These Terms of Service (these “Terms”) are agreed by and between Strength Wise LLC, an Illinois limited liability company (“Strength Wise”), and you, the service recipient, if you are at least eighteen (18) years old, or the service recipient and the service recipient’s parent or other legal guardian (collectively, “Parent”), if the service recipient is under eighteen (18) years old (collectively, “You”), effective as of its mutual execution by the Parties (“Effective Date”). You and Strength Wise are each a “Party” and together are the “Parties” to these Terms. The term, “Representatives” as used in these Terms means each and all current and future members, managers, owners, shareholders, officers, directors, partners, agents, representatives, employees, independent contractors, successors, assigns, parent entities, affiliated entities, and subsidiaries of Strength Wise. The term, “Section” as used in these Terms means any numbered or other enumerated part of these Terms, including each and any clause, paragraph, or portion of such part, whether indented, sub-identified, or which otherwise reasonably appears intended to be included as part of or under that part.
1. Application of Terms. These Terms apply to any and all sessions, plans, packages, coaching, training, and other services at, by, or with Strength Wise (collectively, “Services”). Strength Wise reserves the right to amend or update these Terms at any time in its discretion, provided that the version of these Terms to which you agree when booking a particular subscription, plan, or package will continue to apply to such subscription, plan, or package for the duration of such Services or one year, whichever is shorter. Strength Wise’s then-current Terms shall apply to any additional Services thereafter. The most current version of these Terms is available at https://www.strengthwisebarbell.com/ and at any time upon request by emailing chris@strengthwisebarbell.com. You may also print a copy of these Terms upon agreement.
2. Responsibility and Release.
A. Assumption of Risk. You understand and agree that, except in the event of Strength Wise’s sole negligence or willful misconduct, You assume full and sole responsibility, risk and liability for and in connection with your health, wellness, and safety in connection with Services. You are solely responsible for ensuring your Services are suitable and appropriate for You, including confirming the same with your doctor, as deemed necessary or useful by You, and warrant and assert that before engaging in Services, You have determined your fitness and suitability for the Services.
You agree that You alone will ensure that You do not exceed your physical limits during Services and are engaging in Services at a pace and in a way that is healthy and appropriate for You. If You need a break or have concerns regarding your Services, health, or wellness, You will immediately tend to your needs and communicate with Strength Wise. Without limiting your responsibilities and assumption of risk and liability under this Section 2. A., at any time at Strength Wise’s discretion You may be required to present a doctor’s note before beginning or continuing Services, provided that no such requirement will result in any shifting of your responsibility, liability or assumption of risk under this Section to Strength Wise before, upon, or following any such requirement.
Except with respect to Strength Wise’s sole negligence or willful misconduct, You voluntarily assume all risk of harm associated with your Services, health, safety, and wellness, including related to use of facilities, equipment, and machinery, including risks of death, bodily injury, permanent disability, or otherwise, and including any and all known and unknown risks, including risks you may not be able to foresee at the time of agreeing to these Terms. If you are a California resident, You hereby waive California Civil Code § 1542, as may be amended, (or if You are a resident(s) of any state with a code or law similar in reading or meaning to California Civil Code § 1542, You hereby waive the similar section, as may be amended, of such code or law), which reads, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party”.
You acknowledge and agree that risks such as, but without limitation, fainting; broken bones; strained or torn muscles; torn or strained ligaments, tendons, and other connective tissues; herniated discs and other spinal injuries; cardiovascular or cerebrovascular events, including heart attack or stroke; conditions related to overexertion, including heat stroke/exhaustion or rhabdomyolysis; damage to the nervous system, including irreversible damage to the brain or spinal cord; mental injuries; aggravation of pre-existing conditions, known and unknown; death, disability, and otherwise can occur in connection with exercise equipment, machinery, and facilities, exercise, and physical fitness activities, including the Services, and You are willing to assume all such risks.
B. Release and Indemnification. Except in the event of Strength Wise’s sole negligence or willful misconduct, You hereby specifically and forever release, waive, discharge, and covenant not to sue Strength Wise and/or its Representatives for, and hereby defend, indemnify, and hold harmless Strength Wise and its Representatives from and against, any and/or all claims, demands, allegations, actions, suits, proceedings, arbitrations, mediations, investigations, fees, costs, losses, damages, injuries, obligations, expenses, and/or liabilities of any nature, including attorneys’ fees and other legal costs, and including threats of any of the foregoing (collectively, “Claims”) arising out of or in connection with your Services, health, wellness, or safety.
C. Equipment and Facilities. You understand and agree that if your Services require use of your own equipment, machinery, and/or facilities, You are solely responsible for all such equipment, machinery, and/or facilities.
D. Third Parties. You understand and agree that Strength Wise is not liable or responsible for the acts or omissions of any third party or third-party equipment, machinery or facilities.
E. DISCLAIMER OF ADVICE OR WARRANTY. You understand and agree that Strength Wise and its Representatives do not, and are not expected to, provide any medical (whether mental, physical, or emotional), nutritional, dietary, spiritual, therapeutic, or other professional advice, diagnosis, treatment, or counseling whatsoever. Any guidelines or information provided by Strength Wise is provided as-is and with all faults, without warranties of any kind, whether express, implied, or statutory, and to the fullest extent allowed by applicable law, Strength Wise hereby disclaims any and all warranties of any kind hereunder, including warranties of accuracy, reliability, fitness for a particular purpose, safety, suitability, correspondence to description, or otherwise. You agree that You are responsible for independently determining the suitability for You of any and all guidance and information provided by Strength Wise.
F. LIMITATION OF LIABILITY. IN NO EVENT WILL STRENGTH WISE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF SOCIETY, EMOTIONAL DISTRESS, LOST PROFITS OR REVENUES, OR OTHERWISE, ARISING UNDER OR IN CONNECTION TO THE SERVICES OR THESE TERMS. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, ANY ACTION AGAINST STRENGTH WISE UNDER OR IN CONNECTION TO THESE TERMS OR THE SERVICES MUST BE BROUGHT WITHIN ONE YEAR FOLLOWING THE DATE OF SERVICES SUBJECT TO THE CLAIM. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL STRENGTH WISE’S TOTAL AGGREGATE LIABILITY UNDER AND IN CONNECTION TO THESE TERMS AND THE SERVICES EXCEED ACTUAL AND DIRECT DAMAGES OF AN AMOUNT UP TO THE SUM OF AGGREGATE FEES PAID BY YOU HEREUNDER DURING THE THREE MONTHS PRECEDING THE SERVICES SUBJECT TO THE CLAIM PLUS $1000.00.
3. Payments.
A. Fees. You will pay to Strength Wise, in advance or in arrears at Strength Wise’s discretion, Strength Wise’s then-current fees for Services, with such regularity applicable according to the plan, package, or sessions You have booked. Monthly subscriptions are typically paid monthly in advance. Packages are typically paid in advance per package. Hourly Services are typically billed either in advance or in arrears, per Strength Wise.
B. Invoices. Strength Wise may invoice You for Services, and You will pay to Strength Wise, on each and any invoice date, in such manner instructed by Strength Wise, the full amount listed therein as owing and due on your account.
C. Card on File. You hereby agree to place a payment card on file for the convenience of both Parties in submitting invoice payments and any applicable automatic charges hereunder. You hereby authorize Strength Wise to automatically charge applicable fees to your card as such fees become due for I) your upcoming monthly or other advance-payment Services and II) amounts expressly authorized to be charged to such card hereunder.
D. Interest and Collections. In the event of any overdue balance, problematic payment, or non-payment on your account, I) the amount not timely received by Strength Wise will additionally incur, and You will additionally pay to Strength Wise thereon upon its demand, interest at the higher lawful rate of nine percent (9%) simple annual interest or the highest rate otherwise allowed by applicable law, II) You will be liable for, and will pay to Strength Wise upon its demand, in addition to all other amounts owing and due hereunder, Strength Wise’s related costs, damages and losses, including bank and financial institution fees, collections costs, attorneys’ fees and other legal costs, and the reasonable costs of time of Strength Wise personnel with respect to your account, and III) Strength Wise may, at its discretion, suspend Services until your account is paid-in-full and/or require upcoming Services to be paid in advance and/or terminate Services. No termination or cancellation of Services will reduce or eliminate your payment obligations or liability under these Terms.
4. Cancellations and Termination.
A. Sessions.
I) You may cancel or request to reschedule sessions in writing at least twenty-four (24) hours in advance. Any session not timely cancelled or requested to be rescheduled will be deemed used and payment for such session earned by Strength Wise, due and payable upon demand if not pre-paid. If You cancel or reschedule more than three (3) sessions during any month, You will additionally be liable for, and You hereby authorize Strength Wise to charge to your card on file, a cancellation fee of $75.00.
II) Strength Wise may cancel or reschedule scheduled sessions upon immediate notice to You. In such event, Strength Wise will either reschedule sessions, not charge for said session, or refund unused pre-paid fees for sessions not reasonably able to be rescheduled at Strength Wise’s discretion.
B. Services.
I) First few days after booking. You may cancel your Services and agreement to these Terms at your discretion upon written notice to Strength Wise within the first three (3) business days after agreeing to these Terms and receive a full refund of all monies paid. A business day is any day on which Strength Wise’s facilities are open, provided that if Strength Wise has no facilities at such time, You may cancel your Services and agreement to these Terms upon written notice to Strength Wise within the first seven (7) calendar days after agreeing and receive a full refund.
II) After the first few days. After the first three (3) or seven (7) days after agreeing to these Terms, as applicable per above:
a) For monthly subscription Services, after three months of Services, You may terminate your Services upon written notice to Strength Wise at least two weeks prior to the start of your next upcoming service month with payment of final monthly payment and any and all amounts then owing and due hereunder on your account. For purposes of clarity, monthly subscription Services may only be terminated as of the close of the applicable service month following timely notice of termination, beginning with the third month of Services.
b) For package Services, You may terminate your Services at least twenty-four (24) hours in advance of next upcoming session with payment of any and all amounts then owing and due hereunder on your account. Subject to the other terms and conditions of these Terms, any pre-paid Services rendered at discounted package rates will be deemed re-priced at Strength Wise’s then-current full retail rates, and You will be liable for, and hereby authorize Strength Wise to charge to your card on file, any balance then owing and due for re-priced rendered Services not covered by amounts previously pre-paid by You. Any overages on your account thereafter not otherwise owing and due hereunder will be refunded.
c) For hourly sessions, You may terminate your Services at least twenty-four (24) hours in advance of next upcoming session with payment of any and all amounts then owing and due hereunder on your account. Subject to the other terms and conditions of these Terms, unused, prepaid, full-price retail sessions will be refunded, if applicable, provided that terminating during use of pre-paid, discounted bulk rate sessions, used sessions will be deemed re-priced at Strength Wise’s then-current full retail session rates, and You will be liable for, and hereby authorize Strength Wise to charge to your card on file, any balance then owing and due for re-priced used sessions not covered by amounts previously pre-paid by You. Any overages on your account thereafter not otherwise owing and due hereunder will be refunded.
If your Services are performed at Strength Wise’s facilities and You relocate your residence to a location farther than twenty-five (25) miles from Strength Wise’s facilities, if Strength Wise does not designate another center with comparable facilities and services within 25 miles of your new residence that agrees to accept Strength Wise’s obligations hereunder, You may terminate your Services and, subject to the other terms and conditions of these Terms, will be liable for all amounts owing and due hereunder on your account through the date of reasonable notice of relocation to Strength Wise.
d) In event of death or disability which prevents continuation of Services, upon written notice to Strength Wise of termination and reason, You will only be liable for amounts due hereunder on your account up to the date of death or onset of disability.
e) Any cancellation or termination notice by You must be in writing and delivered by certified or registered mail to Strength Wise, LLC, 2622 Noyes Street, Evanston, IL 60201 or otherwise in accordance with Section 6 A of these Terms.
f) Any refunds under this Section 4. B. will be made within thirty (30) days of Strength Wise’s receipt of your written cancellation/termination notice.
III) Strength Wise. Strength Wise may terminate the Services at any time upon written notice to You. In any such event, subject to the other terms and conditions of these Terms, Strength Wise may refund any monies at its discretion and will have the right, at its discretion, to retain any and all pre-paid amounts toward payment of, and/or to charge your card on file for (and You hereby authorize such charges to your card), and/or to demand full payment of, and You will pay to Strength Wise, upon its demand, all amounts then owing and due hereunder on your account.
5. Content. To the extent Strength Wise develops, provides, shares, or uses in connection with the Services any designs, illustrations, writings, or other authored content; methodologies, processes or protocols; ideas, innovations, betterments, or inventions; or other intellectual property, the same either constitute the intellectual property of Strength Wise (collectively, “Strength Wise IP”) or of its licensors (collectively, “Strength Wise IP and that of its licensors, “IP”) and may be used by You, personally and privately, solely in connection with and for the purpose of your Services and your future personal, private physical fitness training and exercise. You may not post, distribute, display, transfer, sell, commercialize, or otherwise share or use any such IP without the prior written consent of Strength Wise and any such licensors, as applicable.
6. Miscellaneous.
A. Notices. Notices hereunder will be in writing and delivered I) in-person; II) by overnight courier; III) by postage pre-paid, certified mail; or IV) electronically via email, facsimile, or other electronic delivery used between the Parties, with proof of delivery required. In person, courier-delivered, and electronic notices are deemed given upon delivery. Postal notices are deemed given three (3) days after mailing for domestic U.S. mail or ten (10) days after mailing for international mail. Addresses for notice are those at the bottom of these Terms, unless updated by a Party by notice in accordance with this Section.
B. Construction. The headings in these Terms are for convenience only and will not affect the interpretation of these Terms or any Section of them. Words and phrases in these Terms will be applied flexibly in the singular or plural and neutral, feminine, or masculine genders, as required by context, and will not strictly limit any interpretation or application. All monetary amounts are in U.S. dollars. Uses of the word, “including” in these Terms will be read to mean, “including, but not limited to,” unless the context requires otherwise.
C. Waiver. The failure of a Party to insist upon strict performance, or the waiver by a Party of any breach, of any provision of these Terms is not, and will not be deemed, estoppel against asserting the right to require the performance in the future or a waiver of any other provision or any subsequent breach of the same or any other provision. All remedies are cumulative.
D. Severability. Should a court of competent jurisdiction find any provision of these Terms invalid or unenforceable as written, then the remainder of these Terms will be unimpaired and continue in full force and effect and the invalid or unenforceable provision will be modified or limited to the fullest extent possible so that it is valid and enforceable as closely as possible in effect to the Parties’ intentions as written, or if it cannot be so modified or limited, it will be omitted from these Terms.
E. Entire Agreement. These Terms constitute the entire agreement, and supersede all prior and contemporaneous agreements, offers, communications, and understandings, between the Parties with respect to the subject matter of these Terms. These Terms are binding on the Parties and enforceable by them and their heirs, successors and assigns, and as otherwise required under applicable law.
F. Force Majeure. Strength Wise will not be liable or responsible or deemed in breach or default of any provision of these Terms, or for delays, changes, or failures in performance or partial or incomplete performance, caused by or in connection with event, circumstances, or forces beyond its reasonable control.
G. Governing Law. These Terms are governed, construed and enforced in accordance with the domestic substantive laws of the State of Illinois, without giving effect to any choice or conflict of law rule or provision that would cause the application of the law of any other jurisdiction. The state and federal courts of Cook County, Illinois have exclusive jurisdiction over, and are the exclusive forums for, any dispute, claim, or cause of action arising under or in connection to these Terms which proceeds to a court of law, regardless of the Party initiating the action, and the Parties hereby irrevocably consent to personal jurisdiction in such courts, waive any right they may have to object to jurisdiction of, or venue in, such courts, and agree that service of process may be made upon each Party, respectively, by any means allowed by Illinois or U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Should any dispute hereunder proceed to a court of law, the prevailing Party will be entitled, in addition to any other relief awarded, to its reasonable costs and expenses incurred in connection with the dispute, including reasonable attorneys’ fees and other legal costs.