ILiability Waiver

User’s Representations, Express Assumption of All Risks, Understanding of Contagious Illness Protocol, and Release of Liability Agreement

Purpose of This Binding Agreement

By reading and signing this document (the “Agreement”), “You,” the undersigned, sometimes also referred to as “User” or “I,” will agree to release and hold PEX Health and Fitness, LLC, with a principal place of business at [1451 Highland Avenue, Needham MA 02492] (“PEX” or “We”) harmless from, and assume all responsibility for, all claims, demands, injuries, damages, actions or causes of action to persons or property, arising out of or connected with your use of PEX’s facilities, premises, or services. Completion of this waiver shall indicate that you have read all terms and conditions included within the body of this waiver, acknowledge that you understand the terms and conditions set forth in all paragraphs, and agree to same, as the user or as a parent or guardian if the individual user is a minor.

The Agreement, and release, is for the benefit of PEX, its employees, agents, independent contractors, other users of PEX and all persons on PEX’s premises. This Agreement includes your release of these persons from responsibility for injury, damage, or death to yourself because of those acts or omissions claimed to be related to the ordinary negligence of these persons. This Agreement also includes your representations as to important matters which PEX will rely upon. As used herein, the terms “include,” “including,” and words of similar import are descriptive only, and are not limiting in any manner.

A. Representations

The undersigned, You, represent: (a) that you understand that use of PEX’s premises, facilities, equipment, services and programs includes an inherent risk of injury to persons and property; (b) that you are in good physical condition and have no disabilities, illnesses, or other conditions that could prevent you from exercising and using PEX’s equipment/facilities without injuring yourself or impairing your health; and (c) that you have consulted a physician concerning an exercise program that will not risk injury to yourself or impairment of your health.

Such risk of injury includes, but is not limited to, injuries arising from or relating to use by you or others of exercise equipment and machines, locker rooms, bathrooms and other wet areas, and other PEX facilities; injuries arising from or relating to participation by you or others in supervised or unsupervised activities or programs through PEX; injuries and medical disorders arising from or relating to use of PEX’s facilities including heart attacks, sudden cardiac arrests, strokes, heat stress, sprains, strains, broken bones, and torn muscles, tendons, and ligaments, among others; and accidental injuries occurring anywhere in PEX including lobbies, hallways, exercise areas, locker rooms, bathrooms, and dressing rooms.

Accidental injuries include those caused by you, those caused by other persons, and those of a “slip-and fall” nature. If you have any special exercise requirements or limitations, you agree to disclose them to PEX before using PEX’s facilities; and when seeking help in establishing an exercise program, you hereby agree that all exercise and use of PEX’s facilities, services, programs, and premises are undertaken by you at your sole risk.

You do hereby further declare yourself to be physically sound and suffering from no condition, impairment, disease, infirmity, or other illness that would prevent your participation or use of equipment or machinery except as hereinafter stated. You do hereby acknowledge that you have been informed of the need for a physician’s approval for your participation in an exercise/fitness activity or in the use of exercise equipment and machinery. You acknowledge either that you have had a physical examination and have been given your physician’s permission to participate, or that you have decided to participate in activity and use of equipment and machinery without the approval of your physician and do hereby assume all responsibility for your participation and activities, and utilization of equipment and machinery in your activities.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME. 

B. Express Assumption of All Risks

You have represented to us and acknowledged that you understand and appreciate all of the risks associated with your participation in various activities at PEX and in the use of equipment/facilities at PEX, including the risks of injury, disability, and death. Knowing and appreciating all of these risks and enhanced risks, you have knowingly and intelligently determined to expressly assume all risks associated with all of your activities and use of equipment/facilities at PEX.

You understand and are aware that strength, flexibility and aerobic exercise, including the use of equipment, is a potentially hazardous activity. You also understand that fitness activities involve the risk of injury and even death, and that you are voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved.

We have also reviewed the risks with you on the date when you signed this Agreement and answered any questions that you may have had. You hereby agree to expressly assume and accept any and all risks of injury or death including those related to your use of or presence at this facility, your use of equipment, and your participation in activity, including those risks related to the ordinary negligence of those released by this Agreement and including all claims related to ordinary negligence in the selection, purchase, setup, maintenance, instruction as to use, and use and/or supervision of use, if any, associated with all equipment and facilities.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME. 

C. Agreement and Release of Liability

In consideration of being allowed to participate in the activities and programs of PEX and to use its equipment/facilities and machinery in addition to the payment of any fee or charge, you do hereby waive, release, and forever discharge PEX and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors, and all others from any and all responsibilities or liability from injuries or damages resulting from your participation in any activities or your use of equipment/facilities or machinery in the above-mentioned activities.

You do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to yourself, including those caused by the negligent act or omission of any of those mentioned or others acting on their behalf or in any way arising out of or connected with your participation in any activities of PEX. This provision shall apply to ordinary acts of negligence but shall not apply to gross acts/omissions of negligence, willful or wanton acts/omissions, or those of an intentional/criminal nature.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.

D. Loss or Theft of Property

PEX is not responsible for lost or stolen articles. You should keep any valuables with you at all times while using the facilities. Storage space or lockers do not always protect valuables. Consequently, by executing this Agreement and any accompanying documents, you do hereby agree to assume all responsibility for your own property and that of any dependent(s) and to protect that property against risk of loss as you see fit. By the execution hereof, you expressly, on behalf of yourself and any dependents, do hereby knowingly agree to forego, waive, release, and prospectively give up any right to institute any claim or action against PEX relating to lost or stolen property, including property lost or stolen due to the negligent act or omission of PEX.

