Five Ninjas Martial Arts LLC and Locken Fitness LLC, DBA:
The Cellar Gym
Membership Terms
Last Updated: September 13, 2022.
The Cellar Gym (together with its parent entities and subsidiaries, “The Cellar Gym”, “we”, “our” or “us”) provides health and fitness content and services through various in-person and digital methods controlled by us, (collectively, “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS.
This Agreement is a legally binding contract between You (referred to hereafter as “You” or the “Member/s”) and The Cellar Gym regarding your use of the Services and this Agreement establishes the terms pursuant to which you may purchase, edit, maintain, and terminate your The Cellar Gym Membership, or other services or products, as The Cellar Gym may permit, including without limitation payment, membership changes, membership termination, electronic communication, and binding arbitration provisions.
By (a) accepting these Terms, accessing any part of the services including our website or mobile application or physical facilities, registering for an account, or clicking “register,” “purchase,” “login,” “accept,” or any other similar button or checkbox when using the services, you expressly accept, agree, and consent to the terms and conditions of this Agreement and your The Cellar Gym Membership begins. Your purchase and use of the Services, and The Cellar Gym’s provision of any part of the Services to you, constitutes an agreement between The Cellar Gym and you to be bound by and to comply with these Terms. If you do not agree to these Terms or you are not eligible, you must not access or use any portion of the Services and you do not have our permission to use the Services. Your sole remedy is to discontinue your use of the Services.
The Cellar Gym may provide notice of additional terms or conditions, and those additional terms will govern your use of the Services.
Table of Contents
1. Privacy
2. The Cellar Gym Member Agreement
3. E-Sign Disclosure and Agreement
4. Waiver of Liability
5. Use of Services
6. User Conduct
7. Health and Safety
8. Arbitration Agreement
9. Additional Terms
1. Privacy
By accessing or using any portion of the Services, you accept The Cellar Gym’s Privacy policy, available at https://www.thecellargym.com/privacy. Please read carefully.
2. The Cellar Gym Member Agreement
Memberships:
Your benefits of a membership to the Services (“The Cellar Gym”) may be for yourself, or may be for yourself as Primary Member and any named Additional Members (your spouse, your partner, your children who live with you in the same household) on your Account, whether such member configuration remains the same or is subsequently changed. The Cellar Gym Membership affords you and any Additional Member(s) general access to the Services.
Dues/Fees: In consideration of The Cellar Gym providing You with the use of its instruction, services, consultation, facilities, and/or equipment, You agree to pay the monthly dues specified when you purchased or acquired your The Cellar Gym Membership (plus any applicable taxes and additional fees). Dues and/or Fees are subject to change at any time at The Cellar Gym’s sole discretion.
You understand that any inability or failure by the Member to use any or all services or facilities of The Cellar Gym shall not relieve You of the obligation to pay Dues and/or Fees.
You agree and are responsible to pay any and all Dues and Fees owed to The Cellar Gym with respect to The Cellar Gym Membership or any other services and products purchased by you (collectively, “Financial Obligations”).
You agree to pay on the date of your enrollment in The Cellar Gym Membership any joining fees and your first month’s membership dues.
Membership Dues are due and payable from the Monthly Payment Method (as defined below) in advance on the same day each month that this The Cellar Gym Membership remains in effect (ie. If your initial payment is made on the 15th of the month, your recurring payment will occur on the 15th of each subsequent month).
Payment Authorization: You agree to pay all Membership Dues and Financial Obligations with your Monthly Payment Method. You hereby authorize The Cellar Gym or its agents and/or assigns to electronically charge or debit your Monthly Payment Method.
You agree that The Cellar Gym may resubmit returned/declined items without prior notice. Your Monthly Payment Method will be used to collect any balances past due according to the terms.
You represent and warrant that you are an authorized account holder of any Payment Method which you provide to The Cellar Gym.
The Monthly Payment Method: The credit or debit card designated during your initial enrollment payment, and as may be subsequently updated, is a valid financial account and may be charged or debited by The Cellar Gym to pay amounts due to The Cellar Gym as follows:
Recurring Charges: You acknowledge that this contract is ongoing and payments will be charged on a monthly basis for the duration of authorization. You authorize The Cellar Gym or its agents to automatically and without notice to charge or debit, as applicable, your Monthly Payment Method, your Monthly Membership Dues (or if such method is invalid for any reason, any Other Payment Account) to pay in advance recurring Financial Obligations, including, without limitation, Membership Dues for The Cellar Gym Membership. You understand and agree that Monthly Dues are recurring charges that do not vary in amount, and as a result, no further notice is required for The Cellar Gym to charge or debit such amounts to or from your Monthly Payment Method.
