ARTICLE I: SUSPENSION AND CANCELLATION OF MEMBERSHIP
A MEMBERSHIP MAY BE CANCELLED BY MEMBER:
- Within the first 5 business days, excluding Sundays and holidays, of this contract (See Notice on Page 2).
- After the 5 day period, by providing us with notice at least thirty days prior to the date you want your cancellation to be effective (See Article I, Section 3, below).
- In the event of a Death or Verified Disability (See Article I, Section 4, below).
- In the event of a Qualifying Relocation (See Article I, Section 5, below).
- In the event the Home Club Has Not Opened (See Article I, Section 6, below).
Section 1. Suspension or Cancellation of Membership for Nonpayment. If Member fails to pay any obligation owing to ISHC within 15 days after the obligation becomes due ISHC may, at its discretion, suspend or cancel Member's membership, by providing written notice of same to Member. Until ISHC suspends or cancels membership (or, if applicable, membership is canceled by Member in compliance with the terms for cancellation set forth in the other sections of this Article I), monthly membership fees and charges will continue to accrue. Member is responsible for full payment of all membership fees and charges and any bank "returned item" fees and processing fees and delinquency charges accruing prior to membership cancellation, including while membership is suspended. If membership is suspended, Member may have membership reinstated to active status by paying all past due and current membership fees and charges in full.
Section 2. Cancellation for Violation of Rules or Misconduct. All Members agree to and are subject to ISHC's published rules and policies, as they may be amended from time to time by ISHC in its sole discretion. The rules are posted in the clubs, are available at the front desk, or can be found at http:// www.inshape.com/club-rules-and-regulations. ISHC reserves the right at any time to cancel the membership, or membership privileges of any individual on a membership, for failure to comply with any of the rules and policies of ISHC, for any violation of the terms of this contract, or for any conduct ISHC deems to be improper or harmful to the best interests of ISHC, its staff and its members. The membership, or membership privileges of a particular individual on a membership, may be cancelled in person, by email notification, or written notification mailed to the last address on ISHC records for the membership. Any suspension or cancellation of membership initiated by ISHC shall be effective when transmitted by ISHC regardless of when, or if, Member receives it. Any membership fees and charges owing to a Member following a cancellation by ISHC pursuant to this section will be refunded to Member within 30 days of the effective date of cancellation.
Section 3. Voluntary Cancellation. Cancellations after the fifth business day of this contract (excluding Sundays & holidays) for reasons other than those specified in Article I, Sections 4, 5, and 6 shall be requested at least 30 days prior to the date said cancellation will be effective. Any prorated membership fees and charges owed for the 30-day cancellation period, plus any unpaid balances, must be paid by the end of the 30-day cancellation period or, if Member is enrolled in AutoPay, on the last monthly AutoPay payment.
Section 4. Cancellation Due to Death or Disability. Should Member die or become verifiably disabled and therefore unable to receive all services for which he/she has contracted, Member or his/her estate shall be relieved of obligations for payment for services other than those received prior to death or the onset of disability and shall be entitled to a prompt proportional refund of prepaid membership fees and charges for services not yet received. Member agrees that in the event he/she claims disability, he/she may be required and hereby consents to submit written confirmation from his or her qualified health care provider that Member is unable to use the services of the club. If verification of disability is not provided at the time Member requests cancellation and is thereafter requested by ISHC it must be received by ISHC within ten (10) days after ISHC's request is sent to Member in order for cancellation to be effective as of the date of Member's cancellation request. Failure to provide the verification within ten (10) days of ISHC's request will delay the effective date of the cancellation to the date the verification is received by ISHC.
Section 5. Cancellation Due to Relocation. Should Member move further than 25 miles from any club of ISHC and is unable to transfer membership to a comparable ISHC club, Member shall be relieved from the obligation of making payment for services other than those received prior to the move and shall be entitled to a prompt proportional refund of prepaid membership fees and charges for services not yet received. Member must submit documentation verifying the relocation within ten (10) days of Member seeking to cancel the membership based on the relocation. Failure to provide the required documentation within ten (10) days of Member's cancellation request will delay the effective date of the cancellation to the date the documentation is received by ISHC.
