MEMBERSHIP AGREEMENT & PURCHASE TERMS
1. PROMISE TO PAY
Buyer agrees to pay to Seller, or to the order of Seller, the applicable enrollment fee, any initial prorated amount, and the recurring monthly draft amount designated in the MEMBER REGISTRATION SECTION under the category “Monthly Dues” at the time of checkout. Buyer authorizes Seller to initiate recurring electronic payment drafts in the agreed-upon amount.
2. DRAFT DUE DATES
Recurring monthly drafts shall be initiated automatically by Seller at 12:00 a.m. on the first (1st) day of each calendar month. Payment shall be deemed due on the third (3rd) day of each month (“Due Date”).
If the third (3rd) day of the month falls on a Saturday, Sunday, or federal/bank holiday, the Due Date shall be the next business day. Seller shall not be responsible for delays caused by financial institutions.
3. LATE OR FAILED PAYMENTS
If any draft is declined, returned, or otherwise fails, or if payment is received after the Due Date, Buyer shall be assessed a late fee of Ten Dollars ($10.00) per occurrence. Seller reserves the right to suspend membership privileges until the account is brought current.
4. CANCELLATION — MONTH-TO-MONTH MEMBERSHIPS
A Buyer enrolled in a Month-to-Month membership may cancel the Agreement at any time on or before the published gym closing hours (Central Standard Time) on the final calendar day of the month to avoid charges for the subsequent month.
a) Notice of cancellation must be provided either (i) in person at the facility, or (ii) in writing, if Buyer is physically unable to appear in person.
b) Cancellation requests made by telephone shall not be valid or accepted.
c) If Buyer is physically unable to cancel in person, written notice must be submitted via email to [email protected] prior to the published gym closing hours (Central Standard Time) on the final calendar day of the month.
Cancellation shall be effective only upon receipt and confirmation by Seller.
5. MEDICAL FREEZE
In the event Buyer has a documented medical condition that prevents participation in physical activity, Buyer may request a temporary freeze of membership payments for a period not to exceed three (3) consecutive months.
a) Buyer must provide written documentation from a licensed physician specifying the required duration of restricted physical activity.
b) All membership freezes shall automatically terminate at the conclusion of the approved freeze period, and regular billing shall resume.
c) Any request for additional freeze time must be submitted in person or in writing via email to [email protected]. Telephone requests shall not be accepted.
Seller reserves the right to verify medical documentation.
6. CLUB ENHANCEMENT FEE
Buyer acknowledges and agrees that two (2) separate Club Enhancement Fees in the amount of Twenty-Five Dollars ($25.00) each shall be drafted annually, in January and July, in addition to the standard monthly dues.
7. WAIVER AND RELEASE OF LIABILITY
Zach’s Club #1
In consideration of being permitted to enter, access, and/or use the facilities, equipment, services, programs, and premises of Zach’s Club #1 (hereinafter “Club”), the undersigned Member (“Member”), on behalf of themselves and their heirs, executors, administrators, assigns, and personal representatives, hereby agrees as follows:
1. ASSUMPTION OF RISK
Member acknowledges that participation in fitness activities, including but not limited to strength training, cardiovascular exercise, group fitness classes, personal training, stretching, and the use of exercise machinery and free weights, involves inherent risks. These risks include, but are not limited to, serious bodily injury, permanent disability, paralysis, illness, property damage, and death.
Member voluntarily and knowingly assumes all risks, whether known or unknown, foreseeable or unforeseeable, associated with the use of the Club’s facilities, equipment, services, and premises.
2. RELEASE AND WAIVER OF LIABILITY
To the fullest extent permitted by Texas law, Member hereby releases, waives, discharges, and covenants not to sue Zach’s Club #1, its owners, officers, directors, employees, contractors, agents, representatives, affiliates, successors, and assigns (collectively, “Released Parties”) from any and all claims, demands, causes of action, damages, losses, liabilities, costs, or expenses arising out of or related to:
Personal injury
Illness or medical conditions
Property damage or loss
Death
This release applies to any claim arising from or related to the Member’s presence at or use of the Club’s facilities, whether caused by the ordinary negligence of the Released Parties or otherwise, to the fullest extent permitted by law.
3. INDEMNIFICATION
Member agrees to indemnify, defend, and hold harmless the Released Parties from and against any and all claims, liabilities, damages, costs, and expenses (including reasonable attorney’s fees) arising out of or related to Member’s use of the Club’s facilities or any breach of this Agreement.
4. MEDICAL REPRESENTATIONS
Member represents that they are physically capable of participating in fitness activities and have not been advised otherwise by a qualified medical professional. Member understands that the Club does not provide medical advice and that it is Member’s responsibility to consult a physician prior to beginning any exercise program.
