NOW THEREFORE, IN CONSIDERATION of the foregoing recitals, the mutual covenants, agreements, representations, and warranties contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. SCOPE OF THE AGREEMENT
1.1. Services. Company will provide the Services, which includes administering for You an individual VO2 max test, RMR Test or other offered test which aims to measure the maximum amount of oxygen that Your body can utilize during intense exercise and, thereby, help to assess Your cardiovascular fitness level and aid in personalized training programs. During the Test, you will be asked to perform intense physical activity, typically on a treadmill or stationary bike, while connected to monitoring equipment, and You will be asked to gradually increase the intensity of such physical activity until you reach volitional exhaustion or Your maximum effort. Following the completion of the Test, the Company’s staff will continue to closely monitor You as You recover and until You return to Your baseline physiological state. You acknowledge and accept as a material condition of Company’s obligation to provide any Services and/or Test (i) that You rparticipation in such Services and/or Test is entirely voluntarily and that You are free to discontinue any Services and/or Test at any time for any reason, and (ii) that Company or Company Personnel has the right to terminate or otherwise discontinue any Services and/or Test at any time and for any reason, in such person’s sole discretion.
1.2. Monitoring and Data Collection.
Throughout the Test, various physiological parameters are continuously monitored and recorded. These parameters may include heart rate, respiratory rate,oxygen consumption, carbon dioxide production, ventilation, and perceived exertion levels. All data collected and processed with only medical-grade technologies. Company’s wearable metabolic system is used to determine Your VO2 max and other relevant fitness parameters.
1.3. Potential Risks.
You acknowledge and accept that there are inherent risks associated with undertaking the intense physical activity associated with the Test and/or Services, including without limitation:(a) Fainting, fatigue, dizziness, or lightheadedness;(b) Muscle soreness and/or discomfort;(c) Physical injury, including potentially severe injuries, from falls, exertion, or otherwise; and(d) Cardiac and other events, including heart attacks, resulting in rare complications including the possibility of death or permanent disability.
1.4. Client Responsibilities.
As a participant in the Test, You shall, and agree to:(a) Follow all instructions provided by Company Personnel, including the Test administrator, at all times during the Test and/or Services;(b) Disclose completely and accurately any relevant medical history and/or condition as well as any medication and/or supplements that You take which could affect Your ability to safely participate in the Test and/or Services;(c) Inform the Test administrator immediately if You experience any discomfort, adverse effects,or unusual symptoms during the Test and/or Services;(d) Accept sole responsibility for Your own safety during, and Your willingness and ability to participate in or, alternatively, to terminate the Test and/or Services; and(e) Consent to the Company’s use of anonymized data for research and educational purposes.
2. PAYMENTS AND INVOICING
2.1. Fees.
Client shall pay Company, and Company shall receive from Client, the sum of the currently posted price for the Services, which shall be nonrefundable to Client from Company even if Client fails to compete The Test and/or Services for any reason.
2.2. Obligation to Pay.
If the Client fails to pay the Fee the Company as required by this Agreement and subject to its terms, the Client will be responsible for out-of-pocket costs and expenses,including reasonable attorneys’ fees, incurred by Company in the collection of any and all past-due Fees or in enforcing any of the rights, powers, remedies and privileges of Company hereunder.
As used in the foregoing sentence, the term “attorneys’ fees” shall mean reasonable charges and expenses for legal services rendered to or on behalf of Company to enforce any of its rights, powers, remedies, or privileges (including the collection of any past-due Fees) at anytime whether prior to the commencement of any proceedings or thereafter and/or in pre-judgment and post-judgment or bankruptcy proceedings. Checks returned for insufficient funds will be subject to a bounced check fee of twenty-five dollars ($25).
2.3. Payment; Timing and Manner.
Any Fees not paid within thirty (30) days will be assessed a late fee of three percent (3%) of the total unpaid amount per month, provided, however, that nosuch late fee, to the extent deemed interest, shall in the aggregate exceed the maximum rate permitted by law.
2.4. No Refunds.
Due to Client’s control over the completion of the Test and the Company’s right to terminate the Services and/or Test in the event that any Company Personnel deem it potentially harmful or otherwise unadvisable to continue the Test, the Company cannot offer refunds for any reason, including for early termination of the Test or Client’s dissatisfaction as to the process or results of the Services or Test.
Client understands that Company intends to deliver the Services in a manner consistent with the training and experience of Company Personnel, which the Client has had an opportunity to discuss with the Company prior to entering into this Agreement. Accordingly, Client dissatisfaction with, or early termination of, the Test and/or Services does not constitute a breach of this Agreement by the Company. Notwithstanding the foregoing to the contrary, Company may refund any amounts paid by Client for Test and/or Services cancelled at least 48 hours prior to the schedule start time of any such Test and/or Services.
3. REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Parties.
Each Party represents and warrants to the other that it has the right and ability to enter into this Agreement and to grant the rights granted herein.
3.2. Representations and Warranties of Client.
Client represents and warrants to, and covenants with, the Company (i) that Client does not have a medical or other condition that would prevent Client’s participation in the Test and/or Services, (ii) that Client has consulted with a physician or other health care service provider as appropriate, and (iii) that CLIENT UNDERSTANDS AND ACCEPTS THAT NEITHER COMPANY NOR COMPANY PERSONNEL ARE LICENSED MEDICAL PROFESSIONALS OR OTHERWISE ENGAGED IN THE PRACTICE OF MEDICINE.
3.3. Nature of Services; Not Diagnosis, Treatment or Medicine. Any information provided by the Company or Company Personnel is provided only for informational and educational purposes. Client understands and agrees that (i) Company and/or Company Personnel may provide Client with information and tools to enhance Client’s wellbeing for informational and educational purposes only and (ii) the Test and/or Services are not medical diagnosis or treatment.
Under no circumstances shall the Test and/or Services be taken as are placement for professional or medical diagnosis, treatment, advice, or care. CLIENT SHALL, AND AGREES TO, RETAIN SOLE AND FULL RESPONSIBILITY FOR SEEKING APPROPRIATE MEDICAL CARE AND ANY OTHER HEALTH CARE.Client is encouraged to confirm any information obtained from or through the Company or Company Personnel with other sources and to review all information regarding any medicalcondition or treatment with the Client’s physician or other healthcare provider.
The Client accepts sole responsibility for consulting with a medical professional before taking action based oninformation obtained from the Company or Company Personnel.
3.4. No Guarantee. Client understands and accepts that Company cannot guarantee any particularoutcomes or results from Client’s participation in the Test and/or Services, nor from Client’sapplication of tools or information learned from Company or Company Personnel to their ownlives.
3.5. Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY GIVEN BY COMPANY INTHIS AGREEMENT, COMPANY MAKES NO OTHER WARRANTIES, EXPRESS ORIMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE.4. LIMITATIONS OF LIABILITY & INDEMNIFICATION
4.1. Assumption of Risk.
Client understands and accepts the risks associated with participation inthe Test and/or Services, including the risk of serious physical injury or other harm (as well asany other risk set forth in Section 1.3 of this Agreement).
