TEXAS HEALTH SPA ACT DISCLOSURE.
FITNESS FACTORY’S HEALTH SPA OPERATOR'S CERTIFICATE OF REGISTRATION NUMBER IS #20220132.
NOTICE TO PURCHASER: DO NOT SIGN THIS CONTRACT UNTIL YOU READ IT OR IF IT CONTAINS BLANK SPACES.
IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF THIS HEALTH SPA, YOU MAY CANCEL THIS CONTRACT BY MAILING TO THE HEALTH SPA BY MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DAY YOU SIGN THIS CONTRACT A NOTICE STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS: FITNESS FACTORY, 921 TALLAHASSEE DRIVE, DENTON, TX 76208.
IF THE HEALTH SPA GOES OUT OF BUSINESS AND DOES NOT PROVIDE FACILITIES WITHIN 10 MILES OF THE FACILITY IN WHICH YOU ARE ENROLLED OR IF THE HEALTH SPA MOVES MORE THAN 10 MILES FROM THE FACILITY IN WHICH YOU ARE ENROLLED, YOU MAY: (A) CANCEL THIS CONTRACT BY MAILING BY CERTIFIED MAIL A WRITTEN NOTICE STATING YOUR DESIRE TO CANCEL THIS CONTRACT, ACCOMPANIED BY PROOF OF PAYMENT ON THE CONTRACT TO THE HEALTH SPA AT THE FOLLOWING ADDRESS: FITNESS FACTORY, 921 TALLAHASSEE DRIVE, DENTON, TX 76208; AND (B) FILE A CLAIM FOR A REFUND OF YOUR UNUSED MEMBERSHIP FEES AGAINST THE BOND OR OTHER SECURITY POSTED BY THE HEALTH SPA WITH THE TEXAS SECRETARY OF STATE. TO MAKE A CLAIM AGAINST THE SECURITY PROVIDE A COPY OF YOUR CONTRACT TOGETHER WITH PROOF OF PAYMENTS MADE ON THE CONTRACT TO THE TEXAS SECRETARY OF STATE. THE REQUIRED CLAIM INFORMATION MUST BE RECEIVED BY THE SECRETARY OF STATE NOT LATER THAN THE 90TH DAY AFTER THE DATE NOTICE OF THE CLOSURE OR RELOCATION IS FIRST POSTED ON THE SECRETARY OF STATE'S INTERNET WEBSITE.
IF YOU DIE OR BECOME TOTALLY AND PERMANENTLY DISABLED AFTER THE DATE THIS CONTRACT TAKES EFFECT, YOU OR YOUR ESTATE MAY CANCEL THIS CONTRACT AND RECEIVE A PARTIAL REFUND OF YOUR UNUSED MEMBERSHIP FEE BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE HEALTH SPA MAY REQUIRE PROOF OF DISABILITY OR DEATH. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS: FITNESS FACTORY, 921 TALLAHASSEE DRIVE, DENTON, TX 76208.
IF THE HEALTH SPA DOES NOT OPEN BEFORE MARCH 1st, 2023 OR IF THE NEW SPA DOES NOT REMAIN OPEN FOR THIRTY DAYS, YOU ARE ENTITLED TO A FULL REFUND OF THE MONEY YOU PREPAID. HOWEVER, IF ANOTHER HEALTH SPA, OPERATED BY JS FITNESS LLC, IS LOCATED WITHIN 10 MILES OF 2100 SADAU CT #102, DENTON, TEXAS 76210, AND IF YOU ARE AUTHORIZED TO USE THE OTHER FACILITIES, YOU ARE ENTITLED TO RECEIVE A FULL REFUND OF YOUR MEMBERSHIP FEES ONLY IF THIS LOCATION DOES NOT FULLY OPEN FOR BUSINESS BEFORE MARCH 1st, 2024 OR IF THE NEW SPA DOES NOT REMAIN OPEN FOR 30 DAYS.
STANDARD TERMS AND CONDITIONS
A. Performance. A party’s failure to insist upon or enforce strict performance of any term or provision of this Agreement shall not be construed as a waiver of any term, provision or right. Neither course of conduct nor trade practice shall act to modify any provision of this Agreement.
B. Waiver, Release & Assumption of Risk. At the same time Member is signing this Membership Agreement, Member is also signing a Member Waiver, Release of Liability & Assumption of Risk agreement (the “Release”). The parties agree that the Release is part of this Membership Agreement and it is incorporated herein by reference as if fully set forth at length. If there is a conflict between the Release and this Membership Agreement, the terms and conditions which provide Fitness Factory, its principals, and agents with the most protection to and/or the greatest limitation of liability shall control.
C. Disclaimers – “As-Is” Only and Limitation of Liability. There is no warranty or guarantee of any kind with respect to Member’s use of Facility as far as results of use. This means Fitness Factory, its principals, officers, instructors, agents, other members, and employees, are not responsible for any loss or damage incurred directly or indirectly by Member because of access to and/or use of Facility. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, FITNESS FACTORY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. Member understands there are many factors affecting Facility use. Because there are so many factors beyond the control of Fitness Factory, Member understands and agrees Fitness Factory does not guarantee any results from Facility use. MEMBER UNDERSTANDS THAT FITNESS FACTORY IS USING THIRD-PARTY SERVICES TO PROVIDE SERVICES TO MEMBER AND THAT THESE THIRD PARTIES ARE BEYOND THE CONTROL OF FITNESS FACTORY. FOR EXAMPLE, MEMBER MAY EXPERIENCE SUSPENSION OF FACILITY USE BECAUSE OF POWER OUTAGES, MOBILE SOFTWARE APPLICATION OUTAGES, AND MAINTENANCE BY THESE THIRD PARTIES. MEMBER MAY ALSO EXPERIENCE TEMPORARY SUSPENSION OF FACILITY USE WHILE FITNESS FACTORY PERFORMS MAINTENANCE TASKS. TO THE EXTENT PERMITTED BY LAW, FITNESS FACTORY AND ITS PARTNERS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM MEMBER’S USE OF OR INABILITY TO USE ANY OF THE FACILITY OR MOBILE SOFTWARE APPLICATIONS OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES. FITNESS FACTORY DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO: (I) ANY THIRD PARTY CLAIMS ARISING FROM OR BASED ON MEMBER’S USE OF THE FACILITY OR MOBILE SOFTWARE APPLICATIONS; (II) ACCESS DELAYS OR ACCESS INTERRUPTIONS; (III) ACTS OF GOD; (IV) THE UNAUTHORIZED USE OR MISUSE OF MEMBER’S ACCOUNT NAME OR PASSWORD; (V) ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR SERVICE(S) PROVIDED UNDER THIS AGREEMENT; (VI) THE DELETION OF OR FAILURE TO STORE DATA OF ANY KIND; OR (VII) PROCESSING OF ANY AUTHORIZED MODIFICATION TO MEMBER’S RECORD OR MEMBER’S FAILURE TO PAY ANY MONTHLY DUES OR OTHER FEES. MEMBER AGREES THAT FITNESS FACTORY’S ENTIRE LIABILITY, AND MEMBER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT MEMBER PAID FOR SUCH SERVICES DURING THE THIRTY (30) DAYS PRECEDING THE DATE THE CLAIM AROSE.
D. Training, Additional Services, and Personal Items. Membership does not include one-on-one personal training, additional services (e.g., physical therapy, golf lessons, massage therapy, etc.), or personal equipment (e.g., exercise clothing). Member must pay for these separately.
E. Membership Types. Member acknowledges that Member has reviewed the different Facility membership types available, understands the rights and responsibilities for the membership type Member has selected, and agrees to the terms and conditions of that membership. Member understands and agrees that Member is ineligible to receive membership benefits for a membership type that Member has not selected. If Member has any questions about membership benefits and restrictions, Member will promptly ask Facility staff. Descriptions of membership plans are posted at Fitness Factory’s website at www.fitnessfactorydenton.com (the “Website”). If there is a conflict between a membership plan description and this Membership Agreement, the terms and conditions which provide Fitness Factory with the most protection to and/or the greatest limitation of liability shall control.
F. Facility Use. Member has access to the Facility during normal business hours in “sessions” depending on availability.
G. Early Termination Fees. Except as provided in the Texas Health Spa Act, if Member unilaterally terminates this Agreement prior to the end of a contract term that exceeds thirty-one (31) calendar days, Member agrees to pay Fitness Factory an early termination fee calculated as follows: seventy-five (75%) percent of the total unpaid balance for the remainder of the contract’s current term. Member shall have no other right to terminate this Agreement during the membership term, including the failure to use the Facility.
