ANNA SCHOENER ONLINE FITNESS TERMS AND CONDITIONS
1. Services. Coach shall provide Online Fitness Coaching services to client during the term of this Agreement (the “Services”). Within 24 hours of execution of this agreement, Client will receive an invitation via their training application (the “App”). Via Client’s App, Coach shall provide four workouts per week to Client. Coach has no obligation to provide direction or coaching services to client outside of those contemplated herein.
2. Compensation. Client shall pay Coach Seventy-Five dollars ($75.00) per month during the term of this agreement, beginning with one payment of $75.00 upon signing this agreement (the “Initial Payment”). The Initial Payment shall cover the first month of the Term of this Agreement. Thereafter, Client shall pay Coach $75 in advance of each month during the Term, which payment shall be due on the same day of the month as the day on which Client initially executed the agreement, or on the nearest day of the month in the event that this agreement is signed after the 28th day of any given month.
Payment made from Client to Coach shall be non-refundable, regardless of how many workouts Client actually performs or attempts.
3. Term. This Agreement and the Parties' obligations hereunder shall commence on the date first above written, and shall terminate one month after it commences (the “Initial Term”), with the exception that this Agreement shall be renewed automatically and in its entirety for an additional month upon payment by Client to Coach for any and each additional month of service. The period of this Agreement following the Initial Term shall be referred to as the Extended Term.
4. Expenses. Expenses will not be charged for Coach’s performance of these Services, with the exception that Coach may charge client for reasonable expenses if Coach notifies Client of said expenses in advance, and Client approves of said expenses. Coach does not anticipate charging Client for Expenses under this Agreement. Client shall furnish, at his or her own expense, all equipment, supplies, and other items necessary for Client to participate in the Services. Failure by Client to furnish necessary equipment, supplies, and other items shall not be considered breach of this Agreement.
5. Independent Contractor. Coach, in the performance of this Agreement, shall be and act as an independent contractor. Coach understands and agrees that it and all of its employees shall not be considered officers, employees, agents, partners, or joint venturers of Client, and are not entitled to benefits of any kind or nature normally provided employees. In the performance of the Services herein contemplated, Coach shall have the sole authority for controlling and directing the performance of the details of the Services.
6. Termination and Breach.
6.1. Client may, at any time, with or without reason, terminate this Agreement by providing Coach written notice of Client’s intent to terminate. Notice shall be sent via email to annaschoenerco@gmail.com, and this agreement shall terminate within 24 hours of Coach’s receipt of Client’s emailed notice of termination. In no event shall Client receive a refund for payment provided, even if Client has not yet made use of every workout which Client has provided upfront payment for.
6.2. Coach may, upon two days' notice, with or without reason, terminate this Agreement by providing Client with written notice of Coach’s intention to terminate. Notice shall be deemed given when received by Client or no later than three (3) days after the day notice is sent, whichever is sooner. Notice shall be deemed given when received by Client or no later than three (3) calendar days after the day notice is sent, whichever is sooner.
6.3. If Client fails to timely provide payment to Coach pursuant to Section 2 of this Agreement, Client will be considered to have breached their obligations under this Agreement, and this agreement shall immediately terminate. In the event Client breaches this Agreement, Coach shall not be obligated to provide any further services to Client, including services Coach was obligated to provide but had not yet provided prior to Client’s breach.
Coach shall not be considered to be in breach of this Agreement unless Coach fails to provide four workouts per week to Client for three consecutive weeks. Any dissatisfaction on the part of Client as to the contents of workouts provided to Client by Coach shall not be considered a breach of this Agreement by Coach, nor shall such dissatisfaction be considered grounds for termination of this Agreement (although Client may, pursuant to Section 6.1, terminate this Agreement at any time). In the event of a breach of this agreement by Coach, Coach shall reimburse Client for any Services Client paid for but did not receive, at the rate of $3 per workout. In no event shall Client’s inability to access the App, whether or not due to technological issues or a lack of support from the App’s publisher, be deemed a breach of this Agreement by Coach.
