CLIENT AGREEMENT RECITALS

Transcription

1 CLIENT AGREEMENT This Agreement is made between Pushfit Inc., D/B/A Circadian Fitness, hereinafter referred to as Company, located at Pacific Park Dr. 17K, Aliso Viejo, CA and You, hereinafter referred to as Client or Client. This document in its entirety shall be referred to as the Agreement. RECITALS WHEREAS, Company is engaged in providing personal training, fitness consulting, fitness instruction, nutritional counseling, nutritional consultation, and nutrition instruction services, in person, over the phone, and via company internet and mobile systems, hereinafter referred to as Services, which are administered and managed by Company personal trainers, Pilates instructors, fitness consultants, fitness instructors, and nutritionists, hereinafter referred to as Consultants. WHEREAS, Consultants may provide Services in the Client s home; the Client s homeowner s, association s, community s, or apartment complex s fitness facility; the Consultant s home; a physical therapy, chiropractic, or other health facility; or a third party fitness facility, hereinafter referred to as Service Facility or collectively as Service Facilities. WHEREAS, Consultants may also provide Services on Company s technology systems including Company s website, mobile applications, and mobile websites, hereinafter referred to as Systems. WHEREAS, Client wishes to engage Company and its Consultants for the Services described above in accordance with the terms and conditions below. 1. WAIVER AND RELEASE. Client agrees that if Client engages Consultants for Services, uses exercise equipment or participates in a diet or exercise program as recommended by the Company s Consultants, or uses the Company s Systems; Client does so at his/her own risk. Client hereby represents that Client is aware of the importance and significance of contacting his/her doctor for consultation prior to starting any kind of nutrition program, fitness program, or exercise program. Client agrees to release and discharge Company, its officers, directors, shareholders, agents, employees, independent contractors, Consultants, successors, and/or assigns from any and all claims, causes of action, or liability (known or unknown) arising out of Company or Consultant s negligence. This Waiver and Release of liability includes, without limitation, injuries, illness, or death which may occur as a result of (a) Client s use of any exercise equipment or facilities which may malfunction or break, (b) Company s improper maintenance of any exercise equipment or facilities, and (c) Company or Consultant s negligent instruction or supervision. Client agrees and represents his/her agreement and understanding that responsibility for Client s health and wellness rests solely with Client. Client agrees and represents that Client is voluntarily participating in activities and his/her use of Service Facilities and Systems where Consultants provide Services and assumes all risk of injury, illness, damage or loss to Client or Client s

2 property that might result, including, without limitation, any loss or theft of any personal property. Client agrees to release and discharge Company (and our affiliates, employees, shareholders, partners, agents, Consultants, representatives, successors and/or assigns) from any and all claims, causes of action, or liability (known or unknown) arising out of our negligence. Client acknowledges and represents that Client has carefully read this Waiver and Release and fully understands that it is a release of liability. Client is waiving any right that Client may have to bring a legal action to assert a claim against Company or Consultants for any injury arising from, exacerbated by, or suffered during the Client s use and/or enjoyment of Company s Services and/or Consultants. Client further acknowledges and represents that Client s assent to this Agreement is made with full knowledge that Company intends to rely on the representations herein. Client agrees that by disclosing certain health information, such Client s height, weight, heart rate, VO2 Max, and history of injuries to Company, Client is authorizing Company to relay the information to Consultants so that they may customize an exercise regimen for Client. 2. INDEMNIFICATION. Client recognizes that there is risk involved in the types of activities offered by Company. Therefore the Client accepts financial responsibility for any injury that the Client may cause either to him/herself or to any other Client due to his/her negligence. Should the above mentioned parties, or anyone acting on their behalf, be required to incur attorney s fees and costs to enforce this agreement, Client agrees to reimburse them for such fees and costs. Client further agrees to indemnify and hold harmless Company, their principals, agents, employees, and volunteers from liability for the injury or death of any person(s) and damage to property that may result from Client s negligent or intentional act or omission while participating in activities offered by Company. This includes any area selected for training by Company. 3. SERVICE FACILITIES, SAFETY, RULES, POLICIES, AND LAWS Client is hereby informed that Company does not monitor, inspect, or manage any Service Facilities. Client bears all responsibility for Client s own safety when accessing, using, or otherwise coming into contact with any Service Facility equipment. Client further agrees to comply with and represents that Client will comply with all local, state, and federal laws in addition to Service Facility rules and policies when using Company Services as well as all directives and directions made by staff or Consultants. 4. SUITABLITY TO ENGAGE IN VIGOROUS EXERCISE. Client warrants that he or she is of at least eighteen years of age and in no event younger than the legal age of majority in Client s jurisdiction. Client further represents that Client has the ability to participate in vigorous exercise to include heavy lifting and maximal exertion cardiovascular activities. Client further agrees to follow his or her health care professionals restriction(s) or guideline(s) when using Company Services. Client agrees to safely stop any activity while using Company Services where Client experiences pain or physical complication. Client understands any recommendation made by Consultants does not, and cannot, supersede Client s health care professionals recommendations or restrictions. All actions taken by Client are at Client s own risk.

3 5. CHILDREN. Company does not provide services or sell products to anyone under the age of 18 without parental consent. If you are under 18, you may use this website only with the involvement and consent of a parent or guardian. 6. CLIENT WORKOUT AND OTHER INFORMATION. Client understands that Company uses PayPal, a third party merchant to process payments and that Company does not store Client payment information. Client therefore agrees to hold Company harmless for any damages resultant from third party negligence, breach of security, or otherwise disclosure of Client s information. Client further understands Company follows basic industry practices to secure all other Client information including workout information, height, weight, bodyfat, and other information provided by Client to company concerning Client s training program. While the Company represents that it takes reasonable measures to protect and secure Client s information, Client hereby represents an understanding that Company cannot fully guarantee Client information is protected and therefore Client agrees to hold harmless Company from any claim, cause of action, or liability arising from inadvertent disclosure. Client expressly agrees to hold Company harmless for a breach of security or disclosure of information caused or facilitated by a third party, including but not limited to PayPal. 7. DIRECT ENGAGEMENT OR PAYMENT OF CONSULTANTS. Client understands Company exerts substantial effort in time and money to support providing Services to Client. Client agrees to not suggest, engage, or otherwise solicit Consultants for Services to circumvent or otherwise avoid paying for Services from Consultant through the Company. Client understands that by entering into this Agreement with Company, Client cannot otherwise pay for Services directly with any Company Consultants or Third party contracting Company Consultants for a period of two years following engagement of Company for Services or two years following the last completed session between Client and a Company Consultant, whichever is later, and unless otherwise permitted by Company. Client is advised the Company Consultants are under a binding agreement with Company, which includes penalty for attempting to, or otherwise circumventing Company to receive payment from Client. Client agrees to notify Company immediately via at Bryan@Circadianfitness.com should a Company Consultant try to sell Services directly to the Client and to assist Company in pursuit of enforcement of Company s agreement with Consultant if requested by order of a court. 8. COMPETING INTERESTS. Client agrees that he/she does not intend to offer similar Services that would compete with Company Services. Client further agrees that he/she will not share Company information to anyone with the intent to help a third party compete with Company Services. 9. CALCULATIONS AND DATA.

4 Client understands descriptions, pictures, images, video, calculations, data, or reports are estimations and are to be used for informational purposes only. Company does not warrant the accuracy, efficacy, or safety of any information provided through Company s Services. Company is not a healthcare or medical professional and cannot, and does not, offer medical advice. 10. CHANGING CONSULTANTS. Client may change his or her Consultant at any time for any reason. When Client changes Consultants, Company will apply Client s remaining balance toward the purchase of new sessions with Client s new Consultant, which may or may not charge a rate that is higher or lower than the Client s previous Consultant. If additional fees are required to purchase the number of sessions selected by Client, Client is responsible for paying this difference before meeting with a new Consultant. If a change in Consultants results in a credit for the Client, Company will offer to refund the remaining balance or retain the balance for future purchase at the Client s direction. Please note, Client s balance is calculated based on the per session cost of the package purchased at the time of sale based on the Client s most recent sale less any completed sessions. 11. CONSULTANT LIABILITY. Client understands and agrees that, subject to the release provisions discussed above, Consultants are individually liable for their own actions. Should a legal dispute arise between Client and Consultant, Company will be held harmless from any claim. 12. PACKAGES. Client has selected a specific Package of personal training services. Client has read and understood the terms of the Package and has agreed to the conditions of payment for the Package. 13. CLIENT NO SHOWS. Client agrees to and acknowledges Company s No-Show policy for Clients, which is as follows: Client is charged for one session on the date of the Client s scheduled session with a Consultant. Attendance on the time and date scheduled is the Client s responsibility. Should the Client not be able to attend, the full amount for the session will be charged unless the Client gives 24-hour advance notice of inability to attend. In the event of a cancelled session with more than 24 hours notice from the Client, Company will offer to refund the charge for the session to be applied for future sessions completed within two weeks of the same time and day of the week as the canceled session, or as otherwise accepted by the Consultant. 14. CONSULTANT NO SHOWS. Client agrees to and acknowledges Company s No-Show policy for Consultants, which is as follows: If a Consultant fails to show up to a scheduled session or fails to cancel a scheduled

