HomeMy WebLinkAboutSpecialty Health Service Agreement
National Fitness Center Services Agreement (NR) – Exercise Center Page 1 of 45 01/01/2019
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
O’BRIEN FITNESS CENTER SOUTH BEND PARKS AND RECREATION SOUTH BEND , IN
National Fitness Center Services Agreement (NR) – Exercise Center Page 2 of 45 01/01/2019
Article 1 DEFINITIONS _________________________________________________________________ 6 1.01 Agreement ________________________________________________________________________________ 6 1.02 Annual Member Fee. ________________________________________________________________________ 7 1.03 ASH Client _______________________________________________________________________________ 7
1.04 ASHLink. The ____________________________________________________________________________ 7 1.05 Benefit Year. ______________________________________________________________________________ 7 1.06 Contracted Center __________________________________________________________________________ 7 1.07 Effective Date _____________________________________________________________________________ 7 1.08 Fitness Center Fitness Advisor. ________________________________________________________________ 7 1.09 Fitness Center Participating Location ___________________________________________________________ 7
1.10 Member(s) ________________________________________________________________________________ 7 1.11 Member Eligibility/Benefits __________________________________________________________________ 7 1.12 Member Payments __________________________________________________________________________ 7 1.13 Member Renewal Report. ____________________________________________________________________ 7 1.14 Member Termination Report __________________________________________________________________ 7 1.15 Non-Covered Services _______________________________________________________________________ 8
1.16 Party(ies) _________________________________________________________________________________ 8 1.17 Program Compensation Rate __________________________________________________________________ 8 1.18 Services __________________________________________________________________________________ 8 1.19 Standard Fitness Center Membership ___________________________________________________________ 8 1.20 Quality Management Program ________________________________________________________________ 8 1.21 Visit _____________________________________________________________________________________ 8
Article 2 ASH FITNESS’ RESPONSIBILITIES ______________________________________________ 8 2.01 Prepare and Maintain Program Manual __________________________________________________________ 8 2.02 Distribution of Revised Agreement, Attachments, Amendments, and Program Manual ____________________ 8 2.03 Records Management _______________________________________________________________________ 8 2.04 Maintain Eligibility _________________________________________________________________________ 8 2.05 Communication Regarding Participation of Fitness Center __________________________________________ 9 2.06 Deletion of Fitness Center Participating Location from Network Directories ____________________________ 9 2.07 ASH Fitness’ Payment to Fitness Center ________________________________________________________ 9
Article 3 FITNESS CENTER’S RESPONSIBILITIES _______________________________________ 10 3.01 Business License(s) and Comply with Federal and State Law _______________________________________ 10 3.02 Comply with Program Manual _______________________________________________________________ 10 3.03 Comply with Quality Management Program _____________________________________________________ 10 3.04 Compliance with Medicare __________________________________________________________________ 10 3.05 Immediate Notification by Fitness Center of Certain Occurrences ____________________________________ 10 3.06 Notification of Change in Any Information _____________________________________________________ 10 3.07 Non-Interference with Property and Contract Rights ______________________________________________ 10 3.08 Election to Participate in all Product Offerings ___________________________________________________ 11 3.09 Provision of Member Services _______________________________________________________________ 11 3.09.1 Standard Fitness Center Membership. _____________________________________________________ 11 3.09.2 Conversion of Pre-Established Membership. ________________________________________________ 11 3.09.3 Fitness Center Fitness Advisor. __________________________________________________________ 11 3.09.4 Offering of non-Covered Services and Notification to Members of Financial Responsibility for Member Payments for Non-Covered Services _______________________________________________________________ 11 3.09.5 Member Billing. ______________________________________________________________________ 12 3.09.6 Non Discrimination ___________________________________________________________________ 12 3.10 Verification of Member Eligibility and Services__________________________________________________ 12 3.11 Verification and Collection of Annual Member Fees (If Applicable) __________________________________ 12 3.12 Program Compensation _____________________________________________________________________ 12 3.13 Billing Report Submission __________________________________________________________________ 12 3.14 Reimbursement Adjustments_________________________________________________________________ 13 3.15 Fitness Center’s Participating Locations ________________________________________________________ 13 3.16 Liability Insurance Limits ___________________________________________________________________ 13 3.17 Fitness Center Removal from Provision of Program Services to Members by ASH Clients. ________________ 13
Article 4 CORRECTIVE ACTION PLANS ________________________________________________ 13
Article 5 TERM _______________________________________________________________________ 13
Article 6 TERMINATION _______________________________________________________________ 14 6.01 Termination of This Agreement with Cause with Notice ___________________________________________ 14
National Fitness Center Services Agreement (NR) – Exercise Center Page 3 of 45 01/01/2019
6.02 ASH Fitness Immediate Termination of This Agreement for Cause with Notice _________________________ 14 6.03 Fitness Center Program Participation Termination. _______________________________________________ 14 6.04 Fitness Center Appeal of Termination __________________________________________________________ 14 6.05 Effect of Termination ______________________________________________________________________ 14 6.06 Survival of Certain Contractual Provisions after Termination _______________________________________ 14 6.07 Fitness Center Responsibility during Termination Notice Period _____________________________________ 14 6.08 Fitness Center Responsibilities after Termination of Program, Location or Agreement ____________________ 15
Article 7 HOLD HARMLESS ____________________________________________________________ 15
Article 8 COMMUNICATION OF RELATIONSHIP WITH ASH FITNESS AND ASH CLIENTS __ 15
Article 9 RECORDS AND DATA COLLECTION ___________________________________________ 15 9.01 Maintenance of Records ____________________________________________________________________ 15 9.02 Access to Facility and Records _______________________________________________________________ 15 9.03 Confidential Member Information ____________________________________________________________ 15
Article 10 PROPRIETARY INFORMATION _______________________________________________ 17
Article 11 TRADEMARKS _______________________________________________________________ 17
11.01 Use of Names and Marks. _________________________________________________________________ 17 11.02 Identification of Marks and Form of Use. _____________________________________________________ 17 11.03 Approval for Use of Marks. _______________________________________________________________ 18 11.04 Injunctive Relief. ________________________________________________________________________ 18
Article 12 ASSIGNMENT AND CHANGE OF OWNERSHIP __________________________________ 18
Article 13 SUBCONTRACTS _____________________________________________________________ 18
Article 14 FORCE MAJEURE ____________________________________________________________ 18
Article 15 INDEPENDENT CONTRACTORS _______________________________________________ 18
Article 16 GOVERNING LAW ____________________________________________________________ 19
Article 17 SEVERABILITY ______________________________________________________________ 19
Article 18 DISPUTES BETWEEN FITNESS CENTER AND MEMBERS ________________________ 19
Article 19 DISPUTES BETWEEN FITNESS CENTER AND ASH FITNESS _____________________ 19
Article 20 DISPUTES BETWEEN FITNESS CENTER AND ASH CLIENT ______________________ 20
Article 21 NOTICES ____________________________________________________________________ 20
Article 22 ATTORNEYS' FEES; COSTS ___________________________________________________ 21
Article 23 CAPTIONS ___________________________________________________________________ 21
Article 24 NO THIRD PARTY BENEFICIARIES ____________________________________________ 21
Article 25 AMENDMENTS _______________________________________________________________ 21
Article 26 INSOLVENCY OF ASH FITNESS; PROTECTION OF INTERESTS OF FITNESS CENTER, MEMBERS, AND ASH CLIENTS _________________________________________________ 21
Article 27 ENTIRE AGREEMENT ________________________________________________________ 22
Article 28 EFFECTIVE DATE OF AGREEMENT ___________________________________________ 23
ATTACHMENT A - SILVER&FIT® BASIC ATTACHMENT _______________________________ 24 1.0 DEFINITIONS ___________________________________________________________________________ 24 1.01 Silver&Fit Program ______________________________________________________________________ 24 1.02 Silver&Fit Basic Fitness Center. ____________________________________________________________ 24
2.0 FITNESS CENTER OBLIGATIONS __________________________________________________________ 24 2.01 Free Trial Obligation. ____________________________________________________________________ 24 2.02 Fitness Center Listing Information. _________________________________________________________ 24 3.0 PROGRAM COMPENSATION ______________________________________________________________ 24
ATTACHMENT B – SILVER&FIT® FULL ATTACHMENT________________________________ 25
1.0 DEFINITIONS ___________________________________________________________________________ 25
National Fitness Center Services Agreement (NR) – Exercise Center Page 4 of 45 01/01/2019
1.01 Designated Silver&Fit Exercise Classes. _____________________________________________________ 25 1.02 Silver&Fit Program ______________________________________________________________________ 25 1.03 Silver&Fit Full Fitness Center. _____________________________________________________________ 25 1.04 Quarterly Social Activities ________________________________________________________________ 25 2.0 FITNESS CENTER OBLIGATIONS. _________________________________________________________ 25
• Level 1 Silver&Fit Full Fitness Center. _________________________________________________________ 25
• Level 2 Silver&Fit Full Fitness Center. _________________________________________________________ 26 2.02 Designated Silver&Fit Exercise Classes. _____________________________________________________ 26 2.03 Free Trial Obligation. ____________________________________________________________________ 26 2.04 Silver&Fit Exercise Classes Health and Safety Guidelines. _______________________________________ 26 2.05 Fitness Center Listing Information. _________________________________________________________ 26 3.0 ASH FITNESS OBLIGATIONS. _____________________________________________________________ 26 3.01 FitnessEngagement.com. _________________________________________________________________ 26 3.02 Silver&Fit Online Fitness Center Listing._____________________________________________________ 26 4.0 PROGRAM COMPENSATION ______________________________________________________________ 26 4.01 Program Compensation. __________________________________________________________________ 26
ATTACHMENT B – EXHIBIT 1 SILVER&FIT® FULL – FITNESS CENTER ELECTION ______ 28
ATTACHMENT C - FITNESSCOACH® ATTACHMENT __________________________________ 29
1.0 DEFINITIONS ___________________________________________________________________________ 29 1.01 FitnessCoach Program ___________________________________________________________________ 29 1.02 Special Needs: __________________________________________________________________________ 29 1.03 FitnessCoach Fitness Center. ______________________________________________________________ 29 1.04 Member Caregiver. ______________________________________________________________________ 29 2.0 FITNESS CENTER OBLIGATIONS __________________________________________________________ 29 2.01 Free Trial Obligation. ____________________________________________________________________ 29 2.02 Member Caregiver Access. ________________________________________________________________ 29
3.0 PROGRAM COMPENSATION ______________________________________________________________ 29
ATTACHMENT D - ACTIVE&FIT® ATTACHMENT _____________________________________ 31
1.0 DEFINITIONS ___________________________________________________________________________ 31 1.01 Active&Fit Program _____________________________________________________________________ 31 2.0 FITNESS CENTER OBLIGATIONS. _________________________________________________________ 31 2.01 Free Trial Obligation _____________________________________________________________________ 31 3.0 PROGRAM COMPENSATION ______________________________________________________________ 31
ATTACHMENT E – INTENTIONALLY LEFT BLANK ____________________________________ 32
ATTACHMENT F – EXERCISEREWARDSTM NETWORK ATTACHMENT __________________ 33
1.0 DEFINITIONS ___________________________________________________________________________ 33 1.01 ExerciseRewards Network ________________________________________________________________ 33 1.02 Member _______________________________________________________________________________ 33 1.03 Member Utilization Report ________________________________________________________________ 33 1.04 Program Services _______________________________________________________________________ 33 2.0 FITNESS CENTER’S RESPONSIBILITIES ____________________________________________________ 33 2.01 ExerciseRewards Network. ________________________________________________________________ 33 2.02 Verification of Member Eligibility __________________________________________________________ 33 2.03 Conversion of Pre-Established Membership. __________________________________________________ 33 2.05 Member Payments. ______________________________________________________________________ 34 2.06 One Time Trial Obligation ________________________________________________________________ 34 3.0 CORE AGREEMENT MODIFICATION _______________________________________________________ 34 3.01 Provisions not Applicable to this Attachment. _________________________________________________ 34 4.0 DISCOUNTS ____________________________________________________________________________ 34
ATTACHMENT G - ASH CLIENT LIST ________________________________________________ 35
ATTACHMENT H - PERSONAL TRAINER ATTACHMENT _______________________________ 36
1.0 DEFINITIONS ___________________________________________________________________________ 36 1.01 Amount _______________________________________________________________________________ 36 1.02 Personal Trainer ________________________________________________________________________ 36 1.03 Personal Trainer Benefit Program ___________________________________________________________ 36 1.04 Personal Trainer Services _________________________________________________________________ 36 2.0 FITNESS CENTER’S RESPONSIBILITIES ____________________________________________________ 36
National Fitness Center Services Agreement (NR) – Exercise Center Page 5 of 45 01/01/2019
2.01 Provision of Personal Trainer Program _______________________________________________________ 36 2.02 Personal Trainers _______________________________________________________________________ 36 2.03 Personal Trainer Benefit Program ___________________________________________________________ 37 3.0 PROGRAM ELECTIONS AND COMPENSATION ______________________________________________ 37
ATTACHMENT H – EXHIBIT 1 PERSONAL TRAINER - ASH CLIENT LIST ________________ 38
ATTACHMENT I - HEALTH AND SAFETY GUIDELINES AND CODE OF CONDUCT _______ 39
ATTACHMENT J – MEDICARE ADVANTAGE and medicaid ADDENDUM __________________ 40
ATTACHMENT K –GUIDELINES FOR TRADEMARK USE BY THIRD PARTIES ____________ 43
ATTACHMENT L – PROGRAM COMPENSATION ______________________________________ 44
National Fitness Center Services Agreement (NR) – Exercise Center Page 6 of 45 01/01/2019
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
THIS FITNESS CENTER SERVICES AGREEMENT, (“this Agreement”) is entered into between American Specialty Health Fitness, Inc., a Delaware corporation (“ASH Fitness”), and the City of South Bend, Indiana Venues, Parks & Arts Department O’Brien Fitness Center, by and through its governing board, the Board of Park Commissioners (hereinafter, “Fitness Center”). This Agreement will not become effective until both Fitness Center and ASH Fitness have signed it, as further outlined in Article 28. After Fitness Center and ASH Fitness have both signed this Agreement, Fitness Center will automatically become a Contracted Facility as of the Effective Date specified in Article 28 of this Agreement. Please read this Agreement carefully. This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
This Agreement supersedes and replaces any prior Fitness Center Services Agreements entered into between ASH Fitness and Fitness Center.
