54D ENROLLMENT AND WAIVER AGREEMENT
This Enrollment and Waiver Agreement (this “Agreement), dated as of (the “Effective Date”), is between (“You” or “Customer”) on the one hand, and on the other hand: GPY Coral Gables LLC, a Florida limited liability company, GPY Design District LLC, a Florida limited liability company, 54D Hallandale LLC, a Florida limited liability company, and 54D Flatiron LLC, a New York limited liability company, and their affiliates (collectively, “54D”). You and 54D shall be collectively referred to as “Parties” or each separately as a “Party” in this Agreement.
Background
(a) 54D is a fitness company that owns or operates equipment and facilities and has the capability and capacity to provide fitness and exercise related services; and
(b) You desire the retain the Services of 54D and use its Facilities (as defined below).
Thus, the Parties agree to the following terms and conditions.
Terms and Conditions
1. General. The purpose of this Agreement is that 54D, through personnel (including independent contractors) it designates, provides you with the Services (as defined below), as well as granting the use of 54D’s facilities to comply with the provision of the Services, in exchange for the payment under the terms and conditions indicated in this Contract. You acknowledge and accept that 54D only has the obligation to provide the contracted services and has not assumed any responsibility for the physical, aesthetic, athletic, or health result that you may desire, or that you may or may not obtain. The Agreement permits you to use 54D’s premises, facilities, equipment and services and your dues are in exchange for such access whether you use the facilities or not. Your enrollment is subject to all current company policies, rules, terms, conditions and limitations. 54D can sell enrollments at different rates and terms than yours. Any special promotional enrollment or rate regarding privileges, usage, hours, benefits, or facilities is valid only at the time of entering into this Agreement, unless otherwise provided by 54D in a signed writing.
2. Definitions.
(a) You (regardless of capitalization): The person whose data appears on the front page and who contracts for the services provided under this Agreement (or who does so on behalf of a minor indicated on the front page), including heirs, estates, agents, attorneys, representatives, officers, directors, shareholders, managers, members, successors, affiliates, parents, subsidiaries, and employees.
(b) 54D: As defined in the preamble of this Agreement and includes agents, attorneys, representatives, officers, directors, shareholders, managers, members, successors, affiliates, parents, subsidiaries, employees, and independent contractors. 54D is also registered with the State of Florida as a Health Studio: Registration No. HS13284, HS14801
(c) Facilities: The physical headquarters in which the Services will be provided.
(d) Services: Any use of the Facilities, the initial boot camp, the 9-week 54D program (the “Program”), classes within the Facilities, month to month memberships, three months memberships, yearly memberships and additional programs or classes. Any additional programs or memberships beyond the initial Program shall be subject to the terms of this Agreement, unless a separate agreement is provided to You, but may cost additional fees which will be invoiced separately.
3. Parties. The parties make this Agreement on behalf of themselves, and all persons/entities listed above. You agree that by signing this Agreement, you are purchasing services and agree to all the terms contained in this Agreement (including any Attachments). It is your responsibility to notify 54D of any change in your mailing address, billing information, or contact information.
4. Fee. You agree that the fee owed for the contracted services of the Program, initial package of classes if applicable, as well as for the use of the Facilities is the “Final Price” displayed in the Invoice provided to you along with this Agreement and must be paid in full to 54D at signing and before commencement of the Services. Any additional programs, classes, or memberships shall be subject to the terms of this Agreement unless a separate agreement is provided to You. The fees for any additional programs, classes, memberships shall be reflected in subsequent Invoices produced to you and must be paid full to 54D before commencement of the additional program, classes, or membership. 54D reserves the right to offer discounts at the time of or after enrollment but is not obligated to maintain any discount applicable to this Agreement to any subsequent Agreement, which instead will be governed by the then-current fees at the time of contracting.
5. Non-Discrimination. It is the policy of 54D not to discriminate against any person on the basis of race, national origin, ancestry, color, creed, religion, sex, sexual orientation, age, or disability.
6. Privacy. 54D may collect, use, and disclose certain personal information of members in accordance with their Privacy Policy, attached hereto and part of this Agreement. 54D may contact you from time to time by telephone, email, text message, or other means with information and offers related to your enrollment which may be of interest to you. If you do not wish to receive such messages, you can opt out at any time.
7. Use of Facilities. You may use the Facilities only pursuant to 54D’s provision of scheduled Services on the contracted days and times. You agree that the use of the Facilities is not exclusive to you, since the Services typically take the form of training sessions in groups. Additionally, you may access the administrative area of the Facilities exclusively to schedule Services or inquire about the terms of this Agreement.
8. Entry Identification. In order to receive the Services or to access the Facilities, 54D may incorporate any reasonable procedure or system of registration to oversee access to the Services or entry to/exit from the Facilities. If 54D requires you to furnish identification upon entry to the facility and as a condition of using the Services or the Facilities, 54D shall provide you with the means of such identification. You agree to provide 54D with the necessary information (which may include copies of driver’s licenses or other identification documentation), subject to the Privacy Policy. If you refuse, 54D may restrict your access until the information and identification document are provided or may terminate this Agreement, at its sole discretion.
