TERMS OF SERVICE (“Terms”)
These terms are applicable to all paying participants of the below referenced Fitness Webcasts or Personal Training Sessions (collectively, the “Activities”) provided by Joanna Claire MacAlister (“Jo”) doing business as JO’S WELLNESS GYM. For purposes of certainty, “you/your” refers to you as the paying participant of Jo’s Activities and “we/us/our” refers to Jo and any of her then-current employees, contractors, volunteers or other representatives of Jo’s Wellness Gym.
WHEREAS Jo provides fitness workout and stretch classes via live or pre-recorded webcasts, which are provided over Zoom’s video conferencing software (“Fitness Webcasts”);
WHEREAS Jo also provides private in-person fitness and stretch training sessions (“Personal Training Sessions”) at a participant’s place of residence;
WHEREAS participants are provided access to the Activities upon advanced payment of a monthly Subscription Fee in the case of the Fitness Webcasts or Jo’s invoice in the case of Personal Training Sessions;
If a participant has paid for the Activities, the following terms apply without exception.
Acceptance of Terms.
1.1 These Terms sets forth legally binding terms for the provision of our Activities and your acceptance of which forms your agreement with us. By submitting our intake questionnaire over the Jo’s Wellness Gym’s website (the “Website”) and paying for or otherwise using the Activities, you agree to be bound by these Terms and consent to this agreement electronically. If you do not accept these Terms, you should avoid or immediately discontinue use of the Activities.
1.2 We may modify these Terms from time to time, and such modification shall be effective upon its posting on our Website. You agree to be bound by any modification to the Terms when you use the Activities after any such modification is posted. It is therefore important that you review these Terms regularly.
1.3 We reserve the right to suspend or terminate your account with us for your breach of any of the Terms hereof. In the event of your suspension or termination of the Activities, any provision herein providing for our Disclaimer, Limitation of Liability, Indemnification, or Arbitration shall survive.
Your Representations and Warranties.
2.1 You represent that you are at least the legal age of nineteen (19) to form a binding contract and are not a person barred from receiving the Activities under Canadian law. If you are not 19 years of age or older, your parent or legal guardian must confirm that they have read, understood and agree to all of the Terms, conditions and waivers contained in this agreement. All minor participants will be asked to execute a Minor’s Authorization Form provided by Jo and executed by at least one legal guardian of such participant.
2.2 You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by our intake questionnaire provided on our Website (the “Registration Data”) and (b) promptly update any of your Registration Data with us to keep it true, accurate, current and complete.
2.3 If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate the Activities to you and to refuse any and all current or future use of the Activities at any time.
2.4 You represent and warrant that you are physically fit and have no medical condition which would prevent you from participating in the Activities. It is your responsibility to consult with a physician prior to and, if necessary, during your participation in the Activities.
Fitness Webcasts Subscription
3.1 Live Webcasts. For a recurring monthly subscription fee (“Subscription Fee”) in the amount posted on our Website, participants are granted access to Jo’s regularly streamed Fitness Webcasts provided over Zoom Video Conferencing Software (“Zoom”). Fitness Webcasts are streamed at set times and dates throughout the calendar week and are available on an unlimited basis to all participants that pay the full Subscription Fee in advance. Each Fitness Webcast is forty (40) minutes long. Our most-current streaming schedule is provided on our Website. You agree that we may add, remove or change the date and time of any regularly scheduled Fitness Webcasts without your permission at any time. You agree to the Informed Consent, Indemnity, Assumption of Risk and Release of Liability Waiver Terms of paragraph 7 before proceeding with any Fitness Webcasts.
3.2 Replay of Webcasts. All Fitness Webcasts are streamed live and recorded. Pre-recorded Fitness Webcasts are available for unlimited viewing for up to seven (7) additional calendar days from the date of the original webcast. Your access to any pre-recorded Fitness Webcasts during this seven (7) day period is automatically included in your subscription to the Fitness Webcasts.
3.3 Automatic Monthly Renewal. When paying the Subscription Fee, you must provide us with a credit card to charge you or otherwise submit an e-transfer to joswellnessgym@gmail.com, no later than the first (1st) of each month you wish to access the Fitness Webcasts. On the first (1st) of every month, your subscription will automatically renew and we will automatically charge you or request payment from you via your preferred payment method. If you wish to cancel your subscription at any time, you must give us advanced notice of your desire to terminate no later than ten (10) calendar days before the first (1st) of the following month. Failing to provide us with advanced notice of your desire to terminate within the ten (10) days will result in your termination of the subscription in the month that follows the then-next subscription period.
3.4 Zoom Video Conferencing Software. Our Fitness Webcasts are provided over Zoom and requires your download of the Zoom software on your device. By accessing our live streaming Fitness Webcasts and therefore downloading Zoom on your device(s), you agree to Zoom’s privacy policy regarding their use and disclosure of your personal information. We are in no way responsible for Zoom, or any other third party’s, use and disclosure of your personal information. You understand that you have no obligation to turn on your video camera while participating in the Fitness Webcasts and that deciding to do so is entirely your choice.
3.5 License to View. By paying the Subscription Fee, you are granted a license to view the Fitness Webcasts both in live and pre-recorded form. Under no circumstances are you permitted to record, redistribute, retransmit or make derivative works using the Fitness Webcasts for any reason. We grant you permission to view the Fitness Webcasts for the sole purpose of your personal entertainment.
3.6 Code of Conduct. When participating in the Fitness Webcasts, you agree not to:
a. Use offensive or vulgar language with other participants while using Zoom;
b. Depict any photos or videos which may be offensive to other participants;
c. Mis-represent your real identity, act deceptively or impersonate any other person;
d. Engage in any harassing behavior;
e. Distribute unsolicited material or content;
f. Collect personal information of any other participants, which may be revealed in the live stream or pre-recorded Fitness Webcasts;
g. Engage in unlawful activities; or
h. Cause or encourage others to do any of the above
Personal Training Sessions
4.1 Payment. Personal Training Sessions instructed by Jo are charged per session or per package of 10 sessions at the rates currently posted on our Website. Any training sessions purchased as a package must be used within six (6) weeks of the first Personal Training Session scheduled with Jo, with exceptions made in the event of your illness or other extenuating circumstances. You will always be invoiced in advance of your first scheduled Personal Training Session and you must pay the invoice in full within two (2) weeks of your first (1st) booked session with Jo by way of an e-transfer to joswellnessgym@gmail.com or by credit card.
4.2 Sessions. Participants in Jo’s Personal Training Sessions may be asked to complete any of the following: physical fitness tests, aerobics, cardiovascular training, strength training and other fitness and muscle conditioning or stretching. Personal Training Sessions are each one (1) hour long. Jo will create a training program catered to each client’s fitness level and experience. You agree to the Informed Consent, Indemnity, Assumption of Risk and Release of Liability Waiver Terms of paragraph 7 before proceeding with any Personal Training Session.
4.3 Cancellation. You agree to notify us by email to joswellnessgym@gmail.com no less than twenty-four (24) hours before the start of your scheduled Personal Training Session of your request to cancel. Failure to provide twenty-four (24) hour notice may result in you being charged the full rate for the cancelled or missed Personal Training Session. In the event of our cancellation of any scheduled Personal Training Session with you, we will immediately reschedule the session to an alternate time that works with you. If an alternate time is not available, we will offer you a full refund for the cancelled session.
DISCLAIMER
YOUR PARTICIPATION IN THE ACTIVITIES OR ANY FITNESS PROGRAM OR INSTRUCTION PROVIDED BY US IS AT YOUR OWN RISK. OUR FITNESS WEBCASTS AND PERSONAL TRAINING SESSIONS ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Without limiting the aforementioned disclaimer, Jo’s Wellness Gym makes no guarantees, representations or warranties concerning:
The availability of the Fitness Webcasts on any particular device, operating system or internet browser;
The availability of the Fitness Webcasts uninterrupted, error-free or displayed at any particular resolution or viewing quality;
The content of our instruction both via the Fitness Webcasts or in a Personal Training Session for any audience and for any particular purpose;
The availability of the Activities we offer in any particular jurisdiction;
The availability of display or live streaming support for any particular aspect of the Fitness Webcasts on your device;
The content of any communications made between participants of the Fitness Webcasts or any interactions or transactions that may take place on or through the Zoom video conferencing platform.
6. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, JO’S WELLNESS GYM, ITS EMPLOYEES, CONTRACTORS, VOLUNTEERS, AGENTS OR INSURANCE CARRIERS SHALL NOT BE LIABLE FOR (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE DATA OR OTHER INTANGIBLE LOSSES; (II) DAMAGES RELATING TO ANY DISPUTE BETWEEN YOU AND ANOTHER USER OR PARTICIPANT IN THE ACTIVITIES; OR (III) DAMAGES EXCEEDING THE AMOUNTS PAID BY YOU TO JO’S WELLNESS GYM OVER THE TWELVE (12) MONTHS PRECEDING THE FILING OF YOUR CLAIM.
These limitations apply to all claims of any nature, whether based on warranty, contract, tort or other legal theory, whether or not Jo’s Wellness Gym has been informed of the possibility of such injury or damage and whether a remedy is found to be insufficient to compensate the party suffering a loss.
THE FOLLOWING TERMS REQUIRE YOUR COMPLETE UNDERSTANDING AS IT ENTAILS YOUR WAIVER OF CERTAIN LEGAL RIGHTS AND YOUR ACKNOWLEDGMENT OF THE RISKS INVOLVED WHEN PARTICIPATING IN THE ACTIVITIES.
7. INFORMED CONSENT, INDEMNITY, ASSUMPTION OF RISK, RELEASE OF LIABILITY WAIVER
7.1 Waiver and Release of Liability. In consideration of participating in the Activities, you, your heirs, personal representatives or assigns hereby release, waive, discharge and covenant not to sue Jo, her employees, contractors, volunteers, agents or insurance carriers (“connected parties”) for any and all legal claims arising from your participation in any of the Activities or you following any recommendations provided by Jo or her connected parties, including dietary recommendations or suggestions and any legal claim based on negligent act(s) or omission(s).
For purposes of greatest certainty, this waiver applies to i) Personal Injury (including death) from accidents or illnesses arising directly or indirectly from your participation in the Activities or any other actions that we instruct and /or suggest to you, including your performance of the exercises and stretches in your own time; and to ii) any and all claims resulting from the damage to, loss of, or theft of your property.
7.2 Indemnity. You agree to hold harmless and indemnify Jo and her connected parties from any liability and all legal claims, demands, damages, losses and costs (whether initiated by you or by a third party) and to reimburse the aforementioned parties for any expenses incurred, including any court costs and lawyer’s fees, which are connected with Jo and her connected parties’ defence of a legal claim made by you or a third party arising from your unauthorized use of the Fitness Webcasts or a Personal Training Session; your breach of these Terms or violation of any law or third-party right; any content that you upload or submit to us; or your participation in the Activities.
7.3 Assumption of Risks. Fitness and conditioning activities, by their very nature, carry with them inherent risks and dangers regardless of the care a fitness instructor or personal trainer takes to prevent injuries. The Activities offered by Jo include, but are not limited to, weight lifting, cardiovascular training and aerobics, stretching, and other conditioning activities. Some of the instructed activities involve strenuous exertions of strength using various muscle groups, some involve quick movements requiring speed and swift changes of direction, and others involve sustained physical exertion that places a certain amount of stress on the cardiovascular system. The specific risks vary from one activity to another, but in each activity the risks range from 1) occasionally occurring minor injuries such as scratches, bruises, muscle strains, and sprains to 2) rarely occurring major injuries such as ligament damage, broken bones, joint or back injuries, concussions, and heart attacks to 3) the very rare occurrence of catastrophic injuries including paralysis and death.
7.4 INFORMED CONSENT AND ACKNOWLEDGEMENT. BEFORE PARTICIPATING IN ANY OF THE ACTIVITIES, YOU AGREE THAT YOU HAVE READ THE PREVIOUS PARAGRAPHS THOROUGHLY, THAT YOU UNDERSTAND THE NATURE AND PHYSICAL DEMANDS OF THE ACTIVITIES INVOLVED (RELATIVE TO YOUR PHYSICAL CONDITION AND SKILL LEVEL), AND THAT YOU APPRECIATE THE RISKS OF INCURRING INJURIES OR PROPERTY DAMAGE FROM YOUR PARTICIPATION. YOU AGREE THAT YOUR PARTICIPATION IS VOLUNTARY AND THAT YOU KNOWINGLY, WILLINGLY AND EXPRESSLY WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST JO AND HER CONNECTED PARTIES AND ASSUME ALL RISKS ASSOCIATED WITH THE ACTIVITIES.
8. Dispute Resolution and Legal Fees.
All disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated therewith or derived therefrom, shall first be resolved by way of a mediation. If a resolution cannot be reached in mediation, the dispute shall be referred to and finally resolved by binding arbitration administered by the British Columbia International Commercial Arbitration Centre (BCICAC) pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada.
9. Legal and Binding Contract. Your agreement to these Terms forms a legal and binding contract between you and Jo.
10 . Severability. If any provision of this agreement is be held to be invalid or unenforceable for any reason, including the terms of paragraph 7 (Informed Consent, Indemnity, Assumption of Risk and Release of Liability Waiver), the remaining provisions shall continue to be valid and enforceable. If the Court finds that any provision of this agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
11. Waiver. The failure of either party to enforce any provision of this agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement. If any provision of this agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to drafter’s intentions as reflected in the provision, and the other provisions of this agreement remain in full force and effect.
12. Applicable Law. This agreement shall be governed and construed in accordance with the laws of British Columbia without giving effect to any conflicts of laws provisions.
YOU ACKNOWLEDGE HAVING READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT AND THAT YOU ARE SATISFIED WITH THE TERMS CONTAINED. YOU CONSENT TO THESE TERMS ELECTRONICALLY, AS DEMONSTRATED BY YOUR SUBMISSION OF THE INTAKE QUESTIONNAIRE OVER THE WEBSITE AND PAYING FOR OR OTHERWISE PARTICIPATING IN ANY OF THE ACTIVITIES.