7. Indemnification and Liability. To the furthest extent permitted by California law, Client shall indemnify, and hold harmless Coach, as well as Coach’s agents, representatives, officers, consultants, employees, trustees, and volunteers (“the Indemnified Parties”) from any and all claims, arising out of, pertaining to or relating to the Services. Client shall, to the fullest extent permitted by California law, defend the Indemnified Parties at Client’s own expense, including attorneys' fees and costs, from any and all claims arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Client. Coach shall have the right to accept or reject any legal representation that Client proposes to defend the indemnified parties. By executing this agreement, Client hereby acknowledges and accepts the Waiver of Liability attached to this agreement and incorporated herein by reference.
IN NO EVENT SHALL COACH BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY DAMAGES (INCLUDING CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES) ARISING OUT OF OR PERTAINING TO THE SERVICES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COACH OR CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL COACH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COACH FOR ONE SERIES OF FOUR SESSIONS UNDER THIS AGREEMENT.
8. Assignment. The obligations of the either Party pursuant to this Agreement shall not be assigned without the other Party’s consent.
9. Certificates/Permits/Licenses/Registration. Coach shall ensure that Coach retains valid certificates, permits, registration and licenses required for the performance of services under this Agreement.
10. Notice. Any notice required or permitted to be given under this Agreement shall be deemed to have been given in writing if sent by email or text message.
11. Integration/Entire Agreement of Parties. This Agreement constitutes the entire agreement between the Parties and supersedes all prior discussions, negotiations, and agreements, whether oral or written. This Agreement may be amended or modified only by a written instrument executed by both Parties.
12. California Law. This Agreement shall be governed by and the rights, duties and obligations of
the Parties shall be determined and enforced in accordance with the laws of the State of California.
13. Waiver. The waiver by either party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, condition, or any subsequent breach of the same or any other term, covenant, or condition herein contained.
14. Severability. If any term, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force and effect, and shall not be affected, impaired or invalidated in any way.
15. Calculation of Time. For the purposes of this Agreement, “days” refers to calendar days unless otherwise specified.
16. Signature Authority. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each Party has been properly authority and empowered to enter into this Agreement.
17. Counterparts. This Agreement and all amendments and supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document.
ANNA SCHOENER LLC
HOLD HARMLESS, RELEASE, AND WAIVER OF LIABILITY
Anna Schoener and Anna Schoener LLC provides online nutrition coaching and online fitness and personal training services (the “Services”). In consideration of making use of these Services, the undersigned acknowledges and agrees as follows:
1. I understand, acknowledge, and agree that the workout program my trainer develops with me may entail difficult or strenuous physical activity. I understand, acknowledge, and agree that while these activities are intended to promote my health, physical activity of this nature presents a risk of injury or serious bodily harm. I further understand, acknowledge, and agree that any exercise or physical activity bears an element of risk, including that of physical injury.
2. I understand, acknowledge, and agree that exercise and physical activity must be performed correctly and in the proper form in order to reduce the risk of injury. I further understand, acknowledge, and agree that it is my obligation to ensure that I am using exercise forms which are safe for my body, through such methods as viewing video instructions on proper form provided or linked in workout information. I understand, acknowledge, and agree that Anna Schoener and Anna Schoener LLC has no obligation to provide links to videos on proper form.
3. I understand, acknowledge, and agree that it is my obligation to ensure I understand any exercise I undertake, and to ask whatever questions are necessary to ensure that I am using exercise forms which are safe for my body.
4. I understand, acknowledge, and agree that no one knows my body better than I do, and that I have an obligation to notify my trainer and/or nutrition coach if there are exercises, movements, dietary decisions, or other aspects of the training and/or nutrition program that give me concern.
5. I understand, acknowledge, and agree that physical activity requires a safe, uncluttered physical space, as well as safe equipment. I understand, acknowledge, and agree that it is my obligation to ensure I am working out in a safe physical location with the proper equipment. I further understand, acknowledge, and agree that Anna Schoener and Anna Schoener LLC do not have any degree of control over the space where I will conduct exercise and physical activity in accordance with my training program.