Non-recurring Charges: You further authorize The Cellar Gym to or its agents to automatically and without notice to charge or debit, as applicable, your Monthly Payment Method to pay Financial Obligations that are non-recurring, including, without limitation, enrollment fees, initial Membership Dues, Payment Related Fees, and non-recurring Service Related Fees due to The Cellar Gym.
To receive individualized services such as personal training, you must pay a fee separate from Monthly Dues. Such fees may be automatically charged to Your Monthly Payment Method.
Late Fees/Default: In the event the You fail to remit any scheduled payment within 14 days of its due date, it is agreed that a late charge of $15 will be added to the amount due and may be automatically charged to the Monthly Payment Method. The non-payment of scheduled monthly payments more than 60 days shall constitute default under this contract. In the event of default, the entire amount owed here-under shall become immediately due and payable as liquidated damages and not as a penalty. All payment information provided will be used for full or partial payments.
Payment Related Terms:
Dues and/or Fees are non-refundable. You understand that all Dues and/or Fees are non-refundable and are fully earned upon payment.
Dues and/or Fees may be increased. You agree that The Cellar Gym may change the amounts and terms of payments in The Cellar Gym’s sole discretion, including without limitation increasing Dues and/or Fees at any time. With respect to Membership Dues, The Cellar Gym will provide advance notice of any increases in excess of 5%. You agree that continues payment for, or use of The Cellar Gym Membership constitutes agreement to any new or increased Dues and/or Fees.
Waiver of Notice. You agree to waive written notice of an increase in any amounts charged for any additional services purchased from The Cellar Gym or other Dues/Fees that The Cellar Gym collects, including its resubmission of declined or returned transactions during or after the termination of this The Cellar Gym Membership.
Non-Use: Dues and/or Fees are not dependent on use. You understand that any inability or failure by the Member to use any or all services or facilities of The Cellar Gym shall not relieve You of the obligation to pay Dues and/or Fees.
Cancellation: YOU MAY CANCEL THIS AGREEMENT WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS FROM MEMBERSHIP START DATE, AND RECEIVE A FULL REFUND OF ALL PAYMENTS MADE TO THE GYM, less the retail price of any consumables or physical products received. Notice of such cancellation shall be in writing and mailed to The Cellar Gym via certified mail. Based on The Cellar Gym Membership Selected at the time of enrollment
Cancellation terms are as follows:
Monthly Membership: Billing will continue based on the membership details above until Buyer terminates this agreement by canceling the membership at www.thecellargym.com/cancel, at least 15 days prior to any scheduled payment. You will be charged any regular monthly dues scheduled within 15-days of submitting your notice to cancel.
Pay-in Full Membership: You may cancel this agreement without penalty if upon a medical doctor orders, you cannot physically receive the services due to a permanent disability, verified in writing by a licensed medical doctor. You may cancel the agreement without penalty if the services cease to be offered as stated in the agreement. You may cancel this contract without penalty if Member relocates residence further than 20 miles from any school operated by the company, by providing proof of new address. If you cancel this agreement for these reasons, the company may keep only a portion of the agreement price equal to pro-rated portion of the total price representing the proportion of services you used or completed, plus the cost to the seller of any related goods which you have consumed or retained, and plus any discount received. Notice of such cancellation shall be in writing and mailed to The Cellar Gym via certified mail.If you wish to cancel this contract during the one year term, for any reason other than those specified above, Cancellations will be without refund of any fees or tuition already paid.
Unpaid Dues and/or Fees: During any period of suspension or delinquency, you understand that your obligations under this agreement remain in effect, such that you are responsible for payment of Dues and/or Fees. You understand that you are responsible for all costs of collection incurred by The Cellar Gym including attorney’s fees. In the event the Buyer fails to remit any scheduled payment within 14 days of its due date, it is agreed that a late charge of $15 will be added to the amount due and may be automatically charged to the billing account. The non-payment of scheduled monthly payments more than 60 days shall constitute default under this contract. In the event of default, the entire amount owed here-under shall become immediately due and payable as liquidated damages and not as a penalty. All payment information provided will be used for full or partial payments due. There will be a $30 charged for any returned check or declined ACH withdrawal. No refunds will be given on paid tuition.
Term: Your The Cellar Gym membership begins and these Terms are effective when you first accept the terms, access any part of the services including our website or mobile application, register for an account, or click “register,” “purchase,” “login,” “accept,” or any other similar button or checkbox when using the services.
YOUR MEMBERSHIP IS RECURRING, SUCH THAT IT CONTINUES UNTIL TERMINATED IN ACCORDANCE WITH THIS AGREEMENT (with the exception of a Paid-in-Full membership, which is not recurring and ends according to the term selected at the time of enrollment).
Suspension/Termination by The Cellar Gym: The Gym reserves the right to suspend or terminate any Member for failure to comply with the terms and conditions or polices and regulations of the Gym or for behavior that is in the management’s option prejudicial to the welfare, good order, and character of the gym or its members, volunteers, contractors or employees. It is expressly understood that the loss of membership privileges shall be without refund of any fees already paid by the Buyer.
Upon termination of these terms, your The Cellar Gym Membership, your rights set forth herein will terminate and you must immediately cease use of all services. We have the right to immediately delete all data, files or content stored in any user app or website controlled by The Cellar Gym without further notice to you.
You must pay The Cellar Gym any unpaid Dues and Financial Obligations that were due prior to termination and all payment obligations accrued will survive.
3. E-Sign Disclosure and Agreement
This E-SIGN Disclosure and Agreement (hereafter, “E-SIGN Agreement) applies to your use of The Cellar Gym’s websites, including but not limited to thecellargym.com (collectively, “Websites”).
If you are under the age of 18, you are not allowed to purchase a The Cellar Gym membership or use The Cellar Gym’s Websites. A parent or legal guardian must enroll anyone under the age of 18.
E-SIGN Disclosure and Agreement: The Cellar Gym is required by law to give you certain information “in writing,” which means you are entitled to receive it on paper. We may, however, provide some of this information to you electronically, instead, with your prior consent. This E-SIGN Agreement describes how The Cellar Gym communicates with you electronically, provides additional detail about the Electronic Transactional Communications (as that term is defined below) that we provide you, and sets out hardware and software requirements you need to receive these Electronic Transactional Communications. Please review this E-SIGN Agreement as it applies to Electronic Transactional Communications and will be effective until expressly withdrawn by you.
Electronic Transactional Communications
You agree and consent to receive electronically The Cellar Gym initiated transactional communications, agreements, statements, notices and disclosures (collectively, “Electronic Transactional Communications”) that we provide in connection with The Cellar Gym’s products, services and Websites. Electronic Transactional Communications include, but are not limited to: agreements and policies you agree to (e.g., the General Terms Agreement, the Member Usage Agreement, the E-SIGN Agreement, Gym Policies, Terms of Use, Accessibility Policy, and Privacy Policy), including updates to or related to these documents (e.g. increases to your Membership Dues or material changes to agreements). When you have opted into receiving such Electronic Transactional Communications, we may provide these Electronic Transactional Communications to you by posting them on The Cellar Gym Websites or by emailing them to you at the primary email address listed in your The Cellar Gym membership account. Electronic Transactional Communications will be emailed to the primary email address associated with your membership.
Receipt of Electronic Transactional Communications; Contact Information
Electronic Transactional Communications will be deemed received by you when such Electronic Transactional Communication is posted or sent to you. You agree that if The Cellar Gym sends you an Electronic Transactional Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive Electronic Transactional Communications, The Cellar Gym will be deemed to have provided the Electronic Transactional Communication to you. You may not be able to update your information or transact using The Cellar Gym websites or app until we receive a valid, working primary email address from you. If you use a spam filter or similar software that blocks or re-routes emails from senders not listed in your email address book, we recommend that you add The Cellar to your email address book so that you can receive Electronic Transactional Communications by email.
Required Hardware and Software
You are responsible for maintaining all software and hardware necessary for receiving, viewing and maintaining record of the Electronic Transactional Communications. By your acceptance of this E-SIGN Agreement, you represent that you will maintain all hardware and software necessary to receive, view and maintain (including, but not limited to saving and/or printing) any Electronic Transactional Communications provided to you. You must have: (a) a valid email address on file with The Cellar Gym; (b) a computer, mobile device, tablet or similar device with internet access and current browser software and computer software that is capable of receiving, accessing, displaying, and either printing or storing Electronic Transactional Communications received; (c) and sufficient storage space to save Electronic Transactional Communications (whether presented online, in emails or .pdf) or the ability to print Electronic Transactional Communications. We will notify you if there are any material changes to the hardware or software needed to receive Electronic Transactional Communications. By giving your consent you confirm that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Electronic Transactional Communication for your records. You may need to print or save a copy of Electronic Transactional Communications for your records as they may not be accessible online at a later date.