Section 6. Cancellation Due to Clubs Not Yet Open. If Member has paid any money under this contract for the use of a club that is under construction and not yet open for business, Member may cancel this agreement at any time prior to midnight on the fifth (5th) business day after the date on which the club opens for business and receive a full refund.
Section 7. How to Request Cancellation. For any Member cancellation allowed pursuant to this Article I, Member must request cancellation either (1) via email to firstname.lastname@example.org, (2) via first-class mail to ISHC Member Services, 6507 Pacific Ave. #344, Stockton, CA 95207, or (3) in-person at a physical ISHC facility. A cancellation request shall be deemed submitted on the date it is received in the ISHC Member Services office, whether via email or first-class mail, or, in the case of in-person cancellation at an ISHC facility, upon issuance of the ISHC email confirming receipt of the cancellation request.
Section 8. Survival of Rights and Obligations. Any rights and obligations of either ISHC or Member that are intended to survive cancellation of this contract will continue after cancellation to the extent permitted by law.
ARTICLE II: INITIATION FEES, PROCESSING FEES, MEMBERSHIP FEES AND CHARGES
Section 1. Changes. Except as otherwise provided herein, all membership fees and charges are subject to change by ISHC at any time. ISHC shall provide advance written notice of such changes to Member. Any allowed Member requested changes to the contract terms (i.e., service changes such as tanning, child care, VIP services, Revive & Relax services, and towel service, or adding or deleting add-on members, etc.) must be requested by Member in writing in a Member Service Request addendum or similar document signed by both Member and ISHC, or authorized through a secure online transaction.
Section 2. AutoPay. If Member uses AutoPay, Member is responsible for timely notifying ISHC of any changes to Member's designated account information.
Section 3. Payments Payable to ISHC Only; Electronic Processing of Checks. Checks must be made payable to "In-Shape Health Clubs," or "In-Shape," or "ISHC." Member will not be compensated for payments made directly to any ISHC employee. If Member provides a check as payment, Member authorizes ISHC either to use information from Member's check to make a one-time electronic fund transfer from Member's account or to process the payment as a check transaction.
Section 4. Network Access. If this membership is at a "Network" level and includes access to fully operating ISHC clubs, Member agrees that Member's membership is based on the immediate availability of the Network of clubs selected, and not upon any particular or individual club, which may not yet be open for business. Accordingly, Member's membership will commence on the date set forth on the first page of this contract, and the billing of membership fees and charges and any other charges due hereunder will commence on the "Recurring Monthly Fees Start" date set forth on the first page of this contract.
Section 5. Membership Hold. After 30 days of active membership, Member may request to have the membership placed on hold for a period not to exceed six (6) months, which ISHC may consent to in its sole discretion. If Member's hold is approved, Member will be charged a monthly hold fee in accordance with ISHC's then current policy, but no other membership fees and charges will be billed or collected during the hold period, except the Annual Fee (if it becomes due during the hold period), and Member's right to use ISHC clubs will be suspended during the hold period. At the end of Member's hold period, the membership will be reinstated to active status and monthly charges for Member's membership fees and charges will resume automatically in accordance with Member's existing AutoPay terms. Continuous Service and Cancellation provisions in this contract remain in effect at the end of the hold period.
Section 6. Collections. Member agrees that ISHC shall be entitled to all of its costs of collection, including attorneys' fees, in the event of any default by Member of any financial or monetary obligation owing hereunder. ISHC reserves the right to charge interest on past due balances to the extent allowed by law. In the event of any default by Member hereunder, in addition to any other authorized methods of communication, ISHC may contact Member by way of automated and pre-recorded telephone calls and text messaging at the telephone and/or cell phone number(s) Member has provided to seek payment, but not for marketing or other purposes unless member has provided express written consent thereto.
ARTICLE III: ADDITIONAL TERMS
Section 1. Temporary Closures or Changes to Facilities. Membership fees and charges are not reduced or suspended during closure, whenever one or more of the clubs is not available for use, or in the event of changes to equipment, facilities and/or class offerings at a club.
