Consent Release and Waiver
As valid consideration for (i) entry into the premises of any TruFusion wellness center (the “Premises”); (ii) participation in activities and classes offered on the Premises (“Fitness Programs”); and (iii) use of the equipment located on the Premises and other services offered, I agree as follows:
1. I may elect to participate in Fitness Programs offered on the Premises during which I will receive information and instruction about exercise, fitness, yoga and health. These Fitness Programs may entail strenuous physical activity and exertion by me. Some Fitness Programs are conducted in a heated room with an approximate temperature of 105 degrees Fahrenheit. I acknowledge that this physical activity and exertion may be difficult, draining, and may cause or aggravate a physical injury or medical condition. I am fully aware of and assume the risks and hazards incident to such participation.
2. I understand that it is my responsibility to consult with a physician prior to engaging in physical activity or participating in the Fitness Programs, and to receive prior approval. I represent and warrant that I am physically fit and I have no medical condition or injury that would prevent me from using the equipment on the Premises or participating in any Fitness Program. I have not been advised by a health care professional to refrain from participating in strenuous activities. I understand that I am responsible for determining whether I am physically and medically able to participate or whether I should discontinue my participation in any physical activity at any time. I understand that TruFusion, LLC, its parents, affiliates, franchisees, business partners and any of their employees or contractors (collectively “TruFusion”) assume no duty to me to ensure my physical or medical ability to participate in any physical activity, whether before, during or after such activity.
3. I acknowledge that physical activity may cause injury. I understand that there is an inherent risk of injury when choosing to participate in any physical activity. I understand and am fully aware that my participation in physical activities on the Premises could result in serious injury and/or death to myself and others, including but not limited to paralysis or permanent disability. Further, severe social and economic losses may result not only from my own actions, inactions, negligence, or recklessness but from the actions, inactions, negligence, or recklessness of others. There may also be other risks not known or reasonably foreseen at this time. I agree to assume the full risk of any injuries or associated damages or loss which I may sustain.
4. I agree that I will not utilize any equipment on the Premises unless and until I have inquired about and understand the proper use and I will operate such equipment in strict accordance with instructions.
5. In the event of any emergency, I authorize TruFusion to secure from any licensed hospital, physician, and/or medical personnel any treatment deemed necessary for my immediate care and agree that I will be responsible for the payment of any and all medical services rendered.
6. I, for myself and on behalf of my heirs, executors and administrators, forever release and discharge TruFusion, LLC, its parents, affiliates, franchisees, business partners and any of their employees, contractors, past, present and future directors, principals, owners, subsidiaries, divisions, affiliates, agents, and officers, collectively (the “Released Parties”), of and from any and all liabilities, claims, demands and causes of actions (including reasonable attorney’s fees and costs) based upon personal injuries or illness (including death), damages or loss to myself and others, as well as property damage (i) arising out of or relating to my participation, whether passively or actively in any Fitness Programs or other activities on the Premises, including but not limited to my use of any equipment or services; or (ii) occurring on the Premises, including but not limited to my use of any locker room area, associated sidewalks and parking areas. I agree not to bring any suits, claims, causes of action, demands or legal actions against the Release Parties. The release contained herein will be construed to apply to the greatest extent permitted by law and, if permitted by law, will apply even if any such injury or damage is caused in whole or in part by the Released Parties’ own negligence or the negligence or willful conduct of any other patron who is on the Premises or who is participating in any Fitness Program.
7. I, for myself and on behalf of my heirs, executors and administrators, agree to indemnify and hold harmless the Released Parties, against all actions, claims, demands, judgments, executions, debts, costs of litigation and attorney fees of every kind and nature whatsoever, which may in any way arise out of or result from my acts or omission on the Premises. The indemnity contained in this paragraph will apply even if any such injury or damage is caused, in part, by the Released Parties’ own negligence.
8. I understand that it is my continuing responsibility to inform the Trufusion staff of any previous medical conditions, injuries or surgeries prior to participating in Fitness Programs or using equipment.
9. I understand that there may be physical adjustments to my person by the staff from time to time and that it is my responsibility to let the staff member know if I prefer not to be touched or adjusted.
10. I acknowledge that if I am pregnant or may be pregnant, it is my responsibility to consult my physician prior to participating in Fitness Programs or using equipment.
11. I understand that Trufusion may, in its sole discretion, determine that I am unable to participate in a Fitness Program, whether due to overcrowding, tardiness or for other non-discriminatory reasons and I release and hold the Released Parties harmless from any claims as a result of same.
12. I understand that by participating in any Fitness Program at TruFusion I am allowing myself to be filmed and photographed both for security and marketing purposes. Fitness Programs may be filmed or photographed without prior notice and used for promotional purposes on the website, social media, print or television ads, in the studio, and anywhere else necessary.
13. In the event any provision of this Consent, Release and Waiver is found to be legally invalid or unenforceable for any reason, all remaining provisions will remain in full force and effect. In the event any provision of this document is found by a court of competent jurisdiction to exceed the limits permitted by any applicable law or to be invalid or unenforceable as written, such court(s) may exercise its discretion in reforming such provision(s) to the extent necessary to make it reasonable and enforceable.
14. If a dispute arises under this Consent, Release and Waiver, the parties agree that all disputes, controversies, or claims shall be submitted to binding arbitration and decided on an individual basis, and not on a class-wide or multiple plaintiff basis or in an action where any party hereto acts in a representative capacity, unless prohibited by law. Any such arbitration shall be filed with the American Arbitration Association in accordance with its Consumer Arbitration Rules. It is acknowledged, understood and agreed that any such arbitration will be final and binding and that by agreeing to arbitration, the parties are waiving their respective rights to seek remedies in court, including the right to a jury trial. The parties waive, to the fullest extent permitted by law, any right they may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Consent, Release and Waiver, whether based in contract, tort, statute (including any federal or state statute, law, ordinance or regulation), or any other legal theory. It is expressly acknowledged, understood and agreed that: arbitration is final and binding; the parties are waiving their right to seek legal remedies in court including the right to a trial by jury; pre-arbitration discovery generally is more limited than and different from that available in court proceedings; the arbitrator’s award is not required to include factual findings or legal reasoning; and any party’s right to appeal or vacate, or seek modification of, the arbitration award, is strictly limited by law. Questions regarding the enforceability and scope of this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act. Otherwise, the terms of this Consent, Release and Waiver shall be governed by the laws of the State where the injury occurs. Unless otherwise agreed by the parties, any arbitration will take place in the State and County where the injury occurs. It is understood, acknowledged and agreed that in any such arbitration, each party will be solely responsible for payment of his/her/its own counsel fees, with the costs of arbitration borne equally by the parties.
15. I understand that IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS CONSENT, RELEASE AND WAIVER (HOWEVER ARISING, INCLUDING NEGLIGENCE). The laws of certain states or other jurisdiction may not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions or limitations may not apply and I may have rights in addition to those contained herein.
16. In the event any action for equitable relief, injunctive relief or specific performance is filed, or should any action be filed to confirm, modify or vacate any award rendered through compulsory binding arbitration, I hereby irrevocably agree that the forum for any such suit will lie with a court of competent jurisdiction in the State and County where the injury occurs, and hereby agree to the personal jurisdiction and venue of such court.
17. I agree that this Consent, Release and Waiver may be assigned or transferred to, and will be binding upon and will inure to the benefit of, any successor of TruFusion LLC, its parents, affiliates, and franchisees and any successor will be deemed substituted for all purposes. As used herein the term “successor” will mean any person, firm, corporation, or business entity which at any time, whether by merger, purchase or otherwise, acquires all or substantially all of the assets of the business of another entity. This Consent, Release and Waiver cannot be assigned by me.
18. I, the undersigned, have thoroughly read this Consent, Release, and Waiver and I understand that I am giving up substantial rights by signing it. I understand that I have the right to have an attorney of my choosing review and advise me as to the terms and conditions of this Consent, Release, and Waiver. I am signing this Consent, Release, and Waiver knowingly, voluntarily and without any inducement.
19. This Consent, Release, and Waiver replaces all earlier versions and constitutes the entire and exclusive agreement between the parties relating to the subject matter hereto and supersedes any oral or other written understanding. However, any Membership Agreement and any other non-conflicting documents executed contemporaneously with this Consent, Release and Waiver are to be read in conjunction with this document and are not superseded by this document. This Consent, Release and Waiver may only be modified in writing by the parties.
SUPPLEMENTAL WAIVER OF LIABILITY AND ASSUMPTION OF RISK
1. I (Member/Attendee) am aware of a global COVID-19 pandemic and social distancing requirements and guidelines circulated by the United States Department of Health & Human Services, Centers for Disease Control and State of California. I have read, reviewed and agreed with the Social Distancing Guidelines provided herewith.
2. I feel healthy to participate in exercise and do not pose a risk to other members or staff. Specifically, I have not been diagnosed with COVID-19 or any other virus or infection in the past thirty (30) days, and I am not exhibiting (and have not exhibited in the last 21 days) any of the symptoms of COVID-19 identified by the CDC, which include: cough; shortness of breath or difficulty breathing; fever; chills; muscle pain; sore throat; and new loss of taste or smell. If I develop any of these symptoms, or if I have a suspected or diagnosed case of COVID-19 (or any other virus or illness), I agree that I will not attend or participate in any class unless and until cleared by a California-licensed physician. I agree to notify TruFusion immediately if I believe or have reason to believe that I am experiencing any symptoms of COVID-19 or any other communicable illness. I understand that TruFusion reserves the right to deny entry to any person based upon suspected illness.
3. I agree to strictly follow all safety protocols implemented by TruFusion and this Studio, including those that are posted throughout the facility, those that have been sent to me electronically and those which I are provided to me by staff verbally and in writing while at the Studio. I acknowledge that these protocols may change at any time and I agree to abide by any and all such changes.
4. I understand that I must follow recommended guidelines for social distancing while within the Studio. I understand that I may be asked to leave at any time for any reason, including but not limited to failure to adhere to the guidelines or any safety or best practices which TruFusion determines in its sole discretion.
5. I will not make a reservation or visit a TruFusion Studio within 14 days after (i) returning from a highly impacted area subject to a CDC Level 3 Travel Health Notice or (ii) exposure to any person returning from areas subject to a CDC Level 3 Travel Health Notice. I agree to regularly check the CDC Travel Health Notices including those listed at the following site: (https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html) before entering TruFusion or participating in classes and/or programs available at TruFusion.
6. I am aware of the risks of social activities and am fully, freely and of my own volition electing to participate in certain group personal fitness activities through this TruFusion Studio. I understand and agree that TruFusion and its members are relying upon my disclosures and compliance herewith.
In consideration for being provided a place in classes provided by TruFusion, I understand and agree to assume all risks incident to such participation and agree to release and hold TruFusion, TruFusion LLC, TruFusion Management LLC, their respective instructors, affiliates and employees (collectively “TruFusion”) harmless from all suits, claims or demands of every kind arising out of or in connection with my participation in said fitness classes. I understand, agree and represent that I have inspected and carefully considered the equipment and facilities and that I find and accept the same as being safe and reasonably suited for my use and participation in classes provided by TruFusion. I represent that I am in good physical condition and am physically able to participate in the fitness classes or events. I covenant that I have not been infected with or shown any symptoms of, and has not been in contact with any person that has been infected with or shown any symptoms of, the Coronavirus-19 or any other virus over the past sixty (60) days I understand and acknowledge that TruFusion cannot guarantee my safety or immunity from infection, illness or virus and that the safety of all members are impacted by the compliance by all members. I understand and agree that technology is not able to conclusively determine which contacts or locations are responsible for contraction of the virus. There is no known vaccination for COVID-19. The mode by which COVID-19 is transmitted or how long it remains on surfaces or in the air is not known and is subject to research. I fully understand, acknowledge and appreciate these facts and the uncertainty of viruses and how these conditions may impact my health.
I knowingly and voluntarily assume all risks associated directly or indirectly with attending or participating in any activity at TruFusion. I agree to defend, indemnify and hold TruFusion harmless, and release and covenant not to file, any claim or action, as against or regarding TruFusion for or related to any personal injury, death, medical expenses, disability, loss of capacity, property damage, court costs, attorneys’ fees, and/or other loss, including arising out of or related, whether directly or indirectly, to any attendance, activities or participation with TruFusion. I further release TruFusion from all suits, claims and demands of every kind arising out of or by reason of or in connection with the course of instruction and activities contemplated in the activity. I understand and agrees that TruFusion reserves the right to refuse admission to any person for any class for any reason in its sole discretion. I covenant that I have not been infected with or shown any symptoms of, and has not been in contact with any person that has been infected with or shown any symptoms of, the Coronavirus-19 or any other virus over the past ninety (90) days. I further agree to release and hold TruFusion its members, owners, operators, employees, associates, affiliates and landlord harmless from any claims, injuries, illnesses, losses or damages, including but limited to those related to or arising out of Coronavirus-19 or other illness, that I may contract, experience or be exposed to while on the TruFusion premises or parking lot or am participating in any activities or events held by TruFusion. This Disclosure and Waiver shall be supplemental to all prior disclosures and waivers by and between Member/Attendee and TruFusion.
I HAVE CAREFULLY READ AND VOLUNTARILY SIGN THIS WAIVER OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT AND FURTHER AGREE THAT NO ORAL REPRESENTATIONS, STATEMENTS OR INDUCEMENT APART FROM THE FOREGOING WRITTEN AGREEMENT HAVE BEEN MADE. I AGREE THAT THE ADDITIONAL SAFETY AND SANITATION MEASURES UNDERTAKEN BY TRUFUSION SHALL CONSTITUTE CONSIDERATION FOR THIS AGREEMENT AND SHALL NOT BE DEEMED A PREEXISTING DUTY AS BETWEEN THE PARTIES. I UNDERSTAND AND AGREE THAT THIS DOCUMENT IS A RELEASE OF ALL CLAIMS AND IS BINDING ON ME, MY HEIRS, FAMILY, ESTATE, REPRESENTATIVES AND ASSIGNS.