RECITALS
WHEREAS, insurers, trust funds, health care service plans, health maintenance organizations, employer groups and other groups (collectively referred to as “ASH Clients” and further defined below) have entered into arrangements
with ASH Fitness for the provision of Services to their Members (as defined below in Section 1.10);
WHEREAS, ASH Fitness wishes to arrange for and facilitate the provision of Services to Members;
WHEREAS, Fitness Center has all necessary licenses and authorizations to operate in its location(s) in the State(s)
in which it operates and wishes to contract with ASH Fitness for the provision of Services to Members;
NOW, THEREFORE, ASH Fitness and Fitness Center agree as follows:
ARTICLE 1 DEFINITIONS.
For purposes of this Agreement and in addition to the terms elsewhere defined herein, the following terms shall have the meanings indicated:
1.01 Agreement. Agreement is this Fitness Center Services Agreement between Fitness Center and ASH Fitness, the attachments and exhibits listed below, the Program Manual and any amendments to such documents.
Attachment A: Silver&Fit® Basic Attachment
Attachment B: Silver&Fit Full Attachment Exhibit 1: Silver&Fit Full Fitness Center Election Attachment C: FitnessCoach® Attachment Exhibit 1: FitnessCoach Member Caregiver Access Election Attachment D: Active&Fit® Attachment Attachment E: Intentionally Left Blank Attachment F: ExerciseRewardsTM Network Attachment Attachment G: ASH Client List Attachment H: Personal Trainer Attachment Exhibit 1: Personal Trainer - ASH Client List Attachment I: Health and Safety Guidelines and Code of Conduct
Attachment J: Medicare Addendum Attachment K: Guidelines for Trademark Use by Third Parties Attachment L: Program Compensation Attachment
The attachments and exhibits listed above and the Program Manual are hereby incorporated by reference. However, Fitness Center’s obligations will be dependent upon its agreement to participate in the programs described in Attachment A through Attachment F and Attachment H as indicated on the signatory page of
this Agreement.
National Fitness Center Services Agreement (NR) – Exercise Center Page 7 of 45 01/01/2019
1.02 Annual Member Fee. Annual Member Fee, if included as part of an ASH Client’s member benefit plan as specified in Attachment G to this Agreement, is a fee the member is required to pay in order to access
Services. The Annual Member Fee, if applicable, will be paid to Fitness Center upon the Member’s first visit to Fitness Center each benefit year as that term is defined below in section 1.04. Annual Member Fee shall not be considered a Member Payment as defined in Section 1.12.
1.03 ASH Client. ASH Client is a health care service plan, health maintenance organization, insurer, employer group, trust fund, third party administrator, or other person or entity who contracts with ASH Fitness or an ASH Fitness’ affiliate to arrange for the provision of Services. ASH Clients will be listed on the ASH Client List which is provided to Fitness Center by ASH Fitness. A sample of the ASH Client List is attached to this Agreement as Attachment G.
1.04 ASHLink. The ASHLink® system is a proprietary software system developed by an ASH Fitness affiliate and utilized by ASH Fitness to support the secure and confidential electronic distribution of information with Fitness Center via the Internet. ASHLink provides Fitness Center and its staff the ability to verify Member
eligibility for an applicable program, submit billing reports and to verify status of reimbursements of submitted billing reports. Additionally, Fitness Center or its staff shall utilize ASHLink to access information relevant to this Agreement (i.e. Program Manual, renewal/termination reports, and Client Lists).
1.05 Benefit Year. Benefit Year is the twelve (12) month period specified in Attachment G.
1.06 Contracted Center. Contracted Center is a fitness center that has contracted with ASH Fitness.
1.07 Effective Date. The Effective Date is the date this Agreement becomes operative, as specified in Article 28
of this Agreement.
1.08 Fitness Center Fitness Advisor. The Fitness Center Fitness Advisor is an individual employed or contracted by Fitness Center that will support Services, as that term is defined in Section 1.18, by acting as the primary contact on behalf of the Fitness Center that Member will contact at the Fitness Center Participating Location and fulfills the requirements detailed in Section 3.09.3.
1.09 Fitness Center Participating Location. A Fitness Center Participating Location is the Fitness Center location where Services will actually be performed. For ease of reference, Fitness Center and Fitness Center Participating Location shall be used interchangeably for a Fitness Center with only one participating location.
1.10 Member(s). Member(s) is/are individual(s) who is/are eligible to receive Services by meeting all the eligibility requirements for participation in a program.
1.11 Member Eligibility/Benefits. Member Eligibility/Benefits is information maintained by ASH Fitness or one of its affiliates pertaining to each Member regarding his or her eligibility, including initial date of eligibility, term of membership and benefits.
1.12 Member Payments. Member Payments are charges which are the direct financial responsibility of the
Member and are paid directly to Fitness Center for any service which is a Non-Covered Service under this Agreement.
1.13 Member Renewal Report. Member Renewal Report is a report compiled by ASH Fitness and posted on
ASHLink which lists Members whose ASH Fitness benefit program requires the Member to pay an Annual Member Fee each Benefit Year and whose current Benefit Year is expiring and who will be entering into a new Benefit Year. Members listed on the Member Renewal Report must pay their Annual Member Fee for
the new Benefit Year to the Fitness Center in order to continue to receive ASH program services.
1.14 Member Termination Report. Member Termination Report is a report compiled by ASH Fitness and posted on ASHLink which lists Members who have terminated their Membership at the Fitness Center and/or are no longer eligible for participation under the program. Terminated Members shall be listed on the Member Termination Report for at least thirty (30) days from their termination date.
National Fitness Center Services Agreement (NR) – Exercise Center Page 8 of 45 01/01/2019
1.15 Non-Covered Services. Non-Covered Services are all services other than a Standard Fitness Center Membership and any other program components as clearly laid out in each attachment and as applicable to
the Member’s benefit. All Non-Covered Services are ineligible for compensation by ASH Fitness and are the direct responsibility of the Member.
1.16 Party(ies). Party(ies) is/are the individual(s) or entity(ies) that execute this Agreement.
1.17 Program Compensation Rate. The Program Compensation Rate is the amount ASH Fitness will pay Fitness Center for the Standard Fitness Center Membership and Services for each Member who has signed a membership agreement with Fitness Center. The Program Compensation Rate is set forth in Attachment L for each program that applies to this Agreement.
1.18 Services. Services are those collective services which fall under this Agreement and its Attachments A through Attachment F and Attachment H.
1.19 Standard Fitness Center Membership. A Standard Fitness Center Membership provides Member with at least the following services: access to a Fitness Center Participating Location during normal facility hours
of operation for the use of cardiovascular exercise equipment (e.g. treadmills, exercise bicycles, “elliptical machines”, etc.), strength or resistance training equipment (e.g. selectorized equipment, free weights, etc.), and use of locker room and shower facilities. It also includes instructor-led classes (such as group fitness
classes, Pilates, group cycling, yoga, etc.) which do not require a separate fee to be paid to Fitness Center for an individual class or set of classes, but are routinely included for the general membership as part of the general monthly fee. The Standard Fitness Center Membership does not include instructor-led classes,
personal training and other amenities for which the Fitness Center routinely charges a separate fee.
1.20 Quality Management Program. The Quality Management Program, as set forth in the program manual, is the set of policies, processes, procedures and standards established, determined and utilized by ASH Fitness under this Agreement to evaluate and determine whether a Contracted Facility has satisfied all ASH Fitness’ Health and Safety Guidelines and Code of Conduct requirements, available on ASHLink, adopted by ASH Fitness and to approve a Contracted Facility’s participation in ASH Fitness and/or ASH Client’s networks.
1.21 Visit. Unless otherwise specified in a program attachment, a Visit is where a Member utilizes the Fitness Center Participating Location for exercise.
ARTICLE 2 ASH FITNESS’ RESPONSIBILITIES.
2.01 Prepare and Maintain Program Manual. ASH Fitness shall prepare and maintain a program manual setting forth ASH Fitness’ policies, processes, standards and procedures regarding Fitness Center’s
participation in any ASH Fitness’ fitness network (“Program Manual”).
2.02 Distribution of Revised Agreement, Attachments, Amendments, and Program Manual. ASH Fitness shall prepare and distribute any updated Agreements, attachments and exhibits, Member Termination Reports, ASH Client Lists, amendments and/or Program Manual, which may be revised by ASH Fitness in accordance with Article 25 of this Agreement. ASH Fitness may distribute all materials directly to Fitness Center and to each Fitness Center Participating Location, where such information pertains to the Fitness
Center Participating Location.
2.03 Records Management. ASH Fitness and its affiliates shall develop, update and maintain policies and procedures that comply with applicable statutory and regulatory requirements for the secure and confidential storage, retention, retrieval and destruction of all records pertaining to its business operations, whether these records are in paper or electronic form.
2.04 Maintain Eligibility. ASH Fitness or its affiliates shall provide Fitness Center with services related to Member Eligibility verification for Services to be provided by Fitness Center. ASH Fitness makes no representation or guarantees concerning the number of Members, if any, that will access Fitness Center under
this Agreement.
National Fitness Center Services Agreement (NR) – Exercise Center Page 9 of 45 01/01/2019
2.05 Communication Regarding Participation of Fitness Center. ASH Fitness and its affiliates shall communicate the participation of Fitness Center in ASH Fitness or its affiliates’ programs to existing and
prospective ASH Clients in various forms, including but not limited to ASH Client proposals, ASH Fitness or ASH Client network directories and the applicable websites accessed by Members. Such communication may include information such as Fitness Center’s name and logo, address, telephone number, and available services. ASH Fitness shall assist Members to select a Contracted Facility under the Member’s program. In addition, ASH Fitness shall, within sixty (60) days of the effective date of a location, notify ASH Clients of the addition of a Fitness Center Participating Location where that location may perform Services for ASH Client.
2.06 Deletion of Fitness Center Participating Location from Network Directories. ASH Fitness will notify all ASH Clients, no later than thirty (30) days after the effective date of Fitness Center Participating Location’s resignation or termination of this Agreement, or of the need to delete the location’s information from network directories and/or other such sources of Fitness Center information.
2.07 ASH Fitness’ Payment to Fitness Center. ASH Fitness shall compensate Fitness Center in accordance with the Program Compensation Rates specified in Attachment L under which Fitness Center is participating within thirty (30) days of receipt of a billing report for Services provided to Members. For billing reports
listing a Member for whom an Annual Member Fee applies, ASH Fitness shall deduct the amount of any Annual Member Fees from the compensation due to Fitness Center until such time the entire Annual Member Fee has been collected. If the member does not utilize the Fitness Center enough times during the Member’s
Benefit Year to satisfy the full amount of the Annual Member Fee, ASH Fitness will deduct any outstanding balances of the Annual Member Fee from the Fitness Center’s compensation payment ninety (90) days after the end of the Member’s Benefit Year until the entire Annual Member Fee has been reconciled.
Fitness Center and ASH Fitness agree that a program of equal to best pricing and equal to best reimbursement model supports fair and competitive pricing and that fair and competitive pricing fosters program competition, enhancement and innovation, and reduces costs. The parties agree that Fitness Center will offer to ASH Fitness Equal To Or Best Pricing and an Equal To Or Best Reimbursement model for Subsidized Fitness Programs. For the purposes of this Agreement and any Attachments, Subsidized Fitness Benefit Programs means any of programs by which an eligible individual receives membership with and/or access to Fitness Center in connection with Silver&Fit, Active&Fit and FitnessCoach (collectively “Fitness Benefit Programs”). Any ASH Fitness consumer-direct purchase program is not included in this definition. “Equal To Or Best Pricing” means that Fitness Center agrees that for each contract it enters with any third party(s) offering Subsidized Fitness Benefit Programs, the rates that Fitness Center will charge such third party(s) will not be less than the rate that Fitness Center charges ASH Fitness under this
contract. Equal To Or Best Reimbursement Model means that Fitness Center will not utilize any reimbursement model that permits a third party offering Subsidized Fitness Benefit Programs to reimburse Fitness Center for fitness services at a lower rate than the rate that Fitness Center is charging ASH Fitness
under this contract, regardless of the reimbursement model. Nothing herein shall prevent Fitness Center and a third party offering Subsidized Fitness Benefit Programs from agreeing to a rate lower than the rate Fitness Center charges ASH Fitness pursuant to this contract at the time of the agreement, or from agreeing to a reimbursement model that permits the third party to reimburse Fitness Center for fitness services at a rate lower than the rate Fitness Center is charging ASH Fitness under this contract at the time of the agreement, regardless of reimbursement model. If Fitness Center contracts with a third party to offer lower pricing or a better reimbursement model than which it has with ASH Fitness, Fitness Center will provide notice to ASH Fitness in advance of the effective date of such third party agreement and, upon ASH Fitness’ written notice stating that ASH Fitness wishes to have the rates that Fitness Center charges ASH Fitness reduced to reflect the better pricing/reimbursement model offered to the third party (“Pricing Notice”), Fitness Center shall automatically provide the same lower pricing and/or the better reimbursement model to ASH Fitness as of the effective date of the third party contract. Upon ASH Fitness’ delivery to Fitness Center of the Pricing Notice, this agreement will be deemed automatically
amended to incorporate the lower rates and/or better reimbursement model with all other contract terms remaining unchanged. The parties agree that the existence of Equal To Or Best Pricing and Reimbursement Models will be subject to audits by an independent third party agreed upon by ASH Fitness and Fitness
National Fitness Center Services Agreement (NR) – Exercise Center Page 10 of 45 01/01/2019
Center. If Fitness Center does not provide the advance notice required by this paragraph, ASH Fitness shall have the right to recover the difference between the lower price and/or reimbursement model and ASH
Fitness’ current pricing and reimbursement model as of the effective date of the lower price and/or reimbursement model by offsetting future payments to Fitness Center until such time the recovery is complete. Such remedy does not exclude ASH Fitness from seeking other remedies to which it may be
entitled.
ARTICLE 3 FITNESS CENTER’S RESPONSIBILITIES.
3.01 Business License(s) and Comply with Federal and State Law. Fitness Center shall maintain and demonstrate upon request by ASH Fitness that Fitness Center has appropriate business licenses for its operations at each of the Fitness Center Participating Locations and meets all federal and state regulations
applicable to such operations.