9. Equipment. 54D reserves the right at any time to remove, discontinue, repair, or replace the equipment available to you without any effect on this Agreement. 54D also reserves the right to make changes to the Facilities, the type or quantity of equipment, programs, or Services, and to alter the hours of operation or of scheduled classes in 54D’s sole discretion. You indemnify 54D for any damage caused to the Facilities or to the equipment.
10. Rules and Regulations. You agree to follow 54D’s policies and rules of general applicability with respect to the Services and the Facilities as they may be amended from time to time and posted or otherwise disseminated, and without notice, in 54D’s sole discretion. Such rules shall be considered a part of this Agreement.
11. Compliance. Instructions regarding Services must be strictly followed, and with the frequency indicated. Failure to attend any session forfeits the session, and there will be no “make up” sessions.
12. No Liability for Property. 54D is not liable to you or your guest for any personal property that is damaged, lost, or stolen while on or around 54D’s premises, including, but not limited to, a vehicle or its contents or any property left in a locker. You acknowledge that the use of lockers does not constitute in any way a deposit of belongings into the care or custody of 54D, and that 54D is not responsible for any property placed in lockers or left on site. 54D assumes no responsibility for the damage or loss of objects, values or property of any kind. If you or your guest cause any damage to 54D’s facilities, you are liable to 54D for its cost of repair or replacement.
13. Dress Code. 54D seeks to provide a safe and comfortable environment for all members. 54D management and staff may enforce, and you agree to abide by, a dress code in all areas of the club. Clothing that may be perceived as intimidating, revealing, or offensive, as well as clothing that may present a safety hazard or damage equipment, is prohibited.
14. Physical Condition; No Medical Advice. You represent that you are in good physical condition and have no medical reason or impairment that might prevent you from your intended use of the Services or the Facilities. You acknowledge that 54D did not give you medical advice before you joined, and cannot give you medical advice after you join. 54D not give members advice relating to their physical condition or ability to use the Facilities. 54D has advised you that if you have or develop any health or medical concerns now or after you join, you should discuss them with your doctor before engaging in the Services or using (or continuing to use) the Facilities. You assume any medical, rehabilitation, surgery, medication, or any other expenses that may arise from the Services or use of the Facilities. If you are enrolling a minor, you represent that the above statements are true with respect to the minor (subject to the limitation on waiver set forth below).
15. Assumption of the Risk. YOU ARE AWARE AND UNDERSTAND THAT THE SERVICES ARE POTENTIALLY DANGEROUS ACTIVITIES AND INVOLVE THE RISK OF SERIOUS INJURY, DISABILITY, AND/OR DEATH. YOU ACKNOWLEDGE THAT ANY INJURIES THAT YOUOR YOUR GUEST SUSTAIN MAY RESULT FROM OR BE COMPOUNDED BY THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF 54D, INCLUDING NEGLIGENT EMERGENCY RESPONSE OR RESCUE OPERATIONS OF 54D.NOTWITHSTANDING THE RISK, YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY PARTICIPATING IN THE SERVICES WITH KNOWLEDGE OF THE DANGER INVOLVED AND HEREBY AGREE TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DISABILITY, AND/OR DEATHARISING FROMYOUR PARTICIPATION IN THE SERVICES, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OR GROSS NEGLIGENCEOF 54D OR OTHERWISE.
You further agree that 54D, its affiliated companies, parents, subsidiaries and the officers, directors, shareholders, employees, managers, members, agents, and independent contractors of such entities will not be liable for any injury including, without limitation, personal, bodily, or mental injury, disability, death, economic loss, or any damage to you, your spouse or domestic partner, guests, unborn children, heirs, or relatives resulting from the negligent conduct or omission of 54D or anyone acting on its behalf, whether related to physical conditioning or not.
16. Release. You expressly waive and release any and all claims, now known or hereafter known, against 54D, its affiliated companies, parents, subsidiaries, officers, directors, shareholders, employees, managers, members, agents, and independent contractors(the “Releasees”) arising out of or attributable to your or your guest’s participation in the Services or use of the Facilities, whether arising out of the ordinary negligence or gross negligence of 54D or otherwise. You covenant not to make or bring any such claim against 54D or any other Releasee, and forever release and discharge the Company and all other Releasees from liability under such claims. You further understand and acknowledge that 54D does not manufacture fitness or other equipment or products available in its facilities and therefore 54D will not be held liable for defective equipment or products.
17. Indemnification. You shall defend, indemnify, and hold harmless 54D and all other Releasees against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees, the costs of enforcing any right to indemnification under this Release, and the cost of pursuing any insurance providers arising out of or resulting from any claim of a third party related to your or your guest’s participation in the Services or use of the Facilities, including any claim related to my own negligence or the negligence of 54D.
