IN CONSIDERATION of being permitted to enter into and utilize the amenities center and related facilities in the building known as 410 Park Ave located at 410 Park Avenue, New York, NY 10022 (the “Building”), including without limitation the fitness center therein (including the exercise equipment, exercise studio, locker room, showers and health related facilities, collectively, the “Fitness Center”), the conference and amenities rooms and Golf Simulator Room (collectively with the Fitness Center, the “Amenities”), I agree, on behalf of myself, my personal representatives, assigns, heirs, and next of kin, as follows:
1. I HEREBY RELEASE, WAIVE, DISCHARGE, AND COVENANT TO NOT SUE
the owner of the Building (the “Owner”), its agents, managers, employees, representatives, officers, directors, members, shareholders, direct and indirect owners, affiliates, partners and all personnel providing services on the premises (individually and collectively with the Ownerreferred to as the “Owner Parties”), from all liability to me, my personal representatives, assigns, heirs, and next of kin for any and all claims, demands, obligations, losses, damages, costs or expenses on account of injury to me (including personal injury, disability and dismemberment) ormy death or illness, or damage to or loss of any of my property, at any time now or in the future, arising out of the use of the Amenities or while I am in the Amenities premises from any cause whatsoever, even if caused by the negligence of the Owner Parties (excepting only the gross negligence of the Owner Parties) (individually and collectively, the “Released Matters”). Ivoluntarily and knowingly assume the risk of all such injury, death, damage or loss.
2. I HEREBY AGREE TO INDEMNIFY AND SAVE AND HOLD HARMLESS
AND DEFEND (with counsel agreed to by the Owner Parties), the Owner Parties, and each of them, from any and all claims, demands, obligations, losses, liabilities, damages, costs or expenses, including but not limited to attorneys’ fees, which the Owner Parties may incur related to any Released Matters.
3. I expressly agree that the foregoing release, discharge, covenant not to sue, waiver, indemnity and hold harmless agreement is intended to be as broad and inclusive as is permitted by the laws of the State of New York.
4. I expressly understand, acknowledge and agree that any and all personal trainers and other working individuals in the Fitness Center are unrelated to and separate and distinct from the Owner Parties, and I understand, acknowledge and agree that the Owner Parties are not liable or responsible in any way for the actions or inactions of such personal trainers and other workers in the Fitness Center.
5. I agree that use of the Amenities Center is permitted solely under the terms of (i) this agreement (this “Agreement”) and in consideration of mutual promises and releases made herein and (ii) the 410 Park Avenue Amenities Policies and Procedures dated June 1, 2021, as may be amended by Owner and its representatives from time to time (the “Policies and Procedures”). I understand and agree that the Amenities and its facilities are separate and distinct from the related services and related facilities which are provided to me as a tenant of the Building, and which are part of my lease agreement and are compensated for by rent paid. I agree that I may use the Amenities only while I am a tenant (or employee of a tenant) at the Building, and that my use of the Amenities, if not earlier terminated, will terminate immediately upon my ceasing to be a tenant (or employee of a tenant) at the Building. I understand, acknowledge and agree that the Owner and its representatives, in their sole discretion, may change the hours of operation, the equipment and facilities provided, or any other aspect of the Amenities, including its continued operation, without any liability therefore and without any reduction or set off against the rent which I or my employer, as a tenant, pay under a separate lease agreement. I understand, acknowledge and agree that under no circumstances shall any portion of the Amenities or anything being provided by Owner under this agreement be deemed or construed or maintained to be an appurtenance to any lease of any tenant in the Building unless agreed otherwise by Owner, at Owner’s sole discretion.
6. I promise to comply with the Policies and Procedures and the following rules, regulations and policies, as may be revised by the Owner Parties, at their sole discretion from time to time:
A. Only authorized tenants of the Building and employees of such tenants who have executed this Agreement may use the Amenities (“Users”). NO USER SHALL ADMIT, BRING OR PERMIT ANY GUEST, CHILDREN OR VISITORS TO COME INTO OR USE THE FITNESS CENTER OR THE AMENITIES, AND SUCH VIOLATION MAY RESULT IN IMMEDIATE TERMINATION OF USE OF THE AMENITIES CENTER.
B. Each User shall be liable for any property damage and or personal injury at the Amenities caused by the User. It shall be the obligation of the User to pay for any related costs of such damage or injury upon presentation of a statement thereof.
C. Users shall alert the Owner or its representatives of any and all problems regarding the maintenance of exercise equipment and any other part of the Fitness Center in which a User observes a problem. Owner Parties, however, assume no liability for their repair or maintenance and Users assume complete risk of such equipment and facilities.
D. Users shall review and follow posted instructions on operation of all equipment and facilities in the Amenities.
E. The Owner Parties shall not be responsible to Users for articles lost or stolen in the Amenities or for loss or damages to any other property.
F. The Owner Parties reserve the right to modify, restrict the use of or close the Amenities without prior notice at any time or for any reason.
7. I further represent and warrant the following statements are true and correct, and understand that the Owner Parties have relied on these statements in providing me access to, and permission to enter, the Amenities:
A. No representation, statements, or inducements (written or oral) have been made by the Owner Parties in connection with this Agreement.
B. I am 18 or more years of age.
C. I am in a good condition of health and am able to use the exercise equipment contained within the Fitness Center without restriction. I warrant and represent that I have no psychiatric, medical or physical condition or history or disability, impairment or ailment that would prevent me from engaging in active or passive exercise or that will be detrimental to my health, safety or physical condition if I do so engage or participate. I agree that the Owner Parties assume no responsibility for any injury or illness caused by any physical condition. I shall not use the Fitness Center facilities if I am under any physician’s care without express approval of my physician. I EXPRESSLY AGREE THAT IF I HAVE ANY REASON TO BELIEVE I HAVE A PHYSICAL IMPEDIMENT TO AN EXERCISE THEN I WILL NOT UNDERTAKE SUCH EXERCISE WITHOUT FIRST HAVING A
PHYSICIAN REVIEW SUCH EXERCISE. (The Owner recommends that all Users obtain physical examinations prior to using the Facility. Those Users who have a previous history of cardiovascular disease or related health illnesses are especially urged to obtain such examinations). I understand that there is no staff on site at the Fitness Center and that the Building staff has not had any training that would qualify them to dispense medical advice or prescribe treatment, and I acknowledge that no such representation has been made.
D. I assume full responsibility and risk of bodily injury, death, or property damage or loss due to or as a result of any occurrence or circumstance while using the Amenities or the exercise equipment or any other equipment located in the Fitness Center.
E. This Agreement may be modified only by an instrument in writing, signed by the User and accepted in writing by the Owner. Any agreements with the User which are not set forth in this Agreement, or in a written amendment as aforesaid, shall not be valid and any oral agreements or oral changes to this Agreement shall not be valid (provided however that the Owner and its representatives may amend the Policies and Procedures from time to time).
F. I HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND SIGN IT VOLUNTARILY.
G. This Agreement is binding on me without the necessity of the Owner’s signature appearing on it.