HOMH INC. SESSIONS AGREEMENT
- WARNING; ACKNOWLEDGEMENT AND ASSUMPTION OF RISK.
Warning. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE STARTING ANY EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF ANY OF THE FOLLOWING APPLY TO YOU: IF NONE OF THESE APPLY TO YOU, YOU SHOULD NONETHELESS START ANY EXERCISE PROGRAM GRADUALLY AND SENSIBLY. IF YOU FEEL ANY OF THE PHYSICAL SYMPTOMS LISTED ABOVE WHEN YOU START YOUR SESSIONS WITH HOMH (“SESSIONS”), YOU SHOULD CONTACT YOUR PHYSICIAN IMMEDIATELY.
- HAVE NOT PREVIOUSLY BEEN PHYSICALLY ACTIVE; OR
- IF YOU’RE TAKING ANY MEDICATIONS, ESPECIALLY CARDIAC AND/OR BLOOD PRESSURE MEDICATIONS;
- JOINT AND/OR BONE PROBLEMS;
- DIAGNOSED HEART CONDITION;
- SHORTNESS OF BREATH;
- CHEST PAIN OR PAIN IN THE NECK AND/OR ARM;
- Acknowledgment and Assumption of Risk. YOU EXPRESSLY ACKNOWLEDGE, AGREE, AND UNDERSTAND THAT YOUR PARTICIPATION IN THE SESSIONS AND YOUR USE OF ANY EXERCISE EQUIPMENT IN CONNECTION THEREWITH SHALL BE UNDERTAKEN BY YOU AT YOUR SOLE RISK. YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE PHYSICALLY FIT AND ABLE TO UNDERTAKE PHYSICAL ACTIVITY AND THAT YOU HAVE NO PHYSICAL OR MENTAL ILLNESS, IMPEDIMENT, INJURY, OR HANDICAP THAT WOULD PUT YOU, OTHER GUESTS, OR THE INSTRUCTOR AT RISK. YOU EXPRESSLY AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS HOMH AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SERVANTS IF SAID REPRESENTATIONS AND WARRANTIES ARE FALSE.
- WAIVER AND RELEASE. YOU EXPRESSLY ACKNOWLEDGE, AGREE, AND UNDERSTAND THAT HOMH IS NOT AND SHALL NOT BE LIABLE FOR ANY PHYSICAL INJURIES, DAMAGES, ACTIONS, OR CAUSES OF ACTION WHATSOEVER TO ANY PERSON OR PROPERTY ARISING OUT OF OR CONNECTED WITH THE SESSIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOURSELF AND YOUR HEIRS, NEXT OF KIN, SPOUSE, GUARDIANS, LEGAL REPRESENTATIVES, AGENTS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASING PARTIES”), AGREE THAT SUCH RELEASING PARTIES SHALL NOT HAVE ANY RIGHT OR CAUSE OF ACTION, AND HEREBY FULLY, FINALLY, AND FOREVER RELEASE, DISCHARGE, AND ACQUIT HOMH AND ITS PAST, CURRENT, AND FUTURE MEMBERS, SHAREHOLDERS, EMPLOYEES, OFFICERS, DIRECTORS, SUBSIDIARIES, PARENT ENTITIES, ATTORNEYS, PRINCIPALS, TRUSTEES, REPRESENTATIVES, AGENTS, PARTNERS, AFFILIATES, PREDECESSORS, SUCCESSORS, OPERATING PARTNERSHIPS, GENERAL PARTNERS, INSURERS, REINSURERS, AND ASSIGNS FROM ANY AND ALL CLAIMS, SUITS, OBLIGATIONS, COSTS, DAMAGES, LOSSES, CLAIMS FOR SUMS OF MONEY, CONTRACTS, CONTROVERSIES, AGREEMENTS, JUDGMENTS, AND DEMANDS WHATSOEVER, RIGHTS, LIABILITIES, ACTIONS, AND CAUSES OF ACTION OF ANY NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, AT LAW OR IN EQUITY, FIXED OR CONTINGENT, WHICH SUCH RELEASING PARTIES NOW HAVE OR MAY CLAIM TO HAVE IN THE FUTURE (COLLECTIVELY, “CLAIMS”) ARISING OUT OF, BASED UPON, ATTRIBUTABLE TO, OR IN CONNECTION WITH YOUR PARTICIPATION IN THE SESSIONS OR THIS AGREEMENT.
- LIMITATION OF LIABILITY. HOMH SHALL NOT BE LIABLE TO GUEST (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM GUEST) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER HOMH WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. HOMH’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO HOMH BY GUEST UNDER THE ORDER GIVING RISE TO THE CLAIM.
- GENERAL. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither party shall be liable to the other Party for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Guest may not assign or transfer this Agreement or any Session without Homh’s prior, written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflict of laws provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the Borough of Manhattan, New York City, New York. To that end, each party irrevocably consents to the exclusive jurisdiction of, and venue in, such courts, and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such party. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever. This Agreement may be executed in counterparts (which may be exchanged by fax or PDF), each of which shall be deemed an original, but which together shall constitute one and the same instrument.