ECO GYM World Wide
1. WAIVER OF LIABILITY.
(a) MEMBER HEREBY WARRANTS
AND REPRESENTS that he or she understands that (i) the particular activities which
he or she may undertake within the Premises may involve vigorous physical exercise,
including by way of example walking, running, jumping, tripping, falling, lifting
and/or physical contact with others (the “Activities”) which Activities may
or may not be supervised by Fitness or its employees; and (ii) that the Premises
is not a medical facility and emergency care may not be immediately available in
the event of an injury or health event during the Activities. MEMBER FURTHER REPRESENTS
AND WARRANTS that he or she is in sufficient physical condition and is physically
able to undertake and to participate in the Activities; has no disability, impairment
or ailment preventing him or her from active or passive exercise, or that will be
detrimental to his or her health, safety, comfort or condition if he or she does
so engage or participate.
(b) MEMBER HEREBY RELEASES,
WAIVES, DISCHARGES AND COVENANTS NOT TO SUE FITNESS or any subdivision, subsidiary,
or affiliate thereof, and each of them, their directors, officers, agents, contractors,
and employees, (the “Releasees”) FROM, AND FOR, ALL LIABILITY, TO THE UNDERSIGNED,
his or her personal representatives, assigns, heirs, and next of kin FOR ANY AND
ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE
PERSON OR PROPERTY OR RESULTING IN THE DEATH OF THE UNDERSIGNED ARISING OUT OF OR
RELATED TO THE ACTIVITIES WITHIN THE PREMISES, CAUSED BY THE NEGLIGENCE OF THE RELEASEES
(BUT EXCLUDING INTENTIONAL OR RECKLESS ACTS OF THE RELEASEES).
(c) MEMBER HEREBY AGREES TO
INDEMNIFY, DEFEND, AND HOLD HARMLESS THE RELEASEES and each of them FROM ANY LOSS,
LIABILITY, DAMAGE, OR COST the Releasees may incur arising out of or related to
THE ACTIVITIES OF THE UNDERSIGNED (BUT EXCLUDING INTENTIONAL OR RECKLESS ACTS OF
THE RELEASEES). The Releasees are express and primary third party beneficiaries
of this Agreement. This Section 1 shall survive the termination of this Agreement.
(d) Despite any provision to
the contrary contained in this Agreement, nothing in this Agreement shall eliminate,
exculpate, absolve, or excuse Fitness or any member, manager, owner, partner, employee,
or affiliate of Fitness for any willful, wanton, or intentional tortious actions.
The Releasees are third party beneficiaries of this Section 1.
as used herein shall mean all participating Eco Gym facilities
worldwide leased to Fitness.
2. Use of Premises.
During the Term (defined in
this Agreement) Member and the Additional Family Member (subject to the terms hereof)
shall have the right to use the Premises for reasonable fitness activities during
the hours of operation for the Premises established by Fitness and upon the rules
of use that Fitness shall have in place from time to time. Fitness may change the
rules of use at any time in its sole and absolute discretion. Member shall use the
Premises in a respectful fair manner and shall not interfere with the rights of
other users of the Premises. The Member acknowledges and agrees that the Premises
is a fitness center which will have multiple users at any given time and the Member
may have to wait to use equipment and must interact with other users in a respectful
3. Term of Use.
The term of the Agreement shall be for the duration written above from the date
hereof (the “Term”).
4. Payment for Use.
Member shall promptly pay to
Fitness the amount required of it each month based on the payment plan selected
by it above. Fixed membership payment will be charged at the rate designated in
this Agreement. Flex membership payment will charged at the rate designed in the
table to the right. All payments shall be made on the monthly anniversary from the
original start date (defined in this Agreement). Time is of the essence as to this
Agreement. Any fee(s) not promptly paid when due shall accrue simple interest at
the lesser of (a) a rate of ten percent (10%) per month from the due date, or (b)
the highest amount permitted by applicable law. There shall also be a $10 late fee
for any payment not made when due which fee is due 10 days following the due date
of the underlying fee. Fitness may bring suit to collect fees or other amounts due
under this Agreement not paid when due and accrued interest and Fitness shall be
entitled to its actual attorney fees and court costs incurred in connection with
any such suit. This Section 4 shall survive the termination of this Agreement. No
Member or Additional Family Member shall have the right to access the Premises while
there is any breach by a Member or Additional Family Member of the terms of this
Agreement, the rules of use, or the code of conduct or the rules of use. If auto
deduction is selected above, Fitness shall have the right, without the need of any
further action by Member, to deduct, charge, or otherwise draw upon such listed
accounts for the amounts it is owed for each monthly installment under this Agreement
at such time as each applicable installment is due for the full amount Fitness is
then due. If any charge on such account is rejected or denied (in full or in part)
for any reason the Member shall pay Fitness a $50 fee within ten days of notice
of such rejection or denial. Fitness shall have the right to apply any funds held
by Fitness against amounts owed to Fitness by Member. Member’s payment obligations,
for sums due prior to termination, shall survive termination of this Agreement.