18. Minors. You represent with respect to any minor enrolled by you that you are the parent or guardian of the minor. You further grant consent for the minor to utilize the Services and the Facilities. You further acknowledge (whether as parent, natural guardian, or guardian by operation of law) the following notice provided pursuant to section 744.301, Florida Statutes):
NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF 54D (INCLUDING AGENTS, ATTORNEYS, REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, SUCCESSORS, AFFILIATES, PARENTS, SUBSIDIARIES, EMPLOYEES, AND INDEPENDENT CONTRACTORS) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM 54D (INCLUDING AGENTS, ATTORNEYS, REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, SUCCESSORS, AFFILIATES, PARENTS, SUBSIDIARIES, EMPLOYEES, AND INDEPENDENT CONTRACTORS) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND 54D (INCLUDING AGENTS, ATTORNEYS, REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, SUCCESSORS, AFFILIATES, PARENTS, SUBSIDIARIES, EMPLOYEES, AND INDEPENDENT CONTRACTORS) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
Any waiver in this Agreement, to the extent applied to a minor, shall be construed to waive no more than allowed under section 744.301(3), Florida Statutes.
19. Appearance Release. For good and valuable consideration, including, without limitation, permission to engage in the Activities and the prospect of use of my Profile (as defined below), the receipt and legal sufficiency of which is hereby acknowledged, I hereby authorize 54D to film, videotape, photograph, and/or record me (and/or my minor child, as applicable) at various locations and irrevocably grant and authorize 54D to use such film, videotape, photography, and/or recording, and my (and/or my minor child’s) name and likeness (“Profile”), in and in connection with advertising and marketing of any kind (“Marketing”), which may be distributed, transmitted, exhibited, and otherwise exploited, in whole or in part, alone or in conjunction with other material, in perpetuity, throughout the world, in any and all manner of media now known or hereafter devised including, without limitation, Internet social media, phone texting, emails, all forms of television (cable, broadcast, satellite, free, pay, pay-per- view, linear, VOD, or otherwise) home video devices, audio-only recordings, etc. I acknowledge that 54D shall exclusively own any and all rights in my Profile and the Marketing and all elements thereof including, without limitation, all rights of copyright, throughout the world, in perpetuity, as a work-for-hire, including the right to register the copyright and secure all renewals and extensions. In the event the work-for-hire doctrine does not apply, then I hereby assign to 54D all rights in and the results and proceeds of the Marketing and any and all rights of copyright related thereto. I release 54D from any and all claims I have or may have in the future known or unknown claims (and waive such claims) related to the Marketing including, without limitation, claims of invasion of privacy, violation of right of publicity, defamation, false light, violation of section 540.08, Florida Statutes, N.Y. Civ. Rights Law §§ 50 and 51, or other similar claims and waive any and all equitable or injunctive relief related to the Marketing. 54D shall not be obligated to make any payment to me or on my behalf for the use of my Profile in the Marketing. I acknowledge that my appearance is not governed under the provisions of any collective bargaining agreement. This grant is irrevocable so that 54D may proceed in reliance thereon.
20. Closures and Force Majeure. If 54D halts Services (or portions of Services) or closes the Facilities (or portions of its Facilities) for repairs, modifications, substitutions, improvements, power outages, or holidays, and such temporary closures will have no effect on this Agreement so long as such temporary closures are reasonable. In case of a force majeure event that prevents 54D from fulfilling its obligations, 54D will seek to offer the Services in some other location. If such is not possible, impractical, or not accepted by you, the remaining Services will be reinstated (where they left off) as soon as practicable after Services can be resumed in the Facilities.
21. Breach by Customer. 54D may immediately cancel the provision of Services and terminate this Agreement and your use of the Facilities if you fail to comply with any of the obligations of this Agreement or if it discovered that you have made any misrepresentations, or if you fail to abide by the rules. 54D may, alternatively (for conduct considered less serious (e.g., violation of dress codes or decorum) give you a verbal or written warning; however, 54D reserves the right to terminate this Agreement as described above regardless of whether you believe a written or verbal warning would be more appropriate, and regardless of any warnings given or not given to others. If the Agreement is terminated for the reasons stated above, no refund will be provided, and you are obligated to pay for any damages or other losses caused by your conduct. 54D may refuse to enter into any future agreement with any person with respect to whom a previous agreement has been terminated.
22. Taxes. All fees/prices above or elsewhere are subject to applicable taxes, which must be paid by you.
23. Confidentiality. You agree not to reproduce, for any reason, financial, accounting, legal, research and development information, technical knowledge, sports, nutrition, concepts, designs, processes, techniques, equipment, ideas, writings, notes, plans of business, marketing, products, services, projects or any other information, in whatever form, that is provided or allowed to be accessed in relation to the Services, unless previously authorized in writing by 54D.
24. No Rights in 54D. This Agreement gives you no rights in 54D, its management, ownership, property, or operation.
25. Assignment. You may not assign or transfer, totally or partially, the rights and obligations derived from this Contract. 54D may assign or transfer your enrollment in its sole discretion.
26. Entire Agreement/Modifications. This Agreement (including any Attachments) contains the entire agreement between the parties as to the subject matter; any and all prior oral or written statements, representations, and covenants are merged into this Agreement, and any other agreements not expressly stated herein are void and have no further force and effect. This Agreement may not be amended or modified except by a subsequent, written agreement signed by both Parties.