Section 2. Electronically Scanned Membership Contract. ISHC reserves the right to maintain the membership contract, and any and all other documents related to Member's membership with ISHC in a digital version, and the Member consents to the use and enforceability of a digital version in all future matters.
Section 3. Transfer of Membership. Member may not transfer membership.
Section 4. Assignment of Memberships by ISHC. ISHC may assign or transfer this membership in its sole discretion and will provide member notice of any such assignment or transfer.
Section 5. Member Contact Information. Member is solely responsible to notify ISHC promptly of any changes to Member's address, telephone number or email address. Any notifications or communications required by this contract or under the law shall be deemed effective when sent to Member using the most recent contact information Member has supplied to ISHC. ISHC may deliver information and notices about the membership and this contract ("Notices") to Member by electronic delivery (i.e. email), unless ISHC is required by law or a specific provision of this contract to provide Member with Notices by another means (i.e. US Mail). Notices eligible for delivery to Member by electronic means include, but are not limited to, those regarding renewals, membership fees and charges, increased fees, variances in payment amounts to be charged/debited to Member's AutoPay, updates or changes to AutoPay accounts, AutoPay processing problems or returned/declined payments, maintenance, repair or alteration of equipment, facilities and clubs, discontinuation of or scheduling changes related to classes or other service offerings, and amendments to club policies and rules.
Section 6. Performance. Performance of services contemplated by this contract shall commence not later than six (6) months from the date this contract is entered into.
Section 7. Payments on Corporate, Third-Party, or Employer-Sponsored Memberships. In the event any portion of the membership fees and charges are paid by a third-party, including, without limitation, by Member's employer, whether as a direct employment benefit, through an employee payroll deduction, or by some other means, Member remains responsible for the timely payment of all fees and charges due hereunder and is subject to all remedies available to ISHC in the event any such fees and charges are not timely paid, including suspension or cancellation of membership and collection of past-due and unpaid amounts. Membership is not automatically canceled if employer or other third-party discontinues making payments on behalf of Member. $11.00 per month will be added to Member's bill for manual statement billing if employer or other third-party discontinues making payments on behalf of Member and Member does not sign up to make payments through ISHC's AutoPay program.
ARTICLE IV: ARTICLE IV: RELEASE OF LIABILITY AND ASSUMPTION OF RISK
You hereby acknowledge that use of and access to the premises, facilities, services and equipment of In-Shape Solutions LLC ("ISHC") involves a risk of injury to you, your guests and family, whether caused by the actions or negligence of you, someone else, ISHC or its employees. Specific risks vary from one activity to another and the risks range from minor injuries to major injuries, such as catastrophic injuries including death. In consideration of your acceptance of the benefits of this contract and being permitted to enter any club or facility of ISHC for any purpose, you understand and voluntarily accept this risk and agree that ISHC, its employees, owners, officers, directors, agents, assigns, volunteers, and independent contractors will not be liable, and you forever give up and waive any claims or demands, for any injury, including, without limitation, personal, bodily, or mental injury, death, economic loss or any damage to you, your spouse, guests, unborn child, or relatives resulting from the negligence of ISHC, anyone on ISHC's behalf or anyone else, whether related to fitness and exercise activities or not. You agree to indemnify, defend and hold ISHC harmless from any loss, liability, damage or defense costs, including attorney's fees it may incur, in connection with claims for personal injury, bodily injury, wrongful death or property damage (i) caused by your negligence or other wrongful acts or omissions, or (ii) brought by you, your guests, or minor children, even if ISHC was negligent. You further agree that ISHC will not be responsible or liable for any loss, theft, or damage to any of your property in or about the premises of ISHC including, but not limited to, any personal property left in a locker or automobile. You further agree that the foregoing Release of Liability and Assumption of Risk is intended to be as broad and inclusive as is permitted by the laws of California and that if any portion hereof is held invalid the balance shall continue in full force and effect.
ARTICLE V: CLUB HOURS AND AMENITIES
Except for all Federal, State and Local holidays, the minimum hours of operation of ISHC's clubs shall be Monday through Friday 7:00 am to 6:00 pm, Saturday 9:00 am to 12:00 pm and Sunday closed. Each ISHC club offers a variety of weight lifting equipment, free weights, cardio equipment, circuit training equipment, locker rooms, etc. Please refer to ISHC's website, or see any ISHC representative to receive a complete listing of all amenities available, a description of all membership types and levels of access and the expanded operational hours (if any) at each of ISHC's clubs. ISHC reserves the right to make changes to the facilities, hours of operation, equipment and amenities at any of its clubs including, but not limited to, the type or quantity of classes, equipment or services at its clubs.
ARTICLE VI: INAPPLICABILITY TO OTHER CONTRACTS
Any agreements related to personal training or other services are separate and not incorporated or a part of this contract. Those services are governed by separate agreements and contracts, including separate cancellation and payment provisions.
ARTICLE VII: YOUR PHYSICAL CONDITION
It is recommended that before any member listed on this Contract engages in physical activity, he or she should review, answer the questions, and consider the advice contained in the Physical Activity Readiness Questionnaire ("PAR-Q") which can be found at http://inshape.com/par-q. You acknowledge that neither ISHC nor anyone on ISHC's behalf has provided you with any medical information or advice relating to your physical condition or your ability to engage in physical activities or exercise programs.
Warning: Use of steroids to increase strength or growth can cause serious health problems. Steroids can keep teenagers from growing to their full height; they can also cause heart disease, stroke, and damaged liver function. Men and women using steroids may develop fertility problems, personality changes, and acne. Men can also experience premature balding and development of breast tissue. These health hazards are in addition to the civil and criminal penalties for unauthorized sale, use, or exchange of anabolic steroids.
ARTICLE VIII: AGREEMENT TO ARBITRATE - INCLUDING WAIVER OF CLASS ACTION AND JURY RIGHTS
Section 1. Agreement to Arbitrate All Disputes Except Small Claims Disputes. IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS) BETWEEN MEMBER AND ISHC, (ISHC, AS USED IN THIS PROVISION, INCLUDES ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS), MEMBER AND ISHC EACH WAIVES ITS RIGHT TO A JURY TRIAL AND CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN CURRENT COMMERCIAL DISPUTE RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN THE COUNTY OF MEMBER'S RESIDENCE IN CALIFORNIA, RATHER THAN LITIGATE THE DISPUTE IN COURT. MEMBER AND ISHC ALSO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. IN ADDITION, MEMBER ALSO AGREES NOT TO PARTICIPATE IN CLAIMS BROUGHT IN A PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING THE CLAIMS OF ANOTHER PERSON, IF ISHC IS A PARTY TO THE PROCEEDING. MEMBER AND ISHC AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN MEMBER AND ISHC AND THAT THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND BINDING WITHOUT THE RIGHT OF APPEAL. IF MEMBER DOES NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, MEMBER MAY OPT OUT. IN ORDER TO OPT OUT OF THIS ARBITRATION PROVISION, MEMBER MUST NOTIFY ISHC IN WRITING THAT MEMBER DOES NOT WANT TO RESOLVE DISPUTES WITH ISHC BY ARBITRATION, SUCH NOTICE SHOULD BE DELIVERED BY U.S. MAIL TO ISHC,6507 Pacific Ave. #344, Stockton, CA 95207, OR BY EMAIL to email@example.com, WITHIN 30 DAYS OF THE DATE MEMBER SIGNS THIS CONTRACT.
Section 2. Fees and costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Contract. If the value of the relief sought is $10,000 or less, at Member's request, ISHC will pay all filing, administration, and arbitrator fees associated with the arbitration. If the value of the relief sought is more than $10,000 and Member is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation in court, ISHC will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In the event the arbitrator determines the claim(s) Member asserts in the arbitration to be frivolous, Member agrees to reimburse ISHC for all fees associated with arbitration paid by ISHC on Member's behalf, which Member otherwise would be obligated to pay under AAA's rules.
Section 3. Arbitrator will resolve any issues over application or enforcement of this clause. The arbitrator, and not any Federal, State, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Contract and the validity of this arbitration provision, including, but not limited to, any claim that all or any part of this Contract is void, voidable or unconscionable.
Section 4. Severability and Survival. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Article VIII will be null and void. This arbitration agreement will survive the termination of Member's relationship with ISHC.