Fitness may terminate this
Agreement at any time upon thirty (30) days advance written notice. Any unapplied
prepaid fees or deposits shall be returned to the Member within a reasonable time
after termination. All the provisions of this Agreement which from their sense and
context are intended to survive the expiration or earlier termination of this Agreement
(whether or not such provision expressly provides as such) shall survive such expiration
or earlier termination and continue to be binding on the applicable party. The Member
may terminate this Agreement at any time upon 30 days advance written notice and
the payment of the termination fee described in the next sentence. The termination
fee for Members shall be $299. If during the Term you relocate more than a 30 mile
radius from a participating Eco Gym fitness center, you may cancel this Agreement
by providing a 30-day written notice and proof of relocation. Any pre-paid dues
remaining will be refunded. Acceptable proof of relation includes a newly issued
Driver’s License with an address different from the one you sign up with or shown
on your previous license or a utility bill in your name with your new address. You
may also cancel this Agreement if you become totally and permanently disabled. You
understand you must provide a physical note stating this.
Member shall defend, indemnify,
and hold harmless Fitness and its club members, owners, and employees (together
the “Indemnified Parties”) for any and all losses, claims, costs, suits,
and expenses (including reasonable attorney fees and court costs) incurred, made,
or brought against any of the Indemnified Parties due to (a) the breach of this
Agreement or the rules of use by Member or any Additional Family Member, or (b)
the negligence of the Member or any of the Additional Family Members. This Section
6 shall survive the termination of this Agreement.
7. Liability Waivers.
The Member shall cause each
Additional Family Member to sign and deliver to Fitness a waiver of liability for
the negligence of Fitness or its employees related to the use of the Premises signed
by the Additional Family Member, or its legal guardian, in a form reasonably acceptable
to Fitness. No Additional Family Member shall be permitted to access the Premises
unless such Additional Family Member has signed such a waiver.
8. Warranties and Remedies.
FITNESS HEREBY DISCLAIMS ALL
EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES INCLUDING ANY REPRESENTATION
OR WARRANTY RELATED TO THE FITNESS OF THE PREMISES FOR A PARTICULAR USE OR PURPOSE.
IN THE EVENT FITNESS BREACHES THIS AGREEMENT MEMBER SHALL NOT BE ENTITLED TO DAMAGES
IN EXCESS OF THE AMOUNT OF ANY FUNDS PAID BY MEMBER TO FITNESS.
9. General Provisions.
This Agreement may not be amended
unless agreed to in writing and executed by both parties hereto. This Agreement
shall not be assignable nor delegable by Member provided that a Member may transfer
its Membership under this Agreement to another person which person shall be responsible
for the remainder of the term. Any transfer will not be effective unless (a) made
in writing on a form reasonably acceptable to Fitness signed by the transferor and
transferee; (b) consented to by Fitness which Fitness may withhold in its reasonably
exercised discretion; and (c) a transfer fee of $50 is paid to Fitness. Fitness
has the right to assign and delegate this Agreement without Member’s consent. This
Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors, and permitted assigns.
This Agreement creates no third-party beneficiary rights expect as expressly provided
herein. If any provision or part thereof is found to be illegal or invalid such
provision or part shall be severed from this Agreement. No waiver of any breach
or provision of this Agreement is effective unless made in writing signed by party
against who the waiver is asserted.
No past, present or future
director, officer, employee, attorney, incorporator, member, partner or equity-holder
of Fitness (the "Fitness Parties") shall have any liability to
Member (a) for any obligations or liabilities of Fitness under this Agreement, (b)
for any obligations or liabilities of Fitness under any documents executed pursuant
to this Agreement, (c) for any statements, representations, or warranties made or
given in connection with this Agreement, or (d) for any claim or action based on,
related to, arising out of, in respect of, or by reason of, the transactions contemplated
hereby and/or thereby whether based on contract, tort, equitable, or any other theories.
This Section 10 shall survive the termination of this Agreement. The Fitness Parties
are express third party beneficiaries of this Section 10.