Terms of Services
AWARENESS OF RISKS
– I acknowledge that the instruction offered by Modo Yoga San Diego* is limited to that of instruction in basic yoga and fitness training.
– I acknowledge that there are risks associated with participation in the activities and programs offered or sponsored by Modo Yoga San Diego. I have informed myself and understand the risks associated with my participation in these activities and programs and (where applicable) my use of the facilities, including the risk of personal injury, and I freely accept these risks.
– I understand that I am free to withdraw from or reduce my participation in the activities and programs offered or sponsored by Modo Yoga San Diego at any time.
– I am not aware of any medical condition that would affect my ability to participate in the activities and programs offered or sponsored by Modo Yoga San Diego. If I have any concerns about my medical condition. I will consult with my physician before participating in the activities and programs offered or sponsored by Modo Yoga San Diego.
RELEASE AND WAIVER
I HEREBY WAIVE AND RELEASE, indemnify, hold harmless and forever discharge The Department of Hot Yoga and Sweaty Affairs, LLC, a California limited liability company doing business as Modo Yoga San Diego (“the Company”) and its agents, employees, directors, affiliates, successors and assigns, of and from any and all claims, demands, contracts, expenses, causes of action, lawsuits, damages and liabilities of every kind and nature, whether known or unknown, in law or equity, that Member has had or may have, arising from or in any way related to Member’s participation in any of the events or activities conducted by or on the premises of or for the benefit of the Company, pursuant to the terms of this Acknowledgement and Assumption of Risks and Release of Liability Agreement (the “Agreement”).
Member hereby states that he/she is at least 18 years of age, or, if he/she is 16 or 17 years of age, that he/she has the consent of a parent or legal guardian to become a Member and to agree to the terms of this Agreement.
Member acknowledges that any activities Member participates in can be an extreme test of Member’s physical and mental limits and carry the potential for severe physical injury. Member hereby assumes the risks of participating in any and all of the Company’s activities and functions. Member certifies that Member is able to participate in the Company’s programs and has not been advised otherwise by a qualified medical professional. Member understands that the information and treatments obtained by participating in the Company’s events and activities do not constitute medical treatment, diagnosis or advice. Member understands that Member should seek the advice of a physician or other qualified health provider prior to becoming a Member and/or if Member has questions about a medical condition. Member certifies that in consideration of becoming a Member of the Company’s program, Member hereby takes the following action for itself, its executors, administrators, heirs, next of kin, successors and assigns:
Member waives, releases and discharges the Company from any and all claims or liability for any loss, damage, theft or injury of any kind which arise out of or are related to Member’s participation in, or its traveling two and from the Company’s facilities; including but not limited to: 1) any known and unknown, foreseen and unforeseen bodily and personal injury, 2) loss of life; and 3) any attorney’s fees, costs, expenses, or charges sustained, directly or indirectly, or alleged to have been sustained, or in any fashion, arising from, in connection with, or resulting from its participation in the Company’s programs or activities, even if due to the negligence of the Company or any employee, volunteer, director, officer, Member, owner, or agent thereof.
Member will indemnify and hold harmless the Company and any and all employees, volunteers, directors, officers, Members, owners and agents thereof from any claim, demand and/or cause of action of any nature whatsoever, related to Member’s participation in the Company’s programs and activities, including but not limited to any exposure to SARS-CoV-2, also known as COVID-19, or other transmissible illnesses sustained, directly or indirectly, or alleged to have been sustained, or in any fashion, arising from, in connection with, or resulting from its participation in the Services, even if due to the negligence of the Company, including but not limited to any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of such actions.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Member hereby irrevocably and perpetually grants to the Company the unrestricted right, power and authority to reproduce, publish, print, distribute, transmit, copy, or otherwise exploit, in whole or in part, in any medium known or later discovered, including but not limited to by means of digital transmission through the Internet, the Member’s name, image, likeness, and biographical material, including but not limited to all photographs, images, videos, or audio recordings taken of the Member at any time by any owner, employee, or contractor of the Company (all of the above are collectively defined herein as the “Likenesses”).
The Member acknowledges and agrees that the Company may use and exploit the Likenesses in any manner, without restriction of any kind, and without the necessity of acknowledging the Member’s identity, or by identifying the Member other than with the Member’s real name.
The Member hereby releases and holds the Company harmless from and against all claims, suits, threats, demands, liabilities, actions and causes of action, in any way related to Likenesses or the Company’s use and exploitation of Likenesses, including but not limited to actions based upon invasion of privacy, violation of moral rights, defamation, false light, and all other potential legal theories of any nature or type, under and state, federal or local common law, statutory law, rule, regulation or court order, whether now known and available or whether later developed, discovered or created.
Member agrees that Member, Member’s family members, and any guests and invitees shall be bound by this agreement and the Company’s policies, rules, and guidelines. Member agrees that the Company’s policies, rules, and guidelines may be revised, supplemented, or amended in the sole and absolute discretion of the Company, and that any changes shall become immediately effective upon posting in the Company’s facilities.
Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the State of California and the County of San Diego. Member has read this Agreement, and agrees that no oral representations, statements, or inducements apart from this agreement have been made. The Company makes no warranties or representations, express or implied, other than those set forth herein. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
This Agreement shall be construed in accordance with the laws of the State of California, County of San Diego without regard to the conflicts of law provisions thereof. Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in San Diego, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of San Diego California, with the following exceptions if in conflict: (a) one arbitrator shall be chosen by the Company; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice (pursuant to the Arbitrator’s rules and regulations) of the proceeding has been given to such party. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding brining an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole, (f) the term “days” refers to U.S. calendar days and not business days, unless expressly noted and (g) any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organizations, governments, states, foundations and trusts (in each case whether or not having separate legal personality). Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party, and that ambiguities shall not be interpreted against the drafting party.
All notices to the Company shall be mailed (certified or registered, returned receipt requested) to The Department of Hot Yoga and Sweaty Affairs, LLC, 3091 Clairemont Drive, San Diego, California 92117. If any part of this agreement is held by a court of competent jurisdiction to be void and unenforceable, the remainder of the terms and provisions of this Agreement shall remain in full force and effect and shall not be affected.
* Modo Yoga San Diego means The Department of Hot Yoga and Sweaty Affairs, LLC., its officers, directors, shareholders, employees, contractors and instructors.