By accessing the Equinox HUB, you agree to the following terms of use.
Last Updated: 16/07/2024
Brookfield Equinox, LLC (“Equinox”) owns and operates the online application known as the Equinox HUB Portal. Your access to and use of the HUB Portal is governed by the following terms and conditions, which constitutes a binding agreement between you and Equinox (the “Agreement”). By accessing the HUB Portal, you acknowledge that you have read and understood, and agree to all of the following terms and conditions, which may be amended from time to time in Equinox’s sole discretion. If you disagree with any portion of the terms and conditions you must not access or otherwise use the HUB Portal.
In this Agreement, reference to the term “you” or “Customer” refers to the person or entity that intends to access and use the HUB Portal. Customer and Equinox may each be referred to herein as a “Party” and collectively as “Parties.”
Equinox shall host and maintain the HUB Portal. Equinox shall use commercially reasonable efforts to maintain the uptime operation of the HUB Portal, but does not guarantee uninterrupted or error free access to or continuous operation of the HUB Portal. Equinox shall incur no liability to Customer or any third party as a result of Customer’s inability to access or fully use any portion of the HUB Portal. Equinox shall provide reasonable help desk support between the hours of 8:00 am and 8:00 p.m. Arizona time for administer level support only.
(a) Customer hereby agrees to pay all fees and other applicable charges (the “Fees”), plus all applicable taxes and charges arising from their use of the HUB Portal, in accordance with Equinox’s then operative published fee schedule, or such other fee schedule as the Parties may agree to in writing.
(b) Equinox shall issue invoices for the Fees on a monthly basis. Each invoice shall itemize all applicable charges and taxes. All undisputed amounts are payable by Customer within thirty (30) days of receipt of same (“Due Date”). Any undisputed amounts not paid to Equinox by the Due Date will be subject to a late payment charge equal to the greater of one and one-half percent (1.5%) per month or the maximum amount allowed by law calculated from the Due Date. Customer shall notify Equinox of any disputed amount in writing on or before the Due Date. The Parties shall, in good faith, use reasonable efforts to informally resolve such dispute. In the event it is determined an invoice error was made, Equinox will issue Customer a credit memo for any overpaid amount.
This Agreement is effective upon your initial access of the HUB Portal. The Agreement shall continue until it is terminated as provided for in this paragraph. Either Party may terminate the Agreement without cause at any time upon giving the other party at least ninety (90) days written notice of their intent to terminate. Either Party may immediately terminate this Agreement or, in the case of Equinox, suspend use of or access to the HUB Portal, upon written notice to the other Party at any time of (i) a material breach of the terms and conditions of this Agreement, including any applicable Fee Schedule; (ii) violation of the law, or (ii) if the other Party becomes insolvent or otherwise ceases to exist as a going concern.
Customer will have sole responsibility for:
(i) managing the content, configuration and use of the HUB Portal;
(ii) provision of help desk support to your authorized users of the HUB Portal;
(iii) use of the HUB Portal by any of your employees, officers, directors, agents, contractors and its end users; and
(iv) ensuring that Customer’s access to and use of the HUB Portal is not for any unlawful, fraudulent or other improper purpose.
Customer is solely responsible for and acknowledges that Equinox does not own or control the content, availability, accuracy or any other aspect of any information, data, files, pictures or content in any form or any type, (collectively, the “Content”) accessible or which may be available to or by Customer or its end users through the use of the HUB Portal. Customer acknowledges and agrees that Equinox will not be liable for any lack of security, or any security breach, relating to the use of the HUB Portal.
All material, equipment, software, data, inventions and other intellectual property developed or created by or on behalf of Equinox in association with the HUB Portal (“Equinox Property”), shall at all times be and remain the exclusive property of Equinox. Nothing in this Agreement contemplates, constitutes or creates a transfer or license of any intellectual property from Equinox to Customer. Customer acknowledges it has no right, title or interest in or to any Equinox Property. Customer shall not attempt to disassemble, decompile or otherwise reverse engineer any Equinox Property.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OF THE OTHER PARTY’S END USERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES, COSTS, LIABILITY OR LOSSES, WHATSOEVER (INCLUDING LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS), WHETHER ARISING IN NEGLIGENCE, TORT, CONTRACT, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
In the event that Customer is entitled to recover damages from Equinox based on one or more claims for breach of contract, negligence, misrepresentation, or any other contract, tort or statutory claim, Equinox shall be liable only for the amount of any actual direct damages or loss. The maximum liability of Equinox for each claim shall not exceed the total amount paid to Equinox by Customer in the six month period preceding the event that gives rise to such a claim. The maximum aggregate liability of Equinox under this Agreement shall not exceed the total amounts paid to Equinox by Customer under this Agreement.
Customer will defend, indemnify and hold harmless Equinox and its past, present and future employees, directors, officers, shareholders, owners, members, investors, customers and affiliates from and against any and all losses, liability or damages of any kind arising from or related to any and all claims by any third party, including end users, in connection with: (i) Customer’s gross negligence or willful misconduct; or (ii) Customer’s failure to comply with its obligations under this Agreement, except liability arising directly and solely from the gross negligence or willful misconduct of Equinox.
Equinox agrees to defend, indemnify and hold harmless Customer and its past, present and future employees, directors, officers, shareholders, owners, members, investors, customers and affiliates from and against any and all losses, liability or damages of any kind arising from or related to any claim that the HUB Portal infringes any existing copyright, patent or other intellectual property right of any third party; PROVIDED that: (a) Customer provides Equinox with prompt written notice of the initial claim and filing of the lawsuit relating thereto; (b) Customer permits Equinox to assume the entire claim to select legal counsel and to defend, compromise or settle the lawsuit in Equinox’s sole discretion; and (c) Customer provides Equinox with all available information, assistance, authority and cooperation to enable Equinox to defend, compromise or settle the claim or lawsuit. This Section sets forth the sole and exclusive remedy of Customer against Equinox and the complete liability of Equinox with respect to any claim against Customer for infringement of the HUB Portal on the intellectual property rights of any person. The Parties expressly agree that Equinox shall have no liability to Customer for any claim by a third party that the Content infringes the intellectual property rights of any person.