6. I understand, acknowledge and agree that a healthy lifestyle requires a balanced intake of calories, proteins, vitamins, and other nutrients, and that this balance may be different for individual people. I further understand, acknowledge, and agree that I have an obligation to notify my trainer and/or nutrition coach if I have any reason to believe that I am not getting enough calories, proteins, vitamins, or other nutrients.
7. I understand, acknowledge and agree that Anna Schoener and Anna Schoener LLC are not medical professionals, and that any guidance I receive connected with the Services is not a replacement for medical diagnoses, advice, or treatment.
8. I understand, acknowledge, and agree that some services offered by Anna Schoener and Anna Schoener LLC are in the form of exercises, instructions, or dietary restrictions intended to be performed or followed by me on my own time, without supervision from Anna Schoener, Anna Schoener LLC, or any agents or employees thereof. I further understand, acknowledge, and agree that Anna Schoener and Anna Schoener LLC shall bear no liability for the timing, location, or circumstances surrounding my performance of such exercises or instructions, including any and all acts or exercises I perform, fail to perform, or perform incorrectly in connection with the Services.
9. I understand, acknowledge, and agree that use of the Services carries risks. I have independently evaluated and reviewed the risks associated with use of the Services, and have determined to participate in activities associated with the Services.
10. I understand, acknowledge, and agree that Anna Schoener and Anna Schoener LLC cannot eliminate the risk associated with use of the Services, and by signing this HOLD HARMLESS, RELEASE AND WAIVER OF LIABILITY AGREEMENT, I fully and knowingly agree to ASSUME ALL RISKS associated with participating in any and all activities associated with the Services, including any risk of illness, bodily injury, permanent disability and/or death.
11. I hereby voluntarily and knowingly agree to RELEASE, WAIVE, DISCHARGE and COVENANT NOT TO SUE Anna Schoener, or Anna Schoener LLC, including its members, officers, directors, employees, agents, and/or volunteers, (hereinafter “Releasees”) for any and all losses or damages resulting from illness, bodily injury, temporary or permanent disability, and/or death, whether caused by negligence of Releasees or which might occur as a result of my participation in any and all activities associated with the Services. To the maximum extent allowed by law, I hereby agree to INDEMNIFY AND HOLD HARMLESS the Anna Schoener and Anna Schoener LLC from and against any and all claims, demands, suits, judgments, losses or expenses of any nature whatsoever (including, without limitation, attorneys’ fees, costs and disbursements, whether of in-house or outside counsel and whether or not an action is brought, on appeal or otherwise), arising from or out of, or relating to, participating in, any and all activities associated with the Services.
12. I FULLY UNDERSTAND THAT BY SIGNING THIS AGREEMENT AND THE RELEASE CONTAINED HEREIN, I AM WAIVING ANY AND ALL CLAIMS, OF ANY KIND ARISING OUT OF OR ATTRIBUTABLE TO THE SERVICES CONTEMPLATED IN THE ONLINE COACHING AGREEMENT, INCLUDING THOSE CLAIMS THAT MAY BE UNKNOWN TO ME OR WHICH I DO NOT EXPECT AT THIS TIME. WITH THE INTENTION OF WAIVING ALL UNKNOWN AND UNSUSPECTED CLAIMS, I, FOR MYSELG AND MY HEIRS, REPRESENTATIVES, ASSIGNS, SUCCESSORS AND ADMINISTRATORS, HEREBY EXPRESSLY WAIVE ALL RIGHTS, BENEFITS AND PROTECTIONS THAT I MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known, by him or her, would have materially affected his or her settlement with the debtor or released party.”
13. I acknowledge, understand, and agree that this HOLD HARMLESS, RELEASE AND WAIVER OF LIABILITY AGREEMENT is to be binding upon my spouse, children, heirs and assigns, and that the provisions contained herein shall be construed, interpreted and controlled according to the laws of the State of California.
I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, AND I ACKNOWLEDGE THAT I FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IF FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.