PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING, YOU ARE GIVING UP LEGAL RIGHTS.
This Waiver, Release, and Indemnification Agreement (this “Agreement”) is entered into by the undersigned (the “Participant”), and if any minor is named below, the Participant on behalf of and as parent or guardian for such Minor Participant identified below, in favor of Alphalete Gym Limited Liability Company, on behalf of itself and its affiliates (collectively referred to as the “Company”). In consideration of the Company permitting Participant to enter the facilities located at 1502 Industrial Drive, Missouri City, Texas, 77489 or any other premises owned or operated by the Company (the “Premises”) or access and utilize the exercise facilities, equipment, training programs, clubs, activities or other resources provided by the Company, whether on or off the Premises (collectively, the “Activities”), Participant agrees as follows:
1. Types of Risks:
Participant acknowledges there are inherent risks in and injuries, damages (both economic and non-economic), and losses that may occur as a result of entering the Premises or participating in the Activities (whether on or off the Premises), including, but not limited to, equipment malfunction, failure, or defective design; improper or negligent installation or maintenance of equipment; damage to equipment or property; loss or theft of property; negligence by employees or agents of the Company or personal trainers; bodily injury; physical or emotional injuries; exposure to bacterial, fungi, viruses, unknown contagious diseases, and COVID-19; paralysis, disability, or death; and due to the nature of the Activities additional hazards and risks including unknown and unforeseeable hazards (collectively, “Risks”). Participant understands that the Company does not provide supervision, instruction, or assistance for the use of the facilities and equipment in, about, or near the Premises or associated with the Activities (whether on or off the Premises).
2. Assumption of Risks:
Participant acknowledges it is impossible to eliminate all Risks and understands the demands of the Activities relative to Participant’s physical condition and skill level. PARTICIPANT AFFIRMS THAT ACCESS TO THE PREMISES OR PARTICIPATION IN THE ACTIVITIES IS VOLUNTARY AND PARTICIPANT KNOWINGLY, WITH UNDERSTANDING OF THE RISKS, ASSUMES ALL RISKS INHERENT WITH THE ACTIVITIES AND/OR ACCESS TO THE PREMISES.
3. Use of Personal Trainer:
In the event Participant engages a personal trainer to provide fitness or health training (whether on or off the Premises), Participant acknowledges and understands that such personal trainer is not an employee or agent of the Company. Participant acknowledges the Company has not and does not review the exercise or fitness regime of any personal trainer. Participant agrees to be solely responsible for reviewing the credentials and qualifications of any personal trainer Participant utilizes. Subject to Section 5, Participant expressly agrees that the Company and the other Protected Parties will not be liable for any injury, damages, and losses in connection with Participant’s personal training, regardless of whether such injuries result, in whole or in part, from the negligence of any personal trainer.
4. Release and Indemnity:
TO THE FULLEST EXTENT PERMITTED BY LAW, PARTICIPANT ON BEHALF OF ITSELF, MINOR PARTICIPANT, AND EACH OF THEIR HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS AGREES NOT TO SUE, AND SHALL INDEMNIFY AND DEFEND THE COMPANY, THE LEGAL OWNER, LANDLORD, AND MANAGEMENT COMPANY OF THE PREMISES , AND ANY OF THEIR LENDERS, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, AGENTS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, HEIRS, ASSIGNS, 1 VOLUNTEERS, INDEPENDENT CONTRACTORS, EQUIPMENT SUPPLIERS, AND INSURERS (COLLECTIVELY, “PROTECTED PARTIES”) FROM AND AGAINST ALL LIABILITIES, LOSSES, DAMAGES, CLAIMS, DEMANDS, ACTIONS, SUITS, CAUSES OF ACTION, COSTS, FEES, AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES AND COURT OR OTHER COSTS) UNDER ANY LEGAL THEORY, NO KNOWN OR HEREAFTER KNOWN IN ANY JURISDICTION (COLLECTIVELY, “CLAIMS”) RELATING TO, RESULTING FROM, OR ARISING OUT OF OR ALLEGED TO HAVE ARISEN OUT OF (IN WHOLE OR IN PART) ANY PROPERTY DAMAGE OR BODILY INJURY (INCLUDING DEATH) TO THE RELEASEES PARTICIPANT RESULTING IN ANY WAY FROM: (A) RELEASEES’S ACCESS TO AND USE OF THE PREMISES; (B) RELEASEES’ ACTIVE OR PASSIVE PARTICIPATION IN THE ACTIVITIES (WHETHER ON OR OFF THE PREMISES); (C) LOSS OR THEFT OF PERSONAL PROPERTY (WHETHER ON OR OFF THE PREMISES); AND/OR (D) COMPANY’S AND THE PROTECTED PARTIES’ EXERCISE OF THEIR RIGHTS TO USE THE MATERIALS OR THE PRODUCTION, EXHIBITION, ADVERTISING, PROMOTION, EXPLOITATION, OR OTHER USE OF THE MATERIALS (INCLUDING BUT NOT LIMITED TO, ANY CLAIMS OF DEFAMATION, INVASION OF PRIVACY, OR INFRINGEMENT OF MORAL RIGHTS, RIGHTS OF PUBLICITY, OR COPYRIGHT). THIS RELEASE AND INDEMNITY APPLIES EVEN IF ANY CLAIM IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR STRICT LIABILITY OF THE PROTECTED PARTIES OR RELEASEES.
