Tyler Membership Agreement

The words “you” and “your” mean the Member listed above. The words “we,” “our,” and “us” refer to Kmm Fitness I, LLC, d/b/a Orangetheory® Fitness, which independently owns and operates the Orangetheory® Fitness franchised location identified above (the “Studio”). This contract (the ”Agreement”) is between you and us. To enter a Family Add-on Membership, a member of your immediate family must hold an active membership. To enter a Corporate Membership, your Company must have 10 participants and 10 active corporate memberships.

Membership Level	Sessions Per Month	Monthly Membership Fee	Additional Terms
Basic	4	$69	Each additional session per month @ $18
Elite	8	$109	Each additional session per month @ $18
Elite Family Add-On	8	$99	Each additional session per month @ $18
Elite Corporate	8	$99	Each additional session per month @ $18
Premier	Unlimited	$169	Late cancellations & no shows charged @ $12
Premier Family Add-On	Unlimited	$159	Late cancellations & no shows charged @ $12
Premier Corporate	Unlimited	$159	Late cancellations & no shows charged @ $12

 

NOTICE TO PURCHASER: DO NOT SIGN THIS CONTRACT UNTIL YOU READ IT OR IF IT CONTAINS BLANK SPACES.

I agree to comply with this Agreement, including the Rules and Policies, which are a part of this Agreement. I have received a copy of this Agreement and the Rules and Policies and have had sufficient time to read them:

ATTENTION: THIS AGREEMENT AND THE RULES AND POLICIES INCLUDE IMPORTANT TERMS THAT AFFECT YOUR RIGHTS, SUCH AS A BINDING INDIVIDUAL ARBITRATION PROVISION AND CLASS ACTION WAIVER. BY SIGNING ABOVE, YOU ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THE FOLLOWING PAGES AND THE RULES AND POLICIES.

After this initial 3-day period, your membership will continue month-to-month until your membership is cancelled by you or terminated by us under its terms. Your cancellation request will be effective 30 days after it is received. Any payments due under this Agreement before the cancellation or termination effective date will be charged by us as scheduled. Unused monthly classes do not carry over to later months. Any unused monthly classes will be forfeited at the end of each monthly membership period.

Termination: We reserve the right to terminate or refuse to renew your Agreement for any lawful reason including, but not limited to, an unsatisfactory payment history or failure to comply with any rules, policies, or modifications to rules or policies during this Agreement’s term. We reserve the right to collect at any time any delinquent or outstanding balance(s), including for any services or products provided or monthly payments owed. For the purposes of identification and billing, you agree to provide us with current and accurate information including your name, address, telephone number, and applicable payment details. You agree to notify us promptly of any changes to such information.

Death or Disability: IF YOU DIE OR BECOME TOTALLY AND PERMANENTLY DISABLED AFTER THE DATE THIS CONTRACT TAKES EFFECT, YOU OR YOUR ESTATE MAY CANCEL THIS CONTRACT AND RECEIVE A PARTIAL REFUND OF YOUR UNUSED MEMBERSHIP FEE BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE HEALTH SPA MAY REQUIRE PROOF OF DISABILITY OR DEATH. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS: 419 West Southwest Loop 323, Tyler,
Texas 75701, United States.

Description of Services, facilities, and hours: Orangetheory® Fitness offers guided pre-scheduled group fitness classes at Orangetheory® Fitness studios, and may offer other types of services as described in our Rules and Policies or through online communications. Orangetheory® Fitness studios may contain treadmills, rowing machines, suspension straps, dumbbells, medicine balls, aerobic steps, stability balls, lockers, and separate men’s and women’s restrooms and showers. Our operating hours are from Monday - Friday: 5:00am - 7:00pm Saturday - Sunday: 7:30am - 12:00pm. You agree that we and other Orangetheory® Fitness studios have sole discretion to change the type and quantity of classes, equipment, or operating hours, unless the changes materially diminish the services offered. For additional information, visit www.orangetheory.com/the-workout.

Assumption of Risk, Release, Waiver of Liability, and Indemnification: You are strongly encouraged to obtain medical clearance from your physician before participating in an Orangetheory Fitness class. The class is not designed for individuals with known heart disease or functional impairment. You understand that

(1) injury risks are inherent in any exercise program;

(2) there exists the possibility for certain conditions occurring during or following training and/or exercise;

(3) you are responsible for creating and maintaining a safe area around you clear of any potential hazards; and

(4) your registration for classes is limited to your individual participation only.

By signing this Agreement, you understand and voluntarily accept full responsibility for the risk of injury or loss arising out of or related to the services provided including responsibility for your guests. You agree that:

(1) it is your responsibility to disclose any medical condition or medication that could limit or prevent you from performing physical activity (including any medical symptoms or issues that arise while at the Studio);
(2) we may require you to provide written physician approval before you may use any of our equipment or participate in any physical activity or class; and

(3) you may decrease or stop at any time any physical activity you perform at the Studio.

YOU WAIVE ALL CLAIMS, ASSUME ALL LIABILITY, AND RELEASE, HOLD HARMLESS, INDEMNIFY, AND AGREE TO DEFEND US, OTF FRANCHISOR, LLC (THE “FRANCHISOR”), ULTIMATE FITNESS GROUP, LLC, AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “FRANCHISOR PARTIES”), ANY OTHER ORANGETHEORY FITNESS STUDIO YOU MAY VISIT AND ANY OWNER OF SUCH AND ANY OF OUR OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS, ASSIGNS, AGENTS, REPRESENTATIVES, AND EMPLOYEES, FROM LIABILITY FOR ANY INJURY, CLAIM, CAUSE OF ACTION, SUIT, DEMAND, AND DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL, BODILY, OR MENTAL INJURY, PROPERTY DAMAGE, ECONOMIC LOSS, CONSEQUENTIAL DAMAGES, AND PUNITIVE DAMAGES), ARISING FROM OR RELATED TO:

(1) YOUR FAILURE TO DISCLOSE ANY PRE- EXISTING CONDITIONS, LIMITATIONS, OR SENSITIVITIES;

(2) YOUR PRESENCE ON OR NEAR THE PREMISES OF ANY ORANGETHEORY FITNESS STUDIO;

(3) YOUR PARTICIPATION IN ANY ORANGETHEORY FITNESS CLASS OR USE OF ANY EQUIPMENT AT ANY ORANGETHEORY FITNESS STUDIO;

(4) ANY CLAIMS RELATING TO LIBEL, INVASION OF PRIVACY, AND VIOLATION OF PUBLICITY RIGHTS; AND

(5) ANY NEGLIGENCE ON OUR PART (INCLUDING OUR EMPLOYEES) OR ON THE PART OF ANY EMPLOYEE AT ANY OTHER ORANGETHEORY FITNESS STUDIO.

YOU AGREE THAT THE ABOVE ASSUMPTION OF RISK, RELEASE, AND WAIVER OF LIABILITY, AND THIS INDEMNIFICATION IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY LAW. FURTHER, YOU AGREE THAT IF ANY PORTION OF THIS ASSUMPTION OF RISK, RELEASE, WAIVER OF LIABILITY, AND INDEMNIFICATION PROVISION IS HELD INVALID, THE BALANCE OF SUCH SHALL BE VALID AND CONTINUE IN FULL LEGAL FORCE AND EFFECT. THE TERMS AND CONDITIONS OF THIS PROVISION ARE BINDING ON YOU, YOUR ESTATE, FAMILY, HEIRS, ADMINISTRATORS, PERSONAL REPRESENTATIVES, AND ASSIGNS.

Binding Individual Arbitration and Class Action Waiver: Any disputes arising out of or relating to this Agreement or your participation in any Orangetheory Fitness class or use of any equipment at any Orangetheory Fitness studio, including any disputes with the Franchisor or the Franchisor Parties , (collectively defined as “Disputes”), shall be governed by Texas law regardless of your country or state of origin or the location of any Orangetheory Fitness studio you visit and notwithstanding any conflicts of law principles. Any Disputes will be resolved by final and binding individual arbitration, rather than in court, and without a jury, except that you may assert claims in small claims court if your claims qualify. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the Studio at the address or email address listed at the top of this Agreement. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules (available at www.adr.org). Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation, or scope of this Agreement, and who are proper parties to the Arbitration, will be submitted to and ruled on by the Arbitrator. The party that ultimately loses will be responsible for arbitration costs and reasonable documented attorneys’ fees and costs of both parties. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. We 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 you, we, nor any other person may pursue a Dispute in arbitration as a class action, private attorney general action, or other representative action, nor may any Dispute be pursued on your behalf in any litigation in any court except as provided above. If for any reason a Dispute proceeds in court rather than in arbitration, we each waive any right to a jury trial. You may opt out of binding arbitration and this class action and jury trial waiver by giving written notice to us within 30 days of signing this Agreement unless a longer period is required by law. Your written notification must be mailed, emailed, or delivered to the Studio at the address or email address listed at the top of this Agreement within 30 days of the date you sign this Agreement and must include your name, your address, and a clear statement that you do not wish to resolve Disputes through arbitration.

Text Messages and Phone Calls: With your consent, the Studio, the Franchisor, and/or the Franchisor Parties, may send you advertising text messages to the number you provide. These text messages may be sent via an automatic telephone dialing system. You are not required to consent to advertising text messages to become an Orangetheory Fitness member or to purchase goods/services. Separately, the Franchisor and/or the Franchisor Parties may send you informational reminder text messages, which are not promotional messages, to the number you provide. For all text messages, standard message and data rates apply. The Studio, the Franchisor, and/or the Franchisor parties may contact you by telephone at the phone number you provide.

Use of Your Image, Likeness, or Voice: We may photograph, record on audio or video, or otherwise record any Orangetheory Fitness classes or member use of the Studio. In exchange for your use of the Studio or your participation in any Orangetheory Fitness class, you understand that you may be photographed, recorded on audio or video, or otherwise recorded and agree for all purposes to the sale, reproduction, or use in any manner of any photograph, audio, video, or other recording or depiction of your likeness or voice whatsoever by us, any Orangetheory Fitness studio, the Franchisor, the Franchisor Parties, and any nominee or designee of us or them, including without limitation any agency, client, periodical or other publication, in all forms of media, whether now or later devised, throughout the world and in perpetuity, and in all manners, including without limitation advertising, trade, display, editorial, art, and exhibition. You further understand that any photograph, audio, video, or other recording or depiction of your likeness or voice may be modified, altered, cropped, and combined with other content such as images, video, audio, text, and graphics, and waive any right that you may have to inspect or approve any finished image, video, or audio containing a depiction of your likeness or voice.

Use of Personal Information: For information on how the Franchisor and Franchisor Parties may collect and process personal information related to the paper or digital forms you complete, your use of the Studio, or your participation in any Orangetheory Fitness class, please see the Orangetheory Fitness Privacy Policy, a copy of which may be found at https://www.orangetheory.com/en-us/privacy-policy/.

Commencement of Operations: This provision only applies if the Agreement you have signed is for the use of a health spa that is not, at the time of this Agreement’s signature, in operation. If applicable, the health spa will begin its operations on or around the Studio’s proposed Grand Opening Date of November 11, 2016. IF THE HEALTH SPA DOES NOT OPEN BEFORE (i) THE DATE THAT IS 181 DAYS AFTER THE DAY ON WHICH YOU PREPAID YOUR MEMBERSHIP OR (ii) IF THE NEW SPA DOES NOT REMAIN OPEN FOR THIRTY DAYS, YOU ARE ENTITLED TO A FULL REFUND OF THE MONEY YOU PREPAID. HOWEVER, IF ANOTHER HEALTH SPA, OPERATED BY US, IS LOCATED WITHIN 10 MILES OF THE ADDRESS LISTED AT THE TOP OF THE FIRST PAGE OF THIS AGREEMENT, AND IF YOU ARE AUTHORIZED TO USE THE OTHER FACILITIES, YOU ARE ENTITLED TO RECEIVE A FULL REFUND OF YOUR MEMBERSHIP FEES ONLY IF THIS LOCATION DOES NOT FULLY OPEN FOR BUSINESS BEFORE (i) THE DATE THAT IS 361 DAYS AFTER THE DAY WE FIRST SOLD A MEMBERSHIP OR (ii) IF THE NEW SPA DOES NOT REMAIN OPEN FOR 30 DAYS.

Cancellation of Membership: IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF THIS HEALTH SPA, YOU MAY CANCEL THIS CONTRACT BY MAILING TO THE HEALTH SPA BY MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DAY YOU SIGN THIS CONTRACT A NOTICE STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:419 West Southwest Loop 323, Tyler, Texas 75701, United States.

Cancellation In The Event This Studio Closes: IF THE HEALTH SPA GOES OUT OF BUSINESS AND DOES NOT PROVIDE FACILITIES WITHIN 10 MILES OF THE FACILITY IN WHICH YOU ARE ENROLLED OR IF THE HEALTH SPA MOVES MORE THAN 10 MILES FROM THE FACILITY IN WHICH YOU ARE ENROLLED, YOU MAY: (A) CANCEL THIS CONTRACT BY MAILING BY CERTIFIED MAIL A WRITTEN NOTICE STATING YOUR DESIRE TO CANCEL THIS CONTRACT, ACCOMPANIED BY PROOF OF PAYMENT ON THE CONTRACT TO THE HEALTH SPA AT THE FOLLOWING ADDRESS: 419 West Southwest Loop 323, Tyler, Texas 75701, United States.; AND (B) FILE A CLAIM FOR A REFUND OF YOUR UNUSED MEMBERSHIP FEES AGAINST THE BOND OR OTHER SECURITY POSTED BY THE HEALTH SPA WITH THE TEXAS SECRETARY OF STATE. TO MAKE A CLAIM AGAINST THE SECURITY PROVIDE A COPY OF YOUR CONTRACT TOGETHER WITH PROOF OF PAYMENTS MADE ON THE CONTRACT TO THE TEXAS SECRETARY OF STATE. THE REQUIRED CLAIM INFORMATION MUST BE RECEIVED BY THE SECRETARY OF STATE NOT LATER THAN THE 90TH DAY AFTER THE DATE NOTICE OF THE CLOSURE OR RELOCATION IS FIRST POSTED ON THE SECRETARY OF STATE'S INTERNET WEBSITE.

Transferability: This membership is not transferable.

Severability: If any part of this Agreement is held invalid (other than the Class Action Waiver clause above), that part will be excluded from this Agreement and the remainder of the Agreement will remain in full force and effect. If the Class Action Waiver is held invalid, we agree that any Dispute will be decided by a court rather than by arbitration and we each agree to waive any right to a jury trial.

Entire Agreement: You agree that this Agreement and the Rules and Policies as amended and modified constitute the entire agreement.

BY SIGNING THIS AGREEMENT, YOU AGREE THAT NEITHER THE FRANCHISOR NOR THE FRANCHISOR PARTIES, IS A PARTY TO THIS AGREEMENT. YOU UNDERSTAND THAT THE FRANCHISOR PARTIES ARE NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS RELATED IN ANY WAY TO THIS AGREEMENT, THE GOODS OR SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT, OR FOR ANY ACT OR OMISSION BY US OR ANY OTHER ORANGETHEORY FITNESS STUDIO OR ANY EMPLOYEE OF ANY ORANGETHEORY FITNESS STUDIO.