Fit Zone Liability & Waiver
1. DISCLAIMER OF LIABILITY: Fit Zone LLC urges all members to obtain a physical examination from their physicians prior to initiating any exercise program. Fit Zone LLC training programs are not designed for individuals with known heart disease with or without functional impairment. In recognition of the possible dangers connected with any physical activity, member(s) hereby knowingly and voluntarily waive(s) any cause of action of any kind whatsoever arising as the result of such activity from which any liability may or could accrue to Fit Zone LLC, its officers, agents, employees, instructors or assigns and agrees to hold Fit Zone LLC harmless there from.
2. SEVERABILITY: If any part of this contract shall be held invalid, that part shall be deemed excluded from this contract and the remainder of the contract shall remain in full force and effect.
3. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
4. JURISDICTION: To the full extent permissible by law, for purposes of any dispute arising out of this agreement, all parties hereto agree to submit to the sole and exclusive jurisdiction of the State of California and to the application of California law. Any action hereunder shall be brought Santa Clara County, CA. A condition precedent to any suit or action arising from any dispute between the parties shall first be submitted to private mediation for good faith attempt to resolve it without litigation.
5. ENTIRE AGREEMENT: The Member and Fit Zone LLC acknowledge that this Agreement constitutes their entire agreement. It cannot be amended except in written form executed by both parties. Notwithstanding the foregoing, Fit Zone LLC reserves the right to change prices upon 45 days written notice to the member, which shall be provided via U.S. Mail or email to the Member’s contact information provide herein.
6. BUYER’S RIGHTS:
a. Death or Disability: Cancellation of the contract may occur if the member dies or becomes physically unable to avail himself of substantial portion of those services which (s)he used from the commencement of the contract until the time of disability, with refund of funds paid or accepted in payment of the contract in an amount computed by dividing the contract price by the number of weeks remaining the contract term. Fit Zone LLC may require a buyer or the buyer’s estate seeking relief under this paragraph to proof of disability or death. A physical disability sufficient to warrant cancellation of the contract by the buyer shall be established if the buyer furnishes to Fit Zone LLC a certification of such disability by a licensed physician, provided the diagnosis or treatment is within the physician’s scope of practice.
b. Permanent Relocation: Should member(s) permanently move their residence more than 10 miles from Fit Zone’s main location, payment on this agreement will be suspended upon acceptable written verification (cancellation request form) of the move received by Fit Zone LLC. Notwithstanding a cancellation under this clause, the member shall remain liable for all installment payments prior to the date of move.
c. The member may cancel the contract if Fit Zone LLC goes out of business and fails to provide equal quality facilities within 30 days at no additional cost within 5 driving miles of, or if its facilities move more than 5 driving miles from 1818 Clear Lake Ave, Milpitas, CA 95035 upon written notice by the member. If the CDCA determines that a refund is due the buyer, refund of this contract shall be an amount computed by dividing the total price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term. The business location of a health studio shall not be deemed out of business when temporarily closed for repair and renovation of the premises: (1) Upon sale, for not more than 14 days; (2) During ownership, for not more than 7 consecutive days and not more than 2 periods of 7 consecutive days in any calendar year. The member should contact the CDCA within 60 days if FitZone LLC goes out of business.
7. DESCRIPTION OF SERVICES, FACILITIES, AND HOURS: FitZone LLC provides pre-scheduled group fitness classes in a studio that may include treadmills, rowing machines, suspensions straps, dumbbells, medicine balls, aerobic steps, and stability balls. The studio’s operating hours are 6:00am – 7:00pm, Mon-Fri; 8:00am – noon, Sat-Sun. Member acknowledges and agrees that Fit Zone LLC reserves the right to make changes to the type and quantity of classes, equipment, or operating hours at its sole discretion, provided such changes do not materially diminish the services being offered by FitZone LLC.
8. CANCELLABILITY AND TRANSFERABILITY: This membership is not negotiable, transferable, or cancelable except as otherwise provided herein. Notice of intent to cancel by the buyer shall be given in writing, using the cancellation request form available at the studio, with 30 days notice to FitZone LLC. Member may cancel at any time and for any reason. Such a notice of cancellation from the consumer shall also terminate automatically the consumer’s obligation to any entity to whom FitZone LLC has subrogated or assigned the consumer’s contract. If the FitZone LLC studio wishes to enforce such contract after receipt of such showing, it may request the California Department of Consumer Affairs (CDCA) to determine the sufficiency of the showing.
9.MEDIA RELEASE WAIVER: Fit Zone LLC, reserves the right to photograph and/or video record participants for publicity purposes.
YOUR 5-DAY CANCELLATION RIGHT:
You, the buyer, may cancel this agreement any time prior to midnight of the fifth business day from signature date of this agreement with FitZone LLC, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated notice or send a telegram which states that you, the buyer, are canceling this agreement, or words of similar effect. The notice shall be sent to FitZone LLC Milpitas, 1818 Clear Lake Ave, Milpitas, CA 95035 ATTN: Studio Manager.
Upon such cancellation, you may receive a refund of all monies paid under the contract, except that Fit Zone LLC shall be entitled to retain an amount computed by dividing the number of occasions the Fit Zone LLC studio was used into the total contract price and multiplying the result by the number of complete days that have passed since the making of the contract or, if appropriate, by the number of occasions that the health studio services have been rendered. Any refund due shall be issued within 10 days after the receipt of the notice of cancellation made within the five-day provision.
MSTA Liability & Waiver
a. “MSTAF” shall mean Milpitas Star Aquatics Group, a California corporation, and doing business as Milpitas Star Aquatics & Fitness.
b. “Facilities” shall mean the swimming facilities located at 1818 Clear Lake Ave, Milpitas, CA 95035 which are operated by MSA.
c. “Services” shall mean all the services offered by MSTAF at the Facilities, including, but not limited to, public use of the Facilities, swim lessons at the Facilities, and any other related activities at Facilities.
