Assumption of Risk, Waiver and Indemnity Agreement by Fitness Center User
ASSUMPTION OF RISK, WAIVER AND RELEASE OF LIABILITY, AND INDEMNITY AGREEMENT DECLARATIONS:
This Agreement is entered into between HWA 1290 III LLC, HWA 1290 IV LLC and HWA 1290 V LLC c/o Vornado Office Management LLC (collectively “Fitness Center Owner”) and the undersigned, Member/Customer of Five Iron Golf Rock LLC,("Fitness Center User"). The provision of access to Fitness Center User for the use of Fitness Center Owner's fitness, training, wellness, lifestyle equipment and locker rooms is contingent upon this Agreement. This release is not intended as an attempted release of claims of gross negligence or intentional acts.
ASSUMPTION OF RISK: You agree that if you engage in any physical exercise or activity, including personal training, you do so at your own risk and you expressly assume the risk of any and all injury and/or damage, including death, that you may suffer, whether while engaging in physical exercise or not, and you understand that no amount of care, caution or instruction can eliminate these risks. This includes injury or damage sustained while and/or resulting from using any premises or facility, using any exercise equipment or weights, or participating in any class, service or other activity, whether provided to you by Fitness Center Owner or
otherwise in the fitness studio or elsewhere, including injuries or damages arising out of the negligence of Fitness Center Owner, in its capacity as owner of the Fitness Center and owner of the building located at 1290 Avenue of the Americas, New York, NY 10104 (the “Building”), whether active or passive, or any of Fitness Center Owner’s respective managing agents, ground lessors, mortgagees, affiliates, members, partners, managers, trustees, officers, directors, employees, agents, representatives, contractors, successors, and assigns (collectively, the "Parties"). Your assumption of risk includes, but is not limited to, your use of any exercise
equipment (mechanical or otherwise), weights or other areas, locker rooms, stairs, lobby or other general areas of any facilities, or any equipment. You assume the risk of your participation (whether in the fitness facility or elsewhere) in any activity, class, program, instruction, or event, including but not limited to, functional training, strength training, agility training, weightlifting, walking, jogging, running, aerobic activities, corrective exercises, any other sporting or training endeavor, yoga, Pilates, massage, health coaching and other wellness
practitioner disciplines. You agree that you are voluntarily participating in the aforementioned activities and assume all risk of injury, illness, damage, or loss to you or your property that might result, including, without limitation, any loss or theft of any personal property, whether arising out of the negligence of Fitness Center Owner, Owner or otherwise. You agree that you will use the Fitness Center in accordance with all applicable rules established by Fitness Center Owner.
FITNESS CENTER USER’S HEALTH WARRANTY: The Fitness Center User warrants and represents that the Fitness Center User has no physical or mental disability, impairment, or ailment preventing him/her from engaging in active or passive exercise or any other service or class, or that will be detrimental or adverse to such person’s health, safety, or physical condition if he/she does so engage or participate. The Fitness Center User acknowledges and agrees that: 1) Fitness Center Owner and Owner will rely on the foregoing warranty in issuing the Fitness Center Access; 2) Fitness Center Owner and Owner shall have no obligation to perform a fitness assessment or similar testing to determine the Fitness Center User’s physical condition; 3) if any fitness assessment or similar testing is performed by Fitness Center Owner, it is solely for the purpose of providing comparative data with which the Fitness Center User can track progress in a program and is not for diagnostic purposes; 4) the Parties shall not be subject to any claim, demand, or injury whatsoever on account of Fitness Center Owner’s evaluation or interpretation of such fitness assessment or similar testing; 5) the Parties shall not be liable for any injury arising out of the Fitness Center User’s disability impairment or ailment preventing him/her from engaging in active or passive exercise or other class or service, or that would be detrimental or adverse to such person’s health, safety or physical condition if he/she does so engage or participate. Each Fitness Center User should be aware of his/her medical history and should consult with a physician prior to engaging in exercise or continuing to exercise, or participating in a class or service, if a medical condition appears or appears to be developing. You should consult with your physician or have a physical examination before using any fitness equipment or program, especially if you are elderly, pregnant, unaccustomed to physical exertion, have physical limitations or a history of high blood pressure, heart problems or other chronic illness. Each Fitness Center User has been informed and acknowledges that Fitness Center Owner (in its capacity as owner of the Fitness Center and owner of the Building) have made no claims as to medical results that can or may be obtained through use of Fitness Center Owner’s services. Fitness Center Owner (in its capacity as owner
of the Fitness Center and owner of the Building) does not have the training, authority or expertise to provide medical treatment or related advice to Fitness Center users. Any strenuous athletic or physical activity involves certain risks. By signing this agreement, you represent that you understand and you acknowledge that there are risks associated with participation in classes and other services and physical exercise and the use of fitness equipment and free weights pose a risk of injury if not used correctly.
RELEASE: In consideration of your being permitted to participate in any class, service or activity and/or use the facilities and/or any exercise equipment or weights, you agree on behalf of yourself (and all your personal representatives, heirs, executors, administrators, agents, and assigns) to waive, release and discharge the Parties from any and all claims or causes of action (known or unknown) arising out of the negligence of the Parties, whether active or passive, and any injuries which may occur as a result of your participation in any class
or service, your use of any exercise equipment or weights and the facilities, negligent instruction, including personal training or injuries resulting from Fitness Center Owner’s (in its capacity as owner of the Fitness Center and owner of the Building) negligent inspection of the facility or premises. By execution of this agreement, you hereby agree to indemnify and hold harmless the Parties from any loss, liability, damage, or cost the Parties may incur due to the provision of personal training by Fitness Center Owner to you, or arising out of your participation in any class, service or other activity or use of the exercise equipment, weights or facilities, or arising out of your acts, omissions, negligence or willful misconduct while in the Fitness Center.
ACKNOWLEDGMENTS: You expressly agree that the foregoing release, waiver, assumption of risk and indemnity agreement is intended to be as broad and inclusive as permitted by the law in the State of New York and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. It is understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. You acknowledge that Fitness Center Owner offers a service encompassing the entire fitness spectrum. This release is not intended as an attempted release of claims of gross negligence or intentional acts. You acknowledge that you have carefully read this waiver and release and fully understand that it is a release of liability, express assumption of risk and indemnity agreement. You are aware and agree that by executing this waiver and release, you are giving up your right to bring a legal action or assert a claim against Fitness Center Owner (in its capacity as owner of the Fitness Center and owner of the Building) and any of the other Parties for any injuries or damages, including death, which may occur as a result of your participation in any class or service or your use of the facility and any exercise equipment therein, Fitness Center Owner’s (in its capacity as owner of the Fitness Center and owner of the Building) negligence, or for any defective product used while receiving personal training from Fitness Center Owner or through personal use of defective products in the Building. Photography, video or audio recording, live streaming, posting to social media or any similar activities is expressly prohibited at all times. You have read and voluntarily signed the waiver and release and further agree that no oral representations, statements, or inducement apart from the foregoing written agreement have been made. You further acknowledge and agree that no form of photography or video is permitted while using the Fitness Center without the express written consent of Fitness Center Owner. This document constitutes the entire agreement between the parties and it cannot be changed or modified except in writing. You understand and agree that each time you participate in a class or service, and/or use the facilities and any exercise equipment therein, will constitute a renewal and reaffirmation of your acceptance of this agreement, and this agreement will be valid and binding on you.