You are responsible for the installation, maintenance, and operation of your computer or electronic device. We are not responsible for any errors or failures from any malfunction of your computer or electronic device, for any virus, other problems or changes that may be associated with the use of your computer or electronic device, including, for example, the cost of your Internet service provider.
Additional Copies
Additional electronic copies of any Electronic Transactional Communication may be provided to you without charge by contacting The Cellar Gym within 14 days of the original date of the communication. You may also request paper copies of any Electronic Transactional Communication within 14 days of the communication by contacting The Cellar Gym at the address provided in your General Terms Agreement, but The Cellar Gym reserves the right to assess a reasonable fee for providing such paper copies.
Withdrawal of Electronic Transactional Communications; Acceptance of Disclosures and Notices
You may withdraw your consent to receive Electronic Transactional Communications by contacting The Cellar Gym at membership@thecellargym.com. If you fail to provide your consent to this E-SIGN Agreement, or if you withdraw your consent to receive Electronic Transactional Communications, The Cellar Gym reserves the right to terminate your membership or charge you additional fees for paper copies.
Federal Law; Termination and Changes
You acknowledge and agree that your consent to Electronic Transactional Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that you and we both intend that the E-SIGN Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means. We reserve the right, in our sole discretion, to discontinue the provision of your Electronic Transactional Communications, or to terminate or change the terms and conditions on which we provide Electronic Transactional Communications. We will provide you with notice of any such termination or change as required by law.
Consent
By providing your consent, you are also confirming that you have the hardware and software described above, that you are able to receive and review electronic records, and that you have an active email address for use. This consent applies to your use of The Cellar Gym Websites.
4. Assumption of Risk, Waiver of Liability and Indemnification
You understand and acknowledge that strict observation of the Gym’s rules and regulations, including the rules and regulations relative to training and the use of protective equipment, is required.
Assumption of Risk:
Risks: You understand and agree that the use of the Gym’s facilities and the Your (or Member, if a Minor) presence at the Gym are at your sole risk (and Member, if a Minor). You understand and acknowledge that fitness training, weight lifting and martial arts involves skills and training which include violent and sudden movements, and that in connection with the training and instruction, there will be physical contact between instructors and Buyers (or Member, if a Minor) and between and among the Buyer (or Member, if a Minor) and other members.The dangers, hazards, and risks of injury or damage in the use of the Services (“Risks”) may include but are not limited to (1) slips, trips, collisions, falls, and loss of footing or balance, including “slip and falls” or other injuries during workouts including with respect to fitness equipment; (2) failure, malfunction, delay or other performance issue with respect to the Services, including without limitation any causes beyond The Cellar Gym’s reasonable control, such as a pandemic or epidemic, a governmental authority action, and act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, uprising, earthquake, flood or other such natural or human condition; (4) loss, theft, breach, misuse or unauthorized use of property or information, including without limitation User Content; and (5) other accidents or incidents that may result in Injury or damage.
Injuries: You understand and acknowledge that use of the Services, may result in personal injury to You (or Member, if a Minor), despite precautions taken by The Cellar Gym to avoid such injuries. You, individually and on behalf of (Member, if a Minor) acknowledge martial arts instruction has the potential for serious injuries. Such injuries or damages may include but are not limited to major or minor personal, physical, bodily, emotional, mental, economic, property, data, privacy, information or other types of injuries or damages (“Injuries”), including but not limited to (1) death; (2) paralysis, brain damage, heart attacks, strokes, disfigurement, heat stress and/or heat stroke, dehydration, concussions, hearing loss, torn or damaged muscles or ligaments, broken bones, allergic reactions, burns, sprains, bruises and scrapes; (3) aggravation of pre-existing injuries or medical conditions; (4) pain and suffering; (5) loss of consortium, love, affection, comfort, companionship, or care; (6) emotional distress, embarrassment, humiliation, or shock; (7) lost wages or lost earning capacity; (8) lost, stolen, misused, breached, or damaged property, data, privacy or information; and (9) any other disability, impairment, incapacity, injury or damage.
YOU UNDERSTAND THAT THE RISKS OF INJURIES OR DAMAGES MAY BE CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE CELLAR GYM, YOU, MINOR MEMBER(S), OTHER MEMBER(S), AND/OR OTHER PERSONS. YOU FULLY UNDERSTAND AND EXPRESSLY ASSUME AND ACCEPT THESE DANGERS, HAZARDS, AND RISKS OF INJURIES OR DAMAGES AND CHOOSE TO VOLUNTARILY ACCESS AND USE THE SERVICES AT YOUR OWN RISK.