(a) “Confidential Information” means any data, documentation or other information of a proprietary nature of a Party, whether or not identified as being confidential or proprietary, which is disclosed or made available to the other Party in connection with the negotiation, preparation or performance of this Agreement and the design, installation, delivery or implementation of the HUB Portal, including without limitation, pricing information, Web Portal technology, service levels and the network design specifications. Confidential Information excludes any data, documentation or other information which is: (i) in the public domain; (ii) through no fault of the Party receiving the Confidential Information, is subsequently disclosed in a publicly available source; (ii) in the rightful possession of the Party receiving the Confidential Information without an obligation of confidentiality; or (iv) required to be disclosed by operations of law. At all times, both during and after termination of the Agreement, each Party agrees to take such care to protect the confidentiality of the other Party’s Confidential Information as would be taken by a reasonable party to protect its own confidential information from disclosure and, not to disclose the Confidential Information of the other Party without the other Party’s prior written consent.
(b) During the Agreement at all times hereafter you will not make any oral or written statements that are in any way negative, disparaging or detrimental towards Equinox or its products, services, representatives, employees or agents.
(c) The Parties acknowledge that any breach of the obligations in this Section will cause irreparable damage to the non-breaching Party and that a remedy at law will be inadequate. Therefore, in addition to any and all other remedies available in law or equity, the non-breaching Party will be entitled to seek injunctive relief for any such actual or threatened breach without the necessity of proving actual damages or posting a bond or other type of security. Each Party further agrees to notify the other Party as soon as it becomes aware of any such breach and take immediate steps to cure and prevent the breach from recurring.
(a) Assignment: Neither Party may assign this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign its rights or obligations under or any interest in this Agreement to the assigning Party’s parent, subsidiaries, or successors.
(b) Force Majeure: If the performance of this Agreement is interfered with, in whole or in part, by circumstances beyond the reasonable control of either Party including, without limitation, fire, explosion, power failure, acts of God, war, terrorism, revolution, civil commotion, acts of public enemies, law, order, regulation, ordinance or requirement of any government or its representative or legal body having jurisdiction, or labor unrest such as strikes, slowdowns, picketing or boycotts, then the Party affected will be excused from such performance (other than payment) on a day‑by‑day basis to the extent that such Party's obligations relate to the performance so interfered with; provided the Party so affected shall use commercially reasonable efforts to expeditiously remove such causes of non‑performance and provides written notice of any such incapacity as soon as practicable.
(c) Governing Law: This Agreement shall be governed by and interpreted according to the laws in force in the State of Arizona, without regard to conflicts of law principles.
(d) Notice: All notices provided for shall be given in writing and delivered by personal delivery or prepaid first class registered or certified mail. The address for notice shall be (i) for Customer, the address provided by Customer upon initial access of the HUB Portal, as updated by Customer in writing; and (ii) for Equinox, 9045 E. Pima Center Parkway, Suite 1, Scottsdale, AZ 85258, to the attention of: Legal Department.
(e) Miscellaneous: This Agreement constitutes the entire agreement between Customer and Equinox with respect to the subject matter, merging and superseding all prior agreements, understandings, commitments, undertakings and representations on the subject matter. It is expressly agreed that if Customer issues a purchase order or other document for the use of or access to the HUB Portal, such instrument will be deemed to be for Customer’s internal use only and any provisions contained therein shall not amend or be used in interpreting this Agreement. Neither Party may amend this Agreement other than by an instrument in writing executed by the authorized representatives of each Party. If any provision of this Agreement is found to be invalid, illegal or unenforceable, the other provisions of this Agreement shall not be affected or impaired, and the offending provision shall automatically be modified to the least extent necessary in order to be valid, legal and enforceable. No waiver of any term or provision or of any breach or default shall be valid unless in writing and signed by the Party giving such waiver and no such waiver shall be deemed a waiver of any other terms or provision of any subsequent breach or default of the same or similar nature. The terms and conditions which, by their nature should survive termination of this Agreement, will survive termination of this Agreement.
1. Definition of Surcharging. "Surcharging" refers to the practice of applying an additional fee or charge to transactions made using a credit card.
2. The user represents and warrants that all of its authorized users are familiar with and shall comply with all applicable laws and all rules and regulations set forth by payment card networks regarding surcharging, including all rules and regulations applicable to the location where each Terminal is located. This includes, but is not limited to, any and all rules on surcharge limits, disclosure requirements, and prohibited practices. User agrees to update and amend any practice concerning surcharging as necessary to ensure compliance with any change in any applicable law, rule, or regulation.
3. Equinox reserves the right to modify these surcharging terms and conditions at any time. Changes will be effective upon posting on Equinox’s website or any other platform where these terms are made available.
4. User Acceptance of Risk
4.1 By choosing to enable credit card surcharging for transactions with Equinox, the user acknowledges
and accepts the following risks.
4.2 Compliance Risks: The user acknowledges the responsibility to comply with all applicable laws, regulations,
and payment network rules related to surcharging. User understands and acknowledges that non-compliance may result in fines, penalties, or legal action.
4.3 By enabling credit card surcharging, the user agrees to indemnify and hold Equinox harmless from any and all
claims, liabilities, damages, or expenses of any kind arising from the user’s implementation and execution of surcharging practices.