The Studio Fitness Corp (dba Sessions Cycle)
VOLUNTARY PARTICIPATION, ASSUMPTION OF RISK,
RELEASE OF LIABILITY, AND WAIVER OF CLAIMS
The individual participant named above (referred to as “I” or “me”) desires to participate in the indoor cycling class demonstration video content production and riding a stationary bicycle (collectively, the “Activity”) provided by The Studio Fitness Corp (dba Sessions Cycle) a California corporation with offices located at 14625 Whittier Blvd., Whittier, California 90605 (the “Company”). In consideration of being permitted by the Company to participate in the Activity and the intangible value that I will gain by participating in the Activity, and other good and valuable consideration being provided to me by Company, the receipt and sufficiency of which I hereby acknowledge, and in recognition of the Company’s reliance hereon, I irrevocably agree, on behalf of myself, my heirs, and my personal representatives, to all the terms and conditions set forth in this instrument (this “Release”).
VOLUNTARY PARTICIPATION, ASSUMPTION OF RISK, RELEASE OF LIABILITY, AND WAIVER OF CLAIMS
I AM AWARE AND UNDERSTAND THAT MY PARTICIPATION IN THE ACTIVITY, WHICH WILL TAKE PLACE AT CROSS FIT BLVD. IN WHITTIER, CALIFORNIA, INVOLVES VIGOROUS PHYSICAL ACTIVITY, INCLUDING BUT NOT LIMITED TO HIGH-INTENSITY CARDIOVASCULAR EXERCISE, STRENGTH MOVEMENTS, STRETCHING, AND USE OF STATIONARY BICYCLES AND RELATED EQUIPMENT, AND THEREFORE THE ACTIVITY INVOLVES THE RISK OF PERSONAL OR PSYCHOLOGICAL INJURY, PAIN, SUFFERING, TEMPORARY OR PERMANENT DISABILITY, DEATH, PROPERTY DAMAGE, AND/OR FINANCIAL LOSS. WITHOUT LIMITING THE FOREGOING, I FURTHER ACKNOWLEDGE THAT MY PARTICIPATION IN THE ACTIVITY INVOLVES INHERENT RISKS THAT ALSO INCLUDE, BUT ARE NOT LIMITED TO: Overexertion, fainting, dizziness, or shortness of breath; heart strain, cardiac events, or other serious medical issues; muscle strains, sprains, tears, and/or other injuries of any kind; joint injuries and back injuries; slips, falls, or collisions with equipment or other participants; equipment malfunction or failure; and/or
exposure to communicable diseases (including viruses and bacteria).
I am aware and understand that all of the above risks cannot be fully eliminated, even with reasonable care. I ACKNOWLEDGE THAT ANY INJURIES THAT I SUSTAIN MAY RESULT FROM OR BE COMPOUNDED BY THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF THE COMPANY, INCLUDING NEGLIGENT EMERGENCY RESPONSE OR RESCUE OPERATIONS OF THE COMPANY. NOTWITHSTANDING THESE RISKS, I ACKNOWLEDGE THAT I AM KNOWINGLY AND VOLUNTARILY TO PARTICIPATING IN THE ACTIVITY WITH AN EXPRESS UNDERSTANDING OF THE RISKS AND DANGER INVOLVED AND HEREBY AGREE TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DISABILITY, DEATH, ILLNESS, AND/OR PROPERTY DAMAGE ARISING FROM THE ACTIVITY, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OF THE COMPANY OR OTHERWISE.
To the fullest extent permitted by law, I hereby expressly waive, release, and discharge the Company and its officers, directors, owners, shareholders, instructors, employees, contractors, agents, landlords, affiliates, successors and assigns, and representatives (collectively, the “Released Parties”) from any and all claims, demands, actions, causes of action, damages, costs, judgments, settlements, losses, liabilities, and/or expenses whether known or unknown, arising out of, attributable to, or relating to the Activity, whether arising out of the ordinary negligence of the Company or Released Parties or otherwise. I covenant not to make or bring any such claim against the Company or any other Released Party, and forever release and discharge the Company and all other Released Parties from liability under such claims. This waiver and release does not apply to liabilities that cannot be released by agreement under California law (e.g., including but not limited to gross negligence, recklessness, and willful misconduct).
I understand that by signing this release, I am waiving any and all claims, of any kind arising out of, attributable to, or relating to the Activity, including those claims that may be unknown to me, or which I do not suspect to exist at this time. WITH THE INTENTION OF WAIVING ALL UNKNOWN AND UNSUSPECTED CLAIMS, I HEREBY EXPRESSLY WAIVE ALL RIGHTS, BENEFITS, AND PROTECTIONS I MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
INDEMNIFICATION
I agree to indemnify, defend, and hold harmless the Company and Released Parties from and against any and all claims, demands, damages, actions, causes of action, costs, judgment, settlements, losses, liabilities, deficiencies, interest, awards, penalties, fines, costs and/or expenses (including attorneys’ fees) fees, and the costs of enforcing any right to indemnification under this Release, incurred by the Company or any other Released Party arising out of, relating to, or resulting from:
My participation in the Activity;
My violation of any Company rules, policies, or guidance;
My negligence or intentional actions; and/or
The ordinary negligence of the Company and Released Parties.
HEALTH & MEDICAL CONDITION
I represent that:
I am in good physical condition and able to participate in strenuous physical activity.
I do not have a medical or other physical condition that prevents me from participating in the Activity, or that would put me in any physical or medical danger;
I have consulted a physician regarding my participation and the physician has not instructed me to not participate in the Activity (or I have voluntarily chosen not to do so, despite being advised to consult a physician).
I will immediately stop participating and notify the Company representatives on-site if I feel unwell at any time before, during, or after the Activity.
I understand the Company and its staff, owners, and agents are not medical professionals and cannot diagnose or treat medical conditions.
For my safety and the safety of others, I further agree to comply with all stated and customary terms, posted safety signs, rules, and verbal instructions given to me by the Company and its representatives before, during, and after the Activity.
EMERGENCY MEDICAL TREATMENT
I hereby consent to receive medical treatment deemed necessary if I am injured or require medical attention during my participation in the Activity. I authorize the Company and its staff to obtain emergency or other medical care for me, including calling 911. I understand and agree that I am solely responsible for all costs related to any such medical treatment and any related medical transportation and/or evacuation, and I agree to be fully financially responsible for any such costs. I hereby release , forever discharge, and hold harmless the Company and all other Released Parties from any claim based on such treatment or other medical services, and/or associated costs.
WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 (WAIVER OF UNKNOWN CLAIMS).
With respect to any claims released hereunder, I expressly acknowledge that I have been notified of the provisions of California Civil Code Section 1542, which provides in pertinent part:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THIS RELEASE, AND THAT, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR THE RELEASED PARTY.
Being aware of this code section, I hereby expressly waive and relinquish all rights and benefits which they may each have under Civil Code section 1542, as well as under any other statute or common law principle of similar effect and does so understanding and acknowledging the significance and consequences of specifically waiving Section 1542.
Thus, notwithstanding the provisions of Section 1542, and to implement a full and complete release, I expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all claims that I do not know or suspect to exist in their respective favor at the time of signing this Release, and that this Release contemplates the extinguishment of any such claims. I further acknowledge that I may later discover facts different from or in addition to those they now know or believe to be true regarding the matters released or described in this Release, and even so I agree that the releases and agreements contained in this Release shall remain effective in all respects notwithstanding any later discovery of any different or additional facts, and that I assume any and all risk of any mistake in connection with such facts.
ARBITRATION AND CLASS ACTION WAIVER
Agreement to Arbitrate. I and the Company agree that any and all disputes, claims, or controversies arising out of or relating to this Release, the Company and Released Parties, and/or my participation in the Activity shall are subject to arbitration under the arbitration provisions set forth in the Federal Arbitration Act (the “FAA”), and in conformity with the procedures of the California Arbitration Act, and shall be submitted to Judicial Arbitration & Mediation Services, Inc. (“JAMS”) for final and binding arbitration. Disputes, claims, or controversies that are not arbitrable as a matter of law shall be excluded from this provision and to the extent that a dispute, claim or controversy involved both claims subject to and excluded by law from arbitration, the Company and I agree to bifurcate such claims and stay litigation on any excluded claims for the duration of the arbitration proceedings relating to the claims properly arbitrable.
Waiver of Trial By Jury. I understand and fully agree that by initialing and signing below, I, along with the Company, am giving up the constitutional right to have a trial by jury, and giving up the normal rights of appeal following the rendering of a decision except as California law provides for judicial review of arbitration proceedings. I anticipate that by entering into this Agreement, I will gain the benefits of a speedy and less expensive dispute resolution procedure.
Waiver of Class Action and Collective/Representative Action Claims. To the fullest extent permitted by law, I and the Company agree that: (a) the parties will only submit claims that are covered by the terms of this provision to arbitration and will not seek to represent the interests of any other person (including on a class, collective, or representative action basis); (b) class and collective action procedures are waived and cannot be asserted in any forum, nor will they apply in any arbitration pursuant to this provision and agreement; and (c) I and the Company will not assert or participate in any class or collective claim(s) against the other party in arbitration, court, or other judicial forum.
Arbitration Process.
Arbitration must be initiated upon the express written notice of either party to the other. A demand for arbitration served on the Company must be sent to legal@sessionscycle.com, and a demand for arbitration served on me will be given to the email listed above. The written notice must identify and describe the nature of all claims asserted and the facts upon which the claims are based (rather than mere factual or legal conclusions). Written notice of arbitration must be initiated within the limitations period applicable to the claim(s), or within one (1) year of the date the claiming party first knows or should have known of the event giving rise to the claim(s) if no statutory limitation period applies.
The arbitration will be administered by the Judicial Arbitration & Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures (the “JAMS Rules”), which are incorporated herein by reference, except as those rules have been modified herein. A copy of the JAMS Rules can be obtained (i) on the JAMS website at https://www.jamsadr.com/rules-streamlined-arbitration/ or (ii) by calling JAMS at (800) 352-5267. I understand I may also call JAMS if I have any questions about the arbitration process. If the JAMS Rules are inconsistent with the terms of this Release, the terms of this Release govern.
The arbitration will be held before a single neutral arbitrator. The Arbitrator has the power to decide, among other things, any motions brought by any Party, including discovery motions, motions for sanctions, motions for summary judgment and/or adjudication, motions to dismiss, and demurrers. Neither Party will be denied the right to file a pleading challenge (which will be resolved prior to the commencement of discovery in the arbitration) or motion for summary disposition of a particular claim or issue. The Arbitrator will grant an award of costs in connection with an offer of judgment pursuant to Federal Rule of Civil Procedure 68. The Arbitrator may also grant injunctions and all other types of relief the Parties would otherwise be entitled to in court. The Arbitrator also has the authority to order discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration and applicable law.
The Arbitrator will apply the substantive law relating to all claims and defenses the same as if the matter had been heard in court. The Arbitrator will provide the Parties with a written decision on the merits explaining their findings and conclusions. The Arbitrator’s decision is final and binding upon the Parties.
To the extent permitted by applicable law, the fees and expenses of the Arbitrator (including filing or administrative fee) shall be split equally between the parties. Each Party will pay its own costs and attorneys’ fees, if any. However, if any Party prevails on a statutory claim which affords the prevailing party attorneys’ fees and costs, or if there is a written agreement providing for attorneys’ fees and costs, the Arbitrator may award reasonable attorneys’ fees and costs to the prevailing party. Any dispute as to the reasonableness of any fee or cost will be resolved by the Arbitrator. If the initiating party does not pay its share of the arbitrator’s fees and expenses within 30 days of receipt of an invoice from JAMS, the arbitration will be dismissed, with prejudice.
Disputes Concerning Arbitrability. The parties understand and agree that any dispute as to the arbitrability of a particular issue or claim pursuant to this Release is to be resolved in arbitration, by the Arbitrator. The Arbitrator has exclusive authority to resolve any dispute relating to the interpretation, scope, applicability, enforceability, or breach of this Agreement including, but not limited to, as to any such claim and as to any part of this Agreement. Notwithstanding the foregoing, a court of competent jurisdiction has exclusive authority to resolve whether the waiver of class and collective action claims is enforceable. Enforcement of this provision and arbitration agreement shall be governed by the FAA.
I understand that this arbitration provision and agreement is intended to be as inclusive and broad as is allowed under applicable law and that if ay portion is held invalid, it shall be severed, and it is agreed that the remaining portion shall continue in full force and effect. The Company and I will be equally bound to this arbitration provision.
PERSONAL PROPERTY
I understand the Company is not responsible for theft, loss, or damage to my personal property, whether stored in lockers, cubbies, or elsewhere on the premises.
MISCELLANEOUS TERMS
Governing Law & Venue. All matters arising out of or relating to this Release shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). To the extent any claim or cause of action arising under this Release is not subject to arbitration pursuant to the arbitration provision and agreement above, it may be brought only in the state courts located in Los Angeles County, California and I hereby consent to the exclusive jurisdiction of such courts for such claim.
Entire Agreement. This Release constitutes the sole and entire agreement of the Company and me with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between me and the Company.
Severability. If any term or provisions of this Release is found to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Release or invalidate or render unenforceable such term or provision, and the remainder shall continue in full force and effect.
Assigns. This Release is binding on and shall inure to the benefit of the Company and me and our respective heirs and successors. The Company may assign this Agreement and its rights and obligations hereunder, in whole or in part, to any party.
Acknowledgment & Signature
BY SIGNING, I ACKNOWLEDGE THAT I HAVE CAREFULLY READ AND UNDERSTOOD ALL OF THE TERMS OF THIS RELEASE AND THAT I AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE THE COMPANY. I UNDERSTAND AND AM AWARE THAT THIS RELEASE IS AN AGREEMENT REGARDING ASSUMPTION OF RISK, RELEASE OF LIABILITY, AND WAIVER OF CLAIMS AND AN AGREEMENT REGARDING PHOTO, VIDEO, & SOCIAL MEDIA APPEARANCE, RIGHTS, AND RELEASE (INCLUDING APPEARANCE AND PUBLICITY RIGHTS) AND I KNOW THAT I AM GIVING UP VALUABLE RIGHTS. I FURTHER UNDERSTANT THAT THIS RELEASE CONTAINS AN AGREEMENT TO ARBITRATE, WHICH I EXPRESSLY AGREE TO, AND RELINQUISHED MY CONSTITUTIONAL RIGHTS TO A JURY OR COURT TRIAL. I UNDERSTAND THAT I AM FREE TO OBTAIN ADVICE FROM LEGAL COUNSEL OF MY CHOICE, AT MY EXPENSE, TO INTERPRET THE PROVISIONS OF THIS RELEASE.
I SIGN THIS RELEASE VOLUNTARILY AND, WITH FULL UNDERSTANDING OF ITS TERMS, AND I INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF LIABILITY TO THE FULLEST EXTENT PERMITTED BY LAW.