ACCESS AND USE AGREEMENT
1. RELEASE OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNIFICATION. In consideration of access to and/or use of the Teqneeq facilities and/or premises (collectively, “Teqneeq Facility” or “Facility”), services, and/or equipment by me or any minor for whom I have responsibility or guardianship or who I accompany at any time on or about the Teqneeq Facility (a, “Minor”), I agree for myself and all Minors as follows:
a. ASSUMPTION OF RISKS. I acknowledge, agree and understand that access to and/or use of the Teqneeq Facility, services, and/or equipment involves risks, including, but not limited to, as relates to child care or lack thereof (“Risks”). The Risks include, but are not limited to (i) injury (including, without limitation, personal, bodily, mental or emotional injury), (ii) illness and (iv) death, and/or (iv) damage, destruction, theft or loss of property. I acknowledge, agree and understand the Risks include, without limitation, events and/or conditions (a) caused by or relating to any trainer, coach or instructor, (b) regarding me, any Minor, any unborn child, any spouse, family member, relative, guest, other member or other person, (c) caused by me and/or someone else, (d) caused (even by negligence) in whole or part by Teqneeq, and (e) unrelated to exercise or Teqneeq services, equipment or Facility. I understand the Risks include, but are not limited to, equipment failure or malfunction, accidents, falls, muscle injury, dislocated or broken bones, concussions, wounds, permanent paralysis, neck and spinal injuries, overexertion, overheating, injuries from lack of fitness or conditioning, events or conditions resulting from undertaking activity without consulting a doctor or against the advice of a doctor, abnormal blood pressure, fainting, heart disorders and heart attacks.
I voluntarily accept and assume full and sole responsibility for all the Risks with respect to me and all Minors.
b. RELEASE OF LIABILITY. I hereby release, discharge and hold harmless Teqneeq, Inc., its successors, affiliates and related entities, and their respective owners, directors, officers, members, managers, employees, agents, contractors, representatives and volunteers (collectively, the "Teqneeq Parties") from any and all CLAIMS, ACTIONS, DEMANDS and LIABILITIES arising from any Risks and/or from my, or any Minor’s, ACCESS TO OR USE OF the Teqneeq Facility, services, and/or equipment, including, but not limited to, as relates to child care or lack thereof and including, without limitation, relating to any trainer, coach or instructor.
c. PROMISE NOT TO SUE. I promise not to sue any Teqneeq Parties with respect to any Risks and/or my, or any Minor’s, ACCESS TO OR USE OF the Teqneeq Facility, services, and/or equipment, including, but not limited to, as relates to child care or lack thereof and including, without limitation, relating to any trainer, coach or instructor.
d. INDEMNIFICATION. I WILL INDEMNIFY, HOLD HARMLESS, AND DEFEND the Teqneeq Parties against any and all claims, actions, demands, damages, costs (including costs and reasonable attorneys’ fees), losses and liabilities arising from any Risks and/or my, or any Minor’s (i) ACCESS TO OR USE OF the Teqneeq Facility, services, and/or equipment, including, but not limited to, as relates to child care or lack thereof and including, without limitation, relating to any trainer, coach or instructor, (ii) any Risks, and/or (iii) breach of any term or condition of this Agreement.
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS SECTION 7 (RELEASE OF LIABILITY, ASSUMPTION OF RISK, AND INDEMNIFICATION) AND FULLY UNDERSTAND THAT IT INCLUDES A RELEASE OF LIABILITY, AND ASSUMPTION OF RISK AND INDEMNITY. I AM AWARE AND AGREE THAT BY EXECUTING THIS AGREEMENT, I AM GIVING UP, AMONG OTHER THINGS, A SUBSTANTIAL RIGHT (I.E., MY RIGHT TO BRING A LEGAL ACTION OR ASSERT A CLAIM INCLUDING, WITHOUT LIMITATION, FOR NEGLIGENCE OR WITH RESPECT TO ANY DEFECTIVE PRODUCT). I HAVE CAREFULLY READ THIS SECTION 7 AND VOLUNTARILY SIGNED THIS AGREEMENT OR AUTHORIZED ANOTHER TO SIGN IT ON MY BEHALF, AND FURTHER AGREE THAT NO ORAL REPRESENTATIONS, STATEMENTS, OR INDUCEMENT APART FROM THIS WRITTEN AGREEMENT HAVE BEEN MADE. I AGREE, FOR MYSELF AND MY SUCCESSORS, HEIRS AND ASSIGNS, THAT THE TERMS AND CONDITIONS OF THIS SECTION 7 ARE AGREEMENTUALLY BINDING AND THAT, SHOULD I OR MY SUCCESSORS, HEIRS OR ASSIGNS ASSERT ANY CLAIM IN CONTRAVENTION OF THIS AGREEMENT, THE ASSERTING PARTY SHALL BE LIABLE FOR THE EXPENSES (INCLUDING, WITHOUT LIMITATION, COSTS AND REASONABLE ATTORNEYS’ FEES) INCURRED BY THE OTHER PARTY OR PARTIES IN DEFENDING AGAINST SUCH ACTION. I ACKNOWLEDGE THAT THIS SECTION 7 WAS NEGOTIATED BY AND BETWEEN THE PARTIES TO THIS AGREEMENT, AND THAT BY MY SIGNATURE ON THIS AGREEMENT, AND/OR ACCESS TO AND/OR USE OF THE TEQNEEQ FACILITY, SERVICES, AND/OR EQUIPMENT BY ME OR ANY MINOR, SUCH ACCESS AND USE, AND MY MEMBERSHIP, ARE SUBJECT TO THIS SECTION 7, AND THAT OTHERWISE MEMBERSHIP FEES WOULD BE SUBSTANTIALLY HIGHER.
2. Behavior. I understand that I must use appropriate language and manners at the Teqneeq Facility and in any other place that may involve Teqneeq. Libel, slander, negative attitudes, and/or disrespect with respect to Teqneeq members, staff, and/or Facility will not be tolerated. If any of the above or similar event or matter occurs with respect to any Member, and if such is thought to be severe enough by any Teqneeq management staff (in his/her sole discretion), Teqneeq may have said Member immediately and permanently removed from the Teqneeq Facility and may immediately terminate the Member’s membership. Before I train, coach or instruct any person, or assist with such in any way, in, on or about the Facility, or otherwise related to or in connection with Teqneeq, I shall secure insurance, naming the Teqneeq Parties as insureds, in amounts and conditions sufficient to fully defend and indemnify the Teqneeq Parties. With respect to any training, coaching or instruction by me, or assistance by me, I am solely responsible for all related Risks and I acknowledge and agree the Teqneeq Parties have no responsibility with respect to me or any other person.
3. Medical Conditions. (i) I represent that I am in good physical condition and have no medical reason or impairment that might prevent me from my intended use of Teqneeq’s Facility, equipment or services, (ii) I acknowledge Teqneeq did not give me medical advice before I joined, and cannot give me any after I join, relating to my physical condition or ability to use the Facility, equipment or services or otherwise, (iii) If I have any health or medical concerns now or after I join, I will discuss them with my doctor before using (or continuing to use) the Facility, equipment or services and will rely solely on such doctor’s advice, (iv) if I know or should know I have any problem that might prevent me from using all of Teqneeq’s Facility, equipment or services, I agree my membership is limited accordingly - however, I will nonetheless pay all membership fees and other fees and costs as if I was not limited.
4. Photos, Video and Recordings by Me. I will not engage in any photography, videotaping, video or audio recording in, on or about the Facility without prior written consent of Teqneeq management. I will not create, use or disclose any photo, video or recording related to Teqneeq that does not meet all the written pre-approval conditions of Teqneeq, Inc. in its sole discretion. Within 24 hours of notice by Teqneeq, I will deliver to Teqneeq all copies of such photographs, videos and recordings, including all electronic files, and will cause the removal of all of them from social media.
5. Photos, Video and Recordings of Me. The Teqneeq Parties may create photos, videos and/or recordings of me when I am in or on the Facility. I hereby assign to Teqneeq, Inc. any rights I may have with respect thereto including, without limitation, all intellectual property and related rights, and consent to the Teqneeq Parties’ use of them, without compensation, in any way Teqneeq wants in its sole discretion. I waive any and all rights related thereto including, without limitation, rights of privacy and rights of publicity.
6. Confidential Information. Except as necessary to exercise my Teqneeq membership rights under this Agreement, I represent, warrant and agree that neither I nor my employees, contractors and/or representatives has used or disclosed (or will use or disclose) any “TEQNEEQ Confidential Information.” "TEQNEEQ Confidential Information" means all information, documents and things regarding Teqneeq including, without limitation, as relates to pricing, sales, financial information, policies, products, facilities, the Facility, designs, look and feel, marketing, clients and other information including, without limitation, all ideas, concepts, techniques, inventions, creative works, works of authorship, designs, trademarks, trade secrets, hardware, software, apps, developments, improvements, and discoveries, whether or not patentable or registrable under patent, copyright, trademark or otherwise.
7. Telephone Consumer Protection Act. By entering into this Agreement, I am giving express, written consent for Teqneeq and any of its agents or vendors to contact me (including automated dialing, and including direct human communication or automated/prerecorded message) via facsimile, e-mail, text, calls to my cell phone, calls to my work, or calls to my home.
8. Default. I will be in default if (1) I or any Minor breaches any of the Agreement terms or conditions including, without limitation, any rule, regulation, policy or direction that, in Teqneeq’s sole discretion has been breached or violated, or (2) I fail to pay any amount due within five (5) days after the date due. If I am in default, Teqneeq may, as it elects in its sole discretion, suspend my membership, cancel my membership, expel me from, and deny me access temporarily or permanently to, Teqneeq’s Facility (an expulsion this will be deemed an immediate membership termination) and/or retain all paid fees including, without limitation, any unused portion of any advanced payments. Should I default, I agree to then promptly pay all unpaid amounts in connection with my membership including, without limitation, all amounts that would have been due during the Term (i.e., the due dates of all such amounts are accelerated to occur at the time of default), and I will also pay all costs, including, but not limited to collection agency fees, court costs and reasonable attorneys’ fees incurred to enforce this Agreement. Any membership suspension or cancellation, or Teqneeq’s acceptance of any payment after default, will not terminate or release me from any obligation, term or condition under this Agreement.
9. No Solicitation. I agree not to engage in any solicitation activities in, on or about any Teqneeq Facility including, without limitation, solicitation for services, political purposes or any other reason. Use by or for me of petitions, leaflets, notices or advertising in, on or about any Teqneeq Facility is prohibited.
10. Rules. I understand and agree to follow all rules, regulations, policies and directions regarding my access to and use of, and any Minor’s access to and use of, Teqneeq Facility, services, equipment and/or premises (“Rules”). Teqneeq may post the Rules on Teqneeq’s website and/or in the Facility, including, without limitation, the so-called Facility Etiquette. Rules include, without limitation, (1) I will enter and exit the Facility only through the main lobby entrance, (2) I will present my active membership card, scan my active key fob, or use the access app provided exclusively to me by Teqneeq as an individual and for no other person, upon each time I enter the Facility, (3) I will limit my use of lockers to when I am at the Facility, (4) I will wipe down all equipment I use after each use, (5) I may bring a workout towel and/or lock for the locker room, but will remove them when I leave the Facility; Teqneeq will attempt to place all lost or stolen x items, and all items left in lockers overnight, in the lost and found bin; such items will be permanently discarded every Friday night, (6) I will not disparage any Teqneeq Parties, (7) I will make diligent efforts to act only in a safe manner at all times, (8) I will use weight collars for all above-head lifts, (9) if there is a usage conflict, I will let Teqneeq personnel resolve it, (9) I will keep all personal items off the equipment floor and on the outside of the training floor, (10) bumper plates are not to be dropped, (11) I will promptly return all equipment after use, (12) no gum chewing, food, or open containers on the training floor, (13) no excessive texting, emailing, or talking while on the training floor, (14) I will not remove clothing while inside of the Facility, (15) I will be always be considerate of others, (16) I will not be, in Teqneeq’s sole opinion, loud, offensive or bothersome to others at the Facility, or otherwise, in Teqneeq’s sole opinion, behave in an unbecoming manner, (17) I will not use alcohol, illegal drugs or illegal amounts of legal drugs, including steroids, in, on or about the Facility, (18) I will not be present at the Facility under the influence of illegal drugs or illegal amounts of legal drugs or under the influence of alcohol, (19) I will not bring, or use, any weapons of any kind in, on or about the Facility, (20) I will not bring or consume food or drink in, on or about the Facility unless allowed by Teqneeq in its sole discretion, (21) I will not, in Teqneeq’s sole discretion, provide services in, on or about any Teqneeq Facility or otherwise to members or guests, except for fitness training, coaching or instruction that is in full compliance with Section 8 above, (22) I will not engage in any competitive activities in, on or about the Facility without the prior written consent of Teqneeq management, (23) I will not bring in or use any outside equipment in, on or about the Facility without the prior written consent of Teqneeq management, (24) I will, in Teqneeq’s sole discretion, wear appropriate clothing and footwear in, on and about the Teqneeq Facility, (25) I will, in Teqneeq’s sole discretion, act in an appropriate manner, (26) I will not steal, damage or deface any Teqneeq property or any other property on or about the Facility, (27) I will not, without prior approval of Teqneeq management, assist any person who is not a Teqneeq member to enter or use the Facility or to use any Teqneeq services or equipment, (28) I will not give access to, or assist with access to, the Facility to any person, (29) I will pay all amounts when due, (30) I will provide my up-to-date contact and billing information to Teqneeq and will promptly notify Teqneeq in writing of any changes, (31) with respect to any climbing wall, facility, equipment or activity, I must be over 18 years of age or be accompanied by a parent, guardian, or Qualified Trainer, I will take all reasonable safety precautions including, without limitation, using all provided safety equipment including, without limitation, any harness and auto-belay system, (32) I will not remove any barbell from the barbell room, (33) I will use collars for all bar lifts above the hip, (34) I will execute all bar lifts on a designated platform and will not use or occupy more than one at a time, (35) I will not use loose chalk, (36) if I am a minor, (a) I represent that I am at least fourteen years old, (b) I shall not access or use the Facility except during the hours of 6:30 a.m. – 8:30 p.m. Monday – Thursday, and 6:30 a.m. – 6:30 p.m. Friday – Sunday, which days and times may, in Teqneeq’s sole discretion, change periodically, or case by case, (c) I will not, except with the constant accompaniment of my Qualified Trainer, access the barbell room(s), use any barbells, or use the rock climbing wall (d) if I am under the age of 16, I will not, except with the constant accompaniment of my Qualified Trainer, or my parent or guardian, access or use the Facility, and (e) I will, at all times while at the Facility, wear or have in my personal possession, the current Teqneeq-issued designator that indicates I am a minor (such as, without limitation, a lanyard or badge).
11. Assignment. This Agreement may be assigned by Teqneeq and if so assigned, the words “Teqneeq” herein will also mean the person, company or entity to which this Agreement is assigned or transferred. If this Agreement is assigned, the assignee shall have and be entitled to exercise any and all rights and powers of Teqneeq herein (notwithstanding anything in this Agreement to the contrary). Assignee shall not be chargeable with any obligations or liabilities of Teqneeq or with respect thereto. In the event of assignment, Teqneeq reserves its rights to assert any defenses it has or may have under this Agreement or with respect thereto. Membership is not transferable by me and any attempt at such transfer is void ab initio. Neither buyer nor I may sell, assign, or transfer this Agreement or any part thereof, or a membership card, and any such attempted sale, assignment or transfer shall be null and void ab initio. I may not loan my membership card or number to anyone.
12. Attorneys’ Fees. In the event either party shall bring any action to enforce or protect any of its rights under this Agreement, the prevailing party shall be entitled to recover, in addition to its damages, its reasonable attorneys' fees and costs incurred in connection therewith.
13. Governing Law and Forum. This Agreement shall be governed in all respects solely and exclusively by the laws of the State of California, U.S.A. without regard to conflict of laws principles. The parties hereto expressly consent, and submit themselves, to the exclusive jurisdiction of the courts of California, and it is stipulated that venue shall be in San Diego County for the adjudication or disposition of any claim, action or dispute arising out of this Agreement.