5. Waiver of Damages:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASEES SHALL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY PROTECTED PARTY ON ANY THEORY OF LIABILITY, FOR ACTUAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, PARTICIPANT AND/OR MINOR PARTICIPANT’S ACTIVITY (WHETHER ON OR OFF THE PREMISES) OR ACCESS TO THE PREMISES.
6. License:
Participant hereby grants Company and the Protected Parties an irrevocable, perpetual, worldwide non-exclusive, royalty free license to capture, edit, adapt, publish, copy, perform, broadcast, modify, reproduce, distribute, display, sublicense, create derivative works, and otherwise use: (i) any photographs, films, videos, webcasts, recordings or other types of media taken by a Protected Party (“Materials”), alone or in combination with other materials, in perpetuity through the universe, without any additional compensation or approval from Participant in any medium or format now or hereafter known and on any platform (including, but not limited to, display on the Protected Parties’ website, publication in the Protected Parties’ print and digital advertising, publicity, and marketing materials, on the Protected Parties’ social media, or other medium associated with the Protected Parties and their businesses, products, and services, in perpetuity throughout the universe, and in any medium or format whatsoever now existing or hereafter created) (“Platform”); (ii) Participant or Minor Participant’s name, nickname, initials, autograph, endorsement, facsimile signature, likeness, appearance, professional and personal biographical information, other personal characteristics, and other identifying information (together, the “Likeness”) contained in the Materials (with or without name credit), and all materials created by or on behalf of the Protected Parties that incorporate the Likeness, in connection with the Materials, without any additional compensation or approval from me in any medium or format now or hereafter known and on any Platform. PARTICIPANT WAIVES THE RIGHT TO INSPECT OR APPROVE VERSIONS OF MATERIALS.
7. ARBITRATION:
Any dispute arising out of or relating to this Agreement that cannot be resolved between the parties, will be resolved by binding individual arbitration rather than in court, and without a jury. Arbitration will be held in Houston, Texas and administered by the American Arbitration Association, in accordance with its commercial arbitration rules. Any judgment 2 on the award rendered by the arbitrator may be entered in any court having jurisdiction. To begin an arbitration proceeding, Participant must send a letter requesting arbitration and describing your claim to Company at the address listed at the top of this Agreement. This Agreement is governed by the laws of the State of Texas. Arbitration costs and reasonable documented attorneys' fees and costs of both parties will be borne by the party that ultimately loses. Company and Participant each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated, or representative action. Neither Participant, Company, nor any other person may pursue a dispute in arbitration as a class action, mass action, private attorney general action, or other representative action, nor may any dispute be pursued on Participant’s behalf in any litigation in any court except as provided in this Section 7. If for any reason a dispute proceeds in court rather than in arbitration, Company and Participant each waive any right to a jury trial.
BY EXECUTING THIS AGREEMENT, I REPRESENT I HAD A SUFFICIENT OPPORTUNITY TO READ THIS AGREEMENT, I HAVE READ AND UNDERSTAND THIS AGREEMENT, AND I AGREE TO THIS AGREEMENT.If Participant executes this Agreement on behalf of Participant’s spouse, child, family member, or other person, Participant represents it has the legal authority and such person’s actual and implied authority to execute this Agreement on their behalf, including, but not limited to, the arbitration clause, release, indemnity agreement, and license.