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Apex Gyms – The Den

(Apex Gyms - The Den, LLC)

Location: 1000 Cornwall Road, Monmouth Junction, NJ 08852

Conditional Access Agreement, Pre-Injury Waiver of Liability, Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate (the “Agreement)

PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY AND WAIVER OF LEGAL RIGHTS.

I wish to become a member of Apex Gyms – The Den. I understand that I will now be allowed to use or access Apex Gyms – The Den until I have executed and complied with the terms of this Agreement. All members are strongly encouraged to have a complete physical examination by a medical doctor prior to beginning any work out program or strenuous new activity. If I have a history of heart disease, I agree to consult a physician before becoming a member of Apex Gyms – The Den.

In consideration and as a condition for gaining access to Apex Gyms – The Den at 1000 Cornwall Road, Monmouth Junction, New Jersey 08852 (the “Location”) and allowing my participation in or viewing of gym activities and engaging the services of Apex Gyms – The Den LLC their agents, owners, members, officers, directors, representatives, assigns, affiliates, volunteers, participants, employees, insurers, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as “Apex”), I on behalf of myself, my spouse, my children, my parents, my heirs, assigns, personal representatives, estate, and insurers, agree as follows:

I further certify that, if signing on behalf of a minor,  I am the parent or legal guardian of the child(ren) listed above on this Agreement, or that I have been granted power of attorney to sign this Agreement on behalf of the parent or legal guardian of the child(ren) listed in this Agreement. Except for the age limitation in the Waiver of Liability and Agreement to Indemnity section below, the terms “I,” “my,” “me,” and “myself” shall refer to myself, my spouse, my children, my parents, my heirs, assigns, personal representatives, estate, and insurers.

I have had sufficient opportunity to read this entire document. I understand this Agreement and agree to be bound by its terms. I understand that by signing this Agreement I am waiving certain rights in exchange for permission to gain access to the Location. I agree and acknowledge that the rights I am waiving in exchange for permission to gain access to the Location include, but may not be limited to:

1. the right to sue Apex in a court of law;

2. the right to claim money from Apex for accidents causing injury within the scope of the risk assumed by myself;

3. the right to claim money from Apex for accidents causing injury unless Apex committed acts of gross negligence or willful and wanton misconduct;

4. the right to file a claim against Apex if I wait more than one year from the date of this Agreement.

1. ASSUMPTION OF RISK ACKNOWLEDGMENT

I understand and acknowledge that:

a) The activities at Apex, including but not limited to use of gym equipment, weights, fitness machines, the facility premises, and supervised or unsupervised activities within Apex or outside Apex, to the extent sponsored or endorsed by Apex (collectively, the “Activities”), involve inherent and other risks, hazards, and dangers that may result in physical or emotional injury, including but not limited to broken bones, sprained or torn muscles, sprained or torn ligaments and tendons, paralysis, hear attacks, strokes, heart stress, death, or other bodily injury or property damage to myself or to third parties, including injuries resulting from the actions taken or decisions made regarding medical or survival procedures.

b) These risks include but are not limited to being struck or impacted by equipment or machinery; tripping, slipping or falling; collisions with other participants or objects; equipment failure or misuse; overexertion; improper technique; and the acts or omissions of other participants, spectators, guests, or Apex.

c) Participation in the Activities is purely voluntary, and I elect to participate (or allow the minor to participate) with full knowledge of the risks involved, as well as all risk of loss, theft, or damage of personal property. I understand that such risks cannot be eliminated without jeopardizing the essential qualities of the Activities. I expressly agree and promise to accept and assume all risks in participating in or viewing the Activities. 

2. ASSUMPTION OF RISK AND RESPONSIBILITY

In consideration for being permitted to participate in the Activities, I voluntarily:

a) ASSUME ALL RISKS associated with participation in the Activities, even those arising from the negligence of Apex.

b) Accept full responsibility for my own safety and well-being (and that of any minor for whom I am signing) while engaged in the Activities.

c) Acknowledge that I possess the necessary education, familiarity, skill, physical ability, and mental ability to participate in the Activities.

d) Acknowledge that I am fully capable and physically able to participate in the Activities and to use the equipment provided without aid or assistance. If I encounter any equipment with which I am unfamiliar, I promise that I will seek assistance before attempting to use any such equipment with which I am unfamiliar.

e) Certify that I assume the risk of any medical or physical condition that I may have.

f) Acknowledge that I have read and understand the rules posted and/or displayed at the Location, including the Policies set forth at Section 5 of this Agreement, governing my participation in the Activities (the “Rules”). I certify that I have read and adequately explained the Rules to anyone listed in this Agreement who is unable to read the Rules. I understand that the posting and/or displaying of the Rules is not a guarantee that other guests will follow the Rules. I assume the risk of injury should myself or another guest fail to follow the rules.

g) Agree to use the facility and equipment as they are intended to be used, following all posted rules and regulations, verbal instructions, and safety precautions.

3. RELEASE AND WAIVER OF LIABILITY

The following Waiver of Liability and Agreement to Indemnity applies to any persons eighteen (18) years-old or older. I understand and agree that Apex will not pay for any costs or expenses incurred by me if I am injured unless such injury was caused by greater than ordinary negligence of Apex. In consideration and as condition of Apex allowing me to participate or view the Activities at the Location, I agree to hold harmless, release, waive, and discharge Apex of and from all claims, demands, causes of action, and legal liability, whether the same be known or unknown, anticipated or unanticipated, or due to Apex’s ordinary negligence that may arise against Apex. I further agree that, except in the event of Apex’s gross negligence or willful and wanton misconduct, I shall not bring any claims, demands, legal actions, and causes of action against Apex for any economic or non-economic losses due to bodily or mental injury, death, or property damage sustained by myself while participating in or viewing the Activities at the Location, or using any of the amenities or facilities at the Location, or the malfunctioning of any equipment or amenities at the Location, and/or slipping or falling at the Location or adjacent sidewalks and parking areas, or caused by anyone else using the facility, spectating at the facility, or as a guest at the facility.

Should Apex incur any attorney’s fees or costs to enforce this Waiver of Liability and Agreement to Indemnify, I agree to indemnify and hold Apex harmless for all such fees and costs. Additionally, I agree to defend, indemnify and hold Apex harmless against any claims arising out of the negligent or willful acts or omissions of me, any person that I am responsible for pursuant to this Agreement (including minors that accompany me and my guests).

4. WAIVER OF TRIAL AND AGREEMENT TO ARBITRATE

If I sustain bodily injury, including death, or sustain property damage and want to make a claim, and/or if there are any disputes concerning this Agreement, I hereby waive any right I have to a trial in a court of law before a judge and jury. I agree that any such claim for bodily injury, including death, unless such injury is to a person under the age of eighteen, or property damage shall be brought within one year of the date on which the event at the Location in which I sustained the bodily injury or property damage occurred, and will be determined by binding arbitration. I further agree that any dispute concerning the terms of this Agreement shall be brought within one year of the date of this Agreement and will be determined by binding arbitration. In either event, I agree that the binding arbitration will be before one arbitrator administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. I further agree that arbitration will take place solely in the State of New Jersey and that substantive law of New Jersy will apply. I acknowledge that if I want to file a claim against Apex I must file a demand with JAMS at www.jamsadr.com . I acknowledge that in the event that JAMS is unavailable to arbitrate the claim or dispute, the arbitration provision remains in full force and effect and I must bring such claim or dispute before an alternative arbitral forum.

5. MEMBER AND GUEST CONDUCT POLICIES

I agree to abide by the following policies while at the Location:

a)  Personal Responsibility : I am fully responsible for my own actions while on the premises. 

b)  Guest Responsibility : If I bring guests, I accept full responsibility and liability for their conduct, safety, and compliance with all rules and policies. I will remain with my guests at all times.

c)  No Unaccompanied Guests : I will not allow my guests to use the facility without my presence.

d)  No Alcohol or Drugs: I will not bring or consume alcoholic beverages on the premises. I will not use or access the Location if I am under the influence of alcoholic beverages or drugs.

e)  Minor Supervision : I will ensure that all minors (under 18 years of age) are accompanied and supervised by an adult, with responsibility to supervise the minor(s), at all times.

f)  Parental/Guardian Liability : As a parent or legal guardian of a minor, I accept full responsibility for the minor’s actions and any resulting damages or injuries.

g)  Clean-up : I will clean up after myself and my guests, leaving the facility in the same or better condition than when I arrived. If I use any fitness machinery, benches, or weights, I will clean up the equipment immediately after I use it by using the cleaning spray and paper towels provided by Apex.

h)  Property Damage : I accept responsibility for any damages caused by myself or my guests to the facility, equipment, furniture, or any other property.

i)  Door Security : I will not prop open doors or otherwise compromise the security of the facility. I understand that doing so may result in immediate revocation of my membership/access privileges and additional fees, without refund.

j)  Issue Reporting : I will immediately report any issues, damages, malfunctions, or safety concerns, including complaints of discrimination, harassment, and sexual harassment (by another member or by an Apex employee), to Apex management or any Apex employee at the premises.

k)  Noise and Disturbances : I will be respectful of other members/participants and neighboring businesses regarding noise levels and will not create disturbances.

l)  Footwear and Apparel : I will wear appropriate gym, training, or running shoes and appropriate workout apparel while using the facility. I understand that I must wear a shirt, pants/shorts, and gym, training, or running shoes while at the Location.

m) Access : I will log my entry each time I enter Apex Gyms – The Den using the electronic check-in at the entrance to the premises.

n) No Weapons : I understand that no weapons of any kind (as may be determined by Apex Gyms – The Den in its sole discretion), including but not limited to firearms, knives, clubs, pepper spray, electronic conduction devices, are allowed in any area of Apex Gyms – The Den at any time for any reason. 

6. ADDITIONAL TERMS

a)  Right to Revoke Access : Apex reserves the right to revoke membership or access privileges at any time for violation of these policies, at its sole discretion. In such an event, no refunds will be issued under any circumstances.

b)  Unforeseen Circumstances : I understand that access may be limited or unavailable due to acts of God, system malfunctions, equipment tampering, maintenance, or other unforeseen circumstances.

c)  Safety Equipment : I will use any recommended safety equipment when applicable.

d)  Medical Authorization : In the event of injury requiring medical attention, I authorize Apex to seek emergency medical assistance and/or treatment on my behalf. I understand I am responsible for all expenses related to such medical assistance and/or treatment. I hereby represent and affirm that I have adequate and appropriate insurance to provide coverage for such medical expenses.

e)  Severability : If any portion of this Waiver is found to be void or unenforceable, the remaining portions shall remain in full force and effect.

f)  Binding Effect : This Waiver shall be binding upon my heirs, assigns, personal representatives, and estate.

7. PHOTOGRAPHY, VIDEO, AND MEDIA CONSENT

Please initial ONE option below:

FULL CONSENT - OPTION A

I hereby grant Apex permission to photograph me and/or make video and audio recordings of me while at the Location, whether I am engaging in Activities or spectating, and grant Apex the irrevocable right and unrestricted permission to use, publish, display, distribute, modify, and disseminate photographs, videos, audio recordings, and other media (“Media”) of my entire person, including my face and body, taken during my visit(s) to the Location.

Additionally, if signing this Agreement on behalf of a minor, I hereby grant Apex permission to photograph and/or make video and audio recordings of the minor on whose behalf I am signing this Agreement while at the Location, whether the minor is engaging in Activities or spectating, and grant Apex the irrevocable right and unrestricted permission to use, publish, display, distribute, modify, and disseminate photographs, videos, audio recordings, and other media (“Media”) of the minor’s entire person, including their face and body, taken during their visit(s) to the Location.

PERMITTED USES:  I understand and agree that the Media may be used for:

• Social media platforms including, but not limited to, Facebook, Instagram, TikTok, Threads, Twitter/X, and any other current or future social media platforms used by Apex;

• Marketing and promotional materials (print, digital, website, advertisements, brochures, etc.);

• Educational materials and training purposes; and, 

• Company business purposes as deemed appropriate by the Apex.

I understand that Media posted on public platforms may be viewed, shared, downloaded, or otherwise used by third parties outside of the Apex’s control, and I release Apex from any liability arising from such third-party usage and actions.

SCOPE OF CONSENT AND WAIVER:

• Media will only be posted on official Apex social media pages and marketing channels.

• No compensation will be provided for the use of my likeness.

• I waive any right to inspect or approve of the finished Media or its use.

• I hereby waive, release, and discharge Apex from any and all claims, demands, and causes of action arising out of or in connection with the use of the Media, including but not limited to claims for invasion of privacy, appropriation of likeness, right of publicity, or defamation.

STORAGE AND ACCESS:

• All Media will be stored exclusively on Apex-owned devices and systems;

• Access to Media is limited to Apex employees and authorized personnel only; and, 

• Apex will implement reasonable security measures to protect stored Media.

DURATION:  This consent remains in effect indefinitely unless formally withdrawn as outlined below.

RIGHT TO WITHDRAW CONSENT:  I expressly reserve the right to withdraw this consent at any time by providing written notice to Apex via email at  apathak@apexgymsnj.com and / or via Certified Mail, return receipt requested, to Sumner Law LLP, 300 Carnegie Center Drive, Suite 150, Princeton, New Jersey 08540. Upon receipt of withdrawal notice:

• Apex will cease any new use of my Media within 30 days; and

• Apex will make reasonable efforts to remove existing Media from its controlled platforms, however Apex cannot control or remove Media that has been shared, reposted, or distributed by third parties prior to withdrawal.

 NO CONSENT - OPTION B

I do  NOT  consent to any use of Media captured at the Location by Apex of my person or the minor on whose behalf I am executing this Agreement.

8. ACKNOWLEDGMENT AND SIGNATURE

By signing below, I acknowledge that:

1. I have read this Conditional Access Agreement, Pre-Injury Waiver of Liability, Agreement to Indemnity, Waiver of Trial, and Agreement to Arbitrate in its entirety.

2. I fully understand its terms.

3. I understand that I am giving up substantial rights, including my right to sue Apex in a court of law.

4. I acknowledge that I am signing the agreement freely and voluntarily, without any inducement or assurance.

5. I affirm that I am mentally competent and am not under the influence of alcohol, drugs, or any other substances that may impair my judgment or understanding of this document.

6. I intend my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.

7. If signing electronically, I agree that my electronic signature shall have the same legal effect as a handwritten signature.

This Agreement remains in effect for all current and future visits to the Location until expressly revoked in writing and such revocation is confirmed as received by Apex management.

Initials for verification of the above choice:  

FOR PARTICIPANTS OF MINORITY AGE (UNDER 18)

This is to certify that I, as parent/guardian with legal responsibility for this participant, do consent and agree to their release as provided above of Apex, and for myself, my heirs, assigns, and next of kin, I release and agree to indemnify Apex from any and all liabilities incident to my minor child’s involvement, participation in, or viewing of the Activities as provided above, EVEN IF ARISING FROM THE NEGLIGENCE OF Apex, to the fullest extent permitted by law, including injuries to third parties or property damage caused by this minor participant.

Participant and/or Parent/Guardian Signature:

Date: ____________

Print Name: {name}

Relationship to Minor (if applicable): _______________________________

Minor’s Name: {name}