You agree to indemnify and save PEX and all of its personnel harmless from any action, claim, suit, or subrogated claim or suit instituted at any time hereafter against PEX related to the theft or loss of your or your dependents’ property at PEX. PEX shall be indemnified by you for all costs, expenses, fees, including attorney fees, incurred by PEX or its personnel by reason of any such action.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME. 

E. Data Privacy.

You acknowledge that PEX holds certain personal information about You, including, but not limited to, name, home address and telephone number, date of birth, payment information, and identification number. You consent to the collection, use and transfer (including but not limited to transfers to parties assisting in the implementation, administration and management of PEX’s business purposes), in electronic or other form, of such personal data for the purpose of implementing, administering, and managing Your participation in PEX’s business purposes.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.

F. Social Media Representation

You hereby assign and grant to PEX all right, title and interest to and permission to copyright, use, publish and republish your name, voice, picture and likeness (collectively, “Likeness”) in any and all media distribution or distribution now known or hereafter developed taken or recorded during your use of PEX including but not limited to electronic, digital or conventional, blurred, altered or distorted, in color or black and white, video or otherwise for art, internal distribution, social media and marketing or any other lawful purpose in any lawful manner anywhere in the world and/ or on the worldwide web.

“Social Media” can be defined as including but not limited to the following platforms; Facebook, Instagram, Twitter, YouTube, TikTok, Snapchat, Pinterest, Linkedin. You hereby waive any right to inspect or approve any final product using Your Likeness. You hereby release and discharge PEX from any and all actions, claims and demands of any nature which You may have at any time now or in the future arising out of or related to the rights granted above or Your Likeness.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.

User shall receive a copy of the foregoing Agreement at the time of the initialing and signing and hereby acknowledges User’s receipt of same.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.

This Agreement shall be interpreted according to the laws of the Commonwealth of Massachusetts. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party. If any part of this Agreement should ever be determined by a court of final jurisdiction to be invalid, the remaining portions hereof shall be deemed to be valid and enforceable.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.

I irrevocably waive all right to a trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.

G. Contagious Illness Protocol.

You understand that, as provided in section B of this agreement, You are assuming all risk associated with participating in PEX training sessions (where you may be in close physical proximity to other PEX trainers and clients), including without limitation, all risk that You may be exposed to or contracted any contagious illness or infection including but not limited to, COVID-19 virus or any variants thereof, MRSA, Staph, Strep Throat and the Common Flu (“Contagious Illness” hereafter).

You hereby certify that, as of the date hereof, and as of each and every date that you enter a PEX facility or participate in an in-person PEX activity, you:
Have no signs of a fever or measured temperature above 100.3 degrees or greater, a cough, sore throat or trouble breathing within the past 24 hours.
You have not, during the prior 14 days, had “close contact” with an individual diagnosed with any contagious illness or infection. “Close contact” means living in the same household as, caring for, being within 6-feet of for 15 minutes or more, or coming in direct contact with secretions (e.g. sharing utensils, being coughed on) from a person who has tested positive for any Contagious Illness or infection while that person was symptomatic.

You have not been asked to self-isolate or quarantine by Your doctor or any local public health official.

You have not tested positive for any Contagious Illness or infection nor are You waiting for test results

I have read, understood and will comply with the PEX Contagious Illness Protocol, which may be changed by PEX in its sole discretion at any time without notice. If I do not agree with or am unwilling or unable to comply with all aspects of the PEX Contagious Illness Protocol, I will not Enter any PEX facility or participate in any in-person PEX activity.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.

I hereby waive, release and forever discharge and hold PEX, its owners, all PEX trainers and all other PEX clients (“Indemnified Persons”) harmless from and against any and all injuries, damages, claims, costs, expenses and liabilities of ever kind or nature (“Claims”) that I suffer or incur (including without limitation any injuries, damages, or claims arising as a result of my personal illness or death from a Contagious Illness arising as a result or in connection with my participation in a PEX activity, or my presence at a PEX facility, and I hereby waive all Claims and agree not to bring any legal or administrative action or in any way assert any Claims against any Indemnified Persons.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME. 

I acknowledge and agree that PEX will not allow me to enter its facilities or participate in PEX activities unless I certify as above and agree to and comply with the terms and conditions of this Contagious Illness Protocol.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME. 

Acknowledgment

I have read and received a completed copy of this Agreement and all of its Exhibits, as well as any Rules and Regulations of PEX which are incorporated herein by reference. I agree to be bound by the terms and conditions of the Agreement and the Rules and Regulations of PEX, as same exist or as same may be amended from time to time hereafter.

This Agreement shall be binding upon me and my spouse, my heirs, my estate, my executors, my administrators, and my successors and/or assigns. I realize that this Agreement is designed to prevent me and/or them from filing any personal injury or other lawsuit based upon ordinary negligence, including negligent battery, or even negligent wrongful death, loss of consortium, or any other similar lawsuit arising out of any injury to me which I or they may possess hereafter.

The undersigned, on behalf of myself and my heirs, executors, administrators, successors, and assigns hereby agree to indemnify PEX and all those hereby released and to hold them absolutely harmless if anyone, including the undersigned, should hereafter file suit against PEX or those released hereby for any matter intended to be released by this Agreement, including claims based upon ordinary negligence such as but not limited to personal injury, wrongful death, loss of consortium, or other similar actions.

YOUR INITIALS INDICATE THAT YOU HAVE READ THE FOREGOING, ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS AND CONDITIONS SET FORTH IN THE PRECEDING PARAGRAPHS AND AGREE TO SAME.