5 session with less than twenty-four hours notice, the Consultant must credit the Client with one free equivalent session. No further compensation is due to the Client for a Consultant No Show. 15. MONEY BACK GUARANTEE. Company offers a 100% money back guarantee for all first sessions with Company s Consultants prior to completion of a second session with the same Consultant. This means if Client works with one Consultant and requests a refund prior to meeting with the same consultant a second time, Company will refund an amount equal to the value of the first session. Client may then elect to no longer work with any Consultant or elect to change to working with a new Consultant. If Client elects to work with a new Consultant, this same guarantee applies up until Client meets with this new consultant a second time. Company reserves the right to cancel the Agreement and refuse to schedule future sessions in the event that Client requests more than three (3) refunds within a calendar year. Any credit balance will be refunded or applied to Client or Client s account, as the case may be, pursuant to this Agreement. 16. REFUNDS. Client may elect to stop working with Company or Company Consultants and request a refund on Client s balance at any time. Company will refund Client 100% of Client s remaining balance for unused sessions. 17. PRICE STABILIZATION. Company may raise or otherwise change pricing for Services at any time. Notwithstanding, pricing for sessions previously purchased for a specific Consultant will not change for a period of one year so long as Client has not completed all sessions purchased within said package. 18. FUTURE PRODUCTS AND SERVICES. Circadian Fitness may promote future products and services. Company does not warrant or guarantee future products or services will become available and pricing for Services are determined independently from future Services. Any representation, promise, advertisement, promotion, or statement from any third party or from a Consultant is the responsibility, property, and obligation of that third party or Consultant only. Under no circumstances will Company be liable for third party or Consultant claims, promises, promotions, or products to Client. Client agrees that future products and services are governed by this agreement or in conjunction with an additional agreement with Company only and may require additional fees for use. 19. SEXUAL HARRASSMENT. Client agrees to treat all Consultants with respect and responsibility and further agrees to abstain from any form of sexual harassment directed toward Consultants. Client further agrees to immediately report any behavior viewed as sexual harassment directed toward the Client or anyone from Consultants. 20. CONSULTANT SCREENING.

6 Company is under no obligation to perform background checks on Consultants, nor validates educational experience and qualifications of Consultants, and it is the Client s sole responsibility to conduct any desired screening of Consultants. Qualifications shown on Company website are shown as reported by Consultants; Company does not validate the accuracy or current status of this information. Client agrees to immediately notify Company of any questionable behaviors or statement(s) made by Consultant(s). 21. CONFIDENTIALITY. Client understands they may, but are not required to, put her or his height, weight, gender, age, resting heart rate, heart rate max, VO2 max (measure of aerobic capacity), and other information as may be appropriate in Company Systems. Client further understands this information may be visible to all Company Consultants. Client further understands the Client s designated Consultant may also add or update this information in the Clients account. This information is used for internal purposes to help Company Consultants provide Services, to calculate the Client s estimated caloric output with exercise, and to provide Client with long-term reporting on changes to these metrics. Client is entitled, with one-week s written notice to request a copy of all information in Company Systems related to Client insofar as providing such information will not reveal personal, private, or embarrassing information about other Clients. 22. FITNESS OF CONSULTANTS, SERVICES, AND SYSTEMS. Client understands Company does not warrant the efficacy or availability of its Consultants, Services, or Systems. This includes accessibility or availability of its Systems including its website, mobile website, and mobile applications. Company reserves the right to change conditions for its Services or Systems where not otherwise specified within this agreement. 23. SEVERABILITY. Client agrees that should any portion or provision contained in this Agreement for any reason be found invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision or portion of this Agreement, which shall remain in full force and effect at all times. 24. SURVIVAL. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement, including (without limitation) Confidential Information, Indemnification, Competing Interests or Limitation of Liability provisions, shall survive the termination or expiration of this Agreement and continue in full force and effect pursuant to the applicable terms of such provision(s). 25. GOVERNING LAW.

7 This Agreement shall be governed by and construed in accordance with the laws of the State of California. 26. MEDIATION, ARBITRATION, AND ATTORNEY S FEES. In the event of a dispute under this Agreement, the disputing Party must submit to the other party a written notice detailing the dispute. Upon receipt of such notice, both Parties shall make reasonable, good faith efforts to resolve the dispute within thirty days following the date of such notice. If the dispute is not resolved by mediation, it shall be determined by arbitration in Orange County, California, before one (1) arbitrator who shall be a retired judge admitted to practice law in the State of California. The arbitration shall be administered by JAMS (or any like organization successor thereto). The arbitrator shall follow any applicable federal law and California state law in rendering an award. Judgment on the award may be entered in any court having jurisdiction. The prevailing party shall be entitled to its reasonable attorney s fees. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Subject to the foregoing, for purposes of any proceeding, dispute, controversy or claim relating to this Agreement (including seeking an equitable remedy), each party to this Agreement hereby submits to the exclusive personal jurisdiction of any court of competent jurisdiction in the State of California, and each party hereby waives its right to contest the jurisdiction or venue of any such court, whether on the grounds of inconvenience or otherwise. If any party fails to participate in pre-litigation mediation, that party shall forfeit any right to recover prevailing party attorney s fees and costs. 27. ENTIRE AGREEMENT. Client and Company mutually agree to enter into this agreement and understand this Agreement represents the complete and entire Agreement regarding Services provided by Company and replaces any prior oral or written communication between Company and Client. Client hereby warrants and represents that it is not subject to any restriction, penalty, agreement, commitment, law, rule, regulation or order which is violated by its execution and delivery of this Agreement.