27. Notifications. All notices related to this Agreement and made by you to 54D or its contractors shall be made in writing and shall be delivered in person at the Facilities. All notices related to this Agreement and made by 54D to you shall be made in writing and may be delivered by email, to the address indicated on the front page, or both (in 54D’s sole discretion).
28. Titles of Clauses. The titles of the clauses are solely for the purpose of easy identification of the same; they will not determine in any way the content or interpretation of the clauses that follow them.
29. Read and Reviewed. You declare that prior to signing this Agreement you reach and reviewed this Agreement in its entirety (and any Attachments), as well as any and all statutes referenced in this Contract.
30. Severability. You agree that if any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, such illegal, invalid, or unenforceable provision shall be severed from the Agreement, and the remainder of this Agreement shall not be affected thereby but shall remain in full force and effect.
31. No Implied Waiver. If 54D does not enforce any right in this Agreement for any reason, 54D does not waive its right to enforce it later.
32. Dispute Resolution/Applicable Law/Exclusive Venue. In the unlikely event that 54D is unable to resolve a complaint you may have to your satisfaction, you agree to resolve such dispute through binding arbitration or small claims court rather than a court of general jurisdiction. For simplicity and fairness, arbitration will be conducted on an individual basis in accordance with the American Arbitration Association’s rules for consumer arbitration. By signing this Agreement, you acknowledge and agree that you and 54D are each waiving the right to a trial by jury and the right to participate in a class action, either in court or in arbitration. This Dispute Resolution provision shall apply to this Agreement and any other agreements or polices at issue between you and 54D, including, without limitation, the Privacy Policy. You further agree that the terms, interpretation, effect, and enforcement of this Agreement shall be governed by the law of the State of Florida and that exclusive venue of any dispute (whether in arbitration or small claims court) shall be in Miami-Dade County.
33. Counterparts. This Agreement may be executed in one or more counterparts, including electronically via photocopy, facsimile, pdf file or other similar electronic means, all of which taken together shall constitute one instrument, and any such counterpart shall have the same force and effect as if bearing an original signature.
34. Account Information Notifications. 54D may contact you via telephone, email, text message or other means from time to time to notify you of issues related to the Agreement or billing information, or for payment processing issues. By providing us with your contact information and signing this Agreement, you give your prior express written consent to receive enrollment and billing-related communications from us or our authorized delegate to the extent permitted by applicable law, including without limitation the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Florida Deceptive and Unfair Trade Practices Act, the Florida Telemarketing Act, New York Deceptive Practices Act, and any other applicable federal, Florida, and New York statutes.
35. EXPRESS WRITTEN CONSENT TO RECEIVE TELEMARKETING CALLS & TEXTS:
By signing below, you authorize 54D and/or its service providers, including without limit providers of software used to send messages, to deliver, or cause to be delivered to you, at the telephone number(s) provided by you in this Agreement, telemarketing calls, informational calls, telemarketing texts and similar communications using an automatic telephone dialing system or an artificial or prerecorded voice. You acknowledge that you are not required to execute or initial this consent, directly or indirectly, as a condition of purchasing any goods or services.
For your reference, the language of the federal regulations that sets forth the prior express written consent requirement states:
The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:
(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and
(B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
(ii) The term “signature” shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law 47 C.F.R. § 64.1200(f)(8).
36. Florida Statutory Rights. Pursuant to section 501.017, Florida Statutes, you are informed:
(a) You may cancel this Agreement, penalty-free, within 3 days, exclusive of holidays and weekends, of its making, upon the mailing or delivery of written notice to 54D. Should you so cancel, you will be refunded all moneys paid under the Agreement, except 54D may retain an amount computed by dividing the number of complete days in the contract term or, if appropriate, the number of occasions health studio services are to be rendered 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 health studio services have been rendered. Any applicable refund shall be issued within 30 days after receipt of the notice of cancellation made within the 3-day provision.
(b) You may cancel the Agreement and obtain a refund if 54D or its location goes out of business, or if 54D moves its facilities more than 5 driving miles from the business location designated in the Agreement and fails to provide, within 30 days, a facility of equal quality located within 5 driving miles of the business location designated in the Agreement at no additional cost to you.
2. Notice of intent to cancel by you shall be given in writing to 54D. The notice terminates automatically your obligation to any entity to whom 54D has subrogated or assigned your contract. If 54D wishes to enforce the Agreement after receipt of the notice, it may request the Florida Department of Business and Professional Regulation to determine the sufficiency of the notice.
3. If the department determines that you are due a refund, the refund shall be an amount computed by dividing the Agreement price by the number of weeks in the Agreement term and multiplying the result by the number of weeks remaining in the Agreement term. 54d may not be deemed out of business when temporarily closed for repair and renovation of the premises:
a. Upon sale, for not more than 14 consecutive days; or
b. During ownership, for not more than 7 consecutive days and not more than two periods of 7 consecutive days in any calendar year.
Any applicable refund shall be issued within 30 days after receipt of the notice of cancellation made pursuant to this paragraph.
(c) You are advised to contact the Florida Department of Business and Professional Regulation for information within 60 days should 54D go out of business.
(d) You (or your estate) may cancel this Agreement if you die or become physically unable to avail yourself of a substantial portion of those services which you used from the commencement of the Agreement until the time of disability, with refund of funds paid or accepted in payment of the Agreement in an amount computed by dividing the Agreement price by the number of weeks in the Agreement term and multiplying the result by the number of weeks remaining in the Agreement term. You or your estate, if seeking relief under this paragraph, may be required to provide proof of disability or death. A physical disability sufficient to warrant cancellation of the Agreement by you is established if you furnish to 54D a certification of such disability by a physician licensed under Chapter 458, 459, 460 or Chapter 461 to the extent the diagnosis or treatment is within the physician’s scope of practice. A refund shall be issued within 30 days after receipt of the notice of cancellation made pursuant to this paragraph.
(e) This Agreement and the Services provided hereunder shall not be for a period in excess of 36 months, and thereafter shall only be renewable annually (in fact, this Agreement shall ordinarily not be renewable at all; any services in addition to the Services provided for in this Agreement shall be subject to a new Agreement). A renewal agreement may not be executed and the fee therefore paid until 60 days or less before the previous agreement expires.
(f) If 54D requires you to furnish identification upon entry to the facility and as a condition of using the Services, 54D shall provide you with the means of such identification.
37. New York Statutory Rights. Pursuant to section 624 of New York Code, you are informed:
CONSUMERS RIGHT TO CANCELLATION. YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR FURTHER OBLIGATION WITHIN THREE (3) DAYS FROM THE DATE OF YOUR RECEIPT OF THIS AGREEMENT.
NOTICE OF CANCELLATION SHALL BE IN WRITING SUBSCRIBED BY YOU AND MAILED BY REGISTERED OR CERTIFIED UNITED STATES MAIL TO 54D AT THE ADDRESS: 125 WEST 25TH STREET, NEW YORK, NY 10001. SUCH NOTICE SHALL BE ACCOMPANIED BY THIS AGREEMENT, AND ANY OTHER MEMBERSHIP DOCUMENTS PREVIOUSLY DELIVERED TO YOU OR OTHER EVIDENCE OF MEMBERSHIP PREVIOUSLY DELIVERED TO YOU. ALL MONIES PAID PURSUANT TO THIS AGREEMENT SHALL BE REFUNDED WITHIN FIFTEEN (15) BUSINESS DAYS OF RECEIPT OF SUCH NOTICE OF CANCELLATION. IF YOU HAVE EXECUTED ANY CREDIT OR LOAN AGREEMENT TO PAY FOR ALL OR PART OF THE HEALTH CLUB SERVICES, ANY SUCH NEGOTIABLE INSTRUMENT EXECUTED BY YOU SHALL ALSO BE RETURNED WITHIN FIFTEEN DAYS.
ADDITIONAL RIGHTS TO CANCELLATION. You may also cancel this contract for any of the following reasons:
• If upon a doctor's order, you cannot physically receive the services because of significant physical disability for a period in excess of six months.
• If you die, your estate shall be relieved of any further obligation for payment under the contract not then due and owing.
• If you move your residence more than twenty-five miles from any health club or Facility operated by 54D
• If the services cease to be offered as stated in the contract.
All moneys paid pursuant to such contract cancelled for the reasons contained in this subdivision shall be refunded within fifteen days of receipt of such notice of cancellation; provided however that 54D may retain the expenses incurred and the portion of the total price representing the services used or completed, and further provided that the seller may demand the reasonable cost of goods and services which the buyer has consumed or wishes to retain after cancellation of the contract. In no instance shall the seller demand more than the full contract price from the buyer. If you have executed any credit or loan agreement to pay for all or part of health club services, any such negotiable instrument executed by the buyer shall also be returned within fifteen days.
This Agreement and the Services provided hereunder shall not be for a period in excess of 36 months, and thereafter shall only be renewable annually (in fact, this Agreement shall ordinarily not be renewable at all; any services in addition to the Services provided for in this Agreement shall be subject to a new Agreement). A renewal agreement may not be executed and the fee therefore paid until 60 days or less before the previous agreement expires.
IMPORTANT NOTICE FOR NEW YORK MEMBERS: NEW YORK STATE LAW REQUIRES CERTAIN HEALTH CLUBS TO HAVE A BOND OR OTHER FORM OF FINANCIAL SECURITY TO PROTECT MEMBERS IN THE EVENT THE HEALTH CLUB CLOSES. 54D HAS POSTED THE FINANCIAL SECURITY REQUIRED BY LAW. YOU MAY ASK A REPRESENTATIVE OF THE CLUB FOR PROOF OF THE CLUB's COMPLIANCE WITH THIS LAW. YOU MAY ALSO OBTAIN THIS INFORMATION FROM THE NEW YORK STATE DEPARTMENT OF STATE, DIVISION OF LICENSING SERVICES, 162 WASHINGTON AVENUE, ALBANY, N.Y. 12231.
BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND FULLY UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT AND THAT YOU ARE VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE 54D.
CUSTOMER
By:
Name:
GPY CORAL GABLES LLC
Name:
Title:
54D HALLANDALE LLC
Name:
Title:
GPY DESIGN DISTRICT LLC
Name:
Title:
54D FLATIRON LLC
Name:
Title:
Attachment A
54D Privacy Policy
This Privacy Policy was last revised on January 22, 2019.
54D, as defined in the Agreement (and referred here as “54D,” “we,” or “us”), knows that you care how information about you is used and shared. This Privacy Policy explains the manner in which 54D may collect, use, and disclose personal information which you provide to us while utilizing the Services or using the Facilities, or while using the 54D website (the “Site”). Security for all personal information is extremely important to us. We store your personal information securely and use encryption and/or other special procedures designed to protect the information we collect from loss, misuse, unauthorized access or disclosure, alteration or destruction. Unfortunately, no data transmission over the Internet can ever be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, 54D cannot ensure or warrant the security of any information you transmit to us and you do so at your own risk.
We will not use or share your information with anyone except as described in this Privacy Policy. This Privacy Policy does not apply to information we collect by other means (including offline) or from other sources. By visiting this Site or otherwise providing us with your personal information pursuant to the Enrollment Agreement, you agree to be bound by the terms of this policy. Capitalized terms that are not defined in this Privacy Policy are defined in our Enrollment Agreement.
Information We Collect
User-Provided Information: We collect personal information that you provide to us or that is otherwise provided to us on your behalf. 54D uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. We cannot, however, ensure or warrant the security of any information you transmit to 54D and you do so at your own risk. Once we receive your transmission of information, 54D makes commercially reasonable efforts to ensure the security of our systems. However, please note that this is not a guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards. Your privacy settings may also be affected by changes to the functionality of 54D’s distributors, such as social networks. 54D is not responsible for the functionality or security measures of any third party.
To protect your privacy and security, we take reasonable steps (such as requesting a unique password) to verify your identity before granting you access to your account. You are responsible for maintaining the secrecy of your unique password and account information, and for controlling access to your email communications from 54D, at all times.
You may choose to provide certain personal information to access or use certain features or services of the Site or the Services, such as making a purchase, joining one of our clubs, paying your fees, requesting information, filling out an employment, logging into certain exercise equipment consoles using your member number, or otherwise contacting us. Such information may include your name, phone number, e-mail address, mailing address, credit card or banking information, enrollment and account information, workout information, machine usage and input information, or other information. You can always choose not to provide information, but it may limit your ability to use a particular service or feature on the Site or the Services.
By providing your personal information to us, you are authorizing us to collect, use and disclose such information in the manner outlined in this policy. Unless we advise otherwise, your information will only be used for the purposes for which it was provided or to contact you regarding related matters. We limit the information we collect to what we feel is necessary for those purposes.
We may periodically send you newsletters, e-mails or similar communications featuring sales and promotions, news about new 54D products and services, requests for your feedback, or other information we think may be of interest to you, in accordance with local law. You may stop receiving marketing communications from us at any time by following the instructions included in the message you received. We may use workout and machine usage data collected through our Services to provide you with tailored products or service offerings, to conduct member usage and market analysis, and to compile aggregated data sets for use in our marketing and business objectives.
Cookies Information: When you use the Site, we may send one or more cookies – a small text file containing a string of alphanumeric characters – to your computer that uniquely identifies your browser and lets 54D help you log in faster and enhance your navigation through the Site. A cookie may also convey anonymous information about how you use the Site to us. A persistent cookie remains on your hard drive after you close your browser. Persistent cookies may be used by your browser on subsequent visits to the Site. Persistent cookies can be removed by following your web browser’s directions. A session cookie is temporary and disappears after you close your browser. You can reset your web browser to refuse all cookies or to indicate when a cookie is being sent. However, some features of the Site may not function properly if the ability to accept cookies is disabled. We do not currently respond to “Do-Not-Track” signals or mechanisms.
Log File Information: Log file information is automatically reported by your browser each time you access a web page. When you use the Site, our servers automatically record certain information that your web browser sends whenever you visit any web page. These server logs may include information such as your web request, Internet Protocol (“IP”) address, browser type, referring / exit pages and URLs, number of clicks, domain names, landing pages, pages viewed, and other such information.
Clear Gifs Information: When you use the Site, we may employ clear gifs (also known as web beacons) which are used to track the online usage patterns of our users anonymously. No personally identifiable information is collected using these clear gifs. In addition, we may also use clear gifs in HTML-based emails sent to our users to track which emails are opened by recipients. The information is used to enable more accurate reporting, improve the effectiveness of our marketing, and make 54D better for our users.
The information collected may depend upon your browser’s settings. This information typically includes your computer’s IP address, the address of the web page you were visiting when you accessed our Site, the name of the operating system installed on your computer, the name and version of the browser you are using and the date and time of your visit. We use this information primarily to create statistics that help us improve our Site and make it more compatible with the technology used by our visitors. We may link this information with your personal information as we deem necessary for our business purposes. If criminal activity is suspected, we might need to share certain information with the appropriate investigative authorities. Such information may contain visitors’ IP addresses and other information which could be used to trace and identify individuals.
How We Use/Share Your Information
Personally Identifiable Information: 54D may share your personally identifiable information with third parties solely for the purpose of providing the Site to you. If we do this, such third parties’ use of your information will be bound by this Privacy Policy. We may store personal information in locations outside the direct control of 54D (for instance, on servers or databases co-located with hosting providers).
As we develop our business, we may buy or sell assets or business offerings. Customer, email, and visitor information is generally one of the transferred business assets in these types of transactions. We may also transfer or assign such information in the course of corporate divestitures, mergers, or dissolution.
54D may disclose information about you to select business partners to provide you with advertising and promotional information and opportunities that we think may be of interest to you. We do not give our partners an independent right to share this information.
Any personal information or content that you voluntarily disclose for posting to the Site, such as User Content, becomes available to the public, as controlled by any applicable privacy settings. You may change your privacy settings on the Site with the features provided by the Application and/or the social networking site or by contacting us. If you remove information that you posted to the Site, copies may remain viewable in cached and archived pages of the Site, or if other Users have copied or saved that information.
Except as otherwise described in this Privacy Policy, 54D will not disclose personal information to any third party unless required to do so by law or subpoena or if we believe that such action is necessary to (a) conform to the law, comply with legal process served on us or our affiliates, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) to enforce our Terms of Use, take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, to assist government enforcement agencies, or to protect the security or integrity of our site; and (c) to exercise or protect the rights, property, or personal safety of 54D, our Users or others.
Non-Personally Identifiable Information: We may share non-personally identifiable information (such as anonymous usage data, referring/exit pages and URLs, platform types, number of clicks, etc.) with interested third parties to help them understand the usage patterns for certain 54D services. 54D may allow third-party ad servers or ad networks to serve advertisements on the Site. These third- party ad servers or ad networks use technology to send, directly to your browser, the advertisements and links that appear on the 54D Site. They automatically receive your IP address when this happens. They may also use other technologies (such as cookies, JavaScript, or web beacons) to measure the effectiveness of their advertisements and to personalize the advertising content. 54D does not provide any personally identifiable information to these third-party ad servers or ad networks without your consent. However, please note that if an advertiser asks 54D to show an advertisement to a certain audience and you respond to that advertisement, the advertiser or ad-server may conclude that you fit the description of the audience they are trying to reach. In addition, third-party advertisers may use information (not including your name, address, email address, or telephone number) about your visits to this and other websites to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies. The 54D Privacy Policy does not apply to, and we cannot control the activities of, third-party advertisers. Please consult the respective privacy policies of such advertisers for more information.
Compromise of Personal Information
In the event that personal information is compromised as a result of a breach of security, 54D will promptly notify those persons whose personal information has been compromised, in accordance with the notification procedures set forth in this Privacy Policy, or as otherwise required by applicable law.
Your Choices About Your Information
You may, of course, decline to submit personally identifiable information through the Site, in which case 54D may not be able to provide certain Services to you. You also have a right to challenge the accuracy and completeness of your personal information and to have it corrected, as appropriate. You may also have a right to request access to your personal information and receive an accounting of how that information has been used and disclosed, subject to certain exceptions prescribed by law. If your request for access is denied, we will notify you in writing of the reason for such denial. To request access or to amend your personal information, please visit our Facilities and see management.
Children’s Privacy
Protecting the privacy of children is especially important. This is a commercial website intended for use by individuals that are at least 18 years old. If you are less than 18 years old, you may not use this Site without the prior permission and supervision of your legal guardians. 54D does not accept members under the age of 18 and does not knowingly collect information from anyone under the age of 18. If you believe that we might have any information from or about anyone under 18, please contact us.
Links to Other Web Sites
We are not responsible for the practices employed by websites linked to or from the Site, nor the information or content contained therein. Please remember that when you use a link to go from the Site to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our website, is subject to that website’s own rules and policies. Please read over those rules and policies before proceeding.
Notification Procedures
It is our policy to provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on the Site, as determined by 54D in its sole discretion. We reserve the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Privacy Policy.
International Visitors
FOR VISITORS USING THE SITE FROM OUTSIDE THE UNITED STATED, ANY DATA YOU SUBMIT TO THE SITE WILL BE TRANSFERRED TO THE UNITED STATES FOR USE BY 54D AND/OR ITS AFFILIATES FOR ANY OF THE PURPOSES DESCRIBED IN THIS POLICY. BY USING THE SITE YOU HEREBY EXPRESSLY CONSENT TO SUCH TRANSFER OF INFORMATION OR DATA TO THE UNITED STATES.