Member further agrees to immediately discontinue activity and notify Club staff if experiencing dizziness, chest pain, shortness of breath, or other concerning symptoms.
5. PROPERTY LOSS
Member understands that the Club is not responsible for lost, stolen, or damaged personal property, whether occurring in lockers, parking areas, or elsewhere on the premises.
6. EMERGENCY CARE
Member authorizes the Club to secure emergency medical treatment on Member’s behalf if deemed necessary. Member agrees to be solely responsible for all costs associated with such medical treatment.
7. SEVERABILITY
If any provision of this Waiver and Release is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
8. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
9. ACKNOWLEDGMENT OF UNDERSTANDING
Member acknowledges that they have carefully read this Waiver and Release of Liability, fully understand its terms, understand that they are giving up substantial legal rights, including the right to sue, and agree to be legally bound by its terms.
Member further acknowledges that this Waiver is intended to be as broad and inclusive as permitted by the laws of the State of Texas.
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TEXAS HEALTH SPA ACT
PURCHASER'S RIGHTS UNDER TEXAS HEALTH SPA ACT:
To extent the club is considered a "health spa" under Texas Health Spa Act (the "ACT"), as purchaser you have the following rights under the Act:A) IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF THIS HEALTH SPA, YOU MAY CANCEL THIS CONTRACT BY MAILING TO THE HEALTH SPA BY MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DAY YOU SIGN THIS CONTRACT A NOTICE STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS: ZACH'S CLUB #1,·4229 78th Street, Lubbock, Texas 79423. B) IF THE HEALTH SPA GOES OUT OF BUSINESS AND DOES NOT PROVIDE FACILITIES WITHIN 10 MILES OF THE FACILITY IN WHICH YOU ARE ENROLLED OR IF THE HEALTH SPA MOVES MORE THAN 10 MILES FROM THE FACILITY IN WHICH YOU HAVE ENROLLED, YOU MAY: (1) CANCEL THIS CONTRACT BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT, ACCOMPANIED BY PROOF OF PAYMENT ON THE CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS: ZACH'S CLUB #1, 4229 78th Street, Lubbock, Texas 79423; and (2) FILE A CLAIM FOR A REFUND OF YOUR UNUSED MEMBERSHIP FEES AGAINST THE BOND OR OTHER SECURITY POSTED BY THE HEALTH SPA WITH THE TEXAS SECRETARY OF STATE. TO MAKE A CLAIM AGAINST THE SECURITY, PROVIDE A COPY OF YOUR CONTRACT TOGETHER WITH PROOF OF PAYMENTS MADE ON THE CONTRACT TO THE TEXAS SECRETARY OF STATE. THE REQUIRED CLAIM INFORMATION MUST BE RECEIVED BY THE SECRETARY OF STATE NOT LATER THAN THE 90TH DAY AFTER THE DATE NOTICE OF THE CLOSURE OR RELOCATION IS FIRST POSTED ON THE SECRETARY OF STATE’S INTERNET WEBSITE.C) IF YOU DIE OR BECOME TOTALLY AND PERMANENTLY DISABLED AFTER THE DATE THIS CONTRACT TAKES EFFECT, YOU OR YOUR ESTATE MAY CANCEL THIS CONTRACT AND RECEIVE A PARTIAL REFUND ON YOUR UNUSED MEMBERSHIP FEE BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE HEALTH SPA MAY REQUIRE PROOF OF DISABILITY OR DEATH. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS: ZACH'S CLUB #1, 4229 78th Street, Lubbock, Texas 79423."IF THE SPA DOES NOT REMAIN OPEN FOR THIRTY DAYS, YOU ARE ENTITLED TO A FULL REFUND OF THE MONEY YOU PREPAID. HOWEVER, IF ANOTHER HEALTH SPA, OPERATED BY ZACH'S CLUB #1 IS LOCATED WITHIN 10 MILES OF 4229 78TH STREET• LUBBOCK, TEXAS 79423, AND IF YOU ARE AUTHORIZED TO USE THE OTHER FACILITIES, YOU ARE ENTITLED TO RECEIVE A FULL REFUND OF YOUR MEMBERSHIP FEES ONLY IF THIS LOCATION DOES NOT FULLY OPEN FOR BUSINESS OR IF THE NEW SPA DOES NOT REMAIN OPEN FOR 30 DAYS. Buyer shall continue to be responsible for payment of all installments that have accrued under the terms of this Agreement prior to Buyer's giving Seller written notice of his relocation and cancellation. For purposes of construction herein residence shall mean domicile. Any refund that Buyer may be entitled shall be determined by pro-rating the membership fee or extension fee, whichever appropriate, over the unused portion of the membership or extension term.
RESTRICTIONS ON CANCELLATION OR ASSIGNMENT: You understand that you have signed an installment promissory note. Your failure to use the membership or facilities does not relieve you of your liability for payment hereunder other than as described above and your membership is absolutely non-transferrable, non-assignable, non-refundable and non-cancelable, except as provided in this Agreement. You understand the Seller shall be entitled to sell, transfer, discount or assign this agreement to a financial institution or other entity without consent of the buyer.
WARNING: If you have a history of heart-related disease, you should consult a physician before purchasing a membership. A person entitled to membership privileges under this Contract who has a history of heart-related disease also should consult a physician before utilizing the programs and facilities of the Seller.
LAW APPLICABLE: Texas State law governs this Agreement.
INVALID PROVISION: The provisions of this Agreement are severable. If any provision of this Agreement is declared to be void, invalid or unenforceable, it is the intention of all parties to this agreement that the remainder of the agreement will remain valid and enforceable.
LIABILITY: If more than one Buyer is signing this agreement, each Buyer is jointly and severally responsible to fully perform all obligations under this agreement. It is Buyer's responsibility to know whether this Agreement is in default for nonpayment or any other reason.
NO WAIVER OF RIGHTS: Seller does not waive the right to have future payments made when due if Seller accepts a late or partial payment or delays in the enforcement of his/her rights on any occasion.
APPLICATION OF PAYMENTS: Seller will apply all payments received to pay the installments (including late charges, if any) in the order in which they are scheduled to be paid.
DISHONORED CHECK FEE: If a check, draft, or order for the payment of money on any bank or other depository submitted by Buyer to Seller as payment is not honored by the bank, then Seller may add a fee of $20.00 or an amount equal to the actual charge by the depository institution for the return of any dishonored instruments, whichever is greater, to the unpaid balance under this agreement.
DEFAULT: You are in default if: (A) We do not receive an installment payment from you on or before the date it is due; or (B) You fail to fulfill any obligations or promises under this Agreement including but not limited to full compliance with Club Rules and Regulations.
ACCELERATION OF PAYMENTS: If you are in default in the agreement, Seller can immediately without notice demand payment of all unpaid installments.
ATTORNEYS FEES AND COURT COSTS: If your failure to pay and one or more of the installments due under this agreement results in Seller's retaining an attorney for collection of the installments due hereunder, you shall be responsible for the payment of court costs and reasonable attorney fees of fifteen (15%) percent of the unpaid principle and interest due hereafter.
RULES AND REGULATIONS: (attached to agreement) I understand that violation of the rules may cause my membership in the club to be immediately revoked or terminated at the discretion of Seller. In the event of termination of my membership by Seller for rule violations, my liability for any payments occurring after the date of my membership termination shall cease. In the event of violation of rules and regulations of this health spa, member will be considered in default of the membership terms. Seller reserves the right to make additional rules and regulations as it deems necessary in its sole discretion.
WAIVER OF EXEMPTIONS: Buyer waives, as to the debt incurred in this agreement or any extension hereof, all rights of exemption as to personal property allowed under the United States Constitution, the laws of the State of Texas or any other state.
LIABILITY WAIVER: It is expressly agreed that all use of the fitness facilities shall be undertaken by Buyer at his or her own risk. It is further agreed that the Seller shall not be liable for any injuries or damage to Buyer or his guests, nor the property of any Buyer or his guests, nor be subject to any claim, demand, injury or damages whatsoever, including but not limited to those damages resulting from acts or active or passive negligence on the part of the Seller, it's successors or assigns or officers and agents. It is specifically agreed that the Seller shall not be responsible or liable to Buyer or his guests for articles lost or stolen in the Club. The Seller shall not be responsible or liable for loss or damage to any other property of Buyer or his guests, including their automobiles and the contents thereof. It is also agreed that any damages to the Club facilities or property, or to the property of any Buyer by another Buyer or his guests, is the sole responsibility of the offending Buyer. Buyer agrees that he is responsible for any damages caused by Buyer to the facilities and equipment, and for any personal injury or property damage caused by Buyer to any other Buyer, guests, or to the property of either. Buyer further agrees to indemnity the Seller of any loss caused by Buyer for which the Seller Is accused or held liable including reasonable attorney fees.
MEMBERSHIP RESERVATION: For the purposes of construction herein the term MEMBERSHIP RESERVATION shall mean securing a membership rate which shall commence upon the opening of this health spa. A membership Reservation will become a membership upon the opening of this facility.
NOTICE: ANY HOLDER OF THE CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF, RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER