|2. LIMITATION OF LIABILITY2.1 The Client accepts and agrees that:2.1.1 Neither Embody Fitness, nor its employees or agents nor the Personal Trainer/Therapist shall be liable for any loss, damage or theft of any property (including bicycles) belonging to, or brought onto or left outside any Embody Fitness premises by the Client or any guest of the Client, unless, in accordance with condition 2.1.3 below, such loss, damage or theft was caused by the negligence of Embody Fitness, or its employees, agents or sub-contractors or the Personal Trainer/Therapist.
2.1.2 Vehicles, bicycles and their contents, parked or locked up on or outside the Facilities are left at the owners risk and Embody Fitness will accept no liability for loss, damage or theft in respect thereof, unless, in accordance with condition 2.1.3, such loss, damage or theft was caused by the negligence of Embody Fitness or its employees, agents or sub-contractors or the Personal Trainer/Therapist.
2.1.3 Nothing in these Terms and Conditions shall limit or exclude Embody Fitness or the Personal Trainer/Therapist liability for:
220.127.116.11 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors or the Personal Trainer/Therapist;
18.104.22.168 fraud or fraudulent misrepresentation;
22.214.171.124 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
2.2 Subject to clause 2.1:
2.2.1 Neither Embody Fitness nor the Personal Trainer/Therapist shall under any circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and Embody Fitness’s and the Personal Trainer/Therapist’s total aggregate liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
126.96.36.199 £500 per claim; and
188.8.131.52 in respect of all claims in any consecutive 12 month period, the equivalent of the total charges paid by the Client to Embody Fitness in that period.
2.3 It is the Client’s responsibility to ensure that, in accordance with condition 3 of these Terms and Conditions, their physical condition is appropriate for participating in the Sessions and to ensure that they do not operate or use any facilities and/or equipment provided by Embody Fitness or the Personal Trainer/Therapist, including the adjustment of levels or settings on any equipment without a Personal Trainer/Therapist. The Client should always operate equipment under supervision of a Personal Trainer/Therapist.
2.4 The Client acknowledges that liability for any injury suffered by the Client in receiving training in the Facilities with the Personal Trainer/Therapist shall remain the liability of the Personal Trainer/Therapist and not Embody Fitness.
2.5 Except as set out in these Terms and Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
2.6 This clause 2 shall survive termination of the Contract.
3. FITNESS AND HEALTH
3.1 The Client warrants and represents to Embody Fitness and the Personal Trainer/Therapist on the date of their acceptance of these Terms and Conditions and on each occasion that the Client uses the Facilities that the Client is in good physical condition and that the Client knows of no medical or other condition why the Client is not capable of engaging in the Sessions provided by the Personal Trainer/Therapist at the Facilities.
3.2 Neither Embody Fitness staff nor the Personal Trainer/Therapist are medically trained and are therefore not qualified to assess whether the Client is in good physical condition and/or that the Client can engage in any exercise without detriment to the Client’s health, safety, comfort or physical condition. Any pre-screening carried out on the Client by Embody Fitness staff or the Personal Trainer/Therapist shall be for their personal reference and shall not in any way confirm that the Client is physically able to engage in the Sessions.
3.3 Clients are advised not to undertake any physical activity without first seeking medical advice if they have concerns over their physical condition. Embody Fitness and the Personal Trainer/Therapist reserves the right to refuse access to any Client if, in their absolute discretion, they consider that the health of the individual concerned may be endangered by the use of the Facilities.
3.4 Clients shall not use Embody Fitness’s facilities nor engage with a Personal Trainer/Therapist if they are suffering from any medical conditions, including, but not limited to: low/high blood pressure, cardiac irregularities, any infectious or contagious illness, disease or other ailment or suffering from any ailment where there is a risk, however small, that such ailment may be detrimental to the health, safety, comfort or physical condition of the Client and other Clients using the Facilities or engaging with a Personal Trainer/Therapist. If there is any doubt, Clients should consult their doctor and must notify Embody Fitness and the Personal Trainer/Therapist of any circumstances affecting their health, which may be exacerbated through continued use of the Facilities.
3.5 Clients are required to follow the instructions of the Personal Trainer/Therapist at all times.
4. PERSONAL BELONGINGS
4.1 Personal belongings brought into the Facilities shall at all times remain at the Client’s risk including any personal belongings stored in lockers provided by Embody Fitness.
4.2 All lost property found at the Facilities should be handed to reception. Lost property will be stored for a period of 7 days, after which the management reserve the right to dispose of lost property as they in their absolute discretion see fit.
|5. PAYMENT5.1 Payment for Session packages shall be made in accordance with the Agreement.5.2 Payments for other products and services provided by or on behalf of Embody Fitness to the Client will be made in full upon receipt of such product or service, unless otherwise expressly agreed. Embody shall, at its discretion, allow the Client to pay for such additional products or services in advance (by way of tab set up) and Embody Fitness shall then be entitled to deduct such amounts from the advance payments when the Client requires such additional products and service and account to the Client for any balance (if required).
5.4 Payments for any agreed Embody Fitness Sessions, services and other products can be arranged to be paid by monthly direct debit (via the GoCardless System). The Client acknowledges that this payment method will remain subject to the terms of any Agreement and these Terms and Conditions. Clients will remain liable for any failed payments or cancelled direct debit mandates and Embody Fitness reserves the right to charge such reasonable administrative fees for dealing with any payment failures or direct debit cancellations.
5.3 In the event that a Client is unable to attend a Session for whatever reason Embody Fitness and the Personal Trainer/Therapist must be notified as soon as possible, and in any event, not less than 24 hours before the relevant Session is due to commence. Where less than 24 hours’ notice of cancellation is provided, the Client will forfeit the cost of that Session.
5.5 Embody Fitness reserves the right to increase its fees and charges from time to time. The Client will be given 10 days’ written notice of any such change.
5.6 In the event that the Client fails to pay any amount due under the Contract for a period of more than 30 days, Embody Fitness reserves the right to terminate the Client’s membership and refuse the Client to participate in any further Sessions.
6.1 Any Client wishing to terminate their rights under this Agreement may do so on 30 days written notice to Embody Fitness and the Personal Trainer/Therapist.
6.2 The Client shall not be entitled to any refund once notice to terminate has been given. Any Sessions pre-paid at the date of notice to terminate are required to be used within the 30 day notice period.
6.3 Embody Fitness reserves the right to refuse admission and/or terminate the Client’s membership forthwith if, in the opinion of Embody Fitness, the Client is in persistent breach of these Terms and Conditions and/or the conduct of the Client is considered injurious to character or interests of Embody Fitness or the Personal Trainer/Therapist and/or the Client is rude or abusive to an employee or the Personal Trainer/Therapist or fellow Client.
7.1 Sessions: Embody Fitness and the Personal Trainer/Therapist reserves the right to change Session times or cancel Session at its discretion, and will endeavour to give Clients notice of such changes as is reasonably practicable.
7.2 Embody Fitness Guidelines: The Clients must at all times observe Embody Fitness’s guidelines which may be notified to them from time to time and are requested to comply with any reasonable directions which the management of the Facilities may issue to ensure the safety of the Clients and the smooth operation of the Facilities for the convenience of all Clients.
7.3 Imaging: The Client hereby consents to having their photograph taken by Embody Fitness at any time whilst at the Facilities, which may be used by Embody Fitness for press or promotional purposes.
7.4 Testimonials; The Client hereby agrees upon request to provide a testimonial to Embody Fitness, which can then be used by Embody Fitness in its own publicity, marketing and advertising literature, including its website developed for the commercial exploitation of the Facilities. The terms of the testimonial will be agreed between the Client and Embody Fitness (acting reasonably and in good faith).
7.5 Change of Details: Clients are required to give written notice to Embody Fitness and the Personal Trainer/Therapist of any change of address or email.
7.6 Communication: Embody Fitness may communicate with the Client by email or text message. By providing an email address and/or mobile number to Embody Fitness the Client consents to receiving email communications and/or text messages from Embody Fitness, including notices pursuant to these Terms and Conditions. The Client also accepts the risk that these methods may not be secure and confidential means of communication. Embody Fitness will not be liable for any loss or damage suffered as a result of communicating with a Client by email.
7.7 Right of Set-Off: Embody Fitness may at any time, without notice to the Client, set off any liability of the Client to Embody Fitness, whether any liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. Any exercise by Embody Fitness of its rights under this clause shall not limit or effect any other rights or remedies available to it under these Terms and Conditions or otherwise.
7.8 Property: The Client hereby acknowledges that any data, information and copyright in any photographic or other images taken by Embody Fitness or on its behalf of the Client or relating to the Client whilst training in the Facilities shall belong to Embody Fitness absolutely and the Client further acknowledges and permits Embody Fitness to use all such data, information and images in connection with the promotion, marketing and commercial exploitation of the Facilities in such form as Embody Fitness shall require from time to time.
7.9 Force Majeure: For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of Embody Fitness or the Personal Trainer/Therapist and including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Embody Fitness or any other party), failure of a utility service or transport network act of god, war, riot, civil unrest, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown or accident, fire, flood, storm or default of suppliers or subcontractors.
Embody Fitness shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
7.10 Data Protection: Embody Fitness shall only collect personal data as necessary to ensure the identity and ongoing safety of Clients. Such personal data is kept securely at the Facilities and will not be passed to third parties. The Client consents to the processing of such data as necessary for legal, personnel, administrative and management purposes and for the purposes of Embody Fitness providing the Client with information on products, services, special events and other general information as Embody Fitness deems appropriate.
7.11 Assignment: Embody Fitness may at any time assign the benefit of the Contract to a third party without notice to the Client.
7.12 Third Party Rights: A person who is not a party to the Contract shall have no rights under or in connection with it.
7.13 Waiver: A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
7.14 Variation: Except as set out in these Terms and Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Embody Fitness.
7.15 Entire Agreement: These Terms and Conditions and the Agreement constitute the entire agreement between Embody Fitness and the Client and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them whether written or oral, relating to its subject matter.
7.16 Governing Law: These Terms and Conditions and the Agreement and any disputes arising from them shall be governed by the laws of England and subject to the exclusive jurisdiction of the English courts.
EMBODY FITNESS LTD
1 Bartholomew Lane
Company Reg: 9495474