4.2. Limitation of Damages.
EXCEPT FOR A PARTY’S DAMAGES ARISING FROM ABREACH OF SECTION 7.1 (“CONFIDENTIALITY”) OR DAMAGES CAUSED BY APARTY’S OWN WILLFUL MISCONDUCT, NEITHER COMPANY NOR CLIENT (NORTHEIR RESPECTIVE MEMBERS, PARTNERS, OFFICERS, DIRECTORS, MANAGERS,EMPLOYEES, AGENTS, REPRESENTATIVES, OR AFFILIATES) SHALL BE LIABLE TOTHE OTHER PARTY FOR ANY EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE,INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR INCONNECTION WITH THIS AGREEMENT UNDER ANY TYPE OF ACTION OR THEORYOF LIABILITY, EVEN IF REASONABLY FORESEEABLE OR ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES.4.3. Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHERPARTY (INCLUDING THEIR RESPECTIVE MEMBERS, PARTNERS, OFFICERS,DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, REPRESENTATIVES, ORAFFILIATES) TO THE OTHER PARTY BE GREATER THAN THE AMOUNT PAID ORPAYABLE BY CLIENT TO COMPANY FOR THE PREVIOUS SIX (6) MONTHS FOR THEPERFORMANCE OF THE SERVICES UNDER THIS AGREEMENT. THIS DIRECTDAMAGES LIMITATION ON LIABILITY SHALL NOT APPLY TO DAMAGES ARISINGFROM OR RELATING TO (I) BREACHES OF SECTION 7.1 (“CONFIDENTIALITY”) OR(II) A PARTY’S OWN WILLFUL MISCONDUCT.4.4. Responsibility for Third Parties. In no event shall either Party be liable to the other for anycosts or damages arising out of or related to: (a) any act or omission of any third party; (b) anyunlawful or unauthorized use of any Test and/or Services by a third party; (c) failures or breachof protective measures on a Party’s network.
4.5. Benefit of the Bargain.
The limitations set forth in this Article 4 are an essential part of thebenefit of the bargain between the Parties reflected in this Agreement.
5. TERM, RESCHEDULING, NO SHOWS
5.1. Term.
This Agreement will become effective on the Effective Date and will continue in fullforce and effect until completion of the Services, except that any terms meant to survivetermination of this Agreement shall so survive.
5.2. Requests to Reschedule.
Requests to reschedule a Test and/or Services may be made at noadditional cost provided such request is made at least 48 hours prior to the specific Test and/orServices to be rescheduled.
In case of requests to reschedule made with less than 48 hours’notice, Client will remain responsible for payment for the Test and/or Services even if Clientdoes not participate in the Test and/or Services. Notwithstanding the foregoing, if Client requeststo reschedule a Test and/or Services on three (3) or more occasions, Company may immediatelyterminate this Agreement, without refund, and shall have no further obligation hereunder, exceptfor any obligations under Section 7.1 (“Confidentiality”).
5.3. Late Arrivals and No Shows.
Client understands that their late arrival to a Test or otherServices will reduce the time available for the Test or other Services. Company and CompanyPersonnel will make reasonable efforts to accommodate late arrivals and to still perform anyTest or other Services for Client. However, Company Personnel, in their sole discretion, shallhave the right consider any late arrival of more than ten (10) minutes a “no show” subject to the immediately following sentence. In the event of any actual or deemed “no show”, Client shallremain responsible for payment in full for the Test and/or Services.
6. DISPUTE RESOLUTION
6.1. Good Faith Negotiation. As a condition precedent to any right of action and in the event of adispute or disagreement of any kind between the Parties arising out of or related to thisAgreement (each a “Dispute”), representatives of each Party shall meet (by telephone), withinten (10) days after receipt of a notice to review the other Party’s claims and the basis for the Dispute and attempt to resolve the Dispute in good faith. If the Dispute remains unresolved forthirty (30) days after the original notice, then either Party may proceed with all remedies at lawor in equity, in the courts located in the County of Denver, State of Colorado. Each Party to this Agreement consents to the exclusive jurisdiction of such courts and waives any objection to suchjurisdiction due to improper venue or forum non conveniens.6.2. Equitable Relief.
The Parties agree that a breach of any of the terms of Section 7.1(“Confidentiality”) will result in irreparable harm to the other Party for which there is noadequate remedy at law. Accordingly, notwithstanding Section 6.1 to the contrary, in the eventof an actual, threatened, or reasonably suspected breach of Section 7.1, a Party may immediatelyseek relief in a court of competent jurisdiction in the County of Denver, State of Colorado.
6.3. Governing Law.
This Agreement and any matters related thereto shall be construed under andgoverned by the laws of the State of Colorado without regard to any choice of law provisions.
7. GENERAL PROVISIONS
7.1. Confidentiality.(a) The Parties acknowledge that they may exchange confidential information in performingor participating in the Services (the “Confidential Information”). The Parties agree not todisclose or use the Confidential Information, before or after the term of this Agreement, exceptto the extent reasonably necessary or appropriate to perform the Test or Services hereunder or asotherwise contemplated by this Agreement, unless the other Party has agreed in writing to theuse or disclosure.
The Parties understand that Confidential Information may include sensitivepersonal information of either Party. Client acknowledges and agrees that the relationshipbetween Client and either Company or Company Personnel is not protected by theprivilege and ethical rules requiring confidentiality that apply to relationships betweenlicensed medical and other health practitioners and their clients.(b) Each Party agrees that the other Party may disclose the Confidential Information to theextent that such disclosure is required by law or court order, provided that the disclosing Partyshall promptly notify the other Party of such disclosure.(c) Notwithstanding the foregoing, Company and Company Personnel have the right to useanonymized data resulting from the Test and/or Services for research purposes.
7.2. Notices.
All notices or demands required by any provision of this Agreement shall be inwriting, and will be sufficient if sent by email.
7.3. Assignment and Binding Effect.
Company may assign its rights and obligations hereunder, inwhole or in part, to other individuals or entities acting as a subcontractor (“Subcontractor”) or as6part of any corporate transaction, including without limitation a sale of the Company, a sale ofall or substantially all of the assets of the Company, or a merger or reorganization of theCompany. Otherwise, neither Party may assign any of their rights or obligations hereunder, byoperation of law or otherwise. Any attempted assignment without written permission of the otherParty shall be null and void. This Agreement shall be binding upon and inure to the benefit ofthe Parties and their respective legal representatives, successors, and permitted assigns.
7.4. Relationship of the Parties; No Exclusivity.
Each Party acknowledges and agrees that thisAgreement does not create a relationship between Client and either Company or CompanyPersonnel whereby either Party would be deemed to be an employee, partner, joint venture,agent, or medical provider of the other Party for any purpose. Company is and will remain anindependent contractor, open to conducting similar tasks or activities for persons and entitiesother than Client, and holds itself out to the public to be a separate business entity. Client agreesto provide Coach with IRS-required forms, if any, in compliance with IRS deadlines.
7.5. Force Majeure.
Notwithstanding anything to the contrary in this Agreement, neither Party shallbe held responsible for any delay, default, or failure to perform its obligations under thisAgreement if and only to the extent such Party’s failure to perform is the result of an act of forcemajeure including acts of God, war, terrorist act, riot, natural disaster, public health emergency,fire, flood, embargo, technical failure or outage or any other reason beyond the reasonablecontrol of the Party whose performance is prevented during the period of such occurrence.
7.6. Interpretation. This Agreement will not be construed to be for the benefit of or enforceable by,any person or entity that is not a Party to this Agreement. Sections that are, by their terms,intended to survive expiration or termination of this Agreement will so survive. Each term underthis Agreement will be interpreted so as to be effective, valid and enforceable. If any term isfound not to be effective, valid, and enforceable, the term shall be enforced to the fullest extentpermissible to effect the intent of the Parties.
The Parties agree that all other terms of theAgreement should be construed and enforced to the fullest extent permitted by law, withoutregard to the invalid or unenforceable provision. Any waiver or omission by either Party inenforcing its rights under this Agreement will not be construed as a waiver of the breach of thesame provision in the future or of any other provision.
7.7. Entire Agreement; Counterparts.
This Agreement and any schedules or attachments, whichare hereby incorporated by reference, constitute the entire agreement between the Parties withrespect to the subject matter, and supersede any prior negotiations or representations between theParties.
The Agreement may only be amended or revoked in a writing signed by both Parties ortheir respective successors or permitted assigns. This Agreement may be executed andtransmitted in email or electronic counterparts, with all such counterparts, when taken together,constituting a single original agreement which shall be effective when all the counterparts have been executed by the Parties. By signing below, Client acknowledges and voluntarily agrees that Client (i) has read and understands the information provided in this Agreement, (ii) has had the opportunity to ask questions and clarify any concerns about this Agreement, and (iii) has voluntarily decided to participate in the Test and/or Services provided hereunder.