Waiver of Liability:
ON BEHALF OF YOURSELF AND YOUR SPOUSE/PARTNER, CHILDREN/MINOR MEMBERS, OTHER MEMBERS, PARENTS, GUARDIANS, HEIRS, NEXT OF KIN, PERSONAL REPRESENTATIVES, HEIRS AND ASSIGNS, YOU HEREBY VOLUNTARILY AND FOREVER RELEASE AND DISCHARGE THE CELLAR GYM AND ITS AFFILIATES AND SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, EQUITYHOLDERS, PARTNERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS AND LICENSORS (COLLECTIVELY, THE “THE CELLAR GYM PARTIES”) FROM, COVENANT AND AGREE NOT TO SUE ANY THE CELLAR GYM PARTIES FOR, AND WAIVE, ANY AND ALL CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DEBTS, DAMAGES, LOSSES, COSTS, FEES, EXPENSES, PENALTIES, AWARDS, JUDGMENTS OR ANY OTHER ALLEGED LIABILITIES OR OBLIGATIONS OF ANY KIND OR NATURE, WHETHER KNOWN OR UNKNOWN (COLLECTIVELY, “CLAIMS”) RELATED IN ANY WAY TO THE USE OR PROVISION OF OR ACCESS TO THE SERVICES CAUSED BY ANY NEGLIGENCE OF THE CELLAR GYM, YOU, ANY MINOR MEMBER(S), ANY OTHER MEMBER(S), AND/OR ANY OTHER PERSON AND (COLLECTIVELY, “NEGLIGENCE CLAIMS”).
You understand that such NEGLIGENCE CLAIMS could include but are not limited to The Cellar Gym’s (1) negligent design, repair, maintenance, operation, supervision, monitoring, or provision of the Services; (2) negligent failure to warn of or remove a hazardous, unsafe, dangerous or defective condition; (3) negligent failure to facilitate or provide emergency care; (4) negligent hiring, selection, training, instruction, certification, supervision or retention of employees, independent contractors or volunteers; (5) negligent collection, use, disclosure or storage of personal, sensitive or other information (including negligent failure to implement or maintain information or cyber security controls); or (6) other negligent act(s) or omission(s).
INDEMNIFICATION.
ON BEHALF OF YOURSELF AND YOUR SPOUSE/PARTNER, CHILDREN/MINOR MEMBER(S), OTHER MEMBER(S), PARENTS, GUARDIANS, HEIRS, NEXT OF KIN, PERSONAL REPRESENTATIVES, HEIRS AND ASSIGNS, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CELLAR GYM PARTIES FROM AND AGAINST ANY AND ALL CLAIMS (AS DEFINED ABOVE), WHETHER BY OR AGAINST ANY THE CELLAR GYM PARTY OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO ANY OTHER MEMBER, ANY FAMILY MEMBER WHO IS NOT A THE CELLAR GYM MEMBER, OR ANY OTHER PERSON OR ENTITY), CAUSED BY, ARISING FROM, RELATING TO OR RESULTING FROM, WHETHER DIRECTLY OR INDIRECTLY, (A) YOUR OR AN ADDITIONAL MEMBER’S VIOLATION OF THIS AGREEMENT OR ANY REPRESENTATION, WARRANTY, OR AGREEMENT REFERENCED IN THESE TERMS, OR ANY APPLICABLE LAW, RULE OR REGULATION, (B) ACCESS TO OR USE OF THE SERVICES OR YOUR ACCOUNT BY YOU OR AN ADDITIONAL MEMBER OR ANY THIRD PARTY ON YOUR BEHALF, OR ANY FAILURE TO SAFEGUARD YOUR OR THEIR ACCOUNT INFORMATION; (C) THE USER CONTENT YOU OR AN ADDITIONAL MEMBER MAKE AVAILABLE VIA THE SERVICES BY ANY MEANS, INCLUDING WITHOUT LIMITATION THROUGH A POSTING, A LINK, REFERENCE TO USER CONTENT, OR OTHERWISE, (D) VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT, PUBLICITY, CONFIDENTIALITY, OTHER PROPERTY OR PRIVACY RIGHT OR ANY OTHER THIRD-PARTY RIGHT BY YOU OR AN ADDITIONAL MEMBER; (E) ANY FEEDBACK YOU PROVIDE; AND (F) ANY DISPUTE OR ISSUE BETWEEN YOU AND ANY OTHER PARTY.
You specifically agree that, if you (on your own behalf or on behalf of another, including an estate) assert any Claim(s) against any The Cellar Gym Party and/or breach your agreement not to sue any The Cellar Gym Party, you will pay all reasonable fees (including attorneys’ fees), costs and expenses incurred by the The Cellar Gym to defend the Claim(s) and all other Claims based on the same facts as the Claim(s).
Your agreement to defend The Cellar Gym Parties means that you will pay all of The Cellar Gym’s Fees and Costs incurred to defend the Claim from the date the Claim is asserted. Your agreement to indemnify and hold The Cellar Gym Parties harmless means that you will pay any settlement, judgment, or other damages, fees or costs of any type incurred by any The Cellar Gym Party to resolve the Claim.
5. Use of Services
For access to the Services, your payment must remain current for Membership Dues and Financial Obligations.
Personal Information. You represent and warrant that all information provided to The Cellar Gym is current, accurate, complete and truthful, including all initial or updated registration or membership information, such as the legal name, street address, email address, telephone number, and billing account information related to you or any Additional Member(s). You agree to maintain a valid email address, physical address, phone number, and billing account information with The Cellar Gym and to promptly notify The Cellar Gym of any changes to your email address, physical address, phone number or billing account information.
Equipment. You are solely responsible for purchasing, and maintaining in good/safe/working condition, required/applicable safety equipment/gear for training, including but not limited to: boxing gloves, mouth guard, shin guards, head protection, groin protection. Digital content may be available; you are solely responsible to purchase and maintain hardware/software to access digital content and services.
Restrictions: The Services and content are solely for your personal use. Digital content on our app and website is the property of The Cellar Gym and you agree not to share, distribute, copy or resell content for the benefit of any third party.
Electronic Communications: When you use the Services, you and any Additional Member(s) agree to communicate electronically with The Cellar Gym. You expressly consent to receiving informational, operational or other transactional communications, including any disclosure, notice, agreement, statement, term, condition, or any other information from The Cellar by posts on the Services, to any email address or phone number, including cellular telephone numbers, provided by you or by any Additional Member(s).
Push Notifications. When you install our application on your mobile device, you agree to receive push notifications, which are messages an application sends you on your mobile device when the application is not on. Discontinuing push notifications typically requires you to change your settings on your mobile device. Each type of device operates differently, so you should check the user manual of your mobile device if you are having trouble.
Modification and Termination. The Cellar Gym operates in its sole and complete discretion all matters related to the Services and its members and memberships, including but not limited to membership levels and types, prices, dues, fees, promotions, equipment, services, products, programs, class schedules, mobile applications, activities, classes, sessions, seminars, events, amenities or benefits, all of which are subject to change at any time without notice for any reason, including changes to features, content, functionality, or software. The Cellar Gym may suspend all or any portion of the Services, including for periodic maintenance, equipment malfunctions or causes beyond The Cellar Gym’s control. The availability of content and services, as well as access points and compatible devices through which the Services are available, will change from time to time without notice. The Cellar Gym may also terminate or suspend the Services in part or in their entirety. You understand that The Cellar Gym’s right to make these changes may affect your access to, use of, or participation in its Services or products. The Cellar Gym is not liable for any such modification, suspension, or termination of the Services and you will not be entitled to a refund of any amounts that you have already paid, to the fullest extent permitted by applicable law.
6. User Conduct
Termination of Use. We reserve the right to monitor access to or use of the Services for the purpose of operating the Services, to ensure safety of all members, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Services, both digital and in person. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. We may block, restrict, disable, suspend, or terminate your access to or the access of any Additional Member(s) or use of all or any parts of the Services without prior notice or liability.
Inappropriate Use. You agree that you are solely responsible for your conduct and the conduct of any Additional Member(s) accessing or using the Services. You and your Additional Member(s) will not take any action, including to post, submit, transmit, email, upload, share, store or otherwise make available any User Content, that, in The Cellar Gym’s judgment is unlawful, harassing, embarrassing, or offensive on any The Cellar Gym website, app or social media platform.
7. Health and Safety
Health Eligible.
You represent that you are healthy enough to engage safely in the use and access of the Services, and that you have had the opportunity to talk to a doctor or other qualified healthcare provider prior to your use and access of the Services, which The Cellar Gym strongly recommends. You acknowledge that The Cellar Gym does not and will not provide medical advice. You agree to remove yourself or any Additional Member(s) from the use and access of the Services if you observe any hazardous, unsafe, dangerous or defective condition, if you or any of them is incapable of engaging in such use safely, or if required or instructed to do so by The Cellar Gym. You acknowledge that you are responsible for your own conduct, health and safety and that of Minor Member(s) and other Member(s), and that The Cellar Gym is not responsible for any medical condition or expenses incurred by you, Minor Member(s) or other Member(s) in connection with the use and access of the Services. You should discontinue exercise in cases where it causes pain or severe discomfort and should consult a medical expert prior to returning to exercise in such cases. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
Health and Wellness Information.
The Services contain information about leading a healthy way of life, including information on health, wellness, and fitness issues. Such information does not represent medical diagnosis, treatment, or care and should not be used in place of consultation with or advice from your healthcare professionals. You should consult with your physician or healthcare professional before beginning or altering your personal exercise, diet, or nutritional supplement program, and periodically thereafter. Do not disregard, avoid or delay obtaining medical or health related advice from your healthcare professional because of something you may have read or heard on the Services. The use of information provided through the Services is solely at your own risk and is not medical or healthcare advice. Nothing stated or posted or otherwise available through any Service is intended to be, and must not be taken to be, the practice of medical or counseling care. The Services offer health and fitness information that is designed for educational purposes only. For purposes of these Terms, the practice of medicine and counseling includes, without limitation, psychiatry, psychology, psychotherapy, or providing health care treatment, instructions, diagnosis, prognosis or advice. Any health information you post on the Services may be viewed by other users of the Services.
Exercise Activity.
Your use of the Services may involve strenuous physical exercise and activity that is potentially hazardous and dangerous and may involve significant physical and emotional stress and exertion and risk of injury or damage, some of which are inherent in the use of the Services. The use of the Services can include but is not limited to use of personal training services, group fitness classes, martial arts training, running, cycling, endurance or athletic events, weight loss and educational or nutritional programs, activities, classes, sessions, seminars, advice, tracking functions, events, amenities, or benefits sponsored, endorsed or operated by The Cellar Gym.
Policies and Regulations:
The following policies and regulations are intended to make the gym safe, enjoyable and pleasant as possible for all members, while allowing management to operate in an efficient and businesslike manner. The polices and regulations are applicable to all members and guests thereof, and may be amended as circumstances warrant.
Attire – Proper and clean attire is required. No street shoes are allowed on the martial arts mats. Clean/dry gym shoes must be worn in the facility. No jewelry should be worn during training. Proper training gear and protective gear is required for all classes.
Personal Hygiene – Maintain personal cleanliness, shower as soon as possible after training. Do not train if you are sick or have any kind of infection.
Changes – The policies and regulations of the gym are not all inclusive and are subject to change at the sole discretion of the gym.
8. Arbitration Agreement
Mandatory Binding Individual Arbitration:
Except as expressly provided below, The Cellar Gym and you (each a “party” or, together, “us,” “we” or “parties”) agree that any dispute, Claim, case, or controversy (whether based in tort, contract, statute, regulation, ordinance, equity or any other legal theory) between us (whether arising out of or relating to past, present or future acts or omissions) (“Disputes”) shall be exclusively resolved by binding arbitration on an individual basis, rather than in court (“Arbitration Agreement”).
Waiver of Class Actions. We each agree that we will assert Disputes in arbitration only in our individual capacity, and not as a representative or member of any purported class. We each agree that we will not participate in any class, mass, collective, consolidated, private attorney general or other representative arbitration proceeding. Each party agrees that the arbitrator has no authority to arbitrate Disputes on a class-wide basis and shall not consolidate, combine, or jointly arbitrate Disputes of more than one person in a single arbitration.
Waiver of Jury Trial. We waive our constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, electing instead to resolve by binding arbitration all Disputes.
Disputes Not Subject to Arbitration. There are only three exceptions to this Arbitration Agreement:
Small Claims.
Either party may bring individual Claims in small claims court.
Personal Injury Claims.
Both parties must litigate personal injury Claims in court. For purposes of this exception, personal injury Claims are Claims arising from injury to the physical structure of the human body.
Emergency Equitable Relief.
Either party may seek temporary injunctive relief or other equitable relief in court pending arbitration. A request for interim measures will not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Arbitration Procedures.
Either party may initiate an arbitration proceeding, which will be conducted by a single neutral arbitrator.
Arbitration Providers. Each party has a choice of initiating arbitration before either the American Arbitration Association (“AAA”) or JAMS, which are both established alternative dispute resolution providers (“ADR Providers”). If neither AAA nor JAMS is available to arbitrate, we will agree to select an alternative ADR Provider to administer the arbitration in this Arbitration Agreement.
Arbitration Rules. The arbitration will be conducted under the AAA Consumer Arbitration Rules (available at www.adr.org) or JAMS Streamlined Arbitration Rules and Procedures (available at www.jamsadr.com) (“Arbitration Rules”). The rules of the ADR Provider will govern all aspects of the arbitration, except to the extent such rules are in conflict with this Arbitration Agreement.
Arbitration Location. The arbitration hearing will be held at the ADR Provider’s location that is closest to the claimant’s primary residence, unless the claimant primarily resides outside the United States (in which case the arbitrator will give the parties reasonable notice of the date, time and place of any oral hearings.)
Fees.
Payment of all filing, administrative, and arbitrator fees will be governed by the Arbitration Rules.
Arbitrator’s Authority and Award.
The arbitrator will decide the rights and liabilities, if any, of the parties, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any Claim. The arbitrator will have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s Rules, and this Arbitration Agreement. The arbitrator will issue a written award and reasoned statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. Any award will be subject to judicial confirmation or entry in any court having jurisdiction.
Governing Law.
This Arbitration Agreement is governed by the Federal Arbitration Act and federal arbitration law.
Confidentiality.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement or to enforce an arbitration award.
9. Additional Terms and Conditions
Suspension:
The Gym reserves the right to suspend or terminate any Member for failure to comply with the terms and conditions or polices and regulations of the Gym or for behavior that is in the management’s option prejudicial to the welfare, good order, and character of the gym or its members, volunteers, contractors or employees. It is expressly understood that the loss of membership privileges shall be without refund of any fees already paid by the Buyer.
Compliance with Laws:
This Contract shall be governed by the laws of the State of Minnesota and venue for any action arising out of this Contract shall be in same county as business address. All rights and obligations of the Seller and Buyer under this Contract are subject to all applicable federal, state and local laws and regulations. To the extent that the terms and conditions of this Contract conflict with any applicable statute, rule or regulation in effect at the time of execution of this Contract governing transactions of the type contained herein, the Contract shall be deemed revised to conform with such statutes, rules and regulations. The Gym and the Buyer shall be bound by the modified Contract and agree that no other modifications shall be enforceable unless in writing and signed by the parties. This Contract constitutes the entire Contract between the parties and supersedes all prior Contracts between the parties, whether written or oral. The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision. The waiver of any breach shall not constitute a waiver of any subsequent breach of this Contract.
Acceptance:
By Using this site, and/or purchasing services from The Cellar Gym, You agree to fully and completely comply with all the terms and conditions hereof and the Gym’s rules and regulations. No refunds on any paid tuition or purchases. Your (and/or Member’s, if a minor) failure to comply with the Gym’s rules and regulations shall be grounds for immediate suspension or termination of the Buyer (and/or Member, if a minor). The suspension or termination of You (and/or Member, if a minor) shall not entitle You to a refund or credit for any tuition or test fees already paid, or shall act as a cancellation of any unpaid balance due. Upon the suspension and/or termination of You (and/or Member, if a minor), the entire remaining Contract balance shall be immediately due and payable as liquidated damages and not as a penalty. The failure or inability of You (and/or Member, if a minor) to use the facilities, classes or services of the Seller for any reason, except as otherwise provided herein shall not relieve or suspend the Buyer’s obligation to make all payments required under this Contract. The Gym reserves the right to use all photos, videos, and or audios taken of Buyer (and/or Member, if a minor) for promotional, marketing and any other purposes for the Gym’s benefit, with no compensation due to You and/or the Member. You (and/or Member, if a minor) acknowledges that there may be additional charges for retail equipment, special events, tournaments and uniforms which are not included in the price of this agreement. The Gym at notice may relocate within five miles from its current location, and or to another The Cellar Gym’s affiliate location and same membership terms apply. This contract is non-transferable and upon termination of this agreement by the Gym no refund shall be due. Co signer, any person(s) signing this agreement as a co-signer or co-buyer shall be jointly, severally and individually liable to Dealer and its billing company for the full contract price as if such person signed as the Member. You waive the right to submit chargebacks on all credit/debit cards on all transactions.
I/we agree to comply with and be bound by the Terms, Conditions, Policies and Regulations set forth in this agreement.
I/we agree to pay The Cellar Gym the membership dues stated herein, and give permission to sell this agreement to an independent financial institution, or refer it to another company for collection.
I/we agree to comply with and be bound by the Cancellation Policy set forth in this agreement.
I/we agree to The Cellar Gym E-SIGN Agreement. I agree to receive disclosures electronically as stated herein.
I/we understand that upon its’ execution this is a legally binding and enforceable agreement.
This is the entire agreement covering the purchase and recurring charges of your membership. Any modifications, changes, amendments, or cancellations must be made in writing. No oral amendments or modifications are to be made to this agreement. If any part of this agreement is deemed unenforceable, it will not make any other part unenforceable. The Cellar Gym may waive or delay any of its rights under this agreement without losing them.