release to which Section 1542 of the Texas Civil Code or similar provisions of other applicable law applies, it is the intention of the parties that the foregoing waiver and release shall be effective as a bar to any and all actions, fees, damages, losses, claims, liabilities and demands of whatsoever character, nature and kind, known or unknown, suspected or unsuspected specified herein. In furtherance of this intention Client expressly waives any and all rights and benefits conferred upon it by the provisions of Section 1542 of the Texas Civil Code or similar provisions of applicable law which are as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

3.3 Consent to Treatment. Client hereby consents to receive medical treatment, which may be deemed advisable in the event of injury, accident, or illness during the Services.

4. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY RIGHTS.
4.1 Proprietary Information. Client agrees during the term of this Agreement and thereafter to hold Trainer’s Proprietary Information (as defined below) in trust and confidence, will not use such Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement, and will not disclose any such Proprietary Information to any third party without first obtaining Trainer’s express written consent. By way of illustration but not limitation, “Proprietary Information” includes Trainer’s trade secrets, inventions, ideas, processes, formulas, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques.

4.2 Trainer Inventions; Right to Use. The parties hereto hereby agree that Trainer shall retain all right, title, and interest worldwide in and to Proprietary Information and all applicable intellectual property rights related to such Proprietary Information owned by Trainer as of the Effective Date or discovered, conceived or reduced to practice by Trainer during the Term (the “Proprietary Rights”). This Section 4 shall survive termination of this Agreement.

4.3 Feedback. Trainer is hereby granted a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, or distribute, including by incorporating into Trainer’s Inventions, any suggestions, enhancement requests, recommendations or other feedback provided by Client hereunder.

5. TAXES. Other than net income taxes imposed on Trainer, Client will bear all taxes, fees, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Clients will pay any additional amounts as are necessary to ensure that the net amounts received by Trainer after all such taxes are paid are equal to the amounts that Trainer would have been entitled to in accordance with this Agreement as if the taxes did not exist.
6. INDEMNIFICATION. Client will indemnify, defend, and hold harmless Trainer and its directors, officers, and employees (collectively, the “Released Parties”) from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses (collectively, the “Losses”), arising directly or indirectly from or in connection with: (a) any negligent, reckless, or intentionally wrongful act of Client, (b) any breach by Client or Client’s assistants or agents of any of the covenants, warranties, or representations contained in this Agreement, or (c) any claims or suits that Client (or any person claiming by, under, or through Client) may bring against the Released Parties to recover any Losses which may arise during or resulting from the Services.
7. DISCLAIMER. Client acknowledges that individual results will vary and that Trainer has not made any warranties or representations regarding the results Client will receive in connection with the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT BEARS ALL RISK RELATING TO QUALITY AND USE OF THE RESULTS OF THE SERVICES.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL TRAINER, ITS MEMBERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF GOODWILL, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES. IN NO EVENT SHALL TRAINER BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE SERVICES. UNDER NO CIRCUMSTANCES WILL TRAINER’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO TRAINER DURING THE IMMEDIATELY PRECEDING THREE MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

9. GENERAL PROVISIONS.
9.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Texas, U.S.A. as applied to transactions taking place wholly within Texas between Texas residents without regard to any conflict of law principles.

9.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity, or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.

9.3 No Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, Trainer may assign, without Client’s consent, this Agreement, to (i) a wholly owned subsidiary of Trainer, or (ii) any entity which acquires all or substantially all of the assets of Trainer or into which Trainer is merged or consolidated or to any entity controlling or controlled by Trainer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

9.4 Notices. All notices, requests, and other communications under this Agreement must be in writing and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.

9.5 Legal Fees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.

9.6 Injunctive Relief. A breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing damage to Trainer for which there may be no adequate remedy at law, and Trainer is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.

9.7 Waiver. No waiver by Trainer of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by Trainer of any right under this Agreement shall be construed as a waiver of any other right. Trainer shall not be required to give notice to enforce strict adherence to all terms of this Agreement.

9.8 Publicity. Each party hereto shall be free to advertise and publicize the existence of this Agreement and the general nature of the parties’ relationship with the prior approval of the other party. Notwithstanding the foregoing, Trainer shall be entitled, without Client’s consent, to use Client’s name internally on its customer lists and make oral reference to Client as a customer not in a public address context. Trainer may also reference Client and use its logo on Trainer’s website and in connection with Trainer’s sales and marketing materials.

9.9 Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior discussions between the parties hereto. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all Services undertaken by Trainer for Client.

IN WITNESS WHEREOF, the parties have caused this Training Services Agreement to be executed by their duly authorized representatives as of the date first set during registration.