If you are a resident of the European Union or provide personal information through this website while located in the European Union, we offer you certain choices about the personal information we collect from you on this Site. Users in the European Union may have the choice:
• to be provided with a copy of your personal data held by us;
• to request the rectification or erasure of your personal data held by us;
• to request that we cease processing your data;
• to request that we restrict the processing of your personal data (while we verify or investigate your concerns with this information, for example);
• to request that your data be transferred to you or a third party.
We may use your data for marketing purposes or disclose your information to any third party for such purposes with your consent, that you may provide by checking certain boxes on the forms we use to collect your data. You may object to receiving further marketing at any time without detriment. We will inform you prior to collecting or using your personal information for any purpose not set forth in this Privacy Policy or previously consented to.
To update your preferences and consents, ask us to remove your information from our mailing lists or submit a request, please contact us.
TERMS OF USE
Your use of this Site and any issues relating to this policy are subject to 54D’s then-current Terms of Use, which are located on our Site.
PRIVACY POLICY UPDATES/CHANGES
54D reserves the right to update or modify this policy at any time and from time to time without prior notice by posting a revised version of the policy on the Site. If we make material changes to this policy, we will notify you by means of a conspicuous notice on our homepage or direct communication to you via email or your account. Your use of the Site or any 54D Services or Facilities following any revision to the policy constitutes your agreement that all personal information collected from or about you after the revised policy is posted will be subject to the terms and conditions of the revised policy. The date listed above indicates the most recent change or update to this policy.
ATTACHMENT B
You acknowledge that you are bound by the following 54D rules of general applicability, and such are part of the Enrollment Agreement:
1. Be committed. You are permitted no more than 3 unexcused absences during the 9-week 54D program; after 3 unexcused absences, you will be dismissed from the program in 54D’s sole and absolute discretion.
2. Be on time. Access to the workout will not be allowed more than 3 minutes after the scheduled time for the class. The time will be taken from the clock located at front desk, regardless of the time showing on any phone or other personal device.
3. Be self-disciplined. Promptly notify 54D of any changes or cancellations for the Nutritionist or Recovery sessions appointments. If prior notification is not given in more than 3 instances, you will be dismissed from the program in 54D’s sole and absolute discretion.
4. Be present. Cell phones are not allowed to be used during the workout.
5. Be respectful.
a. You will not be allowed to continue a session if it is ascertained, in 54D’s sole and absolute discretion, that you have recently ingested or are under the influence of alcohol.
b. You will be dismissed from the program in 54D’s sole and absolute discretion, for using language that is intentionally harassing, obscene, threatening, or defamatory to other customers, employees or independent contractors.
You also acknowledge that there may be other policies and rules of general applicability that are binding on you, in accordance with the 54D Enrollment Agreement. To the extent such policies and rules exist but are not expressly listed above, you acknowledge that you are bound by them. 54D reserves all rights to apply such policies and rules to the fullest extent. This acknowledgement does not modify the 54D Enrollment Agreement (though, if it is deemed to do so, you acknowledge it is executed in accordance with the modification provisions of the Enrollment Agreement); you acknowledge this form merely provides additional notice of certain rules for your information.
CUSTOMER
Name:
Assumption of the Risk and Waiver of Liability Relating to Corona virus/COVID-19
The World Health Organization has declared the novel Corona virus (COVID-19) a worldwide pandemic. COVID-19 is contagious and is believed to spread mainly from person-to-person through respiratory droplets. As a result, federal, state, and local governments and federal and state health agencies have set recommendations, guidelines, and some prohibitions.
Accordingly, 54D has put in place preventative measures to reduce the spread of COVID-19; however, we cannot guarantee that you will not become infected with COVID-19. Further, attending 54D’s facilities and programs could increase your risk of contracting COVID-19.
In consideration of my participation at 54D, I, the undersigned, acknowledge and agree to the following:
I understand and acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that I may be exposed to or infected by COVID-19 by my participation in the activities at 54D and that such exposure or infection may result in personal injury, illness, permanent disability, and/or death. I understand that the risk of becoming exposed to or infected by COVID-19 at 54D may result from the actions, omissions, or negligence of myself and others, including, but not limited to, 54D employees, or program participants.
I have not experienced symptoms of fever, fatigue, difficulty in breathing, or dry cough or exhibited any other symptoms related to COVID-19 or any communicable disease within the last 14 days.
I have not, nor any member(s) of my household, traveled by sea or by air, internationally within the past 15 days.
I have not been, nor any member(s) of my household, diagnosed to be infected with COVID-19 virus within the last 30 days.
With full knowledge of the risks involved, I hereby release, waive, covenant not to sue, discharge, and hold harmless 54D, its board, officers, independent contractors, affiliates, employees, representatives, successors, and assigns from any and all liabilities, claims, demands, actions, and causes of action whatsoever, directly or indirectly arising out of or related to any loss, damage, injury, or death, that may be sustained my me related to COVID-19 while participating in any activity while in, on or around the premises or while using the facilities that may lead to exposure or harm due to COVID-19.
By signing below, I acknowledge that I have read the foregoing and understand its contents; that I am at least eighteen years old and fully competent to give my consent.
CUSTOMER
Name: