DECLARATIONS: This Agreement is entered into between Don’t Touch the Tentacles LLC (“DTTT”), doing business as “Fitness for Cool People” (“FFCP”), and the purchaser or user of FFCP products, services, website content, or another means of communication with FFCP and its owners, employees, affiliates, agents, representatives, successors and assigns, (“User”). When listed, FFCP is to represent both FFCP as well as DTTT. The provision of personal training services by FFCP to User, and your use of any products or services are contingent upon this Agreement.
Entire Agreement & Enforcement: You acknowledge that neither FFCP, nor anyone else, made any representations or promises upon which you relied that are not stated in this
agreement. Handwritten changes to this agreement are not valid. This document contains the entire agreement between you and FFCP, and replaces any prior agreements, representations or promises by or between you and FFCP, whether written or oral, with respect to the subject matter of this agreement.
1. REPRESENTATIONS
1(a). You agree that:
You do not have a heart condition that was diagnosed by a doctor that only allows you to do physical activity as recommended only by your doctor.
You do not feel pain in your chest when you do physical activity.
In the past month, you haven’t had chest pain while at rest or during physical inactivity.
You do not lose your balance because of dizziness or lose consciousness.
You do not have a bone or joint problem (for example, back, knee or hip) that could be made worse by a change in your physical activity.
Your doctor is not currently prescribing you drugs (for example, water pills) for your blood pressure or heart condition.
You do not know of reason why you should not do physical activity or diet.
Your blood pressure is below 144/90.
You are not over the age of 69.
You are not pregnant.
You are not currently suffering from an acute illness (cold, flu, etc.)
You have answered ‘no’ to one or more of the above but:
Your doctor has told you that you need to diet, exercise, or both in order to improve one or more of your conditions, OR
Your doctor has specifically cleared you for a weight loss and/or strength training program OR
You are working with your doctor while you determine a reasonable weight loss and/or strength training program
1(b). If you cannot agree to any or all of the statements above, consult your doctor before the purchase of any product or service. Any request for coaching will involve this questionnaire for screening purposes. If you cannot agree to any or all of the statements above, you will be asked for medical clearance and release from your doctor before participating in any training services.
2. ASSUMPTION OF RISK:
2(a). You agree that if you engage in any physical exercise, dietary/nutrition plan, or culinary activities recommended, instructed, suggested, or communicated in any way through the products or service rendered through FFCP, including, but not limited to: templates; consultations; 1-on-1 or group coaching or any other communication either direct or indirect; either purchased or unpurchased, you do so at your own risk and assume the risk of any and all injury and/or damage you may suffer including, without limitation, personal, bodily, or mental injury, economic loss or any damage to you, your spouse, guests, unborn child, or relatives resulting from the negligence of FFCP or anyone on FFCP’s behalf or anyone else whether related to exercise or not whether caused by you or as a result of another person. This includes injury or damage sustained while being coached directly, or from using any aforementioned products or services, including physical and mental damage done as a result of exercise or dietary/nutrition programs or arising out of the negligence of FFCP, whether active or passive, or any FFCP affiliates, employees, officers, directors, volunteers, indpenedent contractors, agents, representatives, successors, and assigns to your spouse, guests, unborn child, or relatives resulting from the negligence of 24 Hour or anyone on 24 Hour’s behalf or anyone else whether related to exercise or not.
2(b). Your assumption of risk includes, but is not limited to: nutritional templates, nutritional or fitness needs analysis, 1-on-1 coaching, group coaching, or video consultations, or any communication, instructions, or recommendations made as a result of any products you use, or any content you use from FFCP and its affiliates, employees, agents, representative, successors and assigns.
2(c). You assume the risk of your participation in the use of any activity, product, service, social media, forum, message board, and any instructions, recommendations, or other communication received from, but not limited to, the above mentioned items.
2(d). You agree that you are voluntarily participating in the aforementioned activities and assume all risk of injury, illness, damage, or loss to you or your property that may result.
10. RELEASE OF LIABILITY AND ASSUMPTION OF RISK
or anyone on 24 Hour’s behalf or anyone else whether related to exercise or not.
3. WAIVER AND RELEASE OF LIABILITY:
3(a). You agree on behalf of yourself (and all your personal representatives, heirs, executors, administrators, agents, and assigns) to release and discharge FFCP (and FFCP affiliates, related entities, employees, agents, representatives, successors, and assigns) from any and all claims or causes of actions, known or unknown, arising out of the negligence of FFCP, whether active or passive, or any of FFCP’s affiliates, employees, agents, representatives, successors, and assigns.
3(b). This waiver and release of liability includes, without limitation, injuries which may occur as a result of (a) your use of any product or service purchased or other from this website (b) improper use of any instructions, recommendations, or communications from any products or media from FFCP (c) negligent instruction including, but not limited to, any of the aforementioned products or media (d) any other reason that you can think of, based on information, products or services of and associated with FFCP.
3(c). FFCP is not responsible for the loss, use, or damage of your property as a result of any product, service, or information either obtained from purchase or free from communication with FFCP or any entity of or associated with FFCP.
4. INDEMNIFICATION:
By execution of this agreement, you hereby agree to indemnify and hold harmless FFCP from any loss, liability, damage, or cost FFCP may incur due to the provisions of the use of any products or services rendered by FFCP to you in perpetuity throughout the universe, as well as any other universes or dimensional planes, both real, imagined, theoretical, or otherwise.
You agree to indemnify, defend and hold 24 Hour harmless against any liability, damages, defense costs, including attorneys’ fees, or from any other costs incurred in connection with claims for bodily injury, wrongful death or property damage caused by your negligence or other wrongful acts or omissionsYou further agree to hold harmless, defend and indemnify 24 Hour from all liability,
damages, defense costs, including attorneys’ fees, or from any other costs incurred in connection with claims for bodily injury, wrongful death or property damage
brought by you, your guests, or minors, even if 24 Hour Fitness was negligent.
5. ACKNOWLEDGEMENTS:
5(a). You expressly agree that the foregoing release, waiver, assumption of risk, and indemnity agreement is intended to be as broad and inclusive as permitted by the law in the United States of America, and that if any portion is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
5(b). You acknowledge that FFCP offers fitness and nutrition products and services that encompass the recreational and fitness spectrum. FFCP is not in the business of providing medical advice; testing, diagnosing, or consultation of any disorders or diseases, either physical or mental. Diagnosing, testing, or consultation for any medical diseases or disorder is outside the scope of FFCP. Any nutritional information presented are recommendations and in no way should be misconstrued as a prescription.
5(c). You acknowledge that you will not do anything that contradicts any of your doctors, specialists, mental healthcare professionals, dieticians, physical therapists, or any other licensed medical personnel, with exception to information in regards to: exercise technique, exercise programming, load progression, performance evaluation, or anything that falls outside the scope of those professions and is within the professional scope of a certified personal trainer, coach, or sports specialist.
5(d). You acknowledge that any material you submit to FFCP, including but not limited to, any audio, video, email, pictures, communication, etc. becomes property of FFCP.
5(e). You are aware and agree that by executing this waiver and release, you are giving up your right to bring a legal action or assert a claim against FFCP for FFCP negligence, or for any defective product or service used while receiving any coaching or consultations from FFCP. You have read the waiver and release, and through purchase of any FFCP product, service, or use of any information, recommendations, instructions, or any other communication from FFCP, you agree to abide to this contract, and further agree that no oral representations, statements, or inducements apart from the foregoing written agreement have been made.
5(f). You acknowledge you are responsible for the results you do or not get. Any progress or lack of progress as relates to what the User have in mind for the progress or results they want is not the responsibility of FFCP. You acknowledge that FFCP is only responsible for rendering services as agreed upon in this document, irrespective of the quality of the services or results obtained by the User. You acknowledge that, just as FFCP will put forth a good-faith in effort in the execution of this agreement, you will also put in a good-faith effort in the execution of this agreement.
6. HIPAA
6(a). All information you send us about your personal health, including but not limited to, intake information, assessments, workout history or videos, pictures, medical history, medical records, etc., will be treated as protected medical records under HIPAA.
6(b). In accordance with HIPAA, none of the above information will be made publicly available or privately available to any 3rd party without your consent and authorization via medical release waiver indicating who has access to your training records.
7. DISCLAIMER
7(a). Purchase or use of any product through FFCP is not a guarantee in any way, shape, or form of any results or progress. Our methods and products are evidence-based and our best attempt to take research and practice and apply it to the User. Due to factors beyond our control including, but not limited to, the User’s genetics, biology, responsibility, schedule, honesty, work-effort, and many, many other factors, we cannot guarantee results of any kind. We guarantee that we will execute this agreement to the best of our abilities and provide a good-faith effort in helping you achieve your fitness goals without any guarantee of success.
8. REFUND POLICY
8(a). We have a no-refund policy on the following: templates, needs analysis, video/call conference consultations. The span by which FFCP will honor the purchase of these products is 1 year, after which any unused products will be cancelled.
8(b). For 1-on-1 coaching or group coaching services, you have the right to cancel service at at anytime. You will be held liable for the balance of the services and products rendered to you and be refunded the remaining amount. The rate for services and products as follows:
Template and needs analysis: $160
Consultation: $83/hour
Remaining balance after above fees are subtracted will be divided by the total amount of days in your coaching package and prorated based on the amount of days you have left. We will always calculate based on the shortest training package possible, relative to the amount of time you have left. E.g. If you buy a 6 month package but you only do 2 months, we will calculate your prorated price based on the daily price for the 3-month package, not the 6-month package.
8(c). If you are disabled or you die: your disability must physically prevent you from using FFCP’s coaching services and a licensed physician must verify this fact in writing. In case of death, your estate must provide written evidence. For temporary partial disabilities, you may qualify for a coaching freeze at the discretion of FFCP.
8(d). Military Deployment: If you are a member of the United States military, including a member of the National Guard, military reserves, or regular United States armed forces, who is serving on active duty and deployed or otherwise serving outside of this state during the term of this agreement. You must provide written evidence of your deployment within 90 days after you receive notice of such deployment or service outside the state. If you prefer, instead of cancelling you may freeze your coaching at no additional cost and your rate will not change while your coaching is on freeze.
8(e). Pregnancy/Post-natal: If you get pregnant and/or have birth during the length of your coaching services you can, at your discretion, suspend your coaching services until you see fit to return to them, or your doctor clears you, or both. Note at this time we are not qualified to coach anyone who is pregnant or post-natal, so any coaching would need to receive medical clearance by your doctor in order to resume/continue.
8(f). Gender affirming/confirmation surgery: If you have a gender affirming/confirmation surgery, you may, at your discretion, suspend or discontinue your coaching services until you see fit to return to them, you get clearance from your doctor, or both. Note at this time we are not qualified to coach anybody take any exogenous hormone supplements, either prescribed by a doctor or otherwise, nor are we adequately experienced or informed to coach someone transitioning or post-surgery.
8(e). Notice & Effective Date: You or your estate must send written notice and proof of the event within 30 days after it happens, unless specifically stated otherwise in this agreement. Cancellation is effective as of the date of the event. If your notice is late or lacks proof, FFCP may set the effective date when FFCP receives the notice. Such notice shall be sent to: DON’T TOUCH THE TENTACLES, 2470 STEARNS STREET #66, SIMI VALLEY, CA, 93063
9. TERMINATION OF SERVICES BY FFCP
9(a). Termination for Cause by FFCP: FFCP may, at its option, terminate your membership if
you misrepresented your health status and/or failed to obtain medical clearance
You rescind or block payment
EFT/RCC payments or dues are interrupted or discontinued for any reason and you or your cosigner do not provide an acceptable alternative
you fail to follow any of FFCP’s membership policies or club rules or violate any part of this agreement
your conduct is improper or harmful to the best interest of FFCP or its members, affiliates, or another other representative.
Termination is effective on the date FFCP emails a written notice to your last known address. You are liable for all financial obligations until that date.
9(b). Termination Without Cause by FFCP: FFCP reserves the right to terminate your membership for any reason not stated above and not prohibited by law. If FFCP does so, it will email a termination notice to your known address and refund any unused prepaid dues.
9(c). Termination on Business Closure: should FFCP close and end service as a company, you will be entitled to a refund of remaining services.
9(d). Effect of Termination & Financial Obligation: Upon cancellation or termination, your right to use FFCP’s services ends after all payments dues have expired and FFCP can deny you access to any or all FFCP services. If you owe FFCP money when your services ends, you still owe the money, and FFCP will deduct it from any refund you might have coming. If there is not enough money to cover the debt in the refund, you must pay the balance. If you terminate your coaching services or it expires and you want to rejoin, you must buy a new membership at the then current rate.
10. APPLICABLE LAW
This Agreement and/or any legal action related to your FFCP coaching services shall be governed by, construed and enforced in accordance with the laws of the State where you live at
the time this Agreement is executed as indicated in the Personal Information section on the first page of this Agreement, without reference to choice of law principles. Exclusive venue for any
legal action related to this Agreement or your FFCP coaching services shall be brought in any Federal or State court where the Agreement was executed (‘Applicable Courts’). The parties
waive any objection that they have or may have to venue in the Applicable Courts including, but not limited to, any objection that the Applicable Courts are an inconvenient forum. In addition,
the parties waive, to the fullest extent they may effectively do so, any objection that they have or may have to the transfer of any legal action to the Applicable Courts.
11. LIMITATION OF LIABILITY
Unless controlling legal authority requires otherwise, any award by an arbitrator or a court is limited to actual compensatory damages. Specifically, neither an arbitrator nor a court can award either party any indirect, special, incidental or consequential damages, even if one party told the other party that they might suffer these damages.
12. AGREEMENT TO ARBITRATE — INCLUDING WAIVER OF CLASS ACTION AND JURY RIGHTS
12(a). Mediation If you are not satisfied with your service or feel we have not executed or violated the Agreement in some way, shape, or form, please contact us immediately so we can discuss ways to ameliorate the situation.
12(b). In event that we are unable to settle the dispute through mediation, you have the right to pursue claims against FFCP through arbitration.
12(c). Agreement to Arbitrate All Disputes Except Personal Injury and Small Claims Disputes:
IN THE EVENT OF ANY DISPUTE THAT CANNOT BE RESOLVED THROUGH PRIOR ATTEMPTS AT MEDIATION, OTHER THAN
ONE THAT INVOLVES PERSONAL INJURY OR
(2) ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS BETWEEN YOU AND FFCP, (FFCP, AS USED IN THIS PROVISION, INCLUDES ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS),
YOU AND FFCP WAIVE YOUR RIGHT TO A JURY TRIAL AND CONSENT TO ARBITRATE THAT DISPUTE BEFORE AN ARBITRATOR UNDER THE THEN CURRENT COMMERCIAL DISPUTE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) TO BE TAKEN CARE OF BY CORRESPONDENCE, RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND FFCP ALSO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER, AS NECESSARY, AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU CAN DO SO WITHIN 90 DAYS OF ENTERING THE AGREEMENT. PLEASE CONTACT US VIA EMAIL AT CONTACT@FITNESSFORCOOLPEOPLE.COM IF YOU DO NOT WISH TO BE BOUND BY ARBITRATION.
12(d). Fees and costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement. If the value of the relief sought is $10,000 or less, at your request, FFCP will pay all filing, administration, and arbitrator fees associated with the arbitration. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, FFCP will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In the
event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse FFCP for all fees associated with arbitration paid by FFCP on your behalf, which you otherwise would be obligated to pay under AAA’s rules.
12(e). Arbitrator will resolve any issues over application or enforcement of this clause.
The arbitrator, and not any Federal, State, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.
12(f). Severability and Survival: This arbitration agreement will survive the termination of your
relationship with FFCP.
13. E-SIGNATURE AND ACCEPTANCE:
You agree that by payment of invoice rendered by FFCP for the purchase of the agreed-upon coaching services or package counts as an e-signature, resulting in acceptance and execution of the Agreement by both the User and FFCP.