2. ACKNOWLEDGEMENT OF RISK: I, ON MY BEHALF, AND/OR ON BEHALF OF THE MINOR CHILDREN IDENTIFIED IN THIS APPLICATION (THE “MINOR(S)”), ACKNOWLEDGE THAT I AM AWARE OF THE INHERENT RISKS IN USING THE FACILITIES AND IN PARTICIPATING IN THE SERVICES OFFERED BY MSA. I UNDERSTAND THAT IN ADDITION TO THE INHERENT RISKS, THERE ARE UNPREDICTABLE DANGERS IN THE USE OF THE FACILITIES OR WITH PARTICIPATING IN THE SERVICES. I, AND/OR THE MINORS, ARE VOLUNTARILY USING THE FACILITIES PARTICIPATING IN THE SERVICES WITH KNOWLEDGE OF THE POSSIBLE DANGERS INVOLVED AND I HEREBY AGREE TO ASSUME ANY AND ALL RISKS OF INJURY TO ME AND/OR THE MINOR(S) AND RISKS OF PROPERTY DAMAGE AND I AGREE TO ASSUME MY OWN AND/OR MY MINOR(S)’ MEDICAL EXPENSES OF EVERY KIND IN THE EVENT OF INJURY TO THE MAXIMUM EXTENT PERMITTED BY LAW IN ANY APPLICABLE JURISDICTION. I CERTIFY THAT THE MINOR(S) HAVE MY PERMISSION TO USE THE FACILITIES AND PARTICIPATE IN THE SERVICES, IS/ARE IN GOOD PHYSICAL CONDITION AND THAT THE MSTAF OFFICIALS HAVE MY PERMISSION TO AUTHORIZE EMERGENCY TREATMENT IF NECESSARY.
3. WAIVER AND RELEASE: As consideration for being permitted by MSTAF to use the Facilities and Participate in the Services, I hereby agree that neither I nor the Minor(s) or any of our respective assignees, heirs, distributees, guardians, or legal representatives will make a claim against, sue, or attach the property of MSTAF or any of its partners, members, affiliates, directors, officers, representatives, employees, contractors or agents (collectively, the “Releasees”) for any liability, injury, loss or damage connected in any way with the use of the Facilities or participation in Services. I hereby release and hold harmless each of the Releasees from all actions, claims, or demands that I or the Minor(s) or any of our respective assignees, heirs, distributees, guardians, or legal representatives now have or may hereafter have for any liability, injury, loss or damage resulting from use of the Facilities or participation in Services.
4. INDEMNIFICATION. I agree to indemnify the Releasees, and each of them, from any and all losses, liabilities, claims, demands, damages or judgments resulting from my and the Minor(s)’ use of the Facilities or participation in Services.
5. PUBLICITY: I authorize MSTAF to photograph, video tape or use any other mechanical means of recording or reproducing images and to use my likeness and, if applicable, the likeness of the Minor(s). I also acknowledge and hereby grant to MSTAF the worldwide and perpetual right and authority to use, reproduce, distribute, broadcast or otherwise transmit, publish and display in whole or in part, my name, photograph, or any other likeness and/or biographical information I may provide and, if applicable, the Minor(s) name, photograph or other likeness or other biographical information provided, and any statement I have made or may make concerning MSA, the Facilities and/or Services in any and all media now known or hereafter invented, in perpetuity, for the purpose of trade, promotion and/or otherwise without notification, compensation or additional consideration, except where prohibited by law. I acknowledge and agree that this authorization is intended to satisfy any and all of the consent requirements of California Civil Code sections 3344 and 3344.1, and I hereby waive and release any and all claims that I may have or hereafter have against the Releasees under those statutes or any other statutes or common law principles of similar effect.
6. I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
BEING AWARE OF SAID CODE SECTION, I HEREBY EXPRESSLY WAIVE ANY RIGHTS I MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
7. APPLICABLE LAW; CONSENT TO JURISDICTION. I agree that exclusive jurisdiction for any dispute with the Releasees resides in the courts of the State of California and I further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of California in connection with any dispute including any claim involving the Releasees.
8. SEVERABILITY: I further expressly agree that this Agreement is intended to be as broad and inclusive as is permitted by the law of the State of California and that if any provision of this Agreement shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
9. ATTORNEY’S FEES: I agree that if I commence, join in, or in any way seek relief through any action or proceeding arising out of, based upon, or relating to any of the claims released hereunder, or in any way assert against the Releasees any of the claims released hereunder, then I will pay to the Releasees, in addition to any other damages caused to the Releases thereby, all attorneys’ fees incurred by the Releasees in defending or otherwise responding to said action, proceeding, and/or claims.
10. INTEGRATION: This Release represents the entire agreement between the parties, and supersedes and replaces all prior oral or written understandings with regard to the subject matter of this Release. No provision of this Release may be waived or amended except by a written instrument executed by the party to be charged. All terms used in this Release and not defined are used in accordance with their normal meanings.
I UNDERSTAND THAT BY SIGNING THIS RELEASE, I AM GIVING UP MY LEGAL RIGHT TO SUE THE RELEASEES AND/OR TO SEEK COMPENSATION FROM THE RELEASEES FOR ANY INJURIES AND/OR DAMAGES THAT I MAY INCUR AS A RESULT OF THE ACTIVE OR PASSIVE NEGLIGENCE OF THE RELEASEES WITH REGARD TO MY USE OF THE FACILITIES, PARTICIPATION IN THE SERVICES, AND/OR ANY RISKS ASSUMED BY ME HEREUNDER.