H. Facility Use & Misconduct. Member’s access to the Facility is per a revocable nonexclusive nontransferable nonassignable nonsublicensable license granted by Fitness Factory to use Facility during normal business hours. Fitness Factory reserves the right to unilaterally change Facility’s business hours by posting a sign on Facility’s front door and the Website. Member agrees to only use the Facility for lawful purposes and to be respectful of the rights of Fitness Factory’s other members, guests, and instructors. To preserve the Facility’s environment, Member understands Fitness Factory may, at any time and in its sole discretion, ask Member to leave Facility and/or terminate this Agreement. To preserve the benefits of the Facility for others, Member will promptly and quietly leave if requested to do so by Fitness Factory.
I. Governing Law. The rights and obligations of the parties will be governed and controlled by the laws of the State of Texas applicable to contracts made and performed therein without reference to the applicable choice of law provisions.
J. Dispute Resolution. Subject to the terms of the Texas Health Spa Act, the parties agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential binding arbitration before one arbitrator who is a former federal or state court judge. Arbitration shall be administered by the arbitrator pursuant to American Arbitration Association Rules in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In no case shall either party have the right to go to court or have a jury trial. The parties will not have the right to engage in pre-trial discovery except as provided in the rules; they will not have the right to participate as a representative or member of any class of claimants pertaining to any claim subject to arbitration; the arbitrator's decision will be final and binding with limited rights of appeal. This clause does not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Unless otherwise agreed to by the parties, all arbitration must occur in the City of Denton, Denton County, Texas USA. Arbitration fees and costs shall be split equally and the parties are solely responsible for their respective lawyer fees.
K. Indemnification. Member agrees to release, indemnify, and hold Fitness Factory, its principals, partners, instructors, contractors, agents, employees, officers, directors, equity owners, and assigns harmless from all liabilities, claims, damages, costs and expenses, including reasonable attorney fees and expenses, relating to or arising from Member’s use of Facility per this Agreement. When Fitness Factory is threatened with suit or sued by a third party, Fitness Factory may seek written assurances from Member concerning Member’s promise to indemnify Fitness Factory; Member’s failure to provide those assurances may be considered by Fitness Factory to be a material breach of this Agreement. In addition, in the event Fitness Factory is made a party to any claim, suit or action by Member which is unsuccessful or by a third party in each case relating to or arising from Member’s use of Facility, Member will reimburse Fitness Factory, at a reasonable rate, for all personnel time and expenses expended by Fitness Factory in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by Fitness Factory with respect to such response. The provisions of this paragraph shall survive termination of this Agreement for any reason.
L. Force Majeure. Fitness Factory shall not be liable for failure to perform any of its obligations under this Agreement during any period in which Fitness Factory cannot perform due to fire, earthquake, flood, or other natural disaster, epidemic or pandemic, explosion, casualty, war, terrorism, embargo, riot, civil disturbance, act of public enemy, act of God, or the intervention of any government authority, or similar cause beyond Fitness Factory’s control. If the Facility is rendered unusable for thirty (30) consecutive days or longer because of an event beyond Fitness Factory’s control, Fitness Factory shall extend the term of Member’s contract for a period equal to the time Facility is rendered unusable.
M. Membership Cap. Fitness Factory reserves the right to unilaterally change or remove limits on the number of members (in the aggregate or by membership level) at any time in Fitness Factory’s sole discretion. Notice of any such change or removal will be given by posting a notice at the Facility and the Website for seven (7) consecutive calendar days.
N. Limitation of Liability. IN NO EVENT SHALL FITNESS FACTORY, ITS PRINICPALS, OR AGENTS BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE CAUSE OF ACTION UPON WHICH ANY SUCH CLAIM IS BASED. IN NO EVENT SHALL FITNESS FACTORY’S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE TOTAL SUM PAID TO FITNESS FACTORY BY MEMBER PER THIS AGREEMENT.
O. Copyright. This Agreement is Copyright © 2015-2022 Law Office of Michael E. Young PLLC and licensed for use by the Fitness Factory.
P. Entire Agreement, Modifications, Assignments, Sublicenses, and Severability. This is the entire Agreement between the parties and may not be modified unless done so in a writing signed by duly authorized signatories of both parties. Fitness Factory may unilaterally assign its rights under this Agreement to a successor in interest. Member shall not assign or sublicense any rights under this Agreement without Fitness Factory’s prior written consent. If any part of this Agreement is determined in arbitration or by a court of competent jurisdiction to be invalid or unenforceable, that part shall be limited or eliminated to the minimum extent necessary so that the remainder of this Agreement is fully enforceable and legally binding.
Q. Facility Rules. All members and guests must comply with Facility Rules of Use & Code of Conduct (the “Rules”). These Rules are accessible to member at the Website. In addition, the Rules are accessible at the Facility. Fitness Factory reserves the right to amend the Rules by posting an updated copy at the Facility and the Website. Fitness Factory may suspend or revoke Member or guest access to the Facility for violating the Rules.
R. Media Release. At the same time Member is signing this Membership Agreement, Member is also signing a Media Release (the “Media Release”). The parties agree that the Media Release is part of this Membership Agreement and it is incorporated herein by reference as if fully set forth at length. If there is a conflict between the Media Release and this Membership Agreement, the terms and conditions which provide Fitness Factory, its principals, and agents with the most protection and/or the greatest limitation of liability shall control.
S. Contact Information. Members must provide prompt written notice to Fitness Factory of any changes to the contact information furnished on the first page of this Membership Agreement, including but not limited to any changes to current mailing address, phone numbers, and emergency contact information.
T. Minors. Children less than fifteen (15) years of age are not allowed to access or use the Facility. For members or guests who are between fifteen (15) and seventeen (17) years of age, a custodial parent or legal guardian must sign a Waiver, Release of Liability & Assumption of Risk and a Media Release on behalf of the minor prior to the minor accessing the Facility.
U. Guests and Guest Access to Other Fitness Factory Gyms. Members cannot bring guests to the Facility or other gym locations. If Member’s membership includes guest access to other gym locations, Member understands and agrees that the terms and conditions of this Agreement and the Rules apply to such use.
V. Biometric Identifiers. During the initial term of this Agreement and any renewal terms, Fitness Factory may decide to collect, retain, and use one or more of the following individual biometric identifiers to provide services to each Member: (1) fingerprint; (2) retina or iris scan; (3) voiceprint; and/or (4) record of hand or face geometry. Services provided by biometric identifier may include, but are not limited to, access to Facility when staff are not present, location and activity tracking within the Facility, and Member purchases from Fitness Factory (e.g., exercise clothing). Access to Member’s biometric identifiers will be limited to Fitness Factory, its principals, employees, and agents (e.g., biometric software providers) unless otherwise required by applicable law. Fitness Factory will never sell biometric identifiers to third parties. At least fourteen (14) days prior to the initial collection of Member biometric identifiers, Fitness Factory will inform Member of such planned collection by posting a notice at the Facility. In addition, the notice of collection will be posted at the Website. Member understands, agrees, and expressly consents to the collection, retention, and use of biometric identifiers by Fitness Factory, its employees, and agents to provide Member services. Member’s biometric data will be destroyed within one (1) year of membership termination.
W. Counterparts. This Agreement may be executed electronically or manually, in any number of counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means (e.g., electronic mail or PDF) shall be effective as delivery of a manually executed counterpart to this Agreement.
X. Short Message Service (SMS) Text Messages. You agree to receive SMS text messages from or on behalf of Gym Owner. These messages may be sent using an automatic telephone dialing system, by or on behalf of Gym Owner, at the cell phone number you provide Gym Owner. By voluntarily providing your cell phone number to Gym Owner, you consent to receive transactional, operational, or informational text messages at that phone number, including but not limited to appointment reminders, Gym announcements, and other messages related to fitness products and services. Please note Gym Owner and its agents may not be able to deliver messages to all mobile carriers. Consent to receive SMS texts is not a condition of becoming a Gym Member, and you understand and agree that all text messages may be sent using automated technology. To stop receiving text messages from Gym Owner, you agree to reply STOP to the number sending the message. After replying STOP, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive text messages for a brief period while Gym Owner processes your request. If you need further assistance, text HELP to the number sending the message, or contact Gym Owner by email at email@example.com. Message and data rates may apply for any messages sent to you from or on behalf of Gym Owner, and messages you send to Gym Owner. If you have any questions about your text plan or data plan, contact your wireless service provider. By providing your cell phone number to Gym Owner, you warrant that you are at least eighteen (18) years of age and that you are the current subscriber or authorized user of the phone number you have provided. You agree that you will not initiate messages to the mobile phone of any other person or entity without authorization. If you change, forfeit, or deactivate the phone number you have provided to Gym Owner, you agree to notify Gym Owner immediately. Failure to do so constitutes a material breach of these terms. Mobile carriers, Gym Owner, and its agents are not liable for delayed or undelivered messages.