3.02 Comply with Program Manual. Fitness Center shall comply fully with the Program Manual as described in Section 2.01.
3.03 Comply with Quality Management Program. Fitness Center shall comply with the Quality Management Program and shall cooperate with ASH Fitness in ASH Fitness’ administration of its grievance procedures, which can be found in the Program Manual, including procedures to resolve complaints or grievances filed
by Members with ASH Fitness as they pertain to Fitness Center and its responsibilities under this Agreement.
3.04 Compliance with Medicare and/or Medicaid Requirements. Where Fitness Center is providing Services to Members enrolled in an ASH Client’s Medicare Advantage and/or Medicaid Managed Care plans, Fitness Center shall comply with the provisions outlined in Attachment J to this Agreement.
3.05 Immediate Notification by Fitness Center of Certain Occurrences. Fitness Center shall notify ASH Fitness in writing by overnight mail service, email, facsimile or other means of notification made available to Fitness Center by ASH Fitness within forty-eight (48) hours of the occurrence of: i) the commencement of any voluntary or involuntary bankruptcy proceedings by or against Fitness Center or any similar
proceedings; ii) any lapse of general and/or professional liability insurance maintained by Fitness Center; iii) the filing of criminal charges against Fitness Center’s owners, directors, management or staff that directly interact with Members (this includes personal trainers contracted or employed with Fitness Center if the
Fitness Center is participating in the Personal trainer Benefit as set forth in Attachment H) that Fitness Center’s owner(s) or manager(s) know(s), or reasonably should have known ; iv) a change in Fitness Center’s ownership and/or management; (v) any change to, including but not limited to the loss or potential loss of,
its business license; and (vi) any potential non-compliance or suspected non-compliance with applicable federal or state law or regulation relevant to this Agreement.
3.06 Notification of Change in Any Information. Fitness Center shall notify ASH Fitness at least sixty (60) days prior to any change in Fitness Center or Fitness Center Participating Location’s physical address, Fitness Center or Fitness Center Participating Location’s mailing address, telephone number, email address, office hours, taxpayer identification number, or any other information listed in the Network Application. Where sixty (60) days prior notice is not possible, Fitness Center shall notify ASH Fitness as soon as possible of such changes.
3.07 Non-Interference with Property and Contract Rights. During the term of this Agreement and for one (1) year following the date of its termination, Fitness Center agrees that Fitness Center shall not interfere with ASH Fitness or an ASH Fitness affiliate’s property or contract rights with any ASH Client or Member. This includes, but is not limited to, advising any Member to dis-enroll from any Services, advising any party who has contracted with ASH Fitness or an ASH Fitness Affiliate to terminate, cancel or decline renewal of its contract, and/or solicit any Member to enroll for the provision of similar services offered by any other firm
administering fitness benefit programs, health care service plan, health maintenance organization, health insurer, preferred provider organization or any other similar organization.
If Fitness Center violates this Section, Fitness Center acknowledges that it will be responsible for paying any
and all actual damages incurred by ASH Fitness or any ASH Client as a result of that violation and may be
National Fitness Center Services Agreement (NR) – Exercise Center Page 11 of 45 01/01/2019
liable for other costs, expenses, damages, claims or liabilities; and, if money damages are insufficient to compensate ASH Fitness or ASH Client for the violation of this Section, Fitness Center may be subject to an
injunction prohibiting the activity which constitutes a violation of this Section and/or other equitable relief. Nothing in this Section shall affect any of ASH Fitness’ other rights under this Agreement, at law or in equity. Nothing in this Section shall prohibit Fitness Center from maintaining a direct relationship with Member that is no longer enrolled in a program with ASH Fitness or its affiliates due to Member dis-enrollment or termination of this Agreement.
3.08 Election to Participate in all Product Offerings. Fitness Center may elect to participate in any program specified in Attachment A through Attachment F and Attachment H and indicates in Article 28 which programs it wishes to participate in. Fitness Center is not obligated to participate in all programs but must participate in at least one program at all times while this Agreement is in effect. Where there is no clear indication of participation, ASH Fitness will deem Fitness Center as participating in all programs. Any time after the Effective Date of the Agreement Fitness Center may choose to expand the programs it participates
in. However, after the Effective Date Fitness Center may only terminate participation in a specific program, pursuant to Article 6.
3.09 Provision of Member Services. Fitness Center responsibilities for the provision of Member Services are
outlined in this Section 3.09.
3.09.1 Standard Fitness Center Membership. Fitness Center shall provide Members with a Standard Fitness Center Membership and any other services as required by the applicable program attachments. The
Standard Fitness Center Membership shall include, at no cost to the Member, an orientation session to familiarize Members with the Fitness Center and its equipment.
3.09.2 Conversion of Pre-Established Membership. Fitness Center agrees to assist any Member that has a previously established membership with Fitness Center and the Member becomes eligible for a program under this Agreement. Fitness Center will freeze the Member’s previously established Fitness Center membership, or terminate the membership without any penalty to the member and accept the Program Compensation rate as payment in full for the Standard Fitness Center Membership on behalf of the Member while they are eligible for ASH Program Services. Where a Member is no longer eligible for ASH Program Services and the membership was frozen, Fitness Center shall re-activate the Member’s frozen membership subject to the original terms and conditions of the previously established membership. Fitness Center shall not charge Member any activation fees or penalties for the re-activation and such membership shall be reinstated for the period of time that was remaining on the membership at the time it was frozen.
3.09.3 Fitness Center Fitness Advisor. Fitness Center agrees to support Services by training one or more
Fitness Center employee(s) as a Fitness Center Advisor available to Members during normal business hours to support Member questions and enrollment into the applicable Services as described in this Agreement and its Attachments.
3.09.4 Offering of non-Covered Services and Notification to Members of Financial Responsibility for Member Payments for Non-Covered Services. Fitness Center may upgrade or sell Members additional products or services not covered under this Agreement or any applicable program
attachment but only if Fitness Center informs Members in advance and in writing that such products and services are Non-Covered Services, are the Member’s financial responsibility, and are completely voluntary on the part of the Member. Fitness Center shall collect appropriate Member Payments as that term is defined in Section 1.12, at the time of service and shall bill Members according to the procedures described in the Program Manual. Where a Member upgrades their Standard Fitness Center Membership, Fitness Center agrees that the upgraded membership will be equal to or less than the pricing offered to the general public (“Upgraded Membership Price”) and the cost to the Member shall be the Upgraded Membership Price minus the Fitness Center’s standard fee for a basic membership (this is not the Program Compensation Rate but the standard fee charged by the Fitness Center). Fitness Center agrees to refund any amounts paid by a Member that the Fitness Center collects in a manner not consistent with this Section.
National Fitness Center Services Agreement (NR) – Exercise Center Page 12 of 45 01/01/2019
3.09.5 Member Billing. Nothing in this Agreement shall preclude Fitness Center from charging Member for Services rendered, where Member is determined to not be eligible, including retroactive
determinations, for a program under this Agreement and where Fitness Center complied with Section 3.10. Any such charges shall be consistent with Fitness Center’s lowest standard membership dues. In addition, as Section 3.09.4 details, Fitness Center may charge a Member for Non-Covered Services
where Member has been informed, in writing, prior to the provision of the Non-Covered Services.
3.09.6 Non Discrimination. Fitness Center shall not illegally discriminate against Member for any reason, including but not limited to race, ethnicity, national origin, religion, gender, age, mental or physical disability, health status, payment experience, medical history, genetic information, gender identity, veteran status, evidence of insurability or geographic location within the service area or source or amount of compensation. Fitness Center shall offer Services to a Member covered by ASH Fitness or one of its affiliates in the same manner, in accordance with the same standards, and within the same time availability as services offered to members who are not covered by ASH Fitness or its
affiliates.
3.10 Verification of Member Eligibility and Services. Unless otherwise specified in a program attachment, Fitness Center shall verify Member Eligibility and applicable Services with ASH Fitness at the time of a
Member’s first attempt to utilize Fitness Center Participating Location within a Benefit Year. Fitness Center shall verify that Member’s health plan is on the ASH Client list as participating in the applicable program as well as verify Member Eligibility in the applicable Services by requesting Member to show their current
fitness card/welcome letter if applicable, and by verifying the Member’s eligibility with ASH Fitness. Fitness Center may contact ASH Fitness via ASHLink or call customer service to verify eligibility. Member’s current fitness card/welcome letter is not a guarantee of current eligibility and Fitness Center must verify the Member’s eligibility with ASH Fitness upon the Member’s first visit to the Fitness Center Participating Location.
3.11 Verification and Collection of Annual Member Fees (If Applicable). If a Member’s benefit plan includes an Annual Member Fee (see Attachment G), at the time of a Member’s first attempt to utilize a Fitness Center Participating Location within a Benefit Year, Fitness Center shall verify with ASH Fitness whether Member has paid the required Annual Member Fee for the current Benefit Year. If the Member has not done so, then Fitness Center shall collect the Annual Member Fee from the Member and retain that amount pending submission of billing reports including the Member. Such amounts will be deducted from Program Compensation until the Annual Member Fee has been fully credited. Fitness Center shall only collect Annual Member Fees, if required under a Member’s benefit plan, once at the Member’s initial visit within the Benefit Year and only after verifying with ASH Fitness that the Member still owes the fee for the current Benefit
Year. Members will be listed on the Member Renewal Report within thirty (30) days of a member’s Benefit Year expiring. If a Member is on the Member Renewal Report, Fitness Center shall collect the applicable Annual Member Fee upon the Member’s first visit of the Member’s new Benefit Year. Members will remain
on the Member Renewal Report for sixty (60) days.
3.12 Program Compensation. Fitness Center shall accept Program Compensation Rates, as specified in Attachment L as payment in full for the Services provided pursuant to this Agreement. Except for any
applicable Annual Member Fees a Member must pay for Services, Fitness Center shall not charge the Member an initiation fee, enrollment fees, processing fee, monthly membership fees and/or any other administrative fees for the Standard Fitness Center Membership. Fitness Center shall be responsible for any and all sales, use or other taxes which may be imposed on the compensation paid to Fitness Center by ASH Fitness or any fees, including the Annual Member Fee collected from a Member.
3.13 Billing Report Submission. Unless otherwise specified in a program attachment, Fitness Center will submit a billing report each month and shall provide supporting information to ASH Fitness that identifies each Visit at a Fitness Center Participating Location, the Member name, Member’s Fitness Identification number program abbreviation, Member month and day of birth, and the dates of the Visit. Such information should be submitted electronically via ASHLink or email. Any reports not received via ASHLink or emailed with the required format will not be accepted for payment. ASH Fitness will reject any reports that are not
submitted in the required format and/or do not include the required fields listed in this section.
National Fitness Center Services Agreement (NR) – Exercise Center Page 13 of 45 01/01/2019
Billing reports received over ninety (90) days after the date of service will not be approved for payment due to late submission. Fitness Center shall waive all charges against Member, ASH Fitness and/or ASH Client
related to a billing report received by ASH Fitness more than ninety (90) days after the date of service.
3.14 Reimbursement Adjustments. ASH Fitness may be required to make an adjustment to a reimbursement previously paid by ASH Fitness in order to correct an over or under payment as a result of (1) corrected information received by ASH Fitness, or (2) incorrect determination of benefit or (3) an incorrect calculation of payment amounts. The process for any reimbursement adjustment shall be set forth in the Program Manual.
3.15 Fitness Center’s Participating Locations. Where Fitness Center has more than one location operating under the terms of this Agreement, Fitness Center shall have additional obligations, including but not limited to: Agreement notification, informing participating locations, and members’ use of multiple locations. These additional obligations shall be described in the Program Manual. Fitness Center shall require each Fitness Center Participating Location to comply with the requirements of this Agreement and any applicable state or
federal law or regulations, including but not limited to, the federal False Claims Act (31 U.S.C. §§ 3729–3733). Any incidents of non-compliance should be reported immediately to ASH Fitness upon discovery.
3.16 Liability Insurance Limits. Fitness Center shall maintain professional liability insurance, comprehensive
general liability insurance and/or any other insurance policies, including but not limited to Workers’ Compensation, in accordance with ASH Fitness’ liability insurance requirements in this Agreement. Fitness Center shall notify ASH Fitness within five (5) days of any material change to any or all insurance policies,
which shall include, but not be limited to, a reduction in a policy amount or cancelation or non-renewal of a policy. This insurance requirement will be required for each of the Fitness Center Participating Locations. Fitness Center shall maintain general and/or professional liability insurance in the amount of one million dollars ($1,000,000) per claim and one million dollars ($1,000,000) in the aggregate per year for each Fitness Center Participating Location. Fitness Center will name ASH Fitness as an additional insured on its general and/or professional liability insurance policies.
3.17 Fitness Center Removal from Provision of Program Services to Members by ASH Clients. Fitness Center acknowledges that an ASH Client may, in its sole discretion, request ASH Fitness to remove or restrict Fitness Center from providing Member Services to ASH Client’s Members and if necessary impose sanctions on Fitness Center.
ARTICLE 4 CORRECTIVE ACTION PLANS
Corrective Action Plans. ASH Fitness shall have the ability to evaluate Fitness Center’s participation and performance in accordance with the terms of this Agreement and fitness industry business practices. If ASH Fitness finds that Fitness Center is not performing in accordance with the terms of this agreement, ASH Fitness may issue a Corrective Action Plan (CAP) to Fitness Center. ASH Fitness will deliver all CAPs in writing to Fitness Center. Fitness Center agrees to comply with ASH Fitness’ CAPs within the timelines specified and to respond to the CAP in writing or as otherwise requested. Fitness Center may submit information to ASH Fitness in response to the CAP which explains Fitness Center’s position including, but not limited to, any information demonstrating that Fitness Center is in compliance with the Agreement or Program Manual. Fitness Center acknowledges that a frequent or repeated lack of compliance with a program requirement may be considered a pattern of performance that is unacceptable to ASH Fitness and may consider this a material breach of the Agreement giving rise to the right to terminate the Agreement for cause pursuant to Section 6.02.
ARTICLE 5 TERM.
The initial term of this Agreement shall be from the Effective Date specified in Article 28 of this Agreement through and including December 31st of the current year subject to the termination provisions set forth in Article 6. After the initial term, this Agreement shall automatically renew for one (1) year on each successive January 1st, unless a) either Party provides the other Party with written notice at least one hundred twenty (120) days prior to the renewal date of its intention not to renew this Agreement, or b) prior to such renewal, the Agreement is terminated pursuant to Article 6.
National Fitness Center Services Agreement (NR) – Exercise Center Page 14 of 45 01/01/2019
ARTICLE 6 TERMINATION.
6.01 Termination of This Agreement with Cause with Notice. Notwithstanding any other provision in this Agreement, either Party may terminate this Agreement with cause for the other Party’s breach of any material term, covenant or condition and subsequent failure to cure such breach. The Party asserting cause for termination of this Agreement (“Terminating Party”) shall provide written notice of termination to the other Party (“Receiving Party”). The notice of termination shall specify the breach or deficiency underlying the cause for termination. Receiving Party shall have thirty (30) calendar days from the receipt of such notice to
cure the breach or deficiency to the satisfaction of the Terminating Party. If Receiving Party fails to cure the breach or deficiency, this Agreement shall terminate upon written notice from the Terminating Party. The termination date shall be the date the Receiving Party receives such notice or such other date as may be
specified in the notice.
6.02 ASH Fitness Immediate Termination of This Agreement for Cause with Notice. ASH Fitness may terminate this Agreement, or a Fitness Center Participating Location(s) participation, immediately upon
written notice by ASH Fitness to Fitness Center upon any of the following occurrences:
a) A determination that services rendered to a Member by Fitness Center in conjunction with this Agreement do not meet the recognized fitness industry standards adopted by ASH Fitness and/or potentially place a Member at risk; b) Any material misrepresentation, falsification or failure to provide accurate information to ASH Fitness, ASH Client, or a Member by Fitness Center or Fitness Center’s staff, agent or representative in connection with this Agreement; c) The filing and/or conviction of any criminal charges against Fitness Center’s directors, officers, owners or employees; d) The termination of any contractual relationship other than this Agreement between Fitness Center and ASH Fitness, or an ASH Fitness’ affiliate;
e) Fitness Center is not participating in at least one program pursuant to this Agreement; f) Fitness Center has no Fitness Center Participating Locations; or g) Any occurrence or condition which materially impairs the ability of Fitness Center or a Fitness Center
Participating Location to perform responsibilities under this Agreement.
6.03 Fitness Center Program Participation Termination. Fitness Center may terminate participation in a program by providing at least one hundred twenty (120) days’ notice prior to the expiration of the current
term. Such termination of participation will be effective on January 1st immediately preceding the notice.
6.04 Fitness Center Appeal of Termination. Fitness Center may appeal ASH Fitness’ termination for cause by providing a written request to ASH Fitness within thirty (30) days from the date of the termination notice by ASH Fitness. Such appeal rights may occur before and/or after the effective date of termination. If a termination appeal results in a reinstatement, ASH Fitness may provide Fitness Center with a new Effective Date for this Agreement
6.05 Effect of Termination. Except as otherwise provided herein, this Agreement shall be of no further force or effect following the date of termination, except that each Party shall remain liable for any obligations or liabilities arising from the activities carried on by it hereunder prior to the date of termination.
6.06 Survival of Certain Contractual Provisions after Termination. Notwithstanding any other provision of this Agreement, the following provisions of this Agreement shall survive any termination of this Agreement: Sections 2.02, 2.04, 3.01, 3.07, 3.09.2, 6.05, 6.06, and 6.07, in addition to, Article 7, Article 8, Article 9, Article 10, Article 15, Article 16, Article 18, Article 19, and Article 20.
6.07 Fitness Center Responsibility during Termination Notice Period. Where Fitness Center or ASH Fitness
provides notice of non-renewal pursuant to Article 5 or termination pursuant to Section 6.01 Fitness Center shall continue to provide Services pursuant to this Agreement up to and including the effective date of termination or non-renewal.
National Fitness Center Services Agreement (NR) – Exercise Center Page 15 of 45 01/01/2019
6.08 Fitness Center Responsibilities after Termination of Program, Location or Agreement. Fitness Center understands that materials such as network directories provided to Members by ASH Fitness or ASH Clients
may continue to reflect that a location is participating in the ASH Fitness and/or ASH Client’s network for some period of time following the termination of a location’s participation. Therefore, to avoid Member confusion regarding the location’s status with ASH Fitness, regardless of which Party terminates this Agreement or a location’s participation, Fitness Center shall inform any Member who seeks Services that the location is no longer contracted with ASH Fitness. If a Member wishes to continue to receive services from Fitness Center the process for continuing their membership is set forth in the Program Manual.
ARTICLE 7 HOLD HARMLESS.
To the extent not covered by insurance, Fitness Center shall be solely responsible for and shall hold ASH Fitness free and harmless from any claims, losses, damages, liabilities, costs, expenses, attorneys' fees and costs or obligations arising from or relating to any act or omission of Fitness Center, Fitness Center’s agents, partners, associates, employees or representatives in providing or failing to provide Services in conjunction with this Agreement to
Members or arising from or relating to any act or responsibility of Fitness Club. To the extent not covered by insurance, ASH Fitness shall be solely responsible for and shall hold Fitness Center free and harmless from any claims, losses, damages, liabilities, costs, expenses, attorneys’ fees and costs or obligations arising from or relating to any act or omission of ASH Fitness, its agents, employees or representatives in connection with ASH Fitness’ responsibilities under this Agreement.
ARTICLE 8 COMMUNICATION OF RELATIONSHIP WITH ASH FITNESS AND ASH CLIENTS.
Fitness Center shall not initiate any written communication, solicitation or advertisement of any type referencing the relationship with ASH Fitness and/or ASH Client without the prior written approval of the communication by ASH Fitness. This includes, but is not limited to, Internet web pages, social networking, newspapers, yellow pages, billboards, mass mailings, telemarketing, location posters or business cards. Only where ASH Fitness reviews and gives prior written approval may Fitness Center display and/or distribute materials to promote programs associated
with this Agreement.
ARTICLE 9 RECORDS AND DATA COLLECTION.
9.01 Maintenance of Records. Fitness Center shall maintain and provide ASH Fitness, and upon the request of ASH Clients, U.S. Department of Health and Human Services, U.S. Department of Justice, Office of Inspector General, Center for Medicare and Medicaid Services and/or other federal and state agencies, with
all records relating to Services provided to each Member by Fitness Center, in such form and containing such information as is required by applicable federal and state law, and such other information as ASH Fitness, ASH Clients, or other such agencies may require. For Members enrolled in an ASH Client’s Medicare Advantage plan, records shall be retained in accordance with Section 8 of Attachment J. For all other Members, such records shall be retained by Fitness Center the greater of seven years or in accordance with applicable state laws.
9.02 Access to Facility and Records. Fitness Center shall provide access to ASH Fitness, at reasonable times upon request by ASH Fitness ASH Client, and/or regulatory agencies with oversight of ASH Fitness or ASH Client operations, to monitor program compliance and inspect Fitness Center’s facilities, equipment, books,
papers, and records relating to Fitness Center's performance under this Agreement.
9.03 Confidential Member Information.
9.03.1 ASH Fitness and its affiliates shall protect access to, and distribution of, information and/or records that are subject to regulatory requirements for protection of member information and privacy including, but not limited to protection for non-public personal health information. Therefore, ASH
Fitness and Fitness Center shall abide by all Federal and State laws and regulations, including the Health Insurance Portability and Accountability Act (HIPAA) of 1996, regarding privacy, security and disclosure of Member personal information. Fitness Center agrees to maintain records and other
information with respect to Members in an accurate and timely manner, to provide timely access by Members to the records and information that pertain to them and to safeguard the privacy of any non-
National Fitness Center Services Agreement (NR) – Exercise Center Page 16 of 45 01/01/2019
public information that can be used to identify a particular Member. Fitness Center shall limit uses and disclosures of personal information obtained in connection with this Agreement (including any
information received from ASH Fitness or through ASHLink) solely for payment and related operational purposes permitted or required by this Agreement or as required by law. Fitness Center shall use such personal information only to the extent minimally necessary to satisfy those obligations. Any other use of personal information obtained in connection with this Agreement is strictly prohibited unless required by law or as otherwise permitted in writing by ASH Fitness. This specifically includes using Member’s personal information obtained or created in fulfillment of obligations under this Agreement for marketing and fundraising purposes. Fitness Center shall not directly or indirectly receive remuneration in exchange for any personal information of a Member obtained or created pursuant to fulfillment of obligations under this Agreement.
9.03.2 Upon discovering an incident where the personal information of a Member could have been acquired, used or disclosed in a manner not permitted under this Agreement, including situations where such
personal information could have been viewed by persons other than Fitness Center employees authorized by the Fitness Center to perform duties under this Agreement, Fitness Center shall immediately, but in no case later than one business day, report the incident to ASH Fitness’ Privacy
Office. Fitness Center will expediently supply all information reasonably requested by ASH Fitness regarding the investigation of suspected privacy incidents referenced above.
9.03.3 Fitness Center shall advise members of its workforce of their obligations to protect and safeguard
Members’ personal information obtained or created in the fulfillment of Fitness Center’s obligations under this Agreement. Fitness Center will develop, implement, maintain and use appropriate administrative, technical and physical safeguards, in compliance with Social Security Act §1173(d), 45 C.F.R. §164.530(c)(1) and any other implementing regulations issued by the U.S. Department of Health and Human Services, to preserve the integrity and confidentiality of and to prevent non-permitted or violating use or disclosure of Member’s personal information.
9.03.4 Fitness Center shall notify ASH Fitness Privacy Office immediately of any requests for restrictions on uses and disclosure of personal information by a Member.
9.03.5 ASH Fitness is the exclusive owner of information, including personal information, generated or used by Fitness Center for fulfillment of its obligations under the terms of this Agreement.
9.03.6 Fitness Center will indemnify and hold harmless ASH Fitness, its officers, directors, employees or agents from and against any claim, cause of action, liability, damage, cost or expense, including attorneys’ fees and costs and court or proceeding costs, arising out of or in connection with any non-permitted or violating use or disclosure of Members’ personal information by Fitness Center or any
subcontractor, agent, person or entity under Fitness Center’s control.
9.03.7 Upon termination, cancellation, expiration or other conclusion of the services provided by Fitness Center, Fitness Center will if feasible, return to ASH Fitness or destroy all Confidential Member
Information in whatever form or medium including any electronic medium under Fitness Center’s custody or control that Fitness Center created or received for or from ASH Fitness. Fitness Center will complete such return or destruction as promptly as possible, but no later than thirty (30) days
after the effective date of the termination, cancellation, expiration or other conclusion of the services provided by Fitness Center. If return or destruction of Confidential Member Information is infeasible, Fitness Center will extend the protections of this Article 9 to such information and limit its further use or disclosure to those purposes that make return or destruction of Confidential Member Information infeasible.
9.03.8 Notices to the ASH Fitness Privacy Office may be sent by overnight mail, first class mail, fax, email or hand delivery to:
American Specialty Health Fitness, Inc. Attn: Privacy Officer 10221 Wateridge Circle
National Fitness Center Services Agreement (NR) – Exercise Center Page 17 of 45 01/01/2019
San Diego, CA 92121 E-mail: HIPAA@ashn.com
Tel: (800) 848-3555 Fax: (858) 237-3839
ARTICLE 10 PROPRIETARY INFORMATION.
All information, documents, software and other materials of any sort furnished to Fitness Center by ASH Fitness
including, without limitation, this Agreement and any rates included in this Agreement, the Program Manual, any Client Lists, and any copyrighted or trademarked materials, shall be the property of ASH Fitness and shall be treated as confidential. Such proprietary information shall not be disclosed to anyone who does not have a need to know such information and is only to be used by Fitness Center in connection with the performance of Fitness Center's obligations under this Agreement and only in the manner provided for in this Agreement. Fitness Center shall not disclose or use any proprietary information or trade secrets for Fitness Center’s own benefit during the term of this
Agreement or after termination of this Agreement, except as authorized in writing by ASH Fitness. Fitness Center shall have no ownership rights in said proprietary information including, but not limited to, copying, use or distribution of said proprietary information.
Upon termination of this Agreement, Fitness Center shall return to ASH Fitness all proprietary information in Fitness Center's possession, if requested, and in a manner to be specified by ASH Fitness. Fitness Center shall cooperate with ASH Fitness in maintaining the confidentiality of such proprietary information at all times during and after termination of this Agreement.
Fitness Center acknowledges that a breach of the terms and conditions of this Article shall cause immediate and irreparable harm to ASH Fitness, and as such, ASH Fitness shall be entitled to seek any monetary and equitable relief allowed by law. Notwithstanding the foregoing, in the event a breach of confidentiality involves any rates set forth in this Agreement, ASH Fitness may, in its discretion, immediately reduce the compensation rates paid to Fitness
Center.
ARTICLE 11 TRADEMARKS
11.01 Use of Names and Marks. This Agreement does not grant Fitness Center a license or sublicense, except as provided in this Article 11, to use the names, trademarks, service marks, corporate names, trade names, domain names, or logos owned by ASH Fitness or its parent company American Specialty Health Incorporated (“ASH Marks”). During the term of this Agreement Fitness Center may use ASH Fitness’ name or ASH Marks solely in connection with identifying the relationship as contemplated in this Agreement or as specified in Section 11.02 below. Any other use of ASH Marks is subject to the prior review and written
approval of ASH Fitness.
11.02 Identification of Marks and Form of Use. Subject to the terms of this section, ASH Fitness grants Fitness Center a non-exclusive, non-transferable, royalty-free license to use the trademarks Silver&Fit®, Silver&Fit
Signature Series Classes®, Active&Fit®, FitnessCoachTM and/or ExerciseRewardsTM on its web sites and print media for the promotion of Fitness Center’s participation in the applicable programs for which Fitness Center is a Contracted Facility1. Fitness Center shall be allowed to use the ASH Marks as described above, as long as such use complies with this Article and the “Guidelines for Trademark Use by Third Parties” issued by ASH Fitness from time to time, a current version of which is attached hereto as Attachment K. In addition, Fitness Center shall mark the ASH Marks with the symbol “TM” or “®” as appropriate, and include the following trademark attribution in reasonably close proximity to the first use of the ASH Marks in any document or on a screen display, or in a location to which users are directed for statements concerning the Fitness Center’s ownership of intellectual property rights.
1 Silver&Fit, Silver&Fit Signature Series Classes, Active&Fit, FitnessCoach and ASHLink are registered
trademarks of American Specialty Health, Incorporated. All rights are hereby reserved.
National Fitness Center Services Agreement (NR) – Exercise Center Page 18 of 45 01/01/2019
“[Silver&Fit®, Silver&Fit Signature Series Classes®, Active&Fit® and/or ExerciseRewardsTM ]are trademarks of American Specialty Health Incorporated and are licensed by Fitness Center for use herein.”
Fitness Center shall not alter the ASH Marks in any way, including but not limited to, skewing, changing the color, rotating, separating logo elements or changing the typeface.
11.03 Approval for Use of Marks. Approval in Section 11.02 above shall be deemed automatically withdrawn upon the effective date of expiration or termination of this Agreement, unless sooner withdrawn by written notice from ASH Fitness.
11.04 Injunctive Relief. The Parties agree that a breach of the terms and conditions of this Article shall cause immediate and irreparable harm. Therefore, in addition to any other rights or remedies available at law or in equity, ASH Fitness is entitled to seek injunctive relief to restrain or enjoin the breach, without any requirement of bond or security.
ARTICLE 12 ASSIGNMENT AND CHANGE OF OWNERSHIP.
ASH Fitness may, in its discretion, assign all or a portion of its rights or responsibilities under this Agreement to any
party at any time without approval of Fitness Center. All provisions of this Agreement and obligations arising hereunder shall extend to and be binding upon the Parties hereto and their respective successors and assignees and shall inure to the benefit, and be enforceable by the Parties hereto and their respective legal representatives, successors
and assignees.
ARTICLE 13 SUBCONTRACTS
Fitness Center shall not subcontract any of its obligations under this Agreement to any third party without the prior written approval of ASH Fitness, which may be withheld or withdrawn in its sole discretion. Where ASH Fitness allows Fitness Center to subcontract any of its obligations to another party, Fitness Center shall remain ultimately responsible to ASH Fitness for the Services performed hereunder. ARTICLE 14 FORCE MAJEURE.
In the event that Fitness Center’s operations are substantially interrupted by acts of war, fire, insurrection, labor disputes, riots, earthquakes or any other acts of nature, Fitness Center shall be relieved of Fitness Center’s obligations
as to those affected operations for the duration of such interruption. In the event that Fitness Center’s ability to render Services is substantially interrupted because of an event described above, ASH Fitness shall have the right to terminate this Agreement in accordance with Article 6 of this Agreement. Such notice of termination may be
withdrawn if ASH Fitness determines that Services can be performed despite the event or because the interruption has ended.
ARTICLE 15 INDEPENDENT CONTRACTORS.
15.01 None of the provisions of this Agreement shall be construed to create a relationship of agency, representation, joint venture, ownership, control or employment between the Parties, other than that of independent parties
contracting solely for the purpose of effectuating this Agreement.
15.02 Fitness Center shall be responsible solely to eligible Members for Services. Fitness Center is an independent contractor and ASH Fitness shall have no dominion or control over Fitness Center, Fitness Center-Member
relationship, Fitness Center’s personnel or Fitness Center’s services. Fitness Center and Fitness Center’s employees and agents shall not have any claim, under this Agreement or otherwise, against ASH Fitness for vacation pay, sick leave or retirement or other benefits of any kind. During the term of this Agreement or
any renewals hereof, Fitness Center shall be fully responsible and liable for all state and federal income taxes or other taxes to which payments made by ASH Fitness to Fitness Center may become subject. Fitness Center is responsible to maintain all necessary insurance policies, such as workers’ compensation, errors and omissions, and general business liability insurance in amounts necessary to provide adequate coverage for all liabilities and in accordance with Section 3.16 of this Agreement. Where Fitness Center has independent
National Fitness Center Services Agreement (NR) – Exercise Center Page 19 of 45 01/01/2019
contractors, Fitness Center will require its independent contractors to carry the required insurance amounts specified in Section 3.16 if not covered under Fitness Center’s insurance.
ARTICLE 16 GOVERNING LAW.
This Agreement shall be interpreted and governed by the laws of the State in which the Fitness Center is located, except to the extent that law is contrary to or preempted by federal law. Any provisions required to be in this Agreement by any law shall bind the Parties hereto, whether or not expressly provided in this Agreement.
ARTICLE 17 SEVERABILITY.
In the event any provision of this Agreement is rendered invalid or unenforceable by state or federal law or declared null and void by any court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect unless otherwise specified in this Agreement. In the event that a provision of this Agreement is rendered invalid or unenforceable or declared null and void as provided herein, and its removal has the effect of materially altering the obligations of either Party in such manner as, in the judgment of the Party affected, will cause
serious financial hardship to such Party or will cause such Party to act in violation of its corporate articles or bylaws, the Party so affected shall have the right to terminate this Agreement by providing the other Party with at least fifteen (15) days prior written notice.
ARTICLE 18 DISPUTES BETWEEN FITNESS CENTER AND MEMBERS.
Where ASH Fitness and/or an ASH Client determine that a dispute between Fitness Center and Member is subject to the provisions of this Agreement and ASH Fitness and/or ASH Client’s appeals and grievance processes, policies, procedures and standards, Fitness Center agrees to assist ASH Fitness and provide any information necessary, at no cost to ASH Fitness, for ASH Fitness to review and evaluate a Member grievance or appeal presented for resolution. ASH Fitness’ grievance and appeal process is described in the Program Manual. This section does not preclude Fitness Center and Member from seeking any appropriate legal action to resolve any controversy, dispute or claim which is not governed by the terms of this Agreement.
ARTICLE 19 DISPUTES BETWEEN FITNESS CENTER AND ASH FITNESS.
In the event of any dispute between Fitness Center and ASH Fitness (or their respective affiliates, owners, employees, agents, predecessors, or successors) arising out of or relating to this Agreement, Fitness Center and ASH Fitness shall first attempt in good faith to resolve the dispute mutually between themselves. If Fitness Center and ASH Fitness are unable to resolve the dispute by mutual agreement then all matters in controversy shall be submitted, upon the motion of either party, to binding arbitration pursuant to the requirements of the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Arbitration proceedings shall be administered by the American Arbitration Association (“AAA”) in accordance with the AAA. The arbitrator shall be bound by applicable state and federal law, subject to Article 16, and shall issue a written opinion setting forth findings of fact and conclusions of law. Fitness Center and ASH Fitness agree to share equally the AAA administrative fee as well as the arbitrator's fees and expenses, if any, unless otherwise assessed by the arbitrator. The administrative fees shall be advanced by the initiating Party, subject to final apportionment by the
arbitrator. In addition, except as provided below, in any arbitration commenced by the Fitness Center, if the amount of the Fitness Center’s claims is less than $10,000, the Fitness Center’s share of the AAA administrative fees and the arbitrator’s fees and expenses shall be capped at $25. And if the amount of the Fitness Center’s claims is between
$10,000 and $50,000, the Fitness Center’s share of the AAA administrative fees and the arbitrator’s fees and expenses shall be capped at $500. However, if the arbitrator concludes that the Fitness Center’s claims are frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)), then all such fees
and expenses shall be allocated by the arbitrator in accordance with the AAA Commercial Arbitration Rules, and Fitness Center agrees to reimburse ASH Fitness for any monies paid on Fitness Center’s behalf that would be Fitness Center’s responsibility under those rules.
Fitness Center and ASH Fitness agree that the arbitrator's award may be enforced in any court having jurisdiction thereof by the filing of a petition to enforce said award. Costs of filing to have an award enforced may be recovered by the Party which brings such action.
National Fitness Center Services Agreement (NR) – Exercise Center Page 20 of 45 01/01/2019
Any arbitration proceedings shall occur in the state in which Fitness Center is providing Services to Members pursuant to this Agreement.
Unless forbidden by applicable law, Fitness Center and ASH Fitness agree that if they become involved in a claim or dispute under the arbitration process outlined herein, neither Party will disclose to any other person not directly involved in the arbitration process: (i) the substance of, or basis for, the claim; (ii) the content of any testimony or other evidence presented at the arbitration hearing or obtained through discovery; or (iii) the terms or amount of any agreement reached pursuant to arbitration.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim without affecting other contracted Fitness Facilities. THE CONTRACTED FITNESS CENTER AND ASH FITNESS AGREE THAT THEY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all parties agree otherwise, the arbitrator may
not consolidate more than one contracted Fitness Center’s claims, and may not otherwise preside over any form of a class, representative, or private attorney general proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that
claim) must be severed from the arbitration and may be brought in court.
ARTICLE 20 DISPUTES BETWEEN FITNESS CENTER AND ASH CLIENT.
In the event of any dispute between Fitness Center and an ASH Client (or their respective affiliates, owners, employees, agents, predecessors, or successors) arising out of or relating to this Agreement, at the request of ASH Fitness, Fitness Center shall first attempt in good faith to resolve the dispute mutually with the ASH Client through ASH Fitness, including but not limited to, utilizing all available levels of ASH Fitness’ grievance and appeals processes, unless otherwise prohibited by state law. Fitness Center may seek ASH Fitness’ assistance with regard to any dispute by contacting ASH Fitness in writing or by telephone at the address and telephone referenced in Article
21.
ARTICLE 21 NOTICES.
Any notice required or permitted to be given under this Agreement to ASH Fitness or Fitness Center, shall be in writing and shall be (a) delivered by electronic means (i.e. ASHLink, sent via an inalterable email document (such as PDF), or facsimile with confirmation) , (b) delivered in person, (c) sent by certified, registered mail, or “overnight express” by the United States Postal Service with return receipt requested and postage prepaid, or (d) sent “express mail,” “two day delivery,” “3-5 day ground” or any similar service offered by private, prepaid courier such as Federal Express, United Parcel Service or any similar organization. ASH Fitness shall send all notices to Fitness Center’s
ASHLink account, email, facsimile number or mailing address on file with ASH Fitness. Fitness Center shall provide at least thirty (30) day notice to any change in its email, facsimile number or mailing address to ASH Fitness via ASHLink, or to the email, or address provided below.
NOTICES TO ASH FITNESS: American Specialty Health Fitness, Inc.
P.O. Box 509117 San Diego, CA 92150-9117
For specific email addresses, call ASH Fitness at (877) 329-2746. The appropriate email address will be provided depending on the nature of the Notice. Notice shall be effective on the earlier of the date received or the date deemed received.
• Notices given by electronic means (i.e. ASHLink, sent via an inalterable email document (such as PDF), or facsimile with confirmation) shall be deemed received one (1) business day after being sent.
• Notices delivered personally shall be deemed received upon actual receipt.
National Fitness Center Services Agreement (NR) – Exercise Center Page 21 of 45 01/01/2019
• Notices given by certified or registered mail shall be deemed received two (2) United States Postal Service business days after the date mailed.
• Notices given by “3-5 day ground” will be deemed received five (5) business days after the date delivered to the United States Postal Service, Federal Express, United Parcel Service or any similar organization.
• Notices sent for delivery by any other means specified in this first paragraph of this Article shall be deemed received two (2) business days after delivery to the United States Postal Service, Federal Express, United Parcel Service or any similar organization.
ARTICLE 22 ATTORNEYS' FEES; COSTS.
In the event that either Party brings legal action relating to this Agreement, including an arbitration or court action
brought pursuant to Article 18, Article 19 or Article 20 herein, the prevailing Party shall be entitled to payment by the other of all reasonable attorneys' fees, costs and expenses incurred in such action.
ARTICLE 23 CAPTIONS.
Captions in this Agreement are descriptive only and shall not affect the intent or interpretation of this Agreement.
ARTICLE 24 NO THIRD PARTY BENEFICIARIES.
Except as otherwise expressly provided in this Agreement, nothing in this Agreement shall create or be deemed to create any rights or remedies in any third party, including but not limited to a Member or a Fitness Center other than Fitness Center, subject only to Article 26.
ARTICLE 25 AMENDMENTS.
Any amendments to this Agreement, including but not limited to revised or newly issued attachments, ASH Client
Lists or revisions to the Program Manual shall be issued by ASH Fitness and shall be automatically effective and incorporated into this Agreement on the date received or deemed received pursuant to Article 21 of this Agreement, unless otherwise specified in such notice or required by applicable state law.
ARTICLE 26 INSOLVENCY OF ASH FITNESS; PROTECTION OF INTERESTS OF FITNESS CENTER, MEMBERS, AND ASH CLIENTS.
ASH Fitness and Fitness Center each expressly agrees to the inclusion of this Article in this Agreement to provide a means to protect the interests of Fitness Center, Members, and ASH Clients in the event of the insolvency of ASH Fitness. This Article shall apply only in the event of the insolvency of ASH Fitness and only if, as a result of the insolvency, ASH Fitness is unable to discharge its duties under this Agreement. This Article shall not apply in any other circumstances.
For purposes of this Article, the insolvency of ASH Fitness means the filing of a voluntary petition by ASH Fitness, or the filing of an involuntary petition by ASH Fitness’ creditors, under Chapter 7 of the Bankruptcy Code (Liquidation), and the date of the insolvency shall be the date on which any such petition is filed. The insolvency of ASH Fitness shall not include the filing of a voluntary petition by ASH Fitness, or the filing of an involuntary petition by ASH Fitness’ creditors, under Chapter 11 of the Bankruptcy Code (Reorganization). Notwithstanding anything in this Article, this Article shall not apply to the extent its application would violate any provision of the Bankruptcy Code or any other applicable federal or state statute or regulation, any automatic or other stay issued pursuant to the Bankruptcy Code, any order issued by the court with jurisdiction over the bankruptcy proceeding, or any other court order.
If, within sixty (60) days after the date of the insolvency of ASH Fitness, an ASH Client provides written notice to Fitness Center stating that, with regard to any Member who is a beneficiary, employee, member, or insured of that ASH Client, (a) ASH Client shall pay Fitness Center, in accordance with the provisions of this Agreement, for any
billing reports submitted for Services rendered by Fitness Center to any such Member on or after the date of the insolvency, to the extent ASH Fitness has not paid such reimbursements, and (b) ASH Client otherwise shall use its best efforts to discharge the duties of ASH Fitness under this Agreement, or to cause ASH Fitness to discharge those
National Fitness Center Services Agreement (NR) – Exercise Center Page 22 of 45 01/01/2019
duties, with regard to any such Member, then Fitness Center shall continue to be available to render Services to those Members and shall continue to render Services to those Members in accordance with the provisions of this Agreement
for up to six (6) months after the date of the insolvency, as specified by ASH Client.
To the extent this Article grants any rights to any ASH Client, Fitness Center hereby expressly agrees and acknowledges that ASH Client is a third-party beneficiary of the provisions of this Article and shall have all rights
granted under law by a third-party beneficiary to enforce the provisions of this Article.
ARTICLE 27 ENTIRE AGREEMENT.
This Agreement includes all attachments, the Program Manual, and all amendments thereto. Each Party acknowledges that no representation, inducement, promise or agreement, orally or otherwise, has been made by any Party or anyone acting on behalf of any Party, which is not embodied herein. In the event of an inconsistency between this Agreement and any ASH Client Summary or this Agreement and attachments, the ASH Client List or attachments, respectively, shall control the rights and duties of the Parties. In the event of any inconsistency between the Program Manual and this Agreement, this Agreement, together with any attachments, exhibits and amendments,
including any current ASH Client List, shall control the rights and duties of the Parties.
NATIONAL FITNESS CENTER SERVICES AGREEMENT
National Fitness Center Services Agreement (NR) – Exercise Center Page 23 of 45 01/01/2019
ARTICLE 28 EFFECTIVE DATE OF AGREEMENT.
ASH Fitness will provide Fitness Center with notice of the Effective Date after Fitness Center returns one original copy of this Agreement to ASH Fitness, and all pre-contractual requirements are fulfilled based upon a determination by ASH Fitness. Fitness Center agrees to be bound by this Agreement as of the Effective Date as determined by ASH Fitness and indicated immediately below.
The Effective Date of this Agreement is . [To be completed by ASH Fitness Only]
Fitness Center agrees to participate in the following attachments, as indicated with a check in the attachment(s) box:
Attachment A: Silver&Fit Basic Attachment
Attachment B: Silver&Fit Full Attachment2
Attachment C: FitnessCoach Attachment2
Attachment D: Active&Fit Attachment
Attachment F: ExerciseRewards Network Attachment3
Attachment H: Personal Trainer Attachment
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized
representatives as of the dates set forth below.
CITY OF SOUTH BEND, INDIANA BOARD OF PARK COMMISSIONERS for and
on behalf of the Venues Parks & Arts Department O’Brien Fitness Center
AMERICAN SPECIALTY HEALTH FITNESS, INC. (To be filled out by ASH Fitness only)
Fitness Center Legal Name
Name Signed
d/b/a (if applicable) Name Printed
Name Signed Title
Name Printed Date of Signature
Title
Date of Signature
Mailing Address: American Specialty Health Fitness, Inc. P.O. Box 509117 San Diego, CA 92150-9001 Mailing Address:
Office Name
Address
City, State, Zip
Office Address: American Specialty Health Fitness, Inc. 10221 Wateridge Circle
San Diego, CA 92121
2 If Attachment B or Attachment C has been selected, Exhibit 1 to the attachment must be completed.
National Fitness Center Services Agreement (NR) – Exercise Center Attachment A – Silver&Fit Basic Page 24 of 45 01/01/2019
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT A - SILVER&FIT® BASIC ATTACHMENT
1.0 DEFINITIONS.
For purposes of this attachment and in addition to the terms defined in the Agreement, the following terms shall have
the meanings indicated:
1.01 Silver&Fit Program. The Silver&Fit Program is an exercise and healthy aging program offered to Members that are health plan enrollees eligible for Medicare coverage or are group retirees.
1.02 Silver&Fit Basic Fitness Center. As a Silver&Fit Basic Fitness Center shall provide Members the Standard Fitness Center Membership as set forth in Section 3.09.1 of the Agreement.
2.0 FITNESS CENTER OBLIGATIONS
In addition to the obligations in Article 3 of the Agreement, Fitness Center shall have the following obligations for this program: 2.01 Free Trial Obligation. Fitness Center shall offer and honor a one-time free trial (guest pass) for each Member to try out the fitness center prior to joining if the member requests one.
2.02 Fitness Center Listing Information. Fitness Center must maintain current and accurate listing information with ASH Fitness. Fitness Center shall notify ASH Fitness with a change to listing information in accordance with Section 3.06 of the Agreement.
3.0 PROGRAM COMPENSATION.
Fitness Center hereby agrees to participate in the Silver&Fit Program as a Silver&Fit Basic Facility, subject to the compensation schedule listed in Attachment L. The number of visits compensated in a month shall not limit the number of visits a Member may make to Fitness Center in a month. Members must have unlimited access and their visits may exceed the visits compensated per month as specified in Attachment L. A Member may make multiple visits to Fitness Center over the course of one day, however, Fitness Center is only entitled to receive compensation for one (1) of those visits. Silver&Fit services will be compensated by ASH Fitness up to the maximum number of sessions and the maximum amount specified in Attachment L less any applicable Annual Member Fee as specified in Attachment G that was paid to Fitness Center by a Member. An Annual Member Fee, if applicable, shall be paid to Fitness Center upon the Member’s first visit to a Fitness Center each Benefit Year.
National Fitness Center Services Agreement (NR)– Exercise Center Page 25 of 45 01/01/2019 Attachment B – Silver&Fit Full
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CLUB SERVICES AGREEMENT
ATTACHMENT B – SILVER&FIT® FULL ATTACHMENT
1.0 DEFINITIONS.
For purposes of this attachment and in addition to the terms defined in the Agreement, the following terms shall have the meanings indicated:
1.01 Designated Silver&Fit Exercise Classes. Designated Silver&Fit Exercise Classes are older adult oriented exercise classes that Fitness Center agrees to allow ASH Fitness to approve as a Silver&Fit exercise class in its directory for ASH Clients and Members. The Fitness Center may choose to offer one or more classes from the following categories:
• Silver&Fit Signature Series Classes® (these classes as designed by ASH Fitness and are available to Fitness Center to offer as a Designated Silver&Fit Exercise Class. Any equipment required for these classes may either be provided by Fitness Center itself or to Fitness Center by ASH Fitness for an additional fee.)
• Senior Dance
• Senior Yoga
• Strength/Cardio Training for older adults
• Tai Chi
• Aqua
• Fall Prevention Fitness Center shall elect how many classes it wishes to designate as a Silver&Fit Exercise Class
each week in the Fitness Center Election Section of this Attachment, attached hereto as Exhibit 1. Fitness Center may not designate an older adult exercise class sponsored by or provided by any organization which is a competitor of ASH Fitness.
1.02 Silver&Fit Program. The Silver&Fit Program is an exercise and healthy aging program offered to Members that are health plan enrollees eligible for Medicare coverage or are group retirees.
1.03 Silver&Fit Full Fitness Center. As a Silver&Fit Full Fitness Center, Fitness Center shall provide
Members with a Standard Fitness Center Membership as set forth in Section 3.09.1 of the Agreement, Designated Silver&Fit Exercise Classes and/or Quarterly Social Activities.
1.04 Quarterly Social Activities. Quarterly Social Activities are quarterly events sponsored by Fitness Center. Examples of these social events may consist of, but is not limited to, bagels and coffee, off-site walking clubs, and potlucks. Such events may be coordinated with Fitness Center by a Silver&Fit Program Manager.
2.0 FITNESS CENTER OBLIGATIONS.
In addition to the obligations in Article 3 of the Agreement, Fitness Center shall have the following obligations for this program: 2.01 Silver&Fit Full Fitness Center Levels
• Level 1 Silver&Fit Full Fitness Center. A level 1 Silver&Fit Full Fitness Center shall provide Members with a Standard Fitness Center Membership and at least two (2)
Designated Silver&Fit Exercise Classes each week (may be the same class twice per week).
National Fitness Center Services Agreement (NR)– Exercise Center Page 26 of 45 01/01/2019 Attachment B – Silver&Fit Full
Fitness Center shall also offer as part of this level, Quarterly Social Activities at the facility for Members.
• Level 2 Silver&Fit Full Fitness Center. A level 2 Silver&Fit Full Fitness Center shall provide Members with a Standard Fitness Center Membership and at least one (1)
Designated Silver&Fit Exercise Class each week.
2.02 Designated Silver&Fit Exercise Classes. Fitness Center agrees that it shall have at least one (1) instructor who has obtained proper credentials (e.g. certifications, teaching licenses, certificates of completion) to teach the particular Designated Silver&Fit Exercise Class. Fitness Center shall arrange for any required payment for the exercise programs or training classes required, either by (a) Fitness Center on behalf of the instructor or (b) the instructor directly.
2.03 Free Trial Obligation. Fitness Center shall offer and honor a one-time free trial (guest pass) for each Member to try out the fitness center prior to joining if the member requests one.
2.04 Silver&Fit Exercise Classes Health and Safety Guidelines. Fitness Center shall comply with ASH Fitness’ Health & Safety Guidelines for Designated Silver&Fit Exercise Classes. These guidelines are in addition to the Health and Safety Guidelines in Attachment I of this Agreement and shall be distributed to Fitness Center upon notifying ASH Fitness of its election to offer Designated Silver&Fit Exercise Classes. Upon Fitness Center’s acceptance of these guidelines, the elected classes shall be listed in ASH Fitness’ Fitness Center listing as Designated Silver&Fit Exercise Classes.
2.05 Fitness Center Listing Information. Fitness Center must maintain current and accurate listing information with ASH Fitness. Fitness Center shall notify ASH Fitness with a change to listing
information in accordance with Section 3.06 of the Agreement.
3.0 ASH FITNESS OBLIGATIONS.
3.01 FitnessEngagement.com. Fitness Center shall have access to a web site that will provide tools to help assist Fitness Center in providing the Silver&Fit Program to Members. The website shall include training materials to help assist with the Designated Silver&Fit Exercise Classes, as well as
promotional fliers for Fitness Center to use to promote the Silver&Fit Program and Designated Silver&Fit Exercise Classes.
3.02 Silver&Fit Online Fitness Center Listing. ASH Fitness shall provide ASH Clients and Members
with an online Fitness Center listing of participating Fitness Centers. The online listing shall list the Designated Silver&Fit Exercise Classes offered by Fitness Center and if Fitness Center holds Quarterly Social Activities. Fitness Center’s priority in the listing shall be dependent upon what
level of Silver&Fit Full Fitness Center is. If Fitness Center participates as a Level 1 Silver&Fit Full Facility, Fitness Center shall be listed above all other levels in the ASH Fitness Silver&Fit Fitness Center listing. If Fitness Center participates as a Level 2 Silver&Fit Full Facility, Fitness Center
shall be listed above all Silver&Fit Basic Centers.
4.0 PROGRAM COMPENSATION.
4.01 Program Compensation. Fitness Center hereby agrees to participate in the Silver&Fit Program subject to the compensation schedule listed in Attachment L. The number of visits compensated in a month shall not limit the number of visits a Member may make to Fitness Center in a month. Members must have unlimited access and their visits may exceed the visits compensated per month as specified in Attachment L. A Member may make multiple visits to Fitness Center over the course of one day, however, Fitness Center is only entitled to receive compensation for one (1) of those
visits. Silver&Fit services will be compensated by ASH Fitness up to the maximum number of sessions and the maximum amount specified in Attachment L less any applicable Annual Member Fee as specified in Attachment G that was paid to Fitness Center by a Member. An Annual Member
National Fitness Center Services Agreement (NR)– Exercise Center Page 27 of 45 01/01/2019 Attachment B – Silver&Fit Full
Fee, if applicable, shall be paid to Fitness Center upon the Member’s first visit to a Fitness Center each Benefit Year.
ATTACHMENT B – EXHIBIT 1
National Fitness Center Services Agreement (NR) – Exercise Center Page 28 of 45 01/01/2019 Attachment B Exhibit 1 – Silver&Fit Full Fitness Center Election
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT B – EXHIBIT 1 SILVER&FIT® FULL – FITNESS CENTER ELECTION3
Fitness Center elects to designate one (1) or more older adult oriented exercise classes listed in Section 1.01 of Attachment B as a Designated Silver&Fit Exercise Class:
One (1) class per week OR
Two (2) classes per week
Fitness Center elects to offer:
Quarterly Social Activities
3 Any election in this exhibit shall be for all Fitness Center Participating Locations unless Fitness Center notifies ASH Fitness otherwise.
National Fitness Center Services Agreement (NR) – Exercise Center Page 29 of 45 01/01/2019 Attachment C – FitnessCoach
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT C - FITNESSCOACH® ATTACHMENT
1.0 DEFINITIONS.
For purposes of this attachment and in addition to the terms defined in the Agreement, the following terms shall have the meanings indicated:
1.01 FitnessCoach Program. The FitnessCoach Program is an exercise and fitness program offered to Members that are enrolled in a health plan’s Medicare or Medicaid program.
1.02 Special Needs: Refers to conditions that Members may have involving disabilities or chronic conditions the result of which may necessitate them having limited mobility or accessibility or require assistance from a Member Caregiver.
1.03 FitnessCoach Fitness Center. As a FitnessCoach location, Fitness Center shall provide Members the Standard Fitness Center Membership as set forth in Section 3.09.1 of the Agreement.
1.04 Member Caregiver. A Member Caregiver is the person identified by the Member to ASH Fitness and the Fitness Center as the person who will be providing assistance to the Member while using the
Fitness Center.
2.0 FITNESS CENTER OBLIGATIONS
In addition to the obligations in Article 3 of the Agreement, Fitness Center shall have the following obligations for this program: 2.01 Free Trial Obligation. Fitness Center shall offer and honor a one-time free trial (guest pass) for each Member to try out the fitness center prior to joining if the member requests one.
2.02 Member Caregiver Access. Fitness Center shall provide Member Caregiver access to the facility so that they may assist the Member with their workout. This may include, but is not limited to, assistance with using equipment, equipment setting adjustments and general assistance in Fitness Center. Member Caregiver shall not be allowed to personally workout at the center and are on the premises with the Member solely to assist the Member with their workout and navigating through the center. Member Caregivers are not considered Members of ASH Fitness or ASH Fitness Clients
and therefore, will not count toward Fitness Center’s program compensation and should not be listed on Fitness Center’s monthly billing report. Fitness Center shall not charge a Member Caregiver any monthly dues or guest fees for being at the center to assist a Member. If Fitness Center requires that guests or patrons of the center sign a waiver for being on the premises, Fitness Center may request and require the Member Caregiver to sign such waiver.
3.0 PROGRAM COMPENSATION.
Fitness Center hereby agrees to participate in the FitnessCoach Program as a FitnessCoach Facility, subject to the compensation schedule listed in Attachment L. The number of visits compensated in a month shall not limit the
number of visits a Member may make to Fitness Center in a month. Members must have unlimited access and their visits may exceed the visits compensated per month as specified in Attachment L. A Member may make multiple visits to Fitness Center over the course of one day, however, Fitness Center is only entitled to receive compensation
for one (1) of those visits. FitnessCoach services will be compensated by ASH Fitness up to the maximum number of sessions and the maximum amount specified in Attachment L less any applicable Annual Member Fee as specified in Attachment G that was paid to Fitness Center by a Member. An Annual Member Fee, if applicable, shall be paid to Fitness Center upon the Member’s first visit to a Fitness Center each Benefit Year.
National Fitness Center Services Agreement (NR) – Exercise Center Page 30 of 45 01/01/2019 Attachment C – FitnessCoach
National Fitness Center Services Agreement (NR) – Exercise Center Page 31 of 45 01/01/2019 Attachment D – Active&Fit
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT D - ACTIVE&FIT® ATTACHMENT
1.0 DEFINITIONS.
For purposes of this Agreement and in addition to the terms elsewhere defined herein, the following terms shall have the meanings indicated:
1.01 Active&Fit Program. The Active&Fit Program is a fitness program whereby ASH Fitness or its
affiliates arrange for the provision of Services to Members. This program provides Member with a Standard Fitness Center Membership.
2.0 FITNESS CENTER OBLIGATIONS.
2.01 Free Trial Obligation. Fitness Center shall offer and honor a one-time free trial (guest pass) for each Member to try out the fitness center prior to joining if the member requests one.
3.0 PROGRAM COMPENSATION.
Fitness Center hereby agrees to participate in the Active&Fit Program subject to the compensation schedule listed in
Attachment L. The number of visits compensated in a month shall not limit the number of visits a Member may make to Fitness Center in a month. Members must have unlimited access and their visits may exceed the visits compensated per month as specified in Attachment L. A Member may make multiple visits to Fitness Center over
the course of one day, however, Fitness Center is only entitled to receive compensation for one (1) of those visits. Active&Fit services will be compensated by ASH Fitness up to the maximum number of sessions and the maximum amount specified in Attachment L less any applicable Annual Member Fee as specified in Attachment G that was
paid to Fitness Center by a Member. An Annual Member Fee, if applicable, shall be paid to Fitness Center upon the Member’s first visit to a Fitness Center each Benefit Year.
ATTACHMENT E
National Fitness Center Services Agreement (NR) – Exercise Center Page 32 of 45 01/01/2019 Attachment E
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT E – INTENTIONALLY LEFT BLANK
National Fitness Center Services Agreement (NR) – Exercise Center Page 33 of 45 01/01/2019 Attachment F – ExerciseRewards
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT F – EXERCISEREWARDSTM NETWORK ATTACHMENT
1.0 DEFINITIONS.
For purposes of this Agreement and in addition to the terms elsewhere defined herein, the following terms shall have
the meanings indicated:
1.01 ExerciseRewards Network. ExerciseRewards Network (“ERN”) is the network of Fitness Centers and exercise centers which are contracted with ASH Fitness to provide Program Services, as defined
below in Section 1.04, offered to Members at a specific discounted rate.
1.02 Member. For the purpose of this attachment a Member is solely an individual eligible to receive Services. Members will not need to complete member enrollment prior to signing a membership agreement with a Fitness Center.
1.03 Member Utilization Report. Member Utilization Reports are monthly reports submitted to ASH Fitness by Fitness Center that track Members’ utilization each month. Each monthly report shall contain the Member first and last name, Member’s fitness identification number, program abbreviation, Member month and day of birth, health plan or employer group name, if applicable,
and the dates of each Visit in the month. Utilization reports for members who have not been identified as participating in the program should not be submitted.
1.04 Program Services. Program Services (referred to by some ASH Clients and Members as “Exercise
Rewards or ERP”) are the services set forth in this Attachment provided to Members eligible for such services. Fitness Center is paid directly by the Member for Program Services, in accordance with the applicable discount offered by Fitness Center as specified in this Agreement. Fitness Center
shall not be eligible for any compensation by ASH Fitness under this Agreement.
2.0 FITNESS CENTER’S RESPONSIBILITIES.
In addition to the obligations in Article 3 of the Agreement, and with the exception of the provisions identified in Section 3.0 of this Attachment, Fitness Center shall have the following obligations for this program:
2.01 ExerciseRewards Network. As part of the ExerciseRewards Network, Fitness Center shall offer a Member a ten percent (10%) or higher discount off the regular membership fees/dues and/or enrollment fees. Fitness Center will be made available to those Members eligible for Program Services. Promotion of Program Services may include, but is not limited to, customized ASH Client web site directory listing, customized search criteria featuring the agreed upon discount with Fitness Center, and Member open enrollment materials. No program compensation rate applies to this
Agreement and Fitness Center shall look to Member for compensation in accordance with the Members applicable discount.
2.02 Verification of Member Eligibility. Fitness Center shall verify Member eligibility at the time of Member’s first attempt to utilize Fitness Center Participating Location by requesting Member to show their fitness card or welcome letter and then verifying the Member’s eligibility on ASHLink or by calling customer service.
2.03 Conversion of Pre-Established Membership. Fitness Center agrees to assist any Member that has a previously established membership with Fitness Center and the Member becomes eligible for the
Program Services under this Agreement. Fitness Center agrees to allow Member’s previously
ATTACHMENT F – EXERCISEREWARDS NETWORK DISCOUNT
National Fitness Center Services Agreement (NR) – Exercise Center Page 34 of 45 01/01/2019 Attachment F – ExerciseRewards
established membership to become discounted to Fitness Center’s agreed upon discount for Program Services where the discounted rate is lower than the Member’s previously established membership
rate.
2.04 Member Utilization Reports. Fitness Center shall submit Member Utilization Reports as defined in Section 1.03 of this Attachment to ASH Fitness on a monthly basis no later than the 10th of each month for the previous month’s Member utilization. Member Utilization Reports may be submitted through ASHLink or electronically by email Member Utilization Reports are required to be submitted each month for the previous month’s utilization and must contain all required information for Members that utilized Fitness Center for Program Services during the month for which the Member Utilization Report is being submitted Member Utilization Reports missing the required information in Section 1.03 will be returned to Fitness Center for correction and re-submission.
2.05 Member Payments. Fitness Center shall notify Member of Member’s financial responsibility for amounts Member may owe Fitness Center for Program Services prior to the provision of such
Services. Fitness Center shall set up a payment process with Member and shall not seek payment for Program Services from ASH Fitness or ASH Clients.
2.06 One Time Trial Obligation. Fitness Center shall offer and honor a one-time free trial for each
Member. This free trial offer may range from a one week free trial membership to a one time free trial session.
3.0 CORE AGREEMENT MODIFICATION
3.01 Provisions not Applicable to this Attachment. The following provisions of the main body of the Agreement are not applicable to this attachment: Sections 2.07, 3.10, 3.11, and 3.13.
4.0 DISCOUNTS.
No Program Compensation Rate applies to this attachment.
Fitness Center agrees to provide the following discounts for Members
Please indicate below minimum discount of at least 10% where applicable:
ExerciseRewards Network Fitness Center discount on monthly or annual membership)
OR
Fitness Session Fees
ExerciseRewards Network
(Fitness Center discount) (No monthly membership or annual dues)
Initiation/Enrollment Fee % %
Monthly Dues %
Personal Trainer Fees %
National Fitness Center Services Agreement (NR) – Exercise Center Page 35 of 45 01/01/2019 Attachment G – ASH Client List
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT ATTACHMENT G - ASH CLIENT LIST
Client offers national access unless otherwise specified.
The following ASH Fitness Clients are currently eligible as noted below:
Client Name Effective Date S&F A&F ERN FitnessCoach 1
2
3
4
5
6
7
8
9
10
National Fitness Center Services Agreement (NR) – Exercise Center Page 36 of 45 01/01/2019 Attachment H – Personal Trainer
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT H - PERSONAL TRAINER ATTACHMENT
1.0 DEFINITIONS.
For purposes of this Agreement and in addition to the terms elsewhere defined herein, the following terms shall have the meanings indicated:
1.01 Amount. Co-payment Amount is a payment made directly to the Fitness Center by the Member for each Personal Trainer Service. Co-payment Amounts are specified in the ASH Client Summaries attached via Exhibit 1 to this attachment.
1.02 Personal Trainer. An individual employed by Fitness Center who provides Personal Training Services to Members and meets the requirements of Section 2.02 of this Attachment.
1.03 Personal Trainer Benefit Program. Personal Trainer Benefit Program means an arrangement pursuant to which Fitness Center arranges for the provision of personal training sessions to Member.
1.04 Personal Trainer Services. Personal Trainer Services refers to training provided by a certified personal trainer employed or contracted by a Fitness Center to assist Member in reaching desired health status such as weight loss or gain, or appropriate/effective exercise programs. A training session is of a duration not less than forty-five (45) minutes which assist Members in reaching their
desired health status by focusing on subjects such as weight loss/gain, nutritional coaching, appropriate effective exercise program implementation and enhancing a Member’s fitness level.
2.0 FITNESS CENTER’S RESPONSIBILITIES.
In addition to the obligations in Article 3 of the Agreement, Fitness Center shall have the following obligations for this program:
2.01 Provision of Personal Trainer Program. Fitness Center shall provide Services when ASH Client elects to participate in the Personal Trainer Benefit Program. Personal Trainer Benefit Program is offered only if the Member’s health plan and/or employer group has elected to include them and shall be noted through Exhibit 1 to this attachment.
2.02 Personal Trainers. Fitness Center agrees to comply with ASH Fitness Quality Management Program
criteria when employing a personal trainer who will provide services to a Member. Fitness Center agrees:
a) Personal trainer shall be actively certified and in good standing with a certification body that is accredited through the National Commission of Certifying Agencies “NCCA”. b) Personal Trainer must not have been convicted of a felony or a crime of moral turpitude. Personal trainer must sign an attestation upon hire and no less than annually thereafter, and
Fitness Center must hold on file such attestation, that personal trainer has never been convicted of a felony. In lieu of the attestation, a Fitness Center may elect to perform upon hire and no less than annually thereafter a criminal background check searching for any felony or crime of moral turpitude convictions, using Choicepoint or other similar databases, and shall hold appropriate documentation on file that no felony convictions were discovered. c) Personal trainer must not have been convicted of a misdemeanor directly related to the provision of Personal Trainer Services. Personal trainer must sign an attestation and Fitness Center must hold on file such attestation that personal trainer has never been convicted of a
misdemeanor directly related to the provision of Personal Trainer Benefit Program or Fitness
National Fitness Center Services Agreement (NR) – Exercise Center Page 37 of 45 01/01/2019 Attachment H – Personal Trainer
Center must perform a criminal background check searching for any misdemeanor convictions, using Choicepoint or other similar databases, and shall hold appropriate
documentation on file that no misdemeanor convictions were discovered. d) Personal trainer must not have any negligence related cases where the cause of action was directly related to the provision of personal training services and the result was unfavorable to the Personal Trainer. Personal trainer must sign an attestation upon hire and no less than annually thereafter, and Fitness Center must hold on file such attestation, that personal trainer has never had a settlement or judgment against him or her due to his or her negligence. e) Personal Trainer must not have any sanctions or actions by a state or federal regulatory agency. Personal Trainer must sign an attestation upon hire and no less than annually thereafter, and club must hold on file such attestation, that Personal Trainer has never had a sanction or action against him or her due to his or her negligence. f) Personal trainer must follow all appropriate assessment and risk management guidelines of
the Fitness Center and one of the NCCA organizations. g) Personal trainer must question Member (using at a minimum the physical activity readiness questionnaire (PARQ) or a comparable pre-activity assessment tool) to assess the Member’s
health status and interaction with the Member’s medical physician related to the fitness program. h) Personal trainer must question the Member about the Member's interaction with the
Member's medical physician related to the fitness program. i) Personal trainer must maintain appropriate documentation and records related to the training interaction, Member progress and adverse events including, but not limited to, those required by subsections (g) and (h) above. j) Personal trainer will store any confidential health information or related confidential information in a secure location away from public access.
2.03 Personal Trainer Benefit Program.
a) Fitness Center agrees to only provide personal training sessions to Member’s eligible under the Personal Trainer Benefit Program as verified by ASH Fitness. b) Personal Training Session shall last a minimum of forty-five (45) minutes and shall be used to assist Members in reaching their desired health status. c) Personal training sessions provided under the Personal Trainer Benefit Program are eligible for compensation at compensation rate as specified in Exhibit 1 to this attachment for each ASH Client.
3.0 PROGRAM ELECTIONS AND COMPENSATION.
Fitness Center hereby agrees to participate in the Personal Training Benefit Program subject to the compensation schedule listed in Attachment L. Personal Trainer Services will only be compensated by ASH Fitness up to the maximum number of sessions and the maximum amount per session established for the Personal Trainer Benefit Program, less any Co-payment Amount paid to Fitness Center by a Member as further specified in Exhibit 1 to this
attachment. Co-payment Amounts are made upon each Visit.
National Fitness Center Services Agreement (NR) – Exercise Center Page 38 of 45 01/01/2019 Attachment H – Personal Trainer
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT H – EXHIBIT 1 PERSONAL TRAINER - ASH CLIENT LIST
National Fitness Center Services Agreement (NR) – Exercise Center Page 39 of 45 01/01/2019 Attachment I - Health and Safety Guidelines
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT I - HEALTH AND SAFETY GUIDELINES AND CODE OF CONDUCT
Fitness Center warrants and represents that each Fitness Center Participating Location, subject to this Agreement, shall maintain and abide by the ASH Code of Conduct & Ethics Program posted on ASHLink. In addition Fitness Center warrants and represents that each Fitness Center Participation Location, subject to this Agreement, shall maintain and abide by ASH
Fitness’ Health & Safety Guidelines and Code of Conduct, as follows:
• Fitness Center is able to respond in a timely manner to any reasonably foreseeable emergency event that threatens
the health and safety of Fitness Center users. Toward this end the Fitness Center has an appropriate emergency plan that can be executed by qualified personnel in a timely manner.
• Fitness Center offers each adult Member a pre-activity screening that is appropriate to the physical activities to be performed by the Member. Based on pre-activity screening, the Fitness Center may, at its discretion, offer to provide supervisory oversight, or an aide to the Member.
• Each person who has supervisory responsibility for a physical activity program or area at Fitness Center has demonstrable professional competence in that physical activity program or area upon hire and on-going thereafter.
• Fitness Center posts appropriate signage alerting users to the risks involved in their use of those areas of Fitness Center that present potential increased risk(s).
• If Fitness Center offers youth services or programs, it provides appropriate supervision.
• Fitness Center shall not discriminate against Members for any reason, including but not limited to age, sex, marital status, religion, ethnic background, national origin, political affiliation, ancestry, race, color, sexual orientation, veteran status, gender identity, health disability status or source or amount of compensation.
• Fitness Center shall abide by all local, state, or federal consumer protection legislation and all other applicable laws.
• Fitness Center responds to and endeavors to resolve, within sixty (60) days, any consumer complaints made to the Better Business Bureau or state or local consumer protection agencies (or other such agencies).
• Fitness Center will not sell a prepaid, lifetime membership to a Member during the term of this Agreement.
ASH Fitness’ Health & Safety Guidelines and Code of Conduct has been adapted from the following sources:
• Peterson, James A, and Tharrett, Stephen J, editors 2nd ed. ACSM’s Health/Fitness Facility Standards and Guidelines, second edition. Champaign, IL: Human Kinetics, 1997.
• International Health, Racquet and Sportsclub Association, 2005. http://download.ihrsa.org/pubs/club_membership_conduct.pdf
National Fitness Center Services Agreement (NR) – Exercise Center Page 40 of 45 01/01/2019 Attachment J - Medicare Advantage Addendum
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT J – MEDICARE ADVANTAGE AND MEDICAID ADDENDUM
This exhibit is entered into by American Specialty Health Fitness, Inc. (“ASH Fitness”) and the Fitness Center listed on the signature page of the Agreement (“Fitness Center”) and is intended to add certain provisions to the Agreement in order
to comply with requirements of the Centers for Medicare and Medicaid Services (“CMS”). If any provision in the Agreement is inconsistent with the terms of this attachment, the provisions of this attachment shall be controlling and supersede the provisions of the Agreement for Medicare Advantage and Medicaid Members.
WHEREAS, ASH Fitness has entered into contracts with ASH Clients who offer fitness benefits as part of its Medicare Advantage and/or Medicaid Managed Care plans which require ASH Fitness to include specific contract language in its contract with Fitness Center;
WHEREAS, Fitness Center will be providing Services on behalf of ASH Fitness for certain Medicare Advantage and/or Medicaid members of ASH Clients;
NOW, THEREFORE, the Parties agree to add the following provisions to the Agreement with respect to Medicare
Advantage and/or Medicaid members of ASH Clients:
1 Member Non-Liability. Fitness Center shall in no event, including insolvency of ASH Fitness, hold any member liable for payment of any fees that are the legal obligation of ASH Fitness. This provision does not prohibit Fitness Center from charging the member for services not covered under this Agreement, provided the member was informed in advance and in writing of the fees to be charged. This provision shall survive termination of the Agreement. [42 C.F.R. 422.504(g)(1)(i) and 42 C.F.R. 422.504(i)(3)(i)] 2 Excluded Individuals. Fitness Center represents and warrants that Fitness Center or any person who owns more than
five percent (5%) of Fitness Center are not excluded from participation in a federal or state healthcare program, including but not limited to, Medicare and Medicaid. Also, Fitness Center represents that it does not now employ or contract with, and shall not in the future employ or contract with any individual excluded from participation in such
federal or state programs to provide Services to Members. Fitness Center shall check key employees and persons employed, contracted or otherwise affiliated with Fitness Center and any person owning more than five percent (5%) of Fitness Center against the appropriate lists upon hire or contract and monthly thereafter to determine if the persons
have been excluded from participation in a federal or state program or has been terminated for cause or default on public transactions and public programs as well as non-reinstatement. Such lists (commonly referred to as Exclusion Lists) include, but are not limited to, the U.S. Department of Health and Human Services Office of Inspector General List of Excluded Individuals/Entities, the General Service Administration Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs, and state published Medicaid exclusion lists). For the purpose of this agreement the term “key employee” refers to all employees/contractors who are (i) involved with the receipt of funds from Members or submit claims/bills to ASH concerning services provided to Members, and (ii) individuals who lead/teach exercise classes that are specifically tailored to Members. Fitness Center shall maintain records relating to its checks of these lists in accordance with Section 8 of this addendum. Fitness Center agrees to indemnify ASH Fitness or ASH Clients, as applicable, for any civil monetary penalties levied against an ASH Client or ASH Fitness as a result of (a) Fitness Center’s failure to properly screen all employed, affiliated or contracted persons who provide
Services to Members and/or hold or held more than a five percent (5%) interest in Fitness Center against the Exclusions lists or (b) Fitness Center’s permitting an individual or entity found on the Exclusions Lists to provide Services to any Medicare Advantage Members, or otherwise be affiliated with those services, under this
Agreement. Payments received by Fitness Center in circumstances where (a) or (b) above apply are also subject to recoupment by ASH Fitness upon request and Fitness Center agrees to comply with any such requests. [42 C.F.R. 422.752(a)(8)] 3 Compliance with Federal and State Law. Fitness Center acknowledges that payments for Services hereunder are, in whole or in part, derived from federal funds and receipt of such payment is subject to all laws and regulations
applicable to recipients of such funds. Therefore, Fitness Center shall comply with all laws and regulations applicable
National Fitness Center Services Agreement (NR) – Exercise Center Page 41 of 45 01/01/2019 Attachment J - Medicare Advantage Addendum
to individuals and entities receiving federal funds and all other applicable federal and state laws and regulations, including, but not limited to, those laws and regulation governing participating in the Medicare Advantage or Special Needs Plan Programs, Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, as well as their implementing regulations. [42 C.F.R. 422.504(h)]
4 Quality Review and Improvement. Fitness Center shall cooperate with all independent quality review and improvement activities relating to Services being provided by Fitness Center required by ASH Fitness and/or ASH
Clients or CMS pertaining to the provision of Services. [42.C.F.R. 422.204(b)(4)] 5 Member Appeals and Grievances. Fitness Center shall cooperate and comply with all ASH Clients, and CMS
requirements regarding appeals of members, including the obligation to provide information to ASH Fitness within the timeframe reasonably requested for such purpose. [42 C.F.R. 422.562(a)] 6 Collection of Data. When requested by ASH Fitness, Fitness Center shall participate in the collection and submission of data to CMS. Where applicable, Fitness Center shall certify the accuracy of the data collected and submitted under this section. [42 C.F.R. 422.504(c)]
7 Member Records. In addition to the requirements set forth in Section 9.03 of the Agreement, to the extent any ASH Client member records or other health and enrollment information is maintained by Fitness Center, Fitness Center shall: 1) safeguard the privacy of any information that identifies a particular member and abide by all federal and state laws and regulations regarding confidentiality and disclosure of all protected health information; 2) maintain member
records and information in an accurate and timely manner; and 3) ensure timely access by members to their own records and information in accordance with federal and State laws and regulations. Information from or copies of records may be released only in accordance with federal and state laws and regulations governing such records and
the information contained therein. [42 C.F.R. 422.118] 8 Records and Inspections.
(a) ASH Fitness and Fitness Center recognize and agree that the United States Department of Health and Human Services (DHHS), the Comptroller General, or their designees may audit, evaluate or inspect any books, contracts, and other records of ASH Fitness and Fitness Center that pertain to any aspect of services performed under this Agreement for purposes of a Medicare product, or as the Secretary of DHHS may deem necessary. ASH Fitness and Fitness Center shall retain all records related to the provision Services for a period of ten (10) years after the final date of the contract period and shall make available their premises, physical facilities and
equipment, records related to the provision of Services or any additional relevant information that DHHS may require. [42 C.F.R. 422.504(e)(3)]
(b) CMS, the Comptroller General, or their designees have the right to inspect, evaluate and audit ASH Fitness and Fitness Center for a period of ten (10) years after the final date of the contract period or the completion of an audit, whichever is later, unless: (a) CMS determines that there is a special need to retain a particular record or group of records for a longer period and notifies ASH Fitness or Fitness Center at least thirty (30) days before the normal disposition date; (b) there has been a termination, dispute or fraud or similar fault by ASH Fitness or Fitness Center in which case retention may be extended to ten (10) years from the date of any final
resolution of the termination or fraud or similar fault; or (c) CMS determines that there is a reasonable possibility of fraud, in which case it may inspect, evaluate and audit ASH Fitness and Fitness Center at any time. [42 C.F.R. 422.504(e)(4)]
9. ASH Client Accountability. Notwithstanding anything set forth in the Agreement, Fitness Center and ASH Fitness acknowledge and agree that, with respect to Services furnished under this Agreement for ASH Clients, ASH Clients oversee and are ultimately accountable to CMS for any functions and responsibilities performed by Fitness Center.
Fitness Center shall comply with ASH Fitness’s policies and procedures as set forth in the Fitness Center Program Manual. Such policies and procedures have been reviewed and approved by ASH Clients. Fitness Center shall
National Fitness Center Services Agreement (NR) – Exercise Center Page 42 of 45 01/01/2019 Attachment J - Medicare Advantage Addendum
furnish Services to members consistent with the requirements of CMS and, including but not limited to, ASH Fitness’s contractual obligations to its ASH Clients. [42 C.F.R. 422.504(i)(4)(iii) and 42 C.F.R. 422.112]
10. Compliance Training. Fitness Center will provide its employees and any contractors directly involved in providing Services under this Agreement the CMS Medicare Parts C & D Fraud, Waste, and Abuse Training and General Compliance Training module posted on ASHLink within ninety (90) days of hire or contracting and annually
thereafter and allow ASH Fitness access to Fitness Center’s records upon request to ensure Fitness Center is providing the required trainings. [42 C.F.R. 422.504(h)(1)]
11. Amendment and Severability of Contracts. Notwithstanding any provision in the Agreement, this Exhibit may be
amended upon request or mandate by CMS to comply with all relevant federal and State laws and regulations and government pronouncements. Additionally, this Exhibit shall be amended to exclude any Medicare product or State-licensed entity specified by CMS. A separate agreement for any such excluded product or entity will be deemed to be
in place when such request is made. [42 C.F.R. 422.504(k)(1) and (2)]
National Fitness Center Services Agreement (NR) – Exercise Center Page 43 of 45 01/01/2019 Attachment K - Guidelines For Trademark Use By Third Parties
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT K –GUIDELINES FOR TRADEMARK USE BY THIRD PARTIES
American Specialty Health Incorporated (“ASH”) counts among its most valuable assets the company’s trademarks and the
goodwill they represent. Protection of these marks is a priority for ASH. These guidelines on the proper use of ASH trademarks have been developed for Licensees and other third parties. The status of ASH trademarks is continually changing, and it may be necessary to revise these guidelines from time to time. These guidelines are designed to ensure
proper legal usage of ASH trademarks, and to prevent consumer confusion that can result from improper or illegal usage. 1. Never vary the spelling, add or delete hyphens (even for normal hyphenation at the end of a line of text), make one
word two, or use a possessive or plural form of the trademark. ASH trademarks are always used as adjectives followed by a generic term (such as “HMO”) and never as nouns or verbs. 2. When using an ASH trademark on any materials that will be distributed or presented to the public, use the registered symbol ® on the most prominent (or if none is prominent, the first) appearance of a trademark registered with the U.S. Patent and Trademark Office. For any ASH trademark that is not registered, the ™ symbol should be used in place of the registered trademark symbol. Once marked, it is not normally necessary to mark subsequent appearances of the trademark in the same publication. 3. Every appearance of ASH logos and product names in stylized form should always appear with the appropriate ® or ™ symbol, and may be used only under license with ASH. Unauthorized use is strictly prohibited. 4. A logo is a graphical design that may include text and other design elements. ASH product signatures are logos created to identify products that are licensed or owned by ASH. Stylized trademarks or “logotypes” are those that
appear in word form in a particular style of type by ASH. An example includes the following:
ASH logos, product signatures, or trademarks in stylized form may be used only if you have obtained a prior written license from ASH and your use complies with the terms and conditions of the license. Under no circumstance may you modify, distort or add to ASH logos, product signatures, or stylized trademarks.
The term “American Specialty Health”, when used to refer to products, is a trademark, and its use is governed by the guidelines above. However, when “American Specialty Health Incorporated” is used only to refer to ASH as a corporate name, no trademark marking or attribution is necessary. Therefore, do not use the ® or ™ symbols.
National Fitness Center Services Agreement (NR) – Exercise Center Page 44 of 45 01/01/2019 Attachment L – Program Compensation
AMERICAN SPECIALTY HEALTH FITNESS, INC. FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT L – PROGRAM COMPENSATION
SILVER&FIT BASIC FITNESS CENTER: The following compensation rate is for a Silver&Fit Basic Fitness Center in the Silver&Fit Program:
Benefit Program Standard Compensation Rate
Maximum Number of Visits Compensated Per Month
Monthly Compensation Maximum
Silver&Fit Basic TBD 10 TBD
SILVER&FIT FULL FITNESS CENTER: The following compensation rate is for a Silver&Fit Full Fitness Center in the Silver&Fit Program:
Benefit Program Standard Compensation Rate
Maximum Number of Visits Compensated Per Month
Monthly Compensation Maximum
Silver&Fit Full TBD 12 TBD
FITNESSCOACH FITNESS CENTER:
The following compensation rate is for the FitnessCoach Program:
Benefit Program
Standard
Compensation Rate
Maximum Number of
Visits Compensated Per Month
Monthly Compensation Maximum
FitnessCoach TBD 10 TBD
ACTIVE&FIT FITNESS CENTER:
The following compensation rate is for the Active&Fit Program:
Benefit Program Standard Compensation Rate
Maximum Number of Visits Compensated Per Month
Monthly Compensation Maximum
Active&Fit TBD 10 TBD
National Fitness Center Services Agreement (NR) – Exercise Center Page 45 of 45 01/01/2019 Attachment L – Program Compensation
PERSONAL TRAINER PROGRAM: The following compensation rate is for the Personal Trainer Program:
Benefit Program Description Compensation
Personal Trainer Program 1 session of Personal Trainer Services
(Limited to 1 session per day)
TBD
(Includes Co-Payment)