Article I. Membership
Section 1. Eligibility for Membership
All membership agreements must be on forms prescribed by X Factor Fitness and are subject to approval by X Factor Fitness authorized personnel and payment of the required fees. Persons 18 years or older may become members. At the discretion of X Factor Fitness, minors between the ages of 9 and 17 may join with written parental approval on the front of this Agreement.
Section 2. Nature of Membership
Membership confers solely the right to use and enjoy certain Facilities in accordance with X Factor Fitness rules and regulations, as they may change from time to time. `Facilities` means the site or sites included in the membership privileges for the type of membership selected by Member on the front of this Agreement, the owner or lessee of which Facilities (in each case, the `Owner`) may be X Factor Fitness, or a third party. Membership does not confer any interest in the property or assets of X Factor Fitness or any right to participate in the management or operations of X Factor Fitness, financially or otherwise.
Third Party Beneficiary Rights. To the extent that any Facilities are owned or leased by an Owner other than X Factor Fitness, X Factor Fitness and Member agree that such Owner is an intended beneficiary of Article 1, Section 2, Article II, Section 3 and Article III of this Agreement.
Section 3. Fees and Charges
Registration/Enrollment/Processing Fees. As a condition of membership, Member shall pay a registration fees to X Factor Fitness denoted as registration, enrollment and/or processing fees. The amount, manner and time of payment of such fees shall be established by X Factor Fitness and may be changed from time to time. No portion of such fees will be refunded, except as provided in the Initial 5-Day Cancellation Policy as specified on the front of this Agreement.
Dues. Member shall pay dues each month pursuant to an electronic funds transfer (EFT) as set forth on the front of this Agreement and may terminate his/her membership in accordance with the resignation procedures outlined in Article I, Section 5 of this Agreement. The dues for each category of membership shall be subject to change. The amount of such dues will be automatically transferred from Member`s bank account or credit card once each month on or after the due date for payment. A service fee may be assessed each month X Factor Fitness is unable, for any reason, to receive payment via EFT for any and all dues and/or charges owed to X Factor Fitness. Member will pay the dues of any and all additional members added to the Member`s membership. If Member elects to prepay his/her dues in advance, at the end of the prepaid period his/her membership dues may automatically revert to monthly dues billing.
Statement Billing: Member shall pay a statement billing fee of $10 per month for manual/ statement billing in addition to dues.
Club Charges. Member may elect to establish club charging privileges by providing a credit card or debit card account authorization where indicated on the front of this Agreement. Such account information is stored electronically by X Factor Fitness for purchases by Members on the account of in-house goods and services which are billed on the date of purchase and reflected on Member`s credit or debit card statement. Member`s signature will not be required for purchase.
Late or Returned Item Charges. A Late Fee of $35.00 will be assessed for returned checks, insufficient funds, closed accounts, frozen or declined credit cards or similar circumstances, which result in late or delayed payment to X Factor Fitness. Member is responsible for providing accurate and updated information on their EFT account to insure timely receipt of payment. X Factor Fitness reserves the right to re-attempt collection of Member`s outstanding balance until such time as Member`s account is current.
Section 4. Facilities/Access
Facility Privileges. Privileges to use one or more Facilities vary depending upon the type of
membership selected by Member, which is set forth on the front of this Agreement and may
be changed from time to time.
XFF Inc, DBA: X Factor Fitness, reserves the right to transfer the Member's Membership, along with any additional members listed on the agreement to an alternative facility, whether controlled by X Factor Fitness, or by another Health Club provider, provided the alternative facility is within a 10 mile radius from X Factor Fitness. In the event of a transfer to such an alternative facility, the Agreement will continue, and all personal and financial information within the Agreement, and/or electronically stored, will also be released to such facility. If there is no transfer to such an alternative facility, then the membership will terminate on the date of X Factor Fitness' Closure.
Unavailability of Facilities. The obligation to pay dues is not dependent on the availability
of all or any particular Facilities at all times, or the type or quantity of the classes or equipment
offered at the Facilities. Repairs, maintenance and other circumstances may make it
necessary, and X Factor Fitness reserves the right to, restrict use or close one or more of the
Facilities, as well as the right to change the type and quantity of the classes and equipment
offered at the Facilities. Dues will not be reduced nor suspended during the time when one
or more Facilities are not available.
Transfer of Agreement. If your Home Club is closed for more than 30 consecutive days, then the Club will appropriately adjust your monthly dues but only if there is no other facility to which you have access within 10 miles of your Home Club.
Section 5. Resignation/Termination
Voluntary Resignation. The initial term of this Agreement is set forth on the front of this Agreement. Voluntary resignation during the initial term is permitted only if the entire amount owed and due through the end of the term is paid.
Section 6. Right of Timely Cancellation CA Civil Code 1812.85 - 1812.86
If this contract requires payment of $1,500 to $2,000, inclusive, including initiation or initial membership fees, Applicant shall have the right to cancel contract within 20 days after the contract is signed.
If this contract requires payment of $2,001 to $2,500, inclusive, including initiation or initial membership fees, Applicant shall have the right to cancel contract within 30 days after the contract is signed.
If this contract requires payment of $2,501 to $3,000 ($4,400 after Jan. 1, 2010), inclusive, including initiation or initial membership fees, Applicant shall have the right to cancel contract within 45 days after the contract is signed.
Performance. Agreed upon services will begin within six months after the date the contract is entered into.
After Initial Term: After the initial term, Member may resign from X Factor Fitness by giving advance written notice to X Factor Fitness, via certified mail, or signed, dated form as provided by X Factor Fitness staff. Resignation requests are subject to the following terms and conditions: Notices received by X Factor Fitness between the first calendar day of the month and the 25th calendar day of the month will become effective 30 days after the date of receipt. X Factor Fitness requires a 30 day notice as indicated in one of the before mentioned manners. This 30 day notice must be given within 5 days after your last monthly dues were collected in order to avoid any further monthly dues. Should notice be given after that, you will be charged another month of your regular monthly dues. You will have full access to utilize X Factor Fitness for up to 30 days after your last monthly dues are collected. No resignation will be effective and dues shall continue to be payable hereunder until all required payments have been received by X Factor Fitness. After Member`s resignation has become effective, he/she will not be subject to any further dues and all membership privileges will be terminated. Unless otherwise noted, all members on a family or corporate membership will be converted to individual memberships and subject to the dues of that category upon termination of this membership. If membership dues were prepaid, cancellation of membership within the prepaid time period will negate any prepayment discount and any refund will be calculated accordingly taking into account the full, non-discounted dues owing for such period.
Involuntary Termination. X Factor Fitness reserves the right at any time to terminate the membership or privileges thereunder of any member for failure to comply with the terms of this Agreement or with any of the rules and regulations adopted by X Factor Fitness or for any conduct X Factor Fitness determines in its discretion to be improper or in any way contrary to the best interest of X Factor Fitness and its membership. The membership may be terminated by notification in writing mailed to the last address shown on the records of X Factor Fitness for the member being terminated. The terminated member will remain liable for all dues and other indebtedness incurred prior to the date of termination, which shall be three (3) business days following the date on which the termination notice is mailed by X Factor Fitness.
Disability or Death. If Member is unable to use the Facilities as provided herein due to permanent disability or death, he/she or his/her estate may terminate this Agreement and shall be relieved of the obligation to pay for services hereunder, shall be refunded any amounts prepaid for such services, other than those received prior to death or the onset of disability and cancellation fees will apply. As used herein, the term `disability` means a condition that permanently precludes Member from physically using all of the Facilities as verified in writing by a physician.
Relocation Out of Area. If Member changes his/her principal residence to a location more than twenty-five (25) miles from the nearest Facility, and is hence unable to transfer his/her membership to a comparable Facility, Member may terminate his/her membership by providing written notice via certified mail, or signed, dated form as provided by X Factor Fitness staff. Member must provide satisfactory proof of new residence as determined by X Factor Fitness. Once proof of move has been verified by X Factor Fitness, a 30 day cancellation notice since last monthly dues will be required, along with a cancellation fee that is based on how many months are remaining in the original term. If member has fulfilled their agreement`s original term, a $39.00 cancellation fee will apply. If member has not completed half of the term of their agreement, a cancellation fee of $150.00 will apply. If member if past the halfway point of their agreement`s term, a $75.00 fee will apply.
Term Agreement Cancellation: A $39.00 fee will be applied to all contract cancellations that are on a month to month basis. This includes all original month to month agreements, and any agreement whose term has ended, but changed to a month to month status.
Resale of Membership. Member may not sell or otherwise transfer his/her membership to another party without the prior express written approval of X Factor Fitness.
Section 6. Changes to Membership Status
Membership Type Conversion. Member may request conversion to another membership type by providing written notice to X Factor Fitness. Membership conversion requests are subject to approval by X Factor Fitness management, and may require payment of additional fees.
Temporary Hold Status. Member may apply for a temporary `Hold` Status for a period of up to three (3) months and no more often than once every twelve (12) months by giving advance written notice to X Factor Fitness and paying all dues and other unpaid charges. Approved requests received by X Factor Fitness on or before the fifteenth calendar day of the month will become effective on the last day of that month. Approved requests received by X Factor Fitness after the fifteenth calendar day of the month will become effective on the last calendar day of the following month. During an approved Hold status, Member may not use any Facilities and is subject to reduced membership dues. If member is approved for a Hold Status during the term of a new or renewed contract, the months the membership is subject to the Hold Status will not be counted toward the Member`s term commitment. Member may return to regular membership status by notifying X Factor Fitness in writing and commencing payment of the prevailing dues for his/her membership type. Availability and rate of Hold status varies by principal Facilities used and membership type.
Article II. Rules and Regulations
Section 1. Registration
Member must check in and present his/her membership card each time he/she uses any Facilities.
Section 2. Attire
Proper attire is required for participants using any Facilities. Shirts and shoes are required in all public and recreational areas. The Fitness Center may prohibit the use of any personal equipment on the premises of any Facilities.
Section 3. Damages
Any damage caused by Member, Member`s family members (including dependent children) or Member`s guest to any property of X Factor Fitness, owner (if not X Factor Fitness), or another person at any Facilities shall be paid for by Member.
Section 4. Hours of Operation
The hours of operation may be adjusted seasonally and in accordance with the frequency of member usage. X Factor Fitness reserves the right to change the operating hours.
Section 5. Minors and Children
Persons between the age of thirteen (13) and seventeen (17) may only use Facilities after receiving orientation from X Factor Fitness staff. Children through the age of twelve (12) are not allowed in any Facilities, except in designated playcare areas, which may or may not be offered, and only during posted childcare hours and with X Factor Fitness staff supervision.
Section 6. Personal Business
Members may not use any Facilities for personal business without prior written approval by an authorized representative of X Factor Fitness.
Section 7. Replacement Items
Lost or stolen membership cards will be subject to a replacement fee of $10.00. All key cards issued must be returned at time of cancellation, or a $25.00 charge will incur for each key card not returned.
Section 8. Amendment of Rules and Regulations
X Factor Fitness may from time to time adopt rules, regulations or policies amending or supplementing those contained in this Agreement, and any other Agreement associated with X Factor Fitness, including Personal Training Agreements. Members will be obligated to comply with such rules, regulations or policies. If new or amended rules or regulations are adopted, they will be published as `Additional or Substitute Rules and
Regulations` unless they are of such a nature that publication would be inefficient or inappropriate, in which case notice shall be posted or members shall be otherwise advised of the amendment or supplement to the
Rules and Regulations as necessary.
If any provision of this Agreement or any supplement hereto is ruled invalid or unenforceable as applied to any person or circumstance, all other provisions of this Agreement shall remain valid and enforceable as applied to all other persons and circumstances.
Modifications or additions to the pre-printed terms of this Agreement, other than the completion of existing blanks, are unauthorized and will not be honored by X Factor Fitness.
Article III. Waiver of Claims; Arbitration
Section 1. Assumption Of Risk, Release And Waiver Of Liability; Indemnity
Member knows, understands and appreciates the risks of entry upon and use of fitness facilities and equipment, including but not limited to loss of or damage to personal property, serious or catastrophic personal injuries and death. Member confirms that he/she is voluntarily participating in X Factor Fitness fitness facilities and entering upon or about and using the Facilities and equipment, and Member hereby expressly assumes all risk that he/she may suffer personal, bodily or mental injury or death, economic loss or damage as a result of his/ her entry upon or about or use of Facilities or equipment or participation in X Factor Fitness activities. Member acknowledges and agrees that he/she is solely responsible for his/her safe and responsible entry upon or about and use of all Facilities and equipment, whether or not supervised by a X Factor Fitness representative.
In consideration for being permitted to enter upon or about and use the Facilities and equipment and participate in X Factor Fitness activities, on behalf of him/herself and any persons using any Facilities as Member`s guest and his/her spouse, children, unborn children, heirs, representatives, guardians, distributees, successors and assigns (the `Member Parties`) Member hereby releases and discharges X Factor Fitness, its affiliated organizations, all Owners, and each of their respective owners, partners, members, directors, officers, employees, contractors and agents (the `X Factor Fitness Parties`) from any and all claims, causes of action or liability for any damages to or loss of property, injuries or death Member may suffer in or about any Facilities, resulting from any Member Party`s participation in X Factor Fitness activities, or entry upon or about or use of any Facilities or equipment, whether or not the same arises out of or results from any act, omission or conduct of any of the X Factor Fitness Parties, negligent or otherwise.
In addition, Member agrees to hold harmless, indemnify and defend the X Factor Fitness Parties from all claims, demands, causes of action or liability for any loss, damage, or injury to persons or property arising from or relating to any Member Party`s entry upon or about or use of any Facilities or equipment or participation in X Factor Fitness activities, including without limitation attorney`s fees, expenses, costs and all consequential damages, whether or not resulting from any act, omission or conduct of any of the X Factor Fitness Parties. MEMBER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND IS AWARE THAT IT CONTAINS A WAIVER AND RELEASE OF LIABILITY AND THAT MEMBER IS GIVING UP SUBSTANTIAL RIGHTS, INCLUDING HIS/HER RIGHT TO SUE. MEMBER IS SIGNING THIS AGREEMENT OF HIS/HER OWN FREE WILL AND INTENDS FOR HIS/HER SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.
Section 2. Arbitration
Member agrees to resolve any and all claims, disputes or controversies arising out of or relating to membership with X Factor Fitness exclusively by final and binding arbitration using the American Arbitration Association`s (AAA) Commercial Arbitration Rules. This includes, but is not limited to, claims related to fee disputes, personal injury and any other claim which may be asserted under the law of contract and/ or law of tort and/or asserting a public policy or Constitutional claim. The laws of state of California shall govern the dispute.
Warning: Use of steroids to increase strength or growth can cause serious health problems. Steroids can keep teenagers from growing to their full height; they can also cause heart disease, stroke, and damaged liver function. Men and women using steroids may develop fertility problems, personality changes, and acne. Men can also experience premature balding and development of breast tissue. These health hazards are in addition to the civil and criminal penalties for unauthorized sale, use, or exchange of anabolic steroids.
DEFAULT AND LATE PAYMENTS: Should you default on any payment obligation as called for in this agreement, the club will have the right to declare the entire remaining balance due and payable and you agree to pay allowable interest, and all costs of collection, including but not limited to collection agency fees, court costs, and attorney fees. A default occurs when any payment due under this agreement is more than ten days late. Should any monthly payment become more than ten days past due, you will be charged a late fee. An additional service fee will be charged for any check, draft, credit card, or order returned for insufficient funds or any other reason. If the Member is paying monthly dues by electronic funds transfer (EFT), the club`s billing company, Club Systems, reserves the right to draft via EFT all amounts owed by the member including any and all late fees and service fees. Subject to appropriate State and Federal Law. NOTE: Members paying monthly dues by E.F.T. are subject to $10.00 per month increase of monthly dues if E.F.T. payment is stopped or changed. This will not affect any other provisions of this agreement.
Notwithstanding any other provisions of this Agreement, you understand and agree that the amount of your monthly membership dues is based on current sales tax rates and to the extent such rates should increase during your membership, the club has the right to increase your monthly membership dues by the amount of such increase. If you have requested the privilege of paying your monthly dues by pre-authorized electronic funds transfer, the monthly amount so transferred will be adjusted to reflect any increase in the sales tax rate.
NOTICE:ANY HOLDER OF THIS AGREEMENT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF, RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
I authorize my bank to make my payment by the method indicated below, and post it to my account. If for any reason X Factor Fitness is not able to draw funds from this account, I authorize them to utilize any payment method and means that is available to them. This includes automatic updates of debit or credit cards though our billing company, Club Systems. I authorize X Factor Fitness to electronically deduct my monthly dues plus tax, $NA, any past unpaid dues and any other fees or charges from the account for which I have provided the Club the necessary information. The deductions will begin from the date and the account indicated below.
Subject to the following conditions:
(1)The items shall be drawn on or about the date or dates of the Payment Schedule. The transactions on your bank statement will constitute receipts for payment on your account.
(2)If the regular payments set forth on the Payment Schedule should vary in amount, you are entitled to notice at least 10 days before each payment of when it will be made and how much it will be. However, by executing the preauthorization, you choose to instead get this notice only when the payment would differ by more than $50.00 from the most recent payment.
(3)By executing this agreement, you acknowledge your awareness that certain disclosures required by the Electronic Funds Transfer Act and its regulations are available for your review.
(4)The privilege of making payments under this arrangement may be revoked by the Company if any item is not paid upon presentation.
(5)If this preauthorization payment arrangement is revoked for any reason, this does not release you from your obligation (Payment Schedule)
(6)A service fee will be assessed and drafted for any check, draft, credit card, or order returned for insufficient funds or any other reason. A late fee will be assessed and drafted should any monthly payment become past due.
(7)Club requires member to come in and sign a cancellation form with 30 days notice of billing date.
(8)The preauthorization payment arrangement